The Moral Choices on Interrogations

The new movie "Zero Dark Thirty" and a yet-to-be-released report approved by the United Senate Select Committee on Intelligence on the CIA interrogation program have turned the media spotlight once again on the issue of enhanced interrogation methods. While this article by David Ignatius doesn't cover new ground, it does raise once more the issue of whether the key factor in determining whether enhanced interrogation methods are permissible is the effectiveness of these methods to obtain valuable information. Perhaps certain interrogation methods are never justifiable despite their alleged effectiveness.

Executive Order 13491, signed by President Obama on January 22, 2009, limits interrogation techniques to those "authorized by and listed in Army Field Manual 2 22.3". Certain interrogation techniques deemed "enhanced interrogation methods" used by U.S. officials in the aftermath of the attacks of 9/11 would not be permitted under Executive Order 13491. However, this has not stopped the public debate. Amy Zegart has pointed out, in her recent article "Torture Creep", that surveys indicate that the American public in 2012 is more accepting of enhanced interrogation methods than was the case in 2005. One possible reason for this is that many people might not believe claims that the most vital information can be derived from detainees through non-coercive means. Additionally, in their minds, harsh interrogation methods might demonstrate a level of seriousness in stopping terrorism that other methods do not.

Ultimately, the general public is forced to view the issue as outsiders not privy to the full account of methods used or the actual information obtained. Therefore, outsiders are not in a position to decide what is effective or even whether non-coercive means would have obtained or did in fact obtain the same information. Reliance by the general public on expert opinion or the experiences of "insiders" is hardly unique to intelligence work. However, the secrecy surrounding intelligence work complicates exponentially any attempt at an informed decision on matters such as enhanced interrogation methods. This fumbling in the dark heightens the need for the robust internal oversight of activities whose impact few members of the general public feel directly and for which public information is scarce. 

The Moral Choices on Interrogations, David Ignatius, The Washington Post, December 12, 2012

CIA's Ex-Con Code Thief Reflects On His Career

From NPR:

"NEAL CONAN, HOST:
An elite team of CIA operatives flies overseas, breaks into foreign embassies and steals secret codes, all without leaving a trace. While that might sound like the plotline of a Hollywood film, former CIA officer Doug Groat conducted such missions until he questioned his superiors about sloppy procedures on one operation that almost cost him and his team their freedom or maybe their lives. The battle that ensued between Groat and the CIA led to charges of espionage and extortion and four years in prison. Doug Groat joins us now from member station WUOT in Knoxville. Nice to have you with us today."

CIA's Ex-Con Code Thief Reflects On His Career, National Public Radio, October 15, 2012

The CIA Burglar Who Went Rogue, Smithsonian Magazine, October 2012

Standing to Challenge NSA Surveillance

Standing is a concept in American jurisprudence in which a party has the right to make a legal claim. In general, an individual or organization filing the suit must demonstrate that they have suffered an actual injury due to the conduct in question. The standing rule prevents, in many cases, lawsuits filed on behalf of others. The standing rule also prevents lawsuits by a party that has not suffered an actual injury, but the potential for injury exists. For instance, the fact that the National Security Agency is conducting a surveillance program, along with the mere possibility that a specific individual might be caught up in the dragnet, is potentially insufficient to meet the standing criteria without evidence that the specific individual actually was impacted by the surveillance. 

Before the United States Supreme Court this month is the case of Clapper v. Amnesty International USA, in which the plaintiffs seek prospective relief from the NSA surveillance program called "Stellar Wind". The following link is to a page maintained by the American Bar Association on the case.

Clapper v. Amnesty International USA

Torture Creep

"Why are more Americans accepting Bush-era policies than ever before?"

