Author: Seumas Miller

           

1 National Security Intelligence

 

The definition of intelligence in criminal justice, national security and related contexts is problematic and I do not have a complete and correct one to offer here. However, many items of what are referred to as intelligence, whether human intelligence or electronic intelligence, can be thought of as, (i) being expressed or expressible in a language and, therefore, communicable, (ii) being epistemic (or knowledge focused) – and, as such, even in their raw form capable of being true or false, correct or incorrect, probable or improbable, evidence-based or not, etc. – (iii) stored somewhere, e.g. in an investigator’s notebook, in a security organization’s data bank, and (iv) elements or fragments of some larger network or structure in terms of which any given single such item is only intelligible. Intelligence, therefore, can be thought of as in large part consisting of statements, or material expressible as statements, stored in some information storage system.

Information and intelligence are closely related concepts. Both information and intelligence –at least in many of their forms – can be thought of as statements stored in some information system. Moreover, both information and intelligence, as I will use the terms in this paper, are either true or false (albeit, perhaps unverifiable), but neither is necessarily true. This is, of course, true of disinformation masquerading as bona fide intelligence and also of much ‘raw’ intelligence (often referred to as ‘data’). But it is also true of intelligence that has been subjected to analysis and is well-evidenced. Finally, neither information nor intelligence necessarily has a good and decisive justification. Accordingly, neither information nor intelligence is necessarily knowledge. On the other hand, a piece of information or of intelligence might be true and might have a good and decisive justification, i.e. some information and some intelligence is knowledge.

Notwithstanding that information and intelligence are closely related concepts they are not the same thing; specifically, intelligence is information but information is not necessarily intelligence. In the context of criminal investigations, intelligence is information that is utilized, actually or potentially: (i) to facilitate the outcome of specific criminal investigations, (e.g. to identify and apprehend the Yorkshire Ripper); (ii) in the day-to-day tasking and deployment of an organization’s sub-units, (e.g. a local police station or local area command unit) in response to crimes of particular types in particular locations, (e.g. violence at closing time outside certain late night venues on weekends) (tactical intelligence), or; (iii) in the long term planning of the organization’s deployment of resources and its strategic response to crime trends (e.g. home-grown terrorism), (strategic intelligence).

Notice that intelligence, whether it be criminal intelligence, market intelligence, or military intelligence is defined relative to some institutional purpose or function. Police seek information for purposes of investigation, arrest, prosecution of criminals. That the information is sought in order to realize these kinds of purposes is what makes the information in question criminal intelligence. Likewise members of military intelligence agencies seek information for the purposes of winning wars, deterring military aggressors, and so on, and that the information is sought for these purposes makes it military intelligence. Again, corporations seek information on other corporations for purposes of gaining commercial advantage in a context market-based competition, and that the information is sought for these purposes makes it market intelligence.

In short, in this paper I am assuming a teleological (purpose-based) or functional account of intelligence, i.e. intelligence is, by definition, information or data (expressible as a statement or, more likely, structured set of statements) that is acquired for various institutional purposes. Moreover, intelligence is institutionally relative in that it is relative to the purposes of some institution. So military intelligence is a different category of intelligence from criminal intelligence because military institutions have a somewhat different institutional purpose than police organizations. That said, one and the same item of knowledge might be both an item of military intelligence and an item of criminal intelligence, e.g. Abū Bakr al-Baghdadi is engaged in war crimes. The fact that military intelligence and criminal intelligence are different categories of intelligence does not mean that a given piece of information might not belong to both categories.

What of so-called national security intelligence? National security intelligence is sometimes collected, analysed and disseminated – as actionable intelligence – by military organisations, sometimes by police organisations, but paradigmatically by intelligence agencies the institutional purpose of which is internal and/or external national security, e.g. the CIA, NSA, GCHQ, MI5, MI6, Mossad, RAW, ASIO etc. Accordingly, what makes information or other data collected by these agencies national security intelligence is that these agencies collect,  analyse and disseminate this information in the service of national security – national security being their primary institutional purpose. This immediately raises the vexed question as to what national security is; after all, the content of the term “national security” is notoriously ill-defined, indeterminate, shifting, open-ended and contestable. For instance, the US National Intelligence Strategy has as one of its purposes to promote liberal democracy, and the UK’s has as one of its purposes to combat crime. Importantly, national security should not simply be understood as national interest, since the latter notion is very permissive and could license all manner of individual and collective rights violations. For instance, it might be in the national interest of a nation-state to increase its territory by invading a neighbouring nation-state, e.g. Germany’s invasion Poland in the initial stages of World War 2 or a possible(?) future Russian invasion of Ukraine, or to enslave a population, or otherwise engage in widespread, serious rights violations, to increase its own wealth, e.g. US’ enslavement of members of African tribes in the antebellum or the Chinese incarceration in the last few years of hundreds of thousands of Uighurs in oil and resources rich Xinjiang. However, let us assume that national security intelligence is intelligence pertaining to serious internal or external threats to the nation-state itself, or to one of its fundamental political, military or criminal justice institutions, and that these threats might emanate from state or non-state actors, e.g. terrorist groups.

