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Ethics and Intelligence: A Debate

Sir David Omand & Mark Phythian
Published online: 30 Nov 2012.

To cite this article: Sir David Omand & Mark Phythian (2013) Ethics and Intelligence: A
Debate, International Journal of Intelligence and CounterIntelligence, 26:1, 38-63, DOI:
10.1080/08850607.2012.705186
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International Journal of Intelligence and CounterIntelligence, 26: 3863, 2013

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ISSN: 0885-0607 print=1521-0561 online
DOI: 10.1080/08850607.2012.705186

SIR DAVID OMAND and MARK PHYTHIAN

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Ethics and Intelligence: A Debate

A decade ago, the literature on the relationship between ethics and
intelligence was very limited. However, the post-9=11 (11 September 2011)
intelligence and security environment, in which national intelligence
agencies have been required to play front line war on terror roles, has
heightened the importance of debate about, and an informed
understanding of, the ethicsintelligence relationship. But any such debate
requires a framework. Consequently, over recent years, a literature on
ethics and intelligence has begun to develop. Our aim is to contribute to
this movement, add further flesh to the framework, and encourage others
to participate in the debate.

Sir David Omand GCB is Visiting Professor in the Department of War Studies
at Kings College London. In 2002, he was appointed the United Kingdoms first
Security and Intelligence Coordinator, responsible to the Prime Minister for the
professional health of the Intelligence Community, national counterterrorism
strategy, and homeland security. He served for seven years on the UKs Joint
Intelligence Committee. From 1997 to 2000, he was Permanent Secretary of
the Home Office, and before that was Director of the Government
Communications Headquarters (GCHQ). Sir David is the author of
Securing the State (London: C. Hurst, 2010).
Dr. Mark Phythian is Professor of Politics at the University of Leicester,
United Kingdom. Among the eleven books he has authored, edited, and
co-edited are: Intelligence in an Insecure World (with Peter GillLondon:
Polity, 2006); PSI Handbook of Global Security and Intelligence: National
Approaches, Volumes 1 and 2 (with Stuart Farson, Peter Gill, and Shlomo
ShpiroNew York: Praeger, 2008); and Commissions of Inquiry and
National Security: Comparative Approaches (with Stuart FarsonNew
York: Praeger, 2011). He has also written numerous journal articles and
book chapters.

38

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The idea for this particular debate arose from a workshop organized by the
Oxford Intelligence Group and the International Intelligence Ethics
Association on The Ethics of National Security Intelligence, held at
Nuffield College, Oxford, in March 2011, at which we both spoke. We
found that, while we agreed on many points, we disagreed or our
emphases differed on several specific points. To an extent, doing so may
well reflect our different backgrounds: one of us is a former senior
intelligence professional with the perspective this brings, the other an
academic engaged in developing Intelligence Studies as a social science
project. Inevitably, in a discussion of this nature, what we agree on tends
to be put to one side in discussing areas where we differ in understanding,
approach, and emphasis, as we contribute to the emerging debate on the
ethicsintelligence relationship.
MARK PHYTHIAN
The starting point for any discussion about the relationship between ethics
and intelligence has to be the perennial debate within Intelligence Studies
about how intelligence should be defined. Specifically, should intelligence
be understood to include covert action? No consensus exists here. The
respected scholar and practitioner Michael Herman represents one strand of
thought in arguing that Intelligence is information and information
gathering, not doing things to people; no one gets hurt by it, at least not
directly. Some agencies do indeed carry out covert action, which confuses
the ethical issues, but this is a separable and subsidiary function. 1
However, the post-9=11 era has clearly shown that intelligence collection
can involve doings things to people and hurting them. Post-9=11, covert
action (and, indeed, overt action) became a more central dimension of U.S.
intelligence, where one corollary of the shift in the formal defense posture
of the U.S. to one of pre-emptive defense was a parallel shift in the posture
of its intelligence agenciesone well captured in former Central Intelligence
Agency (CIA) officer Charles Cogans characterization of a shift in the role
of intelligence from gatherers to hunters. Cogan argued that, in the
future, intelligence operatives will not simply sit back and gather
information that comes in, analyze it and then decide what to do about it.
Rather they will have to go and hunt out intelligence that will enable them
to track down or kill terrorists.2 The increasing reliance of the CIA on the
use of armed Predator drones to identify and eliminate suspected terrorists
across several territories has been emblematic of this shift.
Perhaps saying that covert action is not part of the intelligence cycle would
be more accurate rather than not part of intelligence. But the concept of the
intelligence cycle has often been criticized for being a poor representation of
the intelligence process, perhaps because of its exclusion of covert action.3