 Torture Creep by Amy Zegart, Foreign Policy, September 25, 2012

The Virtuous Spy: Privacy as an Ethical Limit

Abstract:

"Is there any reason not to spy on other people as necessary to get the facts straight, especially if you can put the facts you uncover to good use? To "spy" is secretly to monitor or investigate another's beliefs, intentions, actions, omissions, or capacities, especially as revealed in otherwise concealed or confidential conduct, communications and documents. By definition, spying involves secret, covert activity, though not necessarily lies, fraud or dishonesty. Nor does spying necessarily involve the use of special equipment, such as a tape recorder or high-powered binoculars. Use of a third party agent, such as a "private eye" or Central Intelligence Agency operative is not necessary for surveillance to count as spying. Spying is morally troublesome both because it violates privacy norms and because it relies on secrecy and, perhaps, nefarious deception. Contemporary technologies of data collection make secret, privacy-invading surveillance easy and nearly irresistible. For every technology of confidential personal communication - telephone, mobile phone, computer email - there are one or more counter-technologies of eavesdropping. But covert surveillance conducted by amateur and professional spies still includes old-fashioned techniques of stealth, trickery and deception known a half century ago: shadowing by car, peeking at letters and diaries, donning disguises, breaking and entering, taking photographs, and tape recording conversations. The ethical examination of spying cannot be reduced to a conversation about reigning in the mischief potential of twenty-first century technology. We do need to concern ourselves with what tomorrow's spies will do with nanotechnology, but plenty of spying is possible with the time-tested techniques of the Baby Boomers, or even, for that matter, the Victorians.

The philosophical problem I wish to consider here is the ethical limits of spying on others, when the reasons for spying are good. I explore the plausibility of three interrelated ideas. The first idea is one I will call the anti-spying principle: spying on other adults is prima facie unethical. The second idea is an exception to the anti-spying principle: spying on others is ethically permissible, even mandatory, in certain situations, where the ends are good. The third and final idea is a constraint on exceptions to the anti-spying principle: where spying is ethically permitted or required, there are ethical limits on the methods of spying. The virtuous spy will violate privacy and transparency norms, of course; but he or she will, to the extent possible, continue to act with respect for the moral autonomy and for the moral and legal interests of the investigative target"

The Virtuous Spy: Privacy as an Ethical Limit, Anita L. Allen, The Monist: An International Quarterly Journal of General Philosophical Inquiry, Vol. 91, No. 1, 2008

Democracy, Human Rights, and Intelligence Sharing

"In this Article, the author explores the networks used by intelligence agencies to share intelligence and conduct joint operations with foreign counterparts worldwide. Understanding how these intelligence networks operate, the author argues, is imperative both for effective intelligence gathering and for a democratic society. Characterized by secrecy, flexibility, and informality, intelligence sharing networks are constrained almost exclusively by a shared professional ethos, rather than law. According to the author, such an ethos can exert some degree of accountability to professional norms, but has been strained by the inclusion of less professional and often ruthless intelligence services in the network. Nonetheless, all such networks pose serious threat to the preservation of liberal democracies in that they essentially govern themselves. The very concept of democracy demands that an intelligence agency be held accountable to a democratic body or officials outside of the agency itself. Yet, as this Article shows, few democratically elected officials are aware of intelligence sharing; and virtually no mechanism, other than self-regulation, provides oversight or accountability for any intelligence agency’s transnational activities. As a result, through their network ties, intelligence agencies that are expected to serve democratic interests have undermined foreign policy and circumvented safeguards established by domestic law and international treaties. The author argues that this serious gap in the rule of law must be filled and posits ways to render intelligence agencies more accountable to the democracies they purport to serve."

Democracy, Human Rights, and Intelligence Sharing, Elizabeth Sepper, Texas International Law Journal, Vol. 46, 151-207 (2010)

Court Order Denying Access to CIA Files

From 2010, here is a copy of the court order in which a U.S. District Court Judge denied a request, submitted under the Freedom of Information Act (FOIA) by the American Civil Liberties Union (ACLU), for materials on the treatment of detainees found in CIA files. More specifically, the ACLU requested documents concerning enhanced interrogation methods.

The principal argument made by the judge was that FOIA gave broad discretion to the government to withhold information concerning the methods and sources for gathering intelligence. The judge asserted that he was unwilling to “second-guess the CIA Director regarding the appropriateness of any particular intelligence source or method” and that documents properly classified under executive order were exempt from mandatory release under FOIA, even if these documents might contain evidence of illegal actions by the CIA.