I note that on this account of national security intelligence it would include military intelligence and some, but by no means all, criminal intelligence. I also note that intelligence collection, analysis and dissemination is not an end-in-itself; rather the end-point of the intelligence process is actionable intelligence, i.e. intelligence to relevant decision-makers that is a means to non-epistemic, notably kinetic, action (or, as the case may be, intentional in-action). I further note that many intelligence agencies focussed on the epistemic activity of national security intelligence have traditionally also engaged in kinetic activity, e.g. sabotage (including by way of cyber-attacks, such as the Stuxnet virus), interference in elections, funding dissidents, cross border kidnappings, arming secessionists, assassinations. Moreover, some of their intelligence collection, analysis and dissemination is in the service of these latter covert operations. Accordingly, not all national security intelligence collected, analysed and disseminated by national security intelligence agencies is in the service of kinetic activities (often devised by policymakers) to be conducted by other institutions, e.g. by the military or the police and/or under the direction of the intelligence agencies’ political masters.

Armed with these working definitions of intelligence in general and national security intelligence in particular, let me now turn to the normative theory or model of intelligence of interest here, namely, what I refer to as the Just Intelligence Model (JIM) since it is based on the Just War Theory (JWT) of war. JWT is, of course, a normative theory, i.e. a theory consisting of a set of conditions under which waging war is (allegedly) morally justified. Likewise, JIM is a theory consisting of a set of condition under which national security intelligence collection, analysis and communication is (allegedly) morally justified. Let me begin by briefly outlining (versions of) JWT and JIM.

 

2 Just War Theory and the Just Intelligence Model

 

Roughly speaking, according to JWT, the armed forces of a collective political entity, A (e.g. a nation-state) are morally justified in waging war against the armed forces of another collective political entity, B, (e.g. a nation-state or a terrorist organisation engaged in military conflict such as Islamic State) if and only if:

(1)A’s purpose in waging war is self-defense against B’s military aggression or other defense against B’s massive ongoing rights violations (notably genocide) of a non-ally of A;

(2)A uses lethal force only to the end of bringing about the cessation of B’s aggression;

(3) A’s armed forces are waging war under a legitimate political authority;

(4) There is no alternative means of defense against B and so A wages war as a last resort;

(5) A has a reasonable chance of winning the war against B;

(6) It is probable that if A wages war against B the consequences, all things considered, will be better than if A does not;

(7) A only deliberately uses lethal force against morally legitimate targets, i.e. against B’s combatants (identifiable by virtue of their uniforms and the fact that they bear their arms openly) but not B’s civilians ((i) principle of discrimination), an extent of violence that is necessary to the end of winning the constitutive battles of the war and, ultimately, the war itself ((ii) principle of military necessity), and the violence is not disproportionate ((iii) principle of proportionality). Notice that condition (7) is essentially the so-called jus in bello of JWT according to which combatants on both the just and the unjust side are moral equals. (Conditions (1) – (6) constitute the so-called jus ad bellum)). However, I am assuming that a war that failed to comply with the jus in bello would not be a just war by the lights of JWT.

Let me now outline an account of JIM that parallels the above account of JWT. I note that JIM is intended by some of its advocates to apply not simply to national security intelligence but also to criminal intelligence that might not be national security intelligence. For simplicity I will confine myself here to national security intelligence.

Roughly speaking, according to JIM[1], the national security intelligence agencies of a collective political entity, A (a nation-state), are morally justified in collecting, analysing and communicating intelligence in relation to an individual or collective political actor, B, (e.g. a nation-state or terrorist group) if and only if:

(1*)A’s purpose in undertaking these intelligence activities is to enable other agencies to remove the national security threat posed by B;

(2*)A undertakes these intelligence activities only for the ultimate purpose of enabling the removal of the threat to its national security posed by B;

(3*) A’s intelligence agencies are collecting, analyzing and disseminating the intelligence in question under a legitimate political authority;

(4*) There is no alternative means of enabling the removal of the national security threat posed by B and so A’s intelligence activities are a last resort;