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If it is accepted that intelligence collection can take covert forms (which raise
their own ethical dilemmas), then I see no good reason to exclude from a
definition of intelligence covert actions that may arise out of the intelligence
process, are undertaken by intelligence personnel, and are paid for from
intelligence budgets. This has clear implications for the breadth of issues
that arise in discussing the ethicsintelligence relationship.
Many ethical dilemmas that face intelligence professionals, agencies, and
governments arise from a simple fact: national intelligence agencies are
precisely thatnational. Their responsibilities and obligations are defined
by reference to the state for which they are an information-gathering and
early-warning arm. In the context of the anarchic international
environment in which states find themselves (a key proposition of the
Realist approach to International Relations that intelligence professionals
implicitly or explicitly accept), their role is to help facilitate the principal
goal of statessurvival. John Mearsheimer characterizes the core
assumptions about the nature of the international system that underpin
Offensive Realism as being: (1) that great powers are the main actors in
world politics, and operate in an anarchic international system; (2) that all
states possess some offensive military capability; (3) that states can never
be certain about the intentions of other states; (4) that the main goal of
states is survival; and (5) that states are rational actors.4 The third of these
particularly explains the need for intelligence. The purpose of intelligence is
to break down this uncertainty, translating it into estimates about risk and
facilitating informed and timely decisionmaking.5
The Human Right
In contrast, the discussion of ethics and human rights is rooted in a
cosmopolitanism that views all individuals as being of equal moral standing,
regardless of national borders or nationality. This communitarian
cosmopolitan tension has been exacerbated in recent years by changes to
understandings of what is meant by human rights. Whereas in the
immediate post-1945 era human rights were essentially understood in
relation to rights provided by the state and as being a consequence of
citizenship (the rights of man), they came to have a different meaning by
the latter part of the twentieth century: as entitlements that might
contradict the sovereign nation-state from above and outside rather than
serve as its foundation.6 Hence, rights transcended states. Not only did
states have an obligation to avoid engaging in activities that would infringe
these rights, they also had an obligation to intervene where these rights were
being denied or seriously compromised by individual states.
However, this new cosmopolitanism represented a challenge for national
intelligence agencies with their state-level focus. Writing in his memoirs in

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the mid-1980s, former U.S. Director of Central Intelligence Stansfield Turner

wrote that: There is one overall test of the ethics of human intelligence
activities. That is whether those approving them feel they could defend their
actions before the public if the actions became public.7 But in the era of the
primacy of human rights, was this state-level test sufficient? Was a different
standard required? If so, would it be achievable or enforceable? These
questions have presented very real ethical dilemmas for intelligence
professionals, agencies and governments, dilemmas that were magnified by
what were understood to be the requirements of the post-9=11 war on terror.
In the contemporary world, then, the pursuit and defense of human rights
constitutes a goal in its own right, the realization of which has at times
required that various problems be overcome (see Figure 1). Conversely, for
national intelligence agencies, human rights at timesbut particularly
post-9=11have presented a problem that lay in the way of realizing goals
framed in relation to state security and, on such occasions, had to be
overcome (see Figure 2). This meant that, while national intelligence
agencies were at times able to assist in some international human rights
contextsfor example, in gathering evidence of war crimes or tracking
down fugitive war crimes suspectsat other times, where a tension or
conflict developed between understandings of the requirements of state
security and human rights, the role and activities of national intelligence
agencies could themselves represent the problem or obstacle in the way of
securing human rights, as shown in Figure 1. This indicates that the
relationship between national intelligence agencies and human rights has
not been fixed. Instead, it has had the capacity to alter, depending on
judgments about the relative merits of ethical and national security
considerations in individual circumstances. At this point, I must emphasize

Figure 1. From Perspective to Goal on Human Rights. (Color figure available online.)

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Figure 2. From Perspective to Goal in Seeking Security. (Color figure available online.)