Order and Opinion Denying Plaintiff's Motion for Reconsideration: FOIA Exemption Three Applies Despite Claims That Underlying Intelligence Sources or Methods Violate the Constitution or Statutes of the United States

Rules of Behavior For Military Intelligence Personnel (Philippines)

"This Guidebook is timely and relevant amid reports of human rights violations attributed to the military. It serves to reaffirm the AFP’s commitment to anchor security and intelligence operations on a firm human rights framework." 

"Intelligence work is a fundamental component of military operations. Information, after all, is power. Human rights is needed to ensure that the process and outcome of such vital operations do not exceed the limits set by our democratic and republican system. Human rights secure the rule of law even as the rule of law guarantees the enjoyment of human rights by all and in all circumstances."

"This Guidebook will help deepen the commitment and awareness of the soldiers to promote and protect human rights which, in turn, will contribute immensely to win the campaign against insurgency and terrorism."

"I therefore enjoin the personnel of the Intelligence Community to read and learn by heart the contents of this Guidebook, bearing in mind that professional soldiers are not only guardians of our people and our country, but also peace and human rights advocates."

Human Rights-Based Intelligence Operations: Rules of Behavior For Military Intelligence Personnel, Armed Forces of the Philippines (2011)

1977 CIA Bibliography on Ethics and Intelligence

The following CIA bibliography was released in 2009 as a result of a request made under the Freedom of Information Act (FOIA). The bibliography emphasizes resources on secrecy.

Morality and ethics/intelligence and secrecy in our democracy.

Reevaluating the rationale for Operation TPAJAX

In the June 2012 Studies in Intelligence, Torey McMurdo discusses the reasons why the United States and Britain overthrew Iran's Prime Minister Mohammed Mossadeq in August 1953.

The Economics of Overthrow: The United States, Britain, and the Hidden Justification of Operation TPAJAX

Ongoing lawsuit by Vietnam War Veterans against the CIA for drug experimentation

Here's a link to an extensive resource on an ongoing lawsuit originally filed in 2009 in a federal court in the Northern District of California for the alleged experimentation on military personnel of a wide variety of drugs for purposes such as behavior modification and enhancing the ability to withstand torture.

Vietnam Veterans of American, et al. v. Central Intelligence Agency, et al. Case No. CV-09-0037-CW, U.S.D.C. (N.D. Cal. 2009

Morality and the Bourne Legacy

The Bourne movies generally portray the CIA as an organization for which moral considerations are decidedly secondary to operational exigencies. In the following commentary, Drew Zahn, takes a look at the new movie The Bourne Legacy and tries to piece together what this movie might be trying to say about the role of ethics in intelligence operations.

Who needs morality when you're the CIA?

Spying on NY Muslims Led to No Terror Leads

According to the following article written by Adam Goldman and Matt Apuzzo of the Associated Press, six years of surveillance conducted against Muslims in the New York City area has led to no terror investigations. 

Six years of spying on New York Muslims didn’t generate a single terror lead: NYPD

2011 Report on Security Clearance Determinations

Issued by the Office of the Director of National Intelligence (ODNI), this annual report, required by Congress, summarizes the security clearance process and includes statistics on the total number of individuals that possess various types of security clearances.

2011 Report on Security Clearance Determinations

Spying on Other Nations

Individuals, tribes, clans, and nations have spied on each other throughout history. It seems the very attempt to hide information by one party encourages efforts to uncover this information by another. As we can see even in our online world, people often go to great lengths to protect themselves from unwanted attention by masking their true identity and tightly controlling the flow of personal information. However, this effort of concealment may appear to others to be an attempt to conceal wrongdoing, scheming, and deception for many believe that the truth should be able to stand the light of day, rather than lurk in the shadows of the night. 

However the mass media and the film industry may glamorize the exploits of spies, spying is generally a pejorative term and to be a spy may mean to be someone who intrudes upon privacy, who violates confidences, who panders to the weaknesses of troubled people, and whose very existence creates an atmosphere of mistrust and hostility. For spying ultimately springs, not from idle curiosity, but rivalry and control.