(5*) A has a reasonable chance of enabling the removal of the national security posed by B;

(6*) It is probable that if A undertakes these intelligence activities directed at B the consequences, all things considered, will be better than if A does not;

(7*) A only deliberately collects, analyses and disseminates intelligence concerning morally legitimate targets, ((i) principle of discrimination*), an extent of intelligence activity that is necessary to the end of removing the security threat posed by B (principle of intelligence necessity*), and the harm caused is not disproportionate (principle of proportionality*). Notice that condition (7*) is essentially the so-called jus in intelligentia of JIM. (Conditions (1*) – (6*) constitute the so-called jus ad intelligentiam). However, by analogy with JWT, I am assuming that intelligence activities that failed to comply with the jus in intelligentia would not be just by the lights of JIM.

3 Problems with the Just Intelligence Model

 

The analogy between JTW and JIM is problematic in a number of respects. First, the largely kinetic activity of waging war (‘killing people and breaking things’) is very different from the essentially epistemic activity of intelligence collection, analysis and dissemination. Importantly, epistemic activity is inherently less harmful than killing and maiming and, therefore, the moral constraints on it far more permissive. Second, the morally acceptable purposes of war, (essentially, defense against military aggression) constitute a much narrower, determinate and less open ended (e.g. wars, but not national security, generally have a start and finish date) set of national security concerns than those that might legitimately motivate intelligence activities. Third, unlike war, intelligence is not the last resort; rather it is typically the first resort. Indeed, it is logically prior to the decision whether to wage war. Whether to wage war, apply economic sanctions or merely use diplomacy are decisions predicated on intelligence. Fourth, intelligence activities do not in themselves remove national security threats rather, being epistemic activities, they are the precursor to the removal of these threats by other kinetic means, e.g. war, arrest. Accordingly, principles (1*), (2*), (4*) and (5*) are very different principles from (1), (2), (4) and (5) (respectively). The latter involve kinetic action that can directly remove the threat; the former are epistemic actions that are part of the precursor means provided to kinetic actors to remove the threat. Given the nature of epistemic action and its typically indirect relationship to significantly harmful outcomes, the moral principles governing it, and especially the application of these principles, is likely to be quite different.

Obviously principles (1) and (1*) are very different by virtue of the different purposes they express and their direct versus indirect (respectively) relationship to the realization of those purposes. Moreover, JIM’s analogue to (4) i.e. (4*), seems to be false. On the other hand, JWT and JIM do share some general principles, namely, (3) and (3*) (legitimate authority), (5) and (5*) (principle of reasonable prospects of success), and (6) and (6*) (principle of consequentialism) – albeit (5*) has an indirect relationship to the success of its ultimate purpose. Of these (5) and (5*) are instances of a general and rather abstract principle of rationality, and (6) and (6*) are instances of a general and rather abstract principle of morality. As such, these three sets of general principles do not do much by way of establishing a close relationship between JWT and JIM. For instance, they might also be regarded as principles to be applied to a morally committed market actor setting up his or her franchise business.

What of principles (2) and (2*), and of principles (7) and (7*)? Principles (2) and (2*) are analogous in so far as one should not engage in harmful activity morally justified by one purpose (e.g. self-defense or national security, respectively) for a different purpose which does not morally justify the activity, (e.g. territorial expansion or national interest, respectively). That said, as we have seen, national security is a much wider, less determinate and more open ended notion that self-defense against a military aggressor. Accordingly, intelligence gathered for one national security purpose can very easily be argued to be useable for another national security purpose.

Finally, let us turn to the matter of the analogy between (7) and (7*), i.e. the so-called jus in bello and jus in intelligentia. Let us distinguish between national security intelligence activities directed at one’s own citizens, e.g. home-grown terrorists or revolutionaries (internal threats to national security), and national security intelligence activities directed at foreign powers, including foreign spies (external threats to national security).

The targets of internal national security criminal intelligence activities are, presumably, criminals or suspected criminals. As such, they fall under what might be termed the law enforcement model under which law enforcement agencies such as the FBI conduct their activities, including their national security intelligence activities. However, the law enforcement model does not sit well with JWT nor, evidently with JIM.

Unlike combatants fighting an unjust war but operating under jus in bello principles, criminals do not identify themselves as such and seek to differentiate themselves from ‘ordinary civilians’ by way of dress or other means; quite the reverse, they seek to conceal their real identity. Hence the need for law enforcement agencies to utilize notions of probable cause and reasonable suspicion. Given their status as criminals, criminals are not regarded as moral equals by law enforcement officials (whether intelligence officers or others). In this respect criminals are quite different from combatants waging an unjust war in accordance with JWT’s principle of the moral equality of combatants (and quite different, of course, from combatants fighting a just war). For instance, if apprehended criminals are not treated as prisoners of war but are charged, tried and, if found guilty, sentenced and punished.