that, while intelligence professionals may take operational decisions that

have clear ethical implications, the ethical framework is provided by the
policymakers. To a considerable extent, the ethical burden is theirs.
Adapting Just War Concepts
The most considered way of addressing the ethics-intelligence dilemma has been
to explore the potential for adapting Just War theory to intelligence, to
distinguish between the conditions under which an object can justly be
targeted by an intelligence agency (jus ad intelligentiam) and the manner in
which intelligence agents and entities conduct themselves thereafter (jus in
intelligentia), in much the same way as classic Just War theory distinguishes
between just causes of war (jus ad bellum) and the just conduct of war (jus in
bello). The work done in this area has represented one of the most thoughtful
dimensions of Intelligence Studies in recent years.8 However, I do think some
problems exist with this effort, particularly in relation to foreign intelligence.
The most fundamental problem in the way of establishing a jus ad bellum
equivalent to guide intelligence decisionmaking arises from the fact that war
is an exceptional state. In contrast, intelligence gathering is a constant state,
a status well captured in former Director of Central Intelligence Robert
Gatess explanation to a group of junior CIA officers that the nation is at
peace because we in intelligence are constantly at war.9 Hence, decisions
to go to war involve a shift from a deeply-embedded norm that has no
comparison with regard to intelligence. Perceptions of threat may change,
even the amount and quantity of resources devoted to intelligence collection
and analysis may change absolutely and between targets, but the distinction
between peace and war has no intelligence equivalent.

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Applying the intelligence cycle as an explanatory framework may have

muddied the waters here. In this, the starting point is policymaker
direction. The implication is that, until this point, no intelligence is being
collected on a particular target. But this does not fully reflect how
intelligence, particularly foreign intelligence, is collected in the
contemporary world, and the breadth with which the richest states in the
international system cast their security nets. It is also undermined if the
conceptual approach adopted is rooted in ideas of risk and uncertainty
rather than the concept of the intelligence cycle. The logic here is that the
net is cast wide, and that intelligence does not merely respond to imminent
threats but is much more proactive, intervening upstream in uncertainty in
a preventive manner so as to ensure that imminent threats never materialize.10
Moreover, concepts associated with jus ad bellum, such as last resort,
have no direct equivalent with regard to intelligence. Notions of
forewarning and timeliness are central to definitions of intelligence, as well
as to risk-informed approaches to it. To wait until last resort has been
arrived at before beginning to collect intelligence on a threat may well turn
out to be a case of too little too late. One possibility is to understand last
resort as meaning the attempt to acquire the information being sought by
all other means before resorting to espionage, but this overlooks the fact
that a targets most important secrets are likely to be the ones it guards
most closely, and so are inaccessible without recourse to some form of
espionage. They would not be willingly given if asked for. In these cases,
espionage is the only, not the last, resort.
The essentially state-centric nature of national security intelligencegathering means that the concept of legitimate authoritythe principle
designed to weld decisions for war to international lawis of only limited
use with regard to foreign intelligence collection. In terms of jus ad bellum,
legitimate authority was traditionally held to reside exclusively in the
United Nations, at least until the 1999 Kosovo war. Which is the
appropriate international body to grant legitimate authority to, say, U.S.
or UK espionage aimed at the office of the UN Secretary General?
At the same time, the concept of jus in intelligentia is not without its own
problems, particularly as it applies to the issue of intelligence collection.
Much intelligence is derived from open-source material, and this form of
collection raises few, if any, ethical problems. However, as noted,
information that organization x or state y considers most important and
therefore most sensitive is likely to be closely guarded. To collect
intelligence in this context more ingenious or devious means (depending on
ones perspective) are required. To take an example: running agents inside
criminal or paramilitary organizations is one option. But this could well
involve them engaging in criminal or paramilitary activity in order to
maintain their cover, and so raises obvious ethical questions. However, it

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has also proved to be a highly successful method of intelligence collection

for example, in relation to the British states penetration of the Irish
Provisional IRA. This, then, is a variation of the problem of dirty
hands, of the policymaker who for the sake of public purposes violates
moral principles,11 a dilemma traceable back to Niccolo` Machiavelli.12 In
this variation, the policymaker authorizes intelligence professionals to act
in this way. This possibility is explicitly recognized in Section 7 of the
UKs 1994 Intelligence Services Act, Authorisation of acts outside the
British Islands, which states that if a person would be liable in the United
Kingdom for any act done outside the British Islands, he shall not be so
liable if the act is one which is authorised to be done by virtue of an
authorisation given by the Secretary of State under this section.13
Legalizing Options
A different approach to resolving the dilemma that ethical and human rights
concerns have generated for national intelligence agencies in the era of the
war on terror has been to argue for the legality of the practices in
questioni.e., to demonstrate that particular intelligence practices are
consistent with national law, and so provide grounds via which policymakers
can be seen to meet the criteria for ethical acceptability suggested by
Stansfield Turner, meaning that those approving them can defend their
actions before the public if the actions became public. This does not actually
eliminate the problem. The practices that gave rise to the problem continue
under this approach, but the effect is to bypass it (as in Figure 2) by insisting
that these practices are legal. There are now a number of studies based on
declassified Bush administration documents demonstrating how this process
operated with regard to the effective re-definition of torture in order to
render legitimate practicessuch as water-boardingthat would otherwise
have been impermissible. 14 As former Director of Central Intelligence
George Tenet wrote in his memoirs: Despite what Hollywood might have
you believe, in situations like this you dont call in the tough guys; you call
in the lawyers.15 In a further example, in March 2010, Legal Advisor to the
State Department Harold Koh set outagainst a background of increased
use of armed drones in Pakistans tribal belt, increased local anger at their
effects, and the existence of what supporters of the use of drones in targeted
assassination conceded was a legal grey areaa legal defense of their use,
rooted in what he termed the Law of 9=11.16
A key point here is the relationship between legality and what might be
termed social acceptability, that is, to be able to demonstrate, or argue
with a degree of plausibility, that something is legal impacts on the way
people come to view it.17 But Kohs defense of armed drone attacks is also
significant in that it casts further doubt on the wisdom of using Just War

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theory as a basis for reaching ethical judgements regarding intelligence. Kohs

defense rested, first, on the argument that the U.S. was in a state of armed
conflict with al-Qaeda. This argument has been contested by legal
scholars,18 but it nevertheless provided a framework that legitimized the use
of lethal force in circumstances where it would otherwise be impermissible.
It also opened the way for Koh to invoke Just War theory by way of the
principle of distinctionbut only insofar as civilians should not be the
object of attack rather than that attacks should be abandoned if there was a
clear risk of civilian casualtiesand then by the additional application of
the principle of proportionality, which immediately undermined the
distinction principle by conceding the legitimacy of civilian deaths.
Such uses of Just War theory highlight its utilitarian dimension and the fact
that, despite the appearance of an objective standard, Just War theory is
necessarily applied and understood in relation to specific national contexts.
Critical ethical questions are bypassed. As U.S. journalist Jane Mayer has
observed: Youve got a civilian agency [the CIA] involved in targeted
killing behind a black curtain, where the rules of the game are unclear, to
the rest of the world and also to us. We dont know, for instance, who is on
the target list. How do you get on the list? Can you get off the list? Who
makes the list? What are the criteria? Where is the battlefield? Where does
the battlefield end?19 Or, in the words of philosopher Bernard Williams,
who applies the unblinking accountants eye of the strict utilitarian in
making these judgments?20
Deliberating Values
The implication of this is not that nations would be better off without
intelligence, or that intelligence agencies do not perform an essential task
on behalf of the citizens in whose name they work. At times, in confronting
the ethical dilemmas generated by intelligence actions, the public is spared
the ethical debates that would have otherwise been needed had they not
taken place. At the same time, though, the last decade has shown that
wider national debates about the relationship between ethics and
intelligence, and national security more generally, would be beneficial. As
Dennis Thompson has argued: Whatever its other elements, an adequate
conception of democracy should include, as a necessary condition,
collective deliberation on disputes about fundamental values.21 Aspects of
intelligence practice in the war on terror in both the U.S. and UK, and
more widely, have generated such disputes. The collective deliberation that
Thompson advocates requires a framework that moves the debate beyond
the tendency to a reductionism around crude utilitarian calculations,
inevitably rooted in subjective national contexts, and toward exploring how
intelligence can meet normative (and international legal) standards with

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regard to ethics while at the same time protecting the national interest, its core
business. This would have the effect of turning the problem of dirty hands
into one of democratic dirty hands, in that once shared with, and debated
by, citizens the problem of dirty hands does not rest with just policymakers
and intelligence professionals, but more generally with society. This would
allow policymakers and intelligence agencies to meet the test outlined by
Stansfield Turner. Overseers of intelligence have a particular responsibility
for leading this debate. However, at the core of the problematic relationship
between ethics and intelligence is the fact that nations exist in an inherently
competitive environment, where agencies contribute to efforts to enhance,
as well as protect, the national interest. This may well mean that mitigation,
rather than elimination, of ethical dilemmas is the more realistic aim for
any such debate.
SIR DAVID OMAND
Reflecting on the fundamental shift in attitudes to secret intelligence over the
twentieth century is my starting point for the debate about the relationship
between ethics and intelligence.
Coupling ethics and secret intelligence in a single sentence would have
surprised the founders of British intelligence. The first Chief of the Secret
Intelligence Service tried to persuade the author Compton Mackenzie, one
of his officers during the First World War, to remain in service with the
words, Here, take this swordstick. I always took it with me on spying
expeditions before the war. Thats when this business was really amusing.
After the war is over well do some amusing secret service work together.
Its capital sport. Capital sport indeed for gentleman-