On the international level, much information about the capabilities and ambitions of other countries can be gathered in a non-intrusive manner by monitoring a country's media and the literature produced by both the public and private sectors. In countries where speech is relatively uninhibited the flow of information is much more pronounced than in nations that limit such information. But all nations keep secrets. All nations hide information that potentially affects the well-being of the citizens of other nations. And to get this information requires taking it without the consent of the other nation, in other words, stealing it. 

Much information is gathered by listening to the communications of other countries. The bits and pieces of information gathered through the interception of communications, provided they can be translated, decrypted, and properly analyzed, help form a mosaic, each piece helping to complete the bigger picture. Other information must be obtained by recruiting people that have access to the desired information. Contrary to what many might believe, the full panoply of the secrets of a nation cannot be obtained by simply cracking a few safes, swiping documents off the desks of a few key government/military officials, or dropping a few commandos in a country armed with the latest digital photographic gadgets and high-speed satellite communication equipment. Nations are far too complex and understanding military capabilities, for example, requires much more than counting troops and tanks. It requires understanding industrial capacity, access to raw materials, access to fuel, etc. 

Many secrets are not really secrets at all, but rather mysteries. A secret is a known quantity, although hidden from certain eyes. What lies in the minds of leaders may be mysteries because they themselves may not know how they will respond to events until they actually respond. The very possibility of choosing a different course of action ultimately means that no amount of intelligence-gathering will produce an infallible knowledge of another country. However, since national leaders are charged with the duty of protecting the security of the people in their countries, this responsibility demands that they be alert to threats to their country. Not having an adequate picture of the capabilities and designs of other countries may mean that decisions are ill-informed, and leaders may overreact or underreact to dangerous developments abroad. However unpleasant the methods of spying may be, the harm caused by spying is far less than the harm that can be caused by warfare between modern military forces possessing unparalleled destructive power. If spying can enhance the defense capabilities of a nation and deter surprise attacks, then spying may actually be a good; or, at least, a lesser evil than war.

One of the problems inherent in spying is that the value of the information ultimately obtained may be impossible to predict in advance. Much effort can be spent with little to show in return. In many ways, spying is a highly inefficient use of a nation’s resources. But nations are reluctant to curtail spying activities as long as other nations continue to spy. Unilateral gestures, however edifying in the short term, probably won’t convince other countries to return the favor. So an important question remains as to whether a nation can forgo or reduce spying activities without seriously jeopardizing national security, whose protection is the moral responsibility of the leader. 

Unfortunately, those not possessing access to information gathered are ill-equipped to answer the question of whether what is gathered via spying is critical to national security (or other national interests) and therefore worth the moral compromises that might be necessary to collect it. What are the moral compromises? What harm does spying actually cause? Surely anyone possessing access to corporate/military/government secrets should reasonably expect to be a target for foreign powers. Knowing this, they can adjust their behavior accordingly by making themselves less vulnerable to exploitation. Playing this game is simply one of the job requirements.

Yet, is it really morally permissible to engage in deceit, to blackmail, to burglarize offices, to eavesdrop on phone calls, to prey on the weaknesses of others, to entice citizens of foreign nations to betray their countries? Are there ethical boundaries to what a nation can do to obtain information about other nations? Is it ethical to steal secrets for purposes less directly related to national defense? 

For the time being, let’s set aside legal concerns. Of course, spying activities violate the domestic laws of the target nations, even though spying may not violate what is referred to as “international law”. What I’m interested in now are the ethical concerns, right and wrong, morally permissible or morally impermissible, justified or unjustified. 

Remember that claims that spying is immoral or that ethical spying is a logical impossibility are conclusions, not arguments. In the distant future, there may be a world government, with power and resources, to enforce a universally agreed upon law of conduct. Until that time, nations do have a legitimate interest in identifying threats to their well-being. Finding the boundaries of the activities in support of this interest is the task at hand.