Foreign spies are also engaged in unlawful activity, as far as the nation-state being spied upon is concerned, and as such are also treated as criminals. On the other hand, there is a moral symmetry of sorts for foreign spies in so far as states spying on one another each regard the foreign spies working for it, not as criminals, but as intelligence personnel – indeed, they are often diplomatic staff officially serving in embassies. However, this moral symmetry does not seem to hold between home-grown terrorists or revolutionaries engaged in an unjust insurrection, on the one hand, and (say) undercover operatives gathering intelligence on them with a view to prosecuting them for crimes against the legitimate (let us assume) state in question.

While spies have the status of criminals rather than combatants the principle of discrimination does have some purchase in so far as, by analogy between combatants and non-combatants, criminals (and suspected criminals) are distinguished from innocent persons not suspected of any crime. Accordingly, intelligence activities in liberal democracies directed at internal threats to national security are or, at least, ought to be severely constrained in relation to innocent persons, i.e. fellow citizens. Indeed, they are, or ought to be, somewhat constrained, e.g. by principles of necessity and proportionality, even in relation to criminals and suspected criminals. However, the targets of intelligence activities can sometimes be innocent civilians, e.g. deceptively gaining information about a terrorist from the terrorist’s innocent relative might be morally justified on occasion. Moreover, intelligence activities directed at external threats to national security are much less constrained than those directed at internal threats; indeed, in war there are few, if any, constraints on intelligence activity. JIM does not seem to apply to any great extent.

What of the principles of necessity and of proportionality? Harmful internal national security intelligence activities are, or ought to be, conducted in accordance with principle of necessity and proportionality. For instance, the use of the method of intrusive surveillance should be necessary in the circumstances, if the desired intelligence is to be acquired, i.e. there is no alternative, less intrusive method available. Moreover, the use of intrusive surveillance in the circumstances should not disproportionately harm innocent third parties.

Here I note that the principle of necessity is a conflation of two principles: a principle of rationality and a principle of morality. The principle of rationality states that (other things being equal) one ought to perform actions that are the means to one’s ends and if there is a necessary means and, therefore, no alternative means, then one ought to choose it. The principle of morality states that (other things being equal) one ought to minimize harm and, therefore, if there are two equally effective means to some end then one ought to choose the least harmful. Clearly, the ends in play in JWT and JIM are different and so the means will be different. So drawing analogies in respect of the principle of rationality relies on moving to a high level of abstraction. What of the moral principle? Here there is an important substantive difference. For the moral principle in play in such intelligence operations is focused on minimizing harm to the criminal or suspected criminal (as well as to innocent third parties). Here there is a disanalogy with the constitutive moral principle of the principle of military necessity. The moral principle of the principle of military necessity applies when war is already underway and might not have a focus on minimizing harm to enemy combatants in, for instance, an ambush or firefight. Indeed, quite the reverse; it such circumstances it might be focused on maximizing harm to enemy combatants, e.g. if the most effective military strategy is to degrade enemy forces[2]. A related point can be made in respect to the operation of the principle of proportionality. If it was necessary to slaughter most of a much larger enemy force than one’s own in order to win a battle, this would not necessarily be regarded as a disproportionate measure, assuming civilians lives and the lives of one’s own combatants – belonging to the much smaller armed force – were not put at significant risk.

I conclude that while analogues of various principles constitutive of JWT apply to harmful internal national security intelligence activities, nevertheless: (i) some of these principles do not seem to apply, (e.g. principle of last resort); (ii) of these that can often be applied, there are important differences both in respect of the content of the principles thus applied (e.g. in the case of the principle of discrimination) and in their application (e.g. in the case of the principles of necessity and proportionality). In short, while JIM is a useful initial step in developing a normative framework for national security intelligence activities it has severe limitations.

[1] For closely related accounts of JIM see David Omand and Mark Pythian Principled Spying: The Ethics of Secret Intelligence (Georgetown University Press, 2018) Chapter 3, and Ross Bellaby The Ethics of Intelligence (Routledge, 2016). A number of the points made in relation to JIM are made in one form or other by Omand and Pythian. See Omand and Pythian Principled Spying Chapter 3.

[2] Seumas Miller Shooting to Kill: The Ethics of Police and Military Use of Lethal Force (Oxford University Press, 2016) Chapter 5.