Bungee Jumping off the Moral Highground: The Ethics of Espionage in the Modern Age

Author:

Major Tony Pfaff

Foreign Area Officer

United States Army

Address:

US Military Observer Group

US Military Observer Detachment-Kuwait

APO AE 09889

(212) 963-3076 ext 6814/6953

(this phone number is the UN Switchboard in

 NY which connects to Kuwait for free)

tpfaff@aol.com

Introduction

A fundamental tenet of American military training inculcated in our cadets from the various commissioning sources is the credo that we as serving officers are not allowed to lie, cheat, or steal or tolerate those who do. Nonetheless, graduates of that and similar institutions, have tolerated the presence of the intelligence community and the moral boundaries which it is perceived as crossing. In fact, not only have they tolerated it, they have valued the courage the members of the intelligence community have shown and the contributions they have made to ensuring national security in defense of American interests at home and abroad. But, since September 11^th the boundaries of that community have been questioned and the effectiveness of their methods reassessed as the world comes to terms with the largest act of terrorism in modern history.

But not only has the effectiveness of the agencies been questioned, but also the ethics as well. There is a great deal of dissatisfaction within the various intelligence agencies, as well as the public it serves, that they have been restrained by well intentioned, but excessive policies. These policies, as the arguments go, may have prevented these agencies from doing much harm, but also, in light of recent events, prevented them from doing much good as well. Thus, these restraints are also being closely scrutinized. There is much talk that this it is now time to take the gloves off. 

Thus it is imperative as these agencies review their methods that they review their ethics as well. It makes no sense, in defense of justice to do things that are unjust. When agents of a government which professes to champion justice ignore its demands they undermine the very enterprise they claim to undertake. Such bungee jumping off the moral highground is nonsensical and self-defeating and needs to be resisted. 

The purpose of this paper is to consider the ethical demands of the intelligence profession and then consider what it means to serve ethically as an intelligence professional. In order to limit its scope, I will focus exclusively on intelligence gathering as opposed to other elements of espionage such as assassination and political manipulation. There has been a great deal more written about the latter than the former and since gathering intelligence is a pre-condition for many of these other activities, it makes sense to start there.

 Like military professionals, intelligence professionals must sometimes do things that are morally prohibited outside the professional context. But just as there are moral boundaries on the kinds of activities military professionals are morally permitted to engage in, so to are there boundaries for intelligence professionals. Military professionals sometimes must kill people and destroy property to accomplish their mission. Intelligence professionals must sometimes deceive and harm in order to accomplish theirs. The boundary for these activities lies in their purpose. In defending human life it may be necessary to take it, but it makes no sense to devalue it. Thus intelligence professionals, like military ones, must always take care not to act in such a way that disregards the notion that individual human life and dignity are valuable for their own sake and that people should be treated as an end in themselves and not merely a means.

The Ethical Challenges of Intelligence Gathering:

Is tolerance of the intelligence community – one that is perceived as crossing the moral barriers that constrain other military professionals—a case of hypocrisy? Some would categorically argue that it is not. Nevertheless it is worth noting that in recent years evidence of disquiet within and outside the profession has been apparent particularly in relation to major debates regarding human rights discourse in a global age. In the wake of the ending of the Cold War the value of such an approach to national security was reassessed and the intelligence community feared its days were numbered. The community was further undermined by the demands of the New World Order and economic primacy of US interests rather than the ideological battles of the past.

In addition, many intelligence agents have quit the profession because of moral objections they have not only to the way they were required to carry out their duties as a professional, but also sometimes to the profession itself. Not only have they felt that the deceiving and harming they have done in service to their country has corrupted their integrity, they feel this corruption is exacerbated by the “cloudy moral purpose” their agency serves.[1]

But taking the “high road” has its own share of difficulties. In 1929, an outraged Secretary of State Henry Stimson closed down the US State Department’s only crypt-analysis organization (known as the Black Chamber) which had provided invaluable service over the previous ten years, deciphering thousands of messages from dozens of nations. In his view, “gentleman do not read each other’s mail.”[2]  And while this action did not end American crypt-analysis efforts, it did much to cause them to become poorly organized and operated. One of the results of this was an otherwise avoidable surprise attack on Pearl Harbor, which claimed a number of lives which otherwise may not have been lost. In fact, the irony of the situation was that the same Henry Stimson, who had by then become Secretary of War, found himself ordering the reorganization and revitalization of the crypt-analysis organizations in an effort to make them more efficient.[3]

This suggests that answering ethical questions is just as important to the profession as answering the pragmatic ones. In fact, failure to come to some resolution on the former may make it difficult, if not impossible, to answer the latter. Thus, the thrust of my paper will focus on the nature of the ethical debate in a modern age – one shaped by dynamic shifts in global politics which impact on the American national interest with significant repercussions for the way in which we live.

This is the challenge of any professional ethic, particularly in those rare professions where its members must sometimes harm others in the course of fulfilling their obligation to society. It should not be permissible to casually violate one moral principle in an attempt to uphold another. But in finding a place to draw that line we must be careful not to place it so high that the institution cannot function, nor so low that any course of action can be rationalized. Such a task is made more difficult in the post September 11^th environment where the moral debate surrounding such issues as proportionate response, the war on terror, and the inevitable civilian casualty cost dominate the American political agenda.

Service in the intelligence profession sometimes involves doing things that in other times and places most would agree would be horribly immoral. Sometimes intelligence officers must deceive, harm, steal from, and even kill (or cause to be killed) others in the course of doing their jobs. But good intelligence officers do not do so in such way that treats the human targets of their operations merely as means, but in such a way that respects them as ends. But with these challenges in mind, we need to first consider whether this is, in fact, possible.

Ethical Intelligence Work: An Old-Fashioned Oxymoron?

Perhaps one of the oldest, and most tiresome, jokes in the world is that military intelligence is an oxymoron. Perhaps not as old, but certainly as tiresome, is the observation that the same can be said of ethical espionage. The implication of this is that no matter how noble the cause there is no way to conduct espionage in a moral fashion. This perception is so widespread, a number of agents have left the service because they have problems with the “cloudy moral purpose” the institution serves.[4]

Part of this perception arises from the fact that intelligence professionals, like military ones, have to do things that are, outside the professional context, morally repugnant. Intelligence professionals must sometime lie, cheat, steal, and harm others in order to fulfill their role as spies. But often the public fails to consider the demands of the profession when making moral judgments about its activities. So just as some of the public has expressed moral outrage at the deaths of civilians in Afghanistan as a result of military action, many have also expressed moral outrage at some of the activities of intelligence professionals. But just as not all civilians deaths as a result of military action are unjustified, it is not the case that every time an intelligence professional harms or deceives someone he has committed a moral wrong, even though the public may deem it so.

Another part of this perception arises out of the fact that intelligence professionals, on occasion, do in fact do things that are morally repugnant even in the professional context. In the case of intelligence gathering, extreme forms of torture, betraying an informant, even in order to serve otherwise legitimate goals serves as another, serve as good examples.[5]

While some of this disregard for morality can be dismissed as character flaws of individual agents, much of it can be traced back to misunderstandings regarding the nature of professional ethics which, as my former students clearly demonstrated, there are numerous ways to do. However these misunderstandings, though I am labeling them as such, represent viewpoints that are still widely accepted.

A first kind of misunderstanding can roughly be labeled “moral nihilism.” This view holds that all moral claims are meaningless, even those that are supposed to hold between individuals. I do not propose to spend a great deal of time on this point since it does not in fact represent a misunderstanding of ethics, but rather a rejection of it. But, a misunderstanding arises when someone who holds this view argues that someone else has done him a moral harm. Thus someone who argues that activities designed to destabilize a democratically elected, but unfriendly government is beyond moral discourse but the attacks of September 11 represent a great evil is practicing an extreme form of cognitive dissonance. One simply cannot reasonably hold both views. Given the rather extensive use of moral language by the President, as well as others, in pursuit of this new war, such a position seems to be untenable for those who wage it.

A second kind of misunderstanding can be labeled “realism.” Briefly stated, this position holds that ethics has no place in international affairs. This idea is most famously argued by Hans Morgenthau, who argued that the statesman’s, and by extension the intelligence professional whose activities support the statesman’s, highest duty is to ensure national survival. When national survival is really at stake, this may in fact be the correct view (see the section on Supreme Emergency). But in the world of international politics, survival is often conflated with being stronger than the opponent is—even if it is only a potential opponent. Thus anything that gives the nation an advantage is therefore necessary to survival and thus supercedes any obligation there might be between nations.[6] This is how words like “national survival” come to really mean “national security” which come to mean “national interest.”

In this view any advantage can be pursued against any target—ally or enemy—regardless of the moral harm done. Thus, if we placed the end of national security as our highest end, there would be no acts that would be intrinsically wrong, regardless of the harm caused. Furthermore, given that each state has the same moral obligation to provide for its citizen’s security, then the actions of Aldrich Ames and Richard Hannsen, who betrayed friendly agents to a foreign government, would not be intrinsically immoral. Intrinsically inconvenient, perhaps, for Americans and some Russians at least, but because these actions enhanced the security of Russia, they would not be immoral in and of themselves.

This view does offer some limitations as it does prohibit any activity that would not serve the national interest. But what it does not do is render any particular action as morally prohibited. Instead it introduces a sliding scale upon which to weigh moral judgments regarding the activities of intelligence professionals. The greater the threat, the fewer things that are prohibited in pursuit of defeating it. 

In fact, this idea has been has been quite influential in the intelligence community for a long time. A report to President Eisenhower in 1954 urged the US to employ “more ruthless methods” than its enemies in order to prevent the spread of communism, then the greatest threat America had ever confronted. Even though the report conceded this was a “repugnant philosophy” that violated the American concept of fair play, the authors of the report nonetheless felt these measures were warranted given the seriousness and immediacy of the threat.[7]

A third kind of misunderstanding is offered by R.V. Jones, an intelligence professional during World War II and following that a noted scholar of the profession. This approach represents a greater limitation than the two above in that it recognizes a some kind of limit besides utility in the pursuit of national objectives. Jones offers the following test: “that is whether those approving them [acts deemed unethical] feel they could defend their decisions before the public.”[8] This test is insufficient, however, in terms of offering any kind of comprehensive guidance for the intelligence community. For example, many colleagues praised Helms for lying to Congress regarding CIA activities in Chile in the 1970s. But even after his conviction many colleagues within the Agency as well as others hailed him as a hero.[9] Thus he felt he could defend himself before the public, and though he failed with some, he succeeded with others. Thus such an approach remains problematic with decision-making remaining within the intelligence realm and other mechanisms of accountability and transparency vis-à-vis the decision-making process absent.

A fourth kind of misunderstanding that is offered by the same author is the idea of “minimum trespass.” This criterion, roughly modeled after the military’s concept of minimum force, states that intelligence operations “should be conducted with the minimum trespass against national and individual rights.”[10] While this criteria may restrain some intelligence professionals in the pursuit of minor goals or less important information, it is again insufficient for a comprehensive professional ethic. The problem with this criterion is that the concept “minimum” is notoriously vague. Given the importance of any particular piece of information to national security, there is, in principle, no act that would be impermissible in the pursuit of it. Thus in the presence of a great enough threat, this position becomes indistinguishable from realism. For example, given the enormous destructiveness of the activities of Richard Hannsen and Aldrich Ames to US national security, it would have been impermissible, under this criterion, to torture or threaten to torture members of their families—or families of their Russian handlers—in order to stop or minimize the damage they caused. But though this criterion does not, as written, rule out such activities, it is interesting to note that the author who offers them does.[11]

In these views of ethics, there is no meaningful place to draw the line. There are few, if any actions, policies, rules, or institutions that would be morally prohibited either because such claims are meaningless, too subjective, or too vague. It does no good to establish moral criteria if any kind of action may be permitted given a particular set of circumstances. But this is not sufficient to dismiss them. One may plausibly argue that there is in fact no such thing as morality. One may also plausibly argue that the national interest is the highest good and there are no limits on the kinds of things that can be done in its pursuit. But for this to be plausible, someone who holds this view must reject the idea that human life, and any rights we may want to associate with it, are valuable in and of themselves.  

Thus, the problem with these views of ethics is that reasonable people cannot hold them and hold that human life and liberty are fundamentally valuable for their own sake. Yet holding at least some of these things valuable is fundamental to any form of government reasonable people would consent to. So in pursuit of the defense of these values, it makes no sense to violate them. To do so is to make the claim that it is not human life that is valuable, but rather particular lives, by virtue of their membership of a particular state. It is arbitrary, however, to make such a claim given that such membership is an accident of birth. If this were the foundation of our moral approach, then we would be right back to the ‘anything goes’ morality we presumably oppose in our defense of the values of a democratic state.

Ethical Foundations of Intelligence Gathering:

Fundamental to most moral approaches is the idea that human life has a special dignity and value that is worth preserving even at the expense of self-interest. From this belief it follows, as Charles Beitz notes in his classic work Political Theory and International Relations, “that there are occasions when we have reasons to override the demands of self interest by taking a moral point of view towards human affairs.”[12]  This requires, says Beitz, that we regard the world and our actions in it from the standpoint of one person among many rather than as a particular person with particular interests. This position, much like John Rawls concept of reflective equilibrium, requires us to choose course of actions, policies, rules, and institutions on grounds that would be acceptable to any agent who was impartial among the competing interests involved.[13]

What this also means is that we cannot hold beliefs about these actions, policies, rules, and institutions that are mutually exclusive, that is they cannot be held at the same time in the same way. For example I cannot rationally hold that the institution of a police force is necessary to protect me and my interests and then hold that I am not subject to the laws they enforce. It devalues others relative to me. Thus a necessary condition for any moral approach is that it is rational, that it is not possible to hold two mutually exclusive moral beliefs in the same way the same time. 

This then underscores what is so objectionable about certain kinds of intelligence gathering operations. Few people will honestly admit that they like being blackmailed, extorted, betrayed, or even simply ‘monitored.’ No one likes to be used. 

But this is not quite true. In fact, we use people everyday, often in ways they want to be used. Most teachers want and expect students to use them as teachers. Employees want and expect to be used in the roles for which they were hired. Thus it does not seem to be a violation of their dignity to do so.

Perhaps some teachers and employees do not want to be used as such, but it would be unreasonable for them not to expect it given that they have chosen, or at least accepted, these professions. Thus in resolving ethical problems in intelligence gathering we have to learn to what it means to use people in a reasonable, as opposed to unreasonable way.

But it is wrong for students to threaten teachers to give them good grades. It is wrong for employers not to pay a fair wage. Each of these examples involves treating people merely as things, affording them no more respect than one would any other tool. When we treat people this way, we are treating them merely as a means to an end, and not as an ends in and of themselves.

Now, most of what we do are a means to some ends. We go to work to make money, we make money to achieve a certain standard of living, and we achieve a certain standard of living to be happy. Happiness is, therefore, the end, and all of these actions are good or bad depending on whether and to what degree they make us happy, whatever that consists in.

According to German Philosopher, Immanuel Kant, however, the ability of human beings to act morally is itself an end. Specifically, it is the end, or purpose, of morality. That ability is what gives us dignity and to rob someone of it is wrong. So expressed simply, what it means to treat people as an end is to respect their dignity as human beings, and importantly do not limit their capacity for rational thought and thus their capacity to act morally, which Kant saw as essentially synonymous.[14]

It is of course true that not everyone acts morally, but this does not mean we are permitted to treat bad people merely as means. But what it does mean is that we hold people responsible for their actions. In fact, Kant saw punishing wrongdoing as means of upholding human dignity rather than a way of undermining it. Furthermore, because we cannot know from its effects whether a will is good, we cannot be sure whether or not any particular will is good. Consequently, in order to not omit any beings with good wills, we must treat all rational beings and therefore all humans as an end in themselves.[15]

Because human life has a special dignity and value we afford it a special status by claiming that everyone has a right to it. Why this is the case is easy to understand, and hard to prove. Regarding rights, Walzer notes, “ if they are not natural, then we have invented them, but natural or invented, they are a palpable feature of our moral world.”[16] This is so because we value our life and the liberty to set for ourselves how we are going to live it. The fact we value our lives in this way stands as a reason for anyone not to interfere with it. Since this reason applies to anyone, it applies to everyone and thus it applies to us since we are part of everyone.[17] Thus it does not matter if other individuals do not value their lives in this way, the fact we do gives us reason to proceed as those others do. It is not that we simply hold that it is our life and liberty to be intrinsically valuable—that is no better than self interest and, if Beitz is right, not sufficient to count as an ethical approach. For this view to count as ethical it must be that we hold the rights of all persons to be intrinsically valuable. 

But rights entail obligations. Thus, if human life is so valuable that people have a right to it, then someone else has an obligation to preserve it. What is not so easy to see, however, is where this obligation falls. Certainly it is easy to see that this results in the negative obligation not to harm others, which clearly falls on everyone. But it also entails a positive obligation to prevent harm to others and it is not always clear where this should fall.

Sometimes, however, it is clear where it should fall. Parents, for example, have a positive obligation to preserve their children’s lives even if that means taking special risks to do so. They incur this obligation by virtue of what it means to be a parent, an arrangement they voluntarily entered. This arrangement gives them authority over their children, but in addition to gaining this authority they incur the obligations commensurate with it. The purpose of this authority is so that they may raise healthy and happy children. Thus parents who use their authority to exploit and abuse their children are bad parents. 

But I am not arguing that the parent-state analogy be taken too far. The state does not always know best in the same way good parents usually do. Thus the legitimacy of policies, rules, and institutions a state creates depend to a great extent on the consent of its citizens. The policies and rules of parents on the other hand do not require the consent of the child for their legitimacy.

Thus I am not arguing that a state is some kind of mother or father with a broad mandate to do what it ‘thinks best’ for (or to, for that matter) the citizenry. What I am arguing is that people who possess authority have obligations that come with that authority. What those obligations are depend on the kind of authority they have. I am also not arguing, as Walzer does, that states have necessarily rights by virtue of the fact that individuals do, but rather that by virtue of these individual rights, states have an obligation to preserve them.[18]

This obligation of the state may roughly be labeled “national security” to distinguish it from “national interest.” Things done in the interest of national security are things done so that the state may fulfill its moral obligations, things citizens have a right to expect; things done in the national interest are those things that benefit the citizens of a state without them necessarily having a right to such benefits.[19] Thus Morgenthau was partially right. Those who serve the state do have an obligation to ensure national security. But when that gets translated into specific action, it is not always in all circumstances the only thing they must consider.

This is because fulfilling this obligation can sometimes conflict with other persons’ right to life and liberty. The current War on Terrorism serves as a good example. In an effort to render the Al-Qaeda network incapable of committing any further harm, the US forces have harmed others who were innocent of the crimes of the terrorists. Additionally, in an effort to reduce the vulnerability of the American people to further terrorist attacks, Attorney General John Ashcroft has proposed using military tribunals, which may rely on secret evidence, to prosecute people suspected of being associated with terrorist organizations. 

It is important to note that though the debate regarding these issues is framed as a tension between these competing obligations, few advocates of either side claim the other position should not be considered. On one side few people argue that the US Government should do nothing. On the other, the US military has taken great care to minimize the number of civilian casualties and the proponents of detaining non-citizens on secret evidence assure us that basic civil liberties will be upheld and that they will be prosecuted fairly, even if secretly.[20] Thus there are limits to how nations may go about fulfilling their obligation, of course, because nations also have obligations to people of other nations.[21]

To fulfill their obligation to their citizens, most states establish standing militaries in order to deter, and failing to deter, defeat, any attack against that nation. Militaries are permitted, in the course of fulfilling the state’s obligation, to do things that outside this context would be immoral, like kill people and destroy property. But this is only permitted if the moral criteria of jus ad bellum are fulfilled, and typically this means that such force is permitted only in response to an act of aggression against one’s nation or another nation.[22]

To fulfill its obligations to the state and its citizens, militaries require timely and accurate intelligence. Thus much of the justification for the deceiving and harming that intelligence professionals must do in the course of supporting a military at war will be justified by the same sets of reasons that justify the killing and destruction that militaries must do in the course of fighting the war.

But it is also the case that much intelligence gathering is aimed at determining the nature of a threat before any act of aggression has been committed. To do this, intelligence professionals often cast a wide net, sometimes directed at people and nations which do not and never will represent any kind of threat. Thus, there is a disanalogy between the activities of the military professional in war and the activities of the intelligence professional in peace—even if those activities are intended to support the future wartime activities of the military, which often they are not. The only just target of military operations are those who have proven themselves a threat by committing an act of aggression. But to prepare for this, intelligence professionals must target people who may never be a threat. Thus, we are left with the question if intelligence professionals outside the context of war are permitted to engage in activities that are otherwise immoral.

For this to be the case, such intelligence activities would have to be essential to the nation’s ability to provide for the defense of its citizens and their way of life. In some ways this point may seem trivial: by providing timely and accurate information on other nation’s capabilities and intents, intelligence professionals give military leaders a greater capacity for developing weapons and strategies necessary for defeating any potential enemy. They also give political leaders and diplomats and greater capacity for choosing courses of actions that promote peace and security—usually the best way to provide for a nation’s defense. [23]

But this theoretical justification for peacetime intelligence activities has a practical limit. Espionage is itself a kind of act of aggression, and is thus a kind of double-edged sword. When one nation conducts espionage against another it may learn something of the others intentions and capabilities, but it also signals distrust and suspicion. Distrust and suspicion, rather than fostering peace and security, fosters instability and conflict. One need only consider the case of Jonathan Pollard, the American intelligence officer who was convicted of spying for Israel to see the dire effects of undermining trust among allies. After his conviction, relations between Israel and the US became quite strained. When former President Clinton refused to release him, Netanyahu reneged on a promise he made at the Wye Accords and set 200 Palestinian criminals free—people the Palestinians themselves did not want free—as opposed to the political prisoners he promised to free during the negotiations.[24]  This was a contributing factor to the failure of the Accords later on as it undermined the already very tenuous trust the Palestinians felt towards the Israelis.

The problem for the intelligence professional in peacetime is determining who may be a legitimate target against whom such activities may be directed. What justifies the actions of the military and its supporting intelligence activities in wartime is the fact that an act of aggression has occurred. In peacetime, however, such an act of aggression has not been committed (by definition). But absent an act of aggression, there is no justification for the destruction and killing the military does, much less the deceiving and harming of the intelligence profession.

For intelligence gathering activities in peacetime to be justifiable, there needs to be an analogous ‘act of aggression” that would give the nation that seeks to obtain these secrets, in some sense, a ‘right’ to them. When a nation withholds information that is important to the security of another nation, it is knowingly, if not intentionally putting that nation’s citizens at risk. This, in effect, is an act of aggression (though certainly not an act of war) and thus they subject themselves to intelligence operations of other nations.[25]

Thus what gives a nation a right to this information is that if it did not possess it, its national security would be severely compromised and its citizens would be at placed at great risk. Conversely, this means that it would be wrong to conduct intelligence operations to obtain secrets that do not enhance national security. Thus, as Drexel Godfrey points out in his 1978 article in Foreign Affairs Ethics and Intelligence, it is wrong to deceive and harm in order to obtain secrets from Ruritania simply to know more about Ruritania than the Ruritanians do.[26]

But what intelligence professionals do not know in advance is where those secrets are or whether they are, in fact, essential to national security. Thus, intelligence professionals tend to cast a wide net in order to uncover this information. But just as wide net fishing destroys does a lot more harm than good (most of a catch is often thrown back as waste)[27] so to do intelligence gathering activities run the risk of doing a lot more moral harm than good.

This then gives us a limit, as well as a justification, for peacetime espionage. Just as the law enforcement officials, for example, must conduct surveillance activities against some private citizens in order to protect the rest, so must intelligence professionals conduct intelligence operations against other nations. But just as it is wrong for the law enforcement officials to tap a private citizen’s phones or otherwise pry into her personal life on the off chance she might commit a crime, it is wrong for intelligence professionals to conduct certain kinds of intelligence gathering activities against a nation, or individuals within that nation, on the off-chance they might represent a threat.

However, just as a private citizen can engage in activities which legitimately make them a suspect and thus a legitimate target of surveillance by law enforcement officials; nations, and other organizations, can also engage in activities that make them legitimate targets of espionage. And just as the private citizen can be the legitimate subject of surveillance, but not arrest, states as well as certain other organizations can be the legitimate subject of espionage, but not military action, because of the threat they may represent.

Determining what kinds of activities make another nation a legitimate target of espionage

is going to be a matter of judgment and will be very hard to list or codify. Such judgments will depend on a number of factors and require a great deal of experience to make. Fortunately, listing them is not necessary for the purposes of this paper. The point here is simply that not all kinds of espionage are permissible against any state. As the Pollard case suggests, disregarding this moral point may have bad practical consequences. This then gives us our first place to draw the line. It is wrong to conduct espionage against nations that give no indications of posing any threat. What may pass as an indication may be broadly or narrowly defined—again that is not the subject of this paper. But given evidence of a threat, what remains to be discussed is what kinds of things might be morally permitted, as well as prohibited, to uncover them.

Drawing the Line: Open sources

Not all intelligence gathering is morally objectionable. A great deal of intelligence gathering work is done by analyzing open source material and discovering connections that might enable intelligence professionals to draw conclusions about a particular nation’s activities or intentions. Such intelligence gathering is no more objectionable than someone reading a newspaper and then drawing conclusions about how a politician will vote on the issue of raising taxes. When political leaders make speeches or issue press releases it is reasonable to conclude they expect, even desire, that others read it. If they place no restrictions on who has access to the information, then there is nothing wrong obtaining and then drawing conclusions based on it. The conclusions based on it could be wrong, but this is a pragmatic matter, not an ethical one.

Now it could be the case that someone ‘leaked’ the information and that it is not something the politician would want made public. It may also be the case that the informant leaked the information for morally wrong reasons. For example, a politician’s close friend may betray certain secrets about his campaign strategy to a journalist in exchange for money—an act I take to be immoral.[28]  But though that information enters the public domain immorally, once it is ‘out there’ there is nothing wrong with obtaining it. It may be wrong to betray a friend, but it is not wrong to read a paper. So once it is made public, one has done nothing wrong by knowing it even though the informant should not have divulged it, as long as one is not the person who encouraged the informant to do so.

Furthermore, depending on the information, I do nothing wrong by acting on it. It is possible to commit a moral wrong by voting for specious reasons. But assuming this information is relevant to the campaign then I do nothing wrong if I vote based on it, even though it entered the public domain by means of an act of betrayal. 

Thus intelligence professionals do nothing wrong by accepting and drawing conclusions based on information gained from open sources. Nor should these kinds of sources be easily dismissed. Furthermore, it suggests that there are alternatives to conducting espionage against illegitimate targets. Blackmail, extortion, or simple deception may be the most expedient way to gain information, but is not always the most moral. Thus while certain methods may serve short-term interests, when used in a morally inappropriate fashion, they will rarely serve long-term interests. Though interest is not the sole determinate of moral behavior, it is interesting to note that behaving badly rarely does anyone any good. There has to be good reasons to use people in a manner they should not reasonably expect to be used.

Drawing the Line: The Moral Boundaries of Intelligence Gathering

            What this analysis suggests is that the Kantian notion of treating people as ends and not merely as means will be an important part of the line to draw when considering ethical courses of actions in intelligence gathering.  But as stated before this is too vague to offer any meaningful practical guidance. It can not be that it is wrong to treat people a certain way just because they do not expect it. Thus it remains to be shown what they should reasonably expect.

Here it is important to introduce the idea of shared expectations.[29] By holding secrets, especially secrets which affect the well being of people in other nations, nations willfully (and arguably rationally—I’m not arguing that there is anything wrong in keeping secrets) engage in a form of low level conflict. When states engage in conflict with other states, it would be irrational for them to expect that other states not take actions to protect their interests. Certainly not all actions are permissible, but equally certainly some are.

To further explain the moral significance of “shared expectations” a sports analogy is useful. When football teams take the field they both expect the other to play as hard they can, taking what advantages they can as long as the rules are not broken. [30] Thus if one team has a weak quarterback, the other team is free to exploit that fact, even if the other team would prefer they did not.

Furthermore, the teams are free to deceive or otherwise manipulate each other as to what their next play is even though this is clearly using them as a means. But because they agree to be on the field, both teams should expect such deceptions and manipulations. Thus they are also being respected as ends, since nothing interferes with their choice to play the game. But the opposing team would be remiss if it did not do all it could to limit or manipulate the choices the other team can make during the game. So the fact that one team is completely overwhelmed by some deception is not the fault of the deceiving team, but of the deceived team.

            But the fact an expectation is shared is not sufficient to justify it. In Bill Watterson’s cartoon Calvin and Hobbes, the title characters play a game called “Calvin Ball” which is played by changing the shared expectations of the players. When someone has the ball, he makes a new rule. Thus changing shared expectations is a shared expectation of the game. But there is nothing that prevents the rules from being contradictory and self-defeating and as result, the game quickly devolves into chaos. In one game, Calvin scores a point by changing sides three times only to have that point added to Hobbes’s score who then changed sides as soon as he got the ball. I have no idea who won.

Thus there must be a further limit of what can count as shared expectation. It must also be reasonable. What counts are reasonable is found in the nature of the game itself. In football, the nature and purpose of the game provide those limits. That there are only two sides, one field, a ball of a particular shape, limit the range of rules that may be imposed. Furthermore, the purpose of the game is to score points by crossing a line and thus there will be a natural limit on the different ways to go about this that are not self-defeating. For example, it would not be rational to allow a team to conceal the ball for an indeterminate period. If this were the case, then the team that scored first could do so and thus end the game—perhaps only minutes or seconds after it started.  This makes the game much less of a contest than those who play it (and especially those who watch it) intend for it to be. Thus it would irrational for them to adopt such a rule, even if they both agreed to it in advance.

Thus what justifies a shared expectation is that it is rational for the members of that profession to hold them—that is they are not self-defeating. If by holding the expectation one cannot play the game if the other side held that expectation, then one should not hold it. To do so and act on it is the very definition of cheating.

            In the field of international relations, these shared expectations are found in treaties, conventions, agreements, and in some cases certain shared beliefs that different societies may hold. The importance of recognizing these is underscored by the following example. In the law of war, it is generally accepted that when one waves a white flag one has agreed to lay down one’s arms and cease fighting. In exchange for this agreement, the other side agrees to grant “benevolent quarantine” to the soldiers surrendering. This limitation reduces the amount of misery caused by a war, which is the purpose of these laws in the first place. However, if one side waves the white flag as a means to deceive the other into a false sense of security so that they may get them out in the open in order to kill them, they completely undermine this rule. Often in conflicts where this has occurred even once, it becomes very difficult for other members of the deceiving side, even those who were not part of the original deception, to surrender. In this way, not only the rule but also the very purpose of the law of war is undermined.

            Here we also need to introduce the concept of good faith.[31] Good faith that the standards will be met is essential to holding them rationally. As the case of false surrendering dramatically shows, if one side does not believe the other will uphold the rule, the rule ceases to be a meaningful part of the “game.” Taken to extremes, it becomes impossible to play the game at all since failure uphold the rules quickly makes it impossible for anyone to uphold the rules. In the case of intelligence gathering, failing to act in good faith makes it impossible to engage in such activities and rationally hold that human beings are ends in themselves.

Now of course in the world we are discussing the stakes are quite high and, unlike football, people lives are at stake, as the Ames and Hannsen cases dramatically point out. But the basic analogy holds. By holding secrets that affect the ability of a state to fulfill its obligations to its citizens, such nations freely agree to “take the field.” This, in effect, is an act of aggression (though certainly not an act of war) and thus they subject themselves to intelligence operations of other nations. Thus if they are deceived, for example, it is their fault, and not the fault of the deceiver.

Legitimate Targets of Espionage:

Kinds of States: Espionage against Allies, Neutral, and Hostile States:

Before turning to the specific activities associated with intelligence gathering, it is important first discuss who and what may be legitimate targets of such activities.        

This analysis makes spying against friendly nations problematic. In fact, the tradition of not spying on allies is so strong that Churchill himself ordered that there would be no espionage against Russia once the German attack had brought them in alliance with Britain.[32] One might reasonably counter that there is no way to determine in advance if a particular nation is harboring secrets which threaten our national security or not without some sort of covert surveillance. Since this is true, this argument is probably sufficient to justify some level of surveillance in a variety of nations, even ones with which we enjoy good relations.

But one can conduct many kinds of surveillance without overstepping any moral bounds. The real question is whether it can be permissible to conduct the kind of espionage that involves deceiving, stealing, and other forms of harming against friendly nations.

The problem with such activity is that it undermines the possibility of such friendships and alliances in the first place. It is difficult to maintain a friendship if you hold the expectation that your friend may lie, betray, or otherwise take advantage of you. The same can be said of nations and the Jonathan Pollard case is a good case in point. Even though he was only passing information the Israelis were entitled to anyway, by virtue of an agreement signed by the two countries, he was convicted and US-Israeli relations suffered.[33] This sort of activity in turn undermines the conditions for a just peace, which presumably is the moral purpose the intelligence community serves.

A similar problem exists when considering espionage against neutral states. While the nature of this relationship does not make it self-defeating to conduct espionage it is nonetheless problematic. Espionage is a double-edged sword as it can be considered an act of aggression itself. Thus it has the potential to turn neutral nations into hostile ones. Therefore, any such activity has to be weighed against this possibility. While this is inherently a pragmatic issue, because it has the potential to make the world a little more hostile there is a moral dimension that must be taken into account. 

Nations that are openly hostile do not share any expectations that would make espionage, within limits, problematic. As such, considerations regarding whether to conduct such operations are pragmatic ones, though there will be moral considerations regarding how to go about conducting these operations.

What remains to be done is to fully develop definitions of allied, neutral, and hostile states as well as what reasonable expectations these relationships entail. But while space does not exist to explore this area in great detail, it does seem that covert operations against even nominally friendly nations must be carefully considered. Thus we have another place to draw our line.

            Kinds of Persons:

            As Nagel notes, it is not fair to target just anyone in war, there must be “ something about that person” that justifies it.[34] Thus, just as it not “fair” to tackle a spectator in a football team (even though he is rooting for the opposing team) it is not justifiable to conduct intelligence operations against certain people, even if they are citizens of unfriendly or even threatening nations are legitimate targets of espionage. 

The football analogy does suggest that other intelligence professionals are legitimate targets of intelligence operations. By entering into the field of intelligence and by accepting the special training this affords they accept the risks associated with it. However, operations against such persons must be limited to that “something about them” that makes them legitimate targets in the first place. Thus, it is permissible to steal information about a weapons program from an enemy agent but it is not permissible to steal his car (unless, of course, he keeps the information in the car).           

            But it is not only intelligence professionals who are legitimate objects of espionage. In fact, this analysis suggests that anyone who has information that could put other nations’ citizens at risk is a legitimate target. Yet it also follows from this analysis that those who do not possess such secrets are not legitimate targets. Thus, the real question is how wide a net may intelligence professionals cast in order to discover who they are. 

Clearly there are some people who, by virtue of their profession or role, are likely to harbor such secrets. While who those people are exactly may depend on the nation involved, certain military personnel, scientists and government officials are good examples of the kinds of people who fit in this category. It should be noted, however, that not any such person might fit into this category. For example, a military officer, because he likely knows about plans and weapons that may represent a threat to another nation is a legitimate target. A scientist who works in a weapons laboratory or a member of Congress who is on an oversight committee for military or intelligence operations will also be legitimate targets. By knowing they hold such secrets, they have entered the ‘game.’

But a scientist who works on cancer research or a postman, though he works for the government, is not. Nor are family members of people who possess vital information. None of these people are likely to know any secrets, by virtue of their position that may represent a threat to the citizens of another nation, and are thus not legitimate targets.[35]

            But though the postman, scientist, or family member may not be likely to possess some vital piece of information, it is not logically possible that they cannot. This is particularly true of scientists and engineers who may be working on purely civilian projects, but which may have military uses. Similarly with family members and friends of those who do not possess vital information. Exploiting them may be the most expedient way to get information, but it is not the most moral because none of these groups have knowingly and intentionally entered the ‘game’ in the way the other groups have. Because they have not entered the game, it will not be permissible to harm or deceive such people in order to find out if they possess such secrets, much less to discover what those secrets are.

This will not preclude, however, engaging in intelligence gathering activities that do not involve deceiving or harming and it will sometimes be the case that permissible surveillance activities—like monitoring public sources of information such as newspapers or journals—will reveal that such a person does in fact know something vital to someone else’s national security.

In this case, we have a person who has not intentionally entered the game but who has nonetheless become an important source of information that intelligence professionals have an obligation to obtain. Here our football analogy will do us little good. If a fan finds herself somehow in the middle of a football field during a game holding the ball she does not become the legitimate target of a tackle. Instead the game will be suspended long enough for her to return the ball so that the game may be resumed. Furthermore, she is obligated to give the ball up, unless it is hers in which case the players will simply have to find another one.

But in the world of espionage one simply cannot suspend the game. Furthermore, once one has information vital to another nation’s security it may not be possible or even prudent simply to give it up. For example, we can imagine a scientist who discovers a way to use lasers to aid in surgery. We can also imagine that this technology enables a nation to build a weapon that can destroy another nation’s satellite network thus disrupting normal communications and commerce—thus posing a grave threat to that nation. In order to discover a way to counter this threat, the vulnerable nation must first possess the technology.

If this technology remains in the public sphere, there is nothing wrong with going after it, for the same reasons that open sources are always ‘fair game.’ However, we can easily imagine a situation where the government under which this scientist lives classifies this information, but the scientist herself does not become a part of the project to turn the technology into an offensive weapon. Intelligence gathering operations against this person will likely be the easiest means to gather the required information, but we must reasonably ask if it is fair to make this scientist the subject of deception and harm in order gain the technology. Here the negative obligation not to use people merely as means comes into direct conflict with the positive obligation to preserve the lives and well being of the citizens of one’s nation.

According to this analysis the answer to this question is no. One may be able to gain this information by blackmailing, extorting, or simply deceiving the scientist. But this scientist has not joined the game and is thus not a legitimate target of such operations. The fact, however, that this technology has been classified suggests that there are those who possess it, like the government scientists who may be using it to develop an offensive weapon, who are legitimate targets. They may be the subjects of operations that involve deception and harm, not the scientist.

            We will now turn our attention to some of these activities and to how the idea of respecting the dignity of individual human beings can provide practical limits to activities commonly associated with espionage.

Deception and Theft:

Imagine you are an intelligence professional and you must create a cover identity for yourself or for some other agent in order to convince someone to give you access to information you could not get any other way. Additionally, creating this cover story involves falsifying academic and professional records and credentials. In such cases it seems you are using the people who will hire or place you based on those credentials as a means to an end. Furthermore, it requires you to lie to family, friends, and employers about what you really do. Is this permissible?

            Deceiving and stealing are related activities that lie at the very heart of spying. These activities are related in that deception operations are often conducted in order to gain access to information or technology in order to steal it. As such, they are hard to separate from each other so it makes sense to treat these two kinds of activities together. Permissions and prohibitions that apply to one will, for the most part, apply to the other.

The job of the spy is to enhance national security by obtaining certain secrets that foreign governments and organizations would not otherwise willingly part with. Furthermore, spying is an activity that enjoys legal sanction, most notably in the Hague Convention, and is justified morally by the idea stated before, when nations withhold secrets from other nations that threaten that other nation’s security, that nation may take steps to uncover those secrets. [36] Furthermore, because this activity enjoys such sanction, it is not a violation of shared expectations and good faith to engage in it.

This does not mean, however, that there will not be limits to how it can be conducted even against legitimate targets. It is interesting to note that Kant saw lying as inherently wrong, especially because it involved diminishing someone’s capacity for acting morally. Nonetheless, we can draw a distinction between deceptions and lying. If we accept the Kantian model, then lying is going to be wrong because it is incompatible with respecting the inherent value and dignity of human beings. But this does not require that we accept all forms of deception as lying.[37]

            With regard to lying, Kant explains it this way. Imagine you are poor and in need of money. You have a friend who has plenty of money, but who will only loan it to you if you promise to pay him back. You work for the government, and you know there is no way you are going to be able to do this. Nonetheless, you need to feed your kids. Do you lie?

If you choose to lie, you are in effect acting under the maxim that “whenever I need money to feed my kids, and I can get it by lying, I shall do so.” The problem arises when you make it universal, that it is when you understand it as a rule that would apply to everybody, the very possibility of doing it would be undermined.[38] This is because if your friend also believed that it were permissible to lie to get money, then he would have no reason to believe your promise and thus he would have no reason to give you the money. So one cannot believe that lying to a friend is morally permissible unless it is also true that the friend may believe this also. But if he believes this, then such lying is impossible. Otherwise, one is simply using his friend merely as a means. So lying is self-defeating—and thus irrational—in a way that truth telling is not. The same can be said of stealing. And as discussed above, the state has right to information that puts its citizens at risk. 

But as suggested above, not all deception is lying nor is all taking stealing. Just as the quarterback may deceive the opposing team as to what the next play is or take the ball from them, intelligence professionals are free to deceive and steal from anyone who is a legitimate target. This is not cheating because the other ‘team’ is supposed to expect it. Thus such deceptions and theft are not self-defeating in the way that lying in the example above is.

But some deceptions and stealing are. As noted above, deception and stealing of this sort is only permitted against those who are legitimate targets. But in much intelligence gathering activity there are those who may not be the direct target of deception, but who are subject to it anyway, such as family, friends, and employers. These people are innocent of the kinds of activities that would otherwise make them legitimate targets and involving them would be self-defeating. 

Relationships with family members, friends, and employers rely on a great deal of trust. Deceptions, however, undermine this kind of trust and thus cannot be part of the shared expectations of people who have such relationships. This analysis suggests that deceiving them is not permissible and thus should be avoided.

Most intelligence professionals will likely write off this conclusion as hopelessly naïve. The information gained from these operations is too important for them not to occur and for them to occur many people are going to have to be deceived. They may also plausibly argue that many of those subject to, but not targets of, the deception will never know they are deceived and thus experience any harm. “No harm, no foul,” as the saying goes.

The problem with this argument is one that plagues all utilitarian arguments. One cannot predict the future and thus one will rarely know in advance what harms will arise from one’s actions. Furthermore, even if one could it does not change the fact that such operations require an agent use people who should not expect to be used.

To partially resolve this tension it will be helpful to distinguish between lying and telling the truth. A commitment to the idea that it is wrong to use people merely as means requires that one observe the negative duty not to lie. It is not clear that this includes a positive duty to tell the truth. The difference is this. If my wife gains ten pounds I am under no obligation to point this fact out. However, if she asks me if she has gotten fat, I have a problem, though I may prefer to resolve it by redefining my conception of ‘fat.’ What I am not permitted to do is lie, as that will undermine the trust a husband and wife are supposed to have by virtue of their relationship.

Thus one is not obligated to divulge all the information about one’s activities, but only that which is necessary to preserve the integrity of the relationship one has voluntarily entered into. If an agent or recruited foreign national who is a qualified accountant assumes this as a cover identity and performs the duties associated with it, then he has not lied. That he is also collecting information to pass on to an intelligence agency is not necessarily information the employer is “owed.” This changes, as I will discuss later, if by withholding the information he puts the employer at risk. Furthermore, it is also the case that what information is in fact owed will depend on the nature of the relationship—things one should tell his wife are different than one should tell his employers.

But many times, maintaining one’s cover and not lying about it is not possible. At some point, the agent will likely find himself in a situation where he has to tell a lie, where no answer at all will have the same effect as telling the truth. Consider, for example the general who, on the eve of a major deployment, must respond to a journalist’s question. If the journalist asks him if there is a major deployment tonight, he cannot say, “I am not at liberty to disclose that.” The journalist will take that as a yes.[39] Similarly if someone gets suspicious regarding the agent’s activities and asks, “why do you need that information?” he cannot simply answer “I am not at liberty to disclose that.” In such cases, he will have to tell a lie in order to maintain his cover.

When such a deception is directed at someone who is a legitimate target of espionage operations, it is not a lie. As discussed before, in this case the agent has not violated reasonably shared expectations and good faith by doing so. The problem is when the agent tells a lie to someone who is not a legitimate target. By lying to such a person he has involved him or her in his operation, a role they cannot willingly take on by virtue of the lie. In this situation, though in pursuit of a legitimate goal, the agent must knowingly engage in a course of action in which people who should not be involved are deceived and possibly harmed. The tough question then is, when and under what conditions, if any, is this permissible?

In war, the military is permitted to engage in courses of action in which non-combatants—people who should not reasonably expect to be targets of a military operation—may be harmed or killed. This is in part due to the fact that it is a harsh reality of modern warfare that the military cannot engage in war and do otherwise. Thus it is not reasonable for anyone to expect this to be the case. However, this is permissible only under certain limitations and these limitations are known collectively as the doctrine of double effect.[40]

This doctrine results from the recognition that there is a moral difference between the consequences of our actions that we intend and those we do not intend, but still foresee. Thus, according to this doctrine, it is permissible to perform a good act that has bad consequences, if certain other conditions hold. Those conditions are: 1) the bad effect is unintended, 2) the bad effect is proportional to the desired military objective 3) the bad effect is not a direct means to the good effect and 4) actions are taken to minimize the foreseeable bad effects, even if it means accepting an increased risk to soldiers.[41]

To the extent that the deception or theft is necessary for the intelligence professional to fulfill his role, and by extension the obligations of the state, it may be permitted. But these activities will be limited in the same way military operations are, by the restrictions imposed by the doctrine of double effect. Under these restrictions, it then may be permissible to involve innocents in intelligence collection activities. First, though, it would have to be the case that the activities are aimed at a legitimate target. As noted above, the fact a non-legitimate target may possess important information does not make it permissible to deceive or steal from her to get it. Thus the scientist engaged in purely medical research is still not a legitimate target, regardless of how important the information is.

Second, the value of the information must be greater than the harm done by the deception or theft. The fact that this information is vital is sufficient to fulfill this condition; however, this also means that the agent would have to know this information exists. It will not be permissible to involve non-legitimate targets on the off chance there may be some vital information. This would be like trawling in such a way that kills a lot of dolphins on the off chance you might catch a tuna or two. Given that living dolphins have a kind of value themselves, this just is not rational.

Third, this means the deception of non-legitimate targets is not the means by which the agent obtains the information, though it may be incidental to it. This may be, perhaps, the most restrictive of these conditions in terms of intelligence activity since this means an agent may not lie to or steal from a non-legitimate target in order to get the desired information. Thus, under this condition, it would not be permissible, for example, to forge credentials in order to get a job in an organization if that organization is not already a legitimate target.

Finally, this means that agents will have to minimize any risk this incidental involvement entails, even if that means taking additional risks upon themselves. In wartime, [42] the amount of risk that intelligence professionals must take is limited in the same way it is for soldiers. Soldiers are not required to take so much risk that their mission will fail or that it necessarily precludes their ability to conduct further missions. This means it will be permissible for soldiers, as well as intelligence professionals, to engage in activities in wartime in which non-combatants may knowingly, though not intentionally harmed. One of the harsh realities of modern war is that people who are not directly involved in fighting the war nonetheless do not have a reasonable expectation not to be harmed by it. They do, though, have a reasonable expectation that combatants on both sides will minimize the chances and effects of this harm.

In peacetime, however, the calculation of risk changes. One is not permitted to engage in intelligence gathering activities if innocents will knowingly be harmed, as one is in war. [43] This is because such acts represent a breach of peace and it never makes sense to breach the peace in order to preserve it.

Thus for the intelligence professional, certain permissions which exist in wartime will not be present in peacetime. This means if infiltrating an organization that is not a legitimate target means putting the people in that organization at risk, then it is not permissible. This does not mean intelligence professionals will not be permitted to take any risks in this regard. But if in conducting such activities the agent knowingly sets innocent people up as a target for the other side—even if they are never in fact harmed—then that activity is not permitted. Thus while the agent in peacetime may be able to conduct such activities but not in a way that he knowingly puts civilians at risk. Involving someone in the ‘game’ without their knowledge, especially when that puts them at risk violates the limitations imposed by reasonable shared expectations and good faith and thus must be avoided.

Thus, while intelligence professionals are permitted to engage in deception and stealing in order to fulfill their roles, they must take great care when these activities involve innocent people, people who have no reason to expect to be targets or subjects of such activities. Thus when such operations involve innocents, they should be avoided and other means of gaining this information should be pursued. If this is not possible, and the information is vital, then limitations imposed by the doctrine of double effect must be observed.

Harms: blackmail, extortion, and betrayal

But spying is not solely the effort of the intelligence professional. Intelligence professionals also actively recruit sources to provide them with information. Sometimes, such foreign nationals do so willingly. Sometimes, intelligence professionals offer an incentive such as money to induce cooperation. Sometimes they coerce foreign nationals into cooperating by means of blackmail.

This analysis suggests that it is not a problem to offer an incentive to a foreign national to become a controlled source. It does not matter if he does it because he loves our country, hates his, or just likes money, he willingly engaged in this activity. Thus he bears the risks that come with that. What is much more problematic is when an agent blackmails, but this is less so if the individual actually did the blackmail offense. If you possess a secret, then you are obligated to protect it, which includes keeping yourself free of the risk of blackmail. Thus, just as the football team is free to exploit the weakness of the quarterback, the professional intelligence officer is free to exploit the weaknesses of certain foreign nationals who possess secrets which pose a threat to our national security.

In cases such as these, it is important to remember that the foreign national can always refuse to give in to the blackmail and he is probably morally obligated to do so. But while it may be wrong for that foreign national to betray his country, it is not necessarily wrong for the intelligence professional to exploit his doing so. This can put the intelligence professional in the odd situation of being obligated (or at least permitted) to exploit, and perhaps even encourage, the wrongdoing of others. But because his obligation is to his society, it is not self-defeating in the same way making the lying promise is. One can accept the maxim ‘whenever someone in one nation presents an opportunity to enhance national security in your nation, you should exploit that’ without having to accept that people in the first nation have an obligation to present such opportunities.[44] But you clearly cross that line when such exploitation does not serve the needs of national security.

            This does beg the question regarding homosexuality or other behavior whose moral status is in dispute, but which may make someone at risk for blackmail. This is a complex question for which there is not enough space to discuss it in every detail. However, since anytime someone has any information they would prefer to keep secret they open the door to blackmail, this analysis suggests that intelligence professionals will have a special obligation not to have any personal secrets they would not want to come to light. This means that they will have to live fairly transparent lives, at least to the extent that if any personal information did come to light, they would not care so much about it to betray their country to prevent its release. Thus, an agent who is homosexual is not a blackmail risk so long as he does not hide this information or care if it comes to light.

An agent also crosses the line when in some way he makes it impossible for the individual he is recruiting to choose otherwise. This is what it means to treat him merely as a means. Thus entrapping someone by manufacturing a blackmail offense in such a way that if he faces the choice of revealing the offense and consequently suffering a severe sanction because no one will believe him, or of cooperating with you, you have crossed the line. Furthermore, this clearly rules out threatening his friends or members of his family in order to get him to cooperate. If these others did not freely enter the game they are not subject to its rules. They do not represent a threat to national security and thus have no expectation to bear the risks of someone who does.

            A related question to this is whether it can be morally permissible to intentionally treat agents, particularly foreign nationals, as expendable. According to Jones, it had been alleged that Allied intelligence professionals considered betraying a German double agent by letting another agent ‘sell him out.’ By betraying that agent the other agent would ingratiate himself to the Germans and be in a position to pass false information regarding the landings on D-Day.[45] According to Jones, this did not happen and would have been viewed by the intelligence community at the time as unacceptable, whether the agent was a member of the organization or a foreign national working for it. Not only is there a practical downside to such a practice—it will be hard to recruit agents if they believed you would likely betray them—there is an obvious ethical downside as well.

For an intelligence agency to function, it must be able to trust the information it receives from its agents in the field. Thus the agency and agent have a set of shared expectations regarding the moral obligation each owe the other. Agents do not expect to be betrayed, regardless of the goal of such betrayal, and agencies expect to receive accurate information from the agent. Furthermore, the agent undertakes his assignments in good faith that the agency is not deceiving him regarding the actual nature and purpose of the operation. For the agency to do otherwise is clearly treating the agent merely as a means to an end.

For an agent to be trustworthy, he must have no reason to betray the agency. If the agent believes that it is likely that any given assignment may lead to his betrayal by the agency, then he will have good reasons to betray the agency in turn.

Of course, any individual agent may have personal reasons for betraying the agency—money, power, avoid the consequences of blackmail, etc. He is, of course, wrong for acting on them. But if the agency gives him that reason then it is acting in an irrational and self-defeating manner. Thus, not only does such a practice in the short term treat agents a merely means, in the long run it compromises the agency’s ability to contribute to national security, thus undermining the agency’s ability to fulfill the moral purpose which justifies its activities in the first place.

Harms: Torture

            Probably the most unambiguous way to use someone merely as means is to torture him in order to get information he would not willingly give otherwise. In spite of this, the logic behind its practice is compelling. If you can make someone value his comfort or his life a lot more than his information, you stand a good chance of getting that information. When you can use that information to save the lives of innocent people, the logic becomes even more compelling. But, paradoxically this is rarely the case.  It is a well-established fact that information gained under the duress of torture is rarely reliable. In fact, its practical benefits are so few and its assault on our moral sense is so great that torture is almost universally condemned.[46]

Almost.

Israel, in its own war against terrorism, has openly embraced torture as means to get information from suspected terrorists. A 1987 commission—the Landau Commission—formed to investigate the Israeli General Security Services practices in response to terrorist activity directed against it concluded that “a moderate measure of physical pressure” might be justified in certain circumstances.[47] The findings in this report were confirmed by later reports and judgments of the Israeli High Court of Justice. The reasons were essentially utilitarian: “torture might be necessary to save a roomful of people from a ticking bomb.”[48]

Furthermore, in the United States, the FBI in its efforts to extract information about terrorist activities is reported to be considering using torture and drugs.[49] According to a Washington Post report, they have tried all of the conventional and humane means of obtaining information, such as offering lighter sentences, immunity, new identities, etc. but no one is cooperating. According to one FBI agent, “ We are known for humanitarian treatment, so basically we are stuck…Usually there is some angle to play, what you can do for them. But it could get to that spot where we could go to pressure…where we won’t have a choice, and we are probably getting there.”[50]

            What justifies considering these measures, according to the Landau Report, is the “vital need to preserve the very existence of the State and its citizens.”  But the conclusions of this report are not simple realist or utilitarian arguments. Included in its findings was the idea that there are limits to the kinds of things a state can do in order to preserve the lives and well-being of its citizens if it is to maintain its character as a law abiding state which believes in basic moral principles.[51] Thus the report does not conclude that anything goes, just some things under some circumstances.

            But this recognition is in spite of the fact that Israel and the United States are signatories to the Geneva Convention[52] as well as the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment,[53] which prohibit any kind of torture under any circumstances. Given the importance of these kinds of documents in the forming of reasonable shared expectations, it will take very good reasons to permit setting them aside.

The question, then, is whether the limitations that reasonably shared expectations and good faith impose can include disregarding international treaty to which one’s nation is a signatory as well as general commitment to humanitarian principles. That this can seem plausible is illustrated by the following example. In philosophy class, professors often pose the following problem: suppose you find yourself in a country where a local government official has lined 20 people up against a wall. He threatens to shoot all of them as a disincentive for guerillas, with whom his government is engaged in conflict. Now the twenty people may or not be involved with the guerillas, but he is trying to send a message and turn the people against the opposition by making their struggle too costly for the populace to bear. When you walk by on this scene the official, because you are a guest, offers you a choice: shoot just one and he will let the rest go free. A caveat in this story is that you, somehow, know that the government official will keep his word. The students must then tell what they would do and why. While this story is usually told to test a student’s commitment to utilitarian or deontological approaches it also highlights just how compelling purely utilitarian arguments can sometimes be. It is telling that very few students ever say they would not shoot the one person in exchange for the others’ lives.

Certainly someone can do something that puts him in a position where it is justifiable to do things they would prefer did not happen to them. Our criminal justice system would collapse overnight if this were not true. Furthermore, we can imagine a situation where government authorities have detained a known terrorist who they know has planted a bomb that will go off soon. It would be a callous investigator indeed who did not at least want to apply “physical pressure” to this person to get him to divulge the location of the bomb. Most of us would regard as morally deficient the public servant who would say to the victims of the impending attack that he would have liked to have prevented it, but there was this rule that prohibited him from doing so.

I will take it as uncontroversial that terrorism,[54] that is attacks aimed exclusively at civilians with the intent to create fear in a general population, is immoral. By willfully engaging in such activity the terrorist is a criminal and thus there are no legitimate moral arguments he can reasonable invoke to justify withholding this information, as can the prisoner of war. In such cases, it would not be reasonable to expect that the terrorist enjoy the protections of international law. It defeats the very purpose of such laws in the first place. A primary purpose of laws and treaties like the Geneva Convention and the Convention against Torture is to protect the innocent from abuse.[55] When applied in such a way that they fail to do so, they become nonsensical and self-defeating. The problem here is not with the laws themselves, but the way they are applied.

But this will not mean any form of torture will be permissible, a fact the Landau Report recognized. Space does not exist here to give a complete discussion of what a proper sense of “moderate physical pressure” would consist in. But it does suggest interrogators should apply a “minimum harm” rule and not inflict more than is necessary to get the information. Any pain inflicted to “teach a lesson” or after the interrogator has determined torture will not bear fruit, would be morally wrong.

But in the case of torture in Israel and the United States it is not always, or even often, the case that the GSS and FBI investigators know if their suspect actually has the information they are seeking. This can put the victim of the torture in an impossible position. There is nothing he can say to prove he does not have the information. Thus we have a case of competing logic: for the torturer the only thing the subject can give to get the torture to stop is the information the torturer is looking for. But the victim of the torture, or anyone else for that matter, cannot prove a negative. There is nothing he can say, if he does not in fact possess the sought for information, to make the torturer stop. This is why torture is so problematic in the first place. Often people will say anything, even make something up, to get it to stop. Thus, information gained under this kind of duress is extraordinarily unreliable.

In fact, these situations are like the hostage example except that in this case you do not know if the government official is going to keep his word. You can violate the moral principle for the greater good, but in this case you do not know if there is going to be any greater good. Here the utilitarian calculation that was once so compelling is less so. It now is important to ask, if you are not certain of the outcome, are you willing to sacrifice your integrity? How certain do you need to be in order to justify sacrificing your commitment to moral principle in exchange for consequences that may benefit a great number of people.

But this is somewhat dis-analogous to the situations in Israel and the United States. Central to the Israeli argument is that the forced detentions and torture have saved hundreds of lives, lives that would not have been saved otherwise. Central to the US argument is that the more they know about how the terrorist networks operate, the better able they will be to prevent future acts. That a number of innocent people, or people who may not be innocent but who do not have any relevant information, are tortured is not as important as the fact that a number of guilty or knowledgeable ones are, and the information they give has saved a great many lives. The GSS and FBI investigators are certain that many of their detainees have information that will save lives. They are just not always sure which ones those are.

But this utilitarian argument cannot be justified in light of international law and treaty and the impossible position in which such practices put a large number of people. One reason stems from the utilitarian ethic itself: given the unreliability of information obtained this way, the benefits rarely outweigh the harms. Furthermore, it may be the case some useful information will be uncovered, but one has to use of people to get it. Thus, when the practice of torture is aimed at a specific population, members of which may or may not have relevant information, it cannot be justified. It does not make sense to commit oneself to the principle that such acts are wrong and then disregard that fact when threatened. This, in effect, says that one set of lives (one’s group) is more valuable than another set (the other group) and this is inconsistent with the idea that all human life has special value and dignity.

However, the purpose of international humanitarian laws regarding torture is to protect human lives and dignity. But when they are applied in such a way that prevents an interrogator from doing just that, it does make sense to reconsider this application. Furthermore, sometimes there are ways to tell if the information gained is reliable. If an interrogator knows that a terrorist has planted a bomb that will soon go off but does not know where, he can test the answer he gets by going to where the terrorist indicates. If there is no bomb, then the information was unreliable. Thus the objection that information gained from torture is usually unreliable does not hold up in this kind of situation.

Thus, when a terrorist has done or knows something that puts other peoples’ lives in danger AND it is still possible to save those lives, then an interrogator may be permitted to use some forms of torture to obtain that information. When someone willfully puts innocent lives at risk, he loses the shared expectations he may reasonably possess changes. If an interrogator knows this person has such information, he then knows he has a means to save lives. It is not reasonable for an interrogator to know he has means to save innocent lives but not use them simply because a rule exists. But I am not arguing that this is an occasion when it is permissible to disregard the limitations that shared expectations and good faith impose, but rather that they are changed.

When pushing the boundaries of any moral approach, as questions about torture do, it is important to be clear about what question we are asking. Sometimes we want to know what should be a matter of moral principle and sometimes we want to know if there are circumstances in which it can be justified to violate these principles. As noted above, this ethical approach is based on the idea that all human life has an inherent value that all people are rationally obligated to respect. The next question then is, is it ever permissible to disregard this foundational belief?

Supreme Emergency

            In the end, many may find this analysis to be naïve. They will insist that when pursuing important enough national security goals, it is foolish to insist that agents concern themselves with moral principle at the expense of mission accomplishment. To those who believe this based on the idea that there are no moral obligations between nations or that the ends of national security can justify any means, those arguments have been already addressed. There may be no moral obligations between nations, but there are between people. Only someone who rejects that their own life and liberty have value may reject the same for others.

Sill, there are many who reject the realist arguments addressed above who may still argue that some threats are so grave that they may still justify any course of action. This seems to be the spirit behind the conclusions of the 1954 Doolittle Commission’s Report. It recognized that some moral claims, like those of fair play, had some weight, but were outweighed by the need to defeat the threat of Communism. Today, in view of the War against Terrorism many also argue now is the time for the “gloves to come off.”

This problem has been an important feature of just war theory for many years. It seems wrong, even callous to uphold a moral principle, even a well-founded one, at the expense of innocent people’s lives. Here the demands of good character and moral principle clash.[56] Our integrity may be important, but it may not be that important.

In just war theory, the doctrine that addresses this most directly is the doctrine of Supreme Emergency. As Walzer notes, sometimes the evil the enemy represents is so great, almost anything is justified to prevent their victory.[57] But not all conflicts are with such an enemy, and even when they are there is a difference between preventing their victory and ensuring their defeat. Thus for it to be permissible to disregard the morality of war, two conditions must hold: 1) the threat must be grave. It must represent the enslavement or genocide of a people, or some other like catastrophe and 2) the threat must be immediate, that is defeat must be imminent—which implies that the morally legitimate means at one’s disposal to fight the threat are insufficient. When these conditions are met, only then may one disregard fundamental moral claims in favor of claims of necessity.[58]

This argument, though controversial, may justify allowing necessity and the idea that the “ends-justifies-the-means” to supercede other moral considerations in wartime. Presumably, this could apply to intelligence as well as military operations. But this would not be the case with intelligence operations in peacetime. And it follows from this argument that in peacetime the threat, while possibly grave, is not imminent, so breaches of moral principle, in this case treating people merely as means, are justified.

But the “War on Terrorism” has changed the calculation to some degree. Before the events of September 11, it would be hard to make the case that it would be permissible to invoke Supreme Emergency. The threat the terrorists represented was just not grave enough to warrant it. Before then, terrorists were more like criminals than like enemies. However, on that day certain terrorists demonstrated that they could represent a grave threat to the lives and well being of large numbers of people. Given that these terrorists are known to at least be pursuing nuclear and radiological weapons and other weapons of mass destruction (WMD), this threat may not just be grave, but in fact catastrophic.

To the extent the use of the weapons of mass destruction represent a grave threat to civilization, it is permissible to disregard moral norms to prevent their use. Like in the case of torture, it would be unconscionable for a government official to know he could have prevented the use of weapon of mass destruction, but failed to do so because other moral considerations would not have permitted it. But this is only the case if the threat of their use is imminent. Information like this, however, is very hard to obtain. We know, for example that they want to develop such weapons. We also know they have tried to obtain the information and material necessary to do so. We also know that if they did develop them, they would likely use them.

But we do not know if they have them. Thus we cannot know if their use is imminent. This being the case, it is impermissible to wage this war in a way that disregards the fundamental value of human life, that violates restrictions that otherwise should be there. But this should not be conflated with leaving the “gloves on.” In this approach, and as noted above, when pursuing information about terrorist activity, intelligence professionals are permitted to do what it necessary in order to obtain it. This is not because of utilitarian considerations, but rather that terrorists who possess this kind of information have no reasonable expectation not to be harmed, deceived or otherwise exploited in order for the intelligence professional to obtain it. What it does mean, however, is that restrictions on involving non-legitimate targets would still apply. But because this is a war, at least in the relevant sense, agents would not be required to minimize risk to non-legitimate targets in the same way they must in peacetime.

Furthermore, it is not the case that Supreme Emergency could never be invoked in this conflict. Though tragic as the events of September 11 were, they failed to represent the catastrophe to our civilization that the terrorists intended it to be. However, these events did underscore to what extent the terrorists are willing to go in order to create such a disaster. In order to do this, the terrorists are attempting to create and use weapons of mass destruction. But as noted before, knowing that someone wants to do something or is trying to do something is not the same as knowing they can do something. However if one knows that someone wants to do something AND that they can do this thing then one can safely conclude this thing is imminent. Once there is information that the terrorists have weapons of mass destruction it will be permissible to invoke Supreme Emergency and disregard—to the smallest extent possible—the moral norms associated with the law and morality of war.

            This conflict is much different than the conventional conflicts from which the doctrine of Supreme Emergency emerged. Sometimes it is like a war, as in the operations in Afghanistan and sometimes it is like a criminal investigation, as in much of the operations in the United States. There is not space here to discuss these operations in detail or develop a comprehensive theory for such conflicts; however, it is not the case that the doctrine of Supreme Emergency would justify disregarding moral norms in its pursuit at this point. The threat, while grave, is not immediate in the sense meant under the doctrine of Supreme Emergency. The terrorists may be developing weapons of mass destruction, but there is no evidence they have them yet. Thus the terrorists, at this point at least, do not represent the “utter catastrophe to civilization” that Supreme Emergency requires.[59] Our lives and wellbeing are threatened, but there are still a number of more moral means to pursue our goals in this conflict. This argument does not entail, however, that we “keep the gloves on.” It simply entails that when pursuing the terrorists and those who support them that we keep in mind the fundamental value of human life. Such is the risk good people must take if they are to remain good people.

Harms: Economic Espionage –National Security vs National Interest

Previous arguments imply that deceiving and harming—whatever actual activity that consists in—may be legitimate in pursuit of certain national security goals. But not all such activity directly impacts national security.

In the mid-nineties, the National Security Agency uncovered the fact that agents for the French aircraft manufacturer Airbus had bribed Saudi officials in an effort to beat the American companies McDonell-Douglas and Boeing to a contact worth $6 billion. Based on this information, President Clinton called King Fahd to complain and the Saudis subsequently awarded the contract to the American companies.[60] Clearly, the act of bribery by Airbus personnel was immoral. It fundamentally violates the conditions of shared expectations and good faith in regard to the competition. Further, it undermines the ability of the nation making the purchase to make a rational decision in the matter since those influenced by the bribe will likely fail to consider certain relevant information or will cause others to fail to consider this information. Otherwise, what would have been the purpose of the bribery in the first place? What is not so clear is whether it was morally permissible to use National Security Agency assets to uncover this fact.

As stated at the outset of this paper, the moral justification for the practices of the intelligence profession, particularly where such practice involves committing acts that would be immoral outside the professional context, is that such acts must aim at promoting national security, not simply national interests, and especially not simply the interests of some nationals.

However, sometimes issues of national security get conflated with these other concerns. Some things are good for the nation, or even a number of citizens of that nation, without being necessary in order to fulfill its obligations. Recently, it has become fashionable for intelligence agencies to conduct operations that support the welfare of corporations operating in that nation presumably with the intent of preserving or enhancing, by extension, the standard of living in that country. In fact, last year the Association of Former Intelligence Officers held a convention in Washington, DC specifically to discuss aspects of economic espionage. Speakers and attendees came from both governmental and non-governmental agencies and groups to discuss all aspects of such operations. Such developments are worrying in the context of the ethical debate.

            Thus when intelligence agencies engage in activities which specifically promote the welfare of organizations—whether they are governmental organizations, non-governmental organizations, or corporations—which do not directly enhance national security, they have crossed the line. This also precludes corporations from hiring intelligence professionals to do their “dirty” work for them. Unless narrowly pursuing the requirements of national security, it is wrong to steal industrial secrets or otherwise pursue unfair advantage over one’s competition.

            A counter-argument to this may be that some corporate sales are, in fact, vital to national security. If the Airbus sale were military aircraft, it might be plausibly argued that robust sales of a nation’s defense products directly contribute to the health of the defense industry, which directly contributes to national security. Thus, the NSA’s intervention in this matter would have served national security. However, in this view, so would the activities of the Airbus Corporation.

            What separates the activities of the NSA from that of Airbus was that Airbus’s actions aimed at gaining an unfair advantage over the competition. The acts of the NSA aimed at preventing the competition from gaining an unfair advantage. Thus given the logical connection between the health of the defense industry to the ability of a nation to defend itself, it follows that it is permissible to use any intelligence asset or method to prevent competition from other nations from gaining an unfair advantage. But, the line is crossed when such information is used take unfair advantage.

            Additionally, what is not immoral is the use of intelligence assets to obtain information through open and other legal sources. While there are certainly important issues to raise regarding the use of government assets, and thus taxpayer dollars, to aid corporations; to the extent they are used exclusively for national security reasons, and as long as there are no competing obligations, their use is moral. Thus, to the extent the operations of a corporation are essential to national security it may be permissible to use government assets to assist them in conducting those specific operations. But where this is not the case, the use of taxpayer dollars will likely not be permissible.

There is certainly much more to be said on this point, but that is not essential to our argument. Neither public or private intelligence professionals are permitted to deceive or harm to pursue things that are simply in the interest of a particular corporation. When the interest of the corporation and national security intelligence professionals may be permitted to conduct surveillance, but only to prevent other corporations and nations from taking an unfair advantage, never to gain one.

Conclusion

A committed moral nihilist or realist may still reject every claim set forth in this paper. There is nothing that logically requires that one sees all human life as inherently valuable other than that ones sees his own life as inherently valuable. Even then, this is only the case if one expects the fact that he values his life and liberty to stand as a reason for someone else to value, at least to some degree, his life and liberty. The only real problem with being a moral nihilist is if you are right, then there is no good reason not to kill you so that us more morally minded folks can get some sleep at night.

But what is difficult to do is to accept any moral claims, and then reject that they do not apply to you in the same way they apply to others. This formulation of the Golden Rule, one of the most ubiquitous and ultimately rational features of nearly every moral system, requires that when we disregard the dignity and rights of others there needs to be good reasons; reasons we would accept if the same were done to us.

But it is not sufficient for a reason to be good that we accept it, or expect others to accept it. Thus what emerges from this analysis is that the nature of the activity, to a large degree, determines the kinds of things that may be reasonably expected from people who engage in it. Intelligence professionals must often deceive and harm others in order to fulfill their role, and thus the state’s obligations to its citizens. But even so, intelligence professionals need to have good compelling reasons to justify some of their more “repugnant” activities.          

These reasons begin with the obligation of every state to preserve the lives and well being of its citizens. In fulfilling those obligations, people acting on behalf of the state must sometimes deceive and harm citizens of other nations. When intelligence professionals conduct such operations, they are limited by the respect all persons owe each other by virtue of the special dignity and value of human life. This means it may be permissible to deceive and harm, but not in such a way that treats people merely as means and not an end in themselves.

In practical terms this means intelligence professionals must take care in determining the nature as well as the targets of their operations. In terms of the nature of their operations, these are limited by those sets of shared expectations that make it possible to play the game in the first place, while still respecting the fundamental dignity of human life. In terms of the targets of their operations, this means they may only target those who have voluntarily entered the game and avoid involving people who may be useful, but who have not, by any choice they have made, entered the game.

The work of the professional intelligence officer, because it is indispensable to national security, which is a moral obligation of the state, is thus itself a moral obligation. Thus we can dispense with the idea that somehow the work of the intelligence professional is not compatible with the dictates of morality. But the road to hell is paved with good intentions and lines get crossed. Thus it becomes imperative to establish such a line so intelligence professionals can execute their duties in clear conscience. This is not only good for the professional, it is good for the profession, and given the profession’s importance, the nation as well.[61]

NOTES

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[1] Kent Pekel, Integrity, Ethics, and the CIA in Studies in Intelligence (Spring 1998) p. 87-89.

[2] James Bamford, The Puzzle Palace, New York: Penguin Books,  1982, p.34.

[3] Ibid., 33-62.

[4] Pekel, p. 88.

[5] R.V. Jones, Reflections on Intelligence, London: William Heinemann Ltd, 1989, p.42. Jones, an intelligence professional in WWII and noted scholar on the subject considers betraying an agent immoral under any but the most extreme examples.

[6] David A. Welch, “Morality and the National Interest” in Ethics and International Affairs Andrew Valls ed. New York: Rowman and Littlefield Publishers, Inc, 2000, p.8.

[7] James Doolittle, et al., "Report on the Covert Activities of the Central Intelligence Agency," pp. 143-145, quoted in  Dr David L. Perry “Repugnant Philosophy: Ethics, Espionage, and Covert Action” Journal of Conflict Studies, Spring 1995.

[8] R.V. Jones, Reflections on Intelligence, London: William Heinemann Ltd, 1989, p.50.

[9] Bamford, p. 35.

[10] Jones, p. 56.

[11] Ibid. p. 49-50.

[12] Charles R. Beitz, Political Theory and International Relations, 2 ed, Princeton, Princeton University Press, 1999, p. 58.

[13] Ibid. See also John  Rawls Theory of Justice, Revised Edition, Boston: Harvard University Press, 1999.

[14] Immanuel Kant. Foundations of the Metaphysics of Morals (1785) Lewis Beck, trans Inianapolis, Indiana: Bobbs-Merrill Educational Publishing, 1959, Preface.

[15] Ibid.

[16] Michael Walzer, Just and Unjust Wars New York: Basic Books, Inc, 1977,  p. 54

[17] Thomas Nagel What Does it All Mean, Oxford: Oxford University Press, 1987 pp. 59-61.

[18] I am sidestepping this debate. There are numerous problems with this view that I do not wish to address here. Whether or not states themselves have rights—whether they are derivative of individual rights or not—is not as important to this discussion as is the nature of the obligations states possess by virtue of the special value with which we hold human life. I am also sidestepping the issue of exactly which rights people possess. But what I am suggesting is that any rights you consider yourself to have you must also grant to others.

[19] Welch, p. 8.

[20] CNN 6 December 2001. http://www.cnn.com/2001/US/12/06/inv.ashcroft.hearing/index.html. In this article Ashcroft is quoted as saying “Our efforts have been crafted carefully to avoid fringing on constitutional rights, while saving American lives.”

[21] In the context of Just War Theory, the obligation not to commit an act of aggression against another sovereign state serves as an example. See Walzer, ch 4 for a complete argument.

[22] While there is some disagreement on exactly what the criteria of jus ad bellum (the justice of war) consist in, most agree on the following: just cause, right authority, right intention, proportionality of ends, last resort, reasonable chance of success. Only when all of these criteria are fulfilled is it permissible to go to war.

[23] R.V. Jones, Reflections on Intelligence, London: William Heinemann Ltd, 1989, p. 38. Jones makes the point that had either the US or the USSR been able to obtain reliable information regarding each other’s nuclear weapons programs, arms control talks aimed at reducing nuclear arsenals would have been much more effective. One of the chief obstacles to many of the proposed treaties was that there was no way to verify compliance except by taking the word of the other side.

[24] Rabbi Berel Wein, “Jonathan Pollard,” Jerusalem Post June 30, 2000.  http:www/rabbi.wein.com/

[25] Walzer argues that the only kind of act of aggression that justifies going to war is a violation of political sovereignty and territorial integrity of a particular nation since these are essential if the state is to fulfill its obligations to its citizens (see Chapter 4). While I agree that this is true, there are other lesser ‘acts of aggression’ that though they do not justify war, do justify surveillance.

[26] E. Drexel Godfrey, “Ethics and Intelligence,” Foreign Affairs 56, no. 3 April 1978, p. 624.

[27] Source: Monterey Bay Aquarium

[28] I am not arguing that all betrayal is wrong. Certainly ‘whistle blowing’ is a kind of betrayal, where someone divulges about the wrongdoing of a particular person or organization that they would prefer remain secret.  But when done to prevent a moral wrong, it is not immoral.

[29] Major Mark Mattox, The Moral Status of Military Deception, paper presented at the Joint Services Conference on Professional Ethics, 28-30 January, 2000. http://www.usafa.edu/isme/JSCOPE00/ Mattox00.html p. 2

[30] Ibid., p. 3

[31] Ibid.

[32] Jones, p. 35

[33] David Hoffman “Betrayal vs Loyalty” Jerusalem Post, March 19, 1993, http://www.shamash.org/lists/jpollard/post/jq930319.htm. See also the Association for the Liberation of Jonathan Pollard web site: http://www/shamash.org/lists/jpollard/pollard.htm. 

[34] Thomas Nagel, “War and Massacre,” in Philosophy and Public Affairs  Princeton: Princeton University Press, quoted in Ethics, Timothy Challans, ed. New York: McGraw Hill, 2000, p. 210

[35] Walzer, p. 201. Walzer makes this distinction in discussing who may legitimately be targets of ‘freedom fighters’ in pursuit of a just cause. Jones also agrees that it is morally offensive to target family and friends in order to obtain information. Jones, p. 49.

[36] An Encyclopedia of War and Ethics, Donald A. Wells, ed. Westport, CT :Greenwood Press,  1996, p. 434.

[37] Mattox, p. 5.

[38] Kant, p. 40.

[39] I am grateful to Colonel Anthony Hartle for this example.

[40] Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues 2nd ed.(New Jersey: Prentice Hall, 1999, p. 52. This doctrine was developed in response to Augustine’s prohibition against self-defense. Augustine held that self-defense was inherently selfish and that acts motivated by selfishness were not morally justifiable since selfishness is not morally justifiable.

[41] Ibid., p. 93.

[42] War, in this case, is to be taken in a literal rather than legal sense. Thus wartime permissions would be present in the Korean War  that would not be present against, for example, North Korea today.

[43] For a detailed argument regarding why it is wrong to put the lives of innocent people at risk in peacetime see Tony Pfaff, Peacekeeping and the Just War Tradition, Carlisle, Pennsylvania: Strategic Studies Institute, 2000.

[44] This statement is undoubtedly controversial, but I will take a military example to illustrate my point. It may be cowardly, and thus immoral, for an enemy soldier to surrender in some circumstances but that does not make it wrong for the other side to accept or encourage that surrender. So in environments of conflict, I think you can end up in situations where an action by one side is immoral, but taking advantage of that act by the other side is not.

[45] Jones, p. 43.

[46] Geneva Convention, pt I-IV quoted in Documents on the Law of War Adam Roberts and Richard Guelff, eds. Oxford: Clarendon Press, 1989, pp. 172, 175, 188, 195, 223, 273, 323, 431.

[47] Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, p. 80 quoted in The Israeli Law Review, p. 2. http://unixware.mscc.huji.ac.il/~law1/ilr/ilr23_2.htm.

[48] Amnesty International, Israel: High Court Should End the Shame of Torture, http://web.amnesty.org/ai.nsf/Index/MDE1500519999?OpenDocuments&of =THEMES\TORTURE%5CILL-TREATMENT.

[49] Walter Pincus,  “Silence of 4 Terror Probe Suspects Poses Dilemma,” Washington Post 21 October 2001. Online at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentID=A27748-2001Oct20.

[50] Ibid.

[51]Amnesty International, p. 1.

[52] Roberts and Guelff, p. 328.

[53] Amnesty International, p. 2.

[54] There are numerous definitions of terrorism, up to 109 by some counts. For our purposes I will define terrorism as violence intentionally directed at non-combatants in order to achieve desired political ends. What makes such activity morally objectionable is that the deaths of the non-combatants are the means to the desired ends and not incidental to it.

[55] Roughly speaking, soldiers are protected from torture even if they likely possess information that will help the other side, because he is innocent of the cause of the war. Civilians are protected to the extent they are suspects. This point will be developed in the next paragraph.

[56] For a detailed discussion of how they clash see Tony Pfaff, Virtue Ethics and Leadership, http: www.usafa.edu/isme/JSCOPE98/PFAFF98.htm.  In this paper I argue that there are circumstances in which good people may have good moral reasons for doing something that is morally repugnant, but this does not mean they should not be held accountable for such action.

[57] Walzer, chapter 16.

[58] Ibid., p. 252.

[59] Ibid., pp. 252-254.

[60] Thomas Pickering, Mr. Diplomat, interview by Foreign Policy (July/August 2001) p. 40.

[61] I would like to thank Dr Beverly Milton Edwards of Queens University, Belfast, Northern Ireland and Dr Sandra Visser, Valparaiso University for their invaluable help in preparing and reviewing this paper.  I am also grateful for the efforts of Captain Eric Larson, US Special Forces and Captain James Dickey, Military Intelligence Branch, who were instrumental in helping develop and articulate this argument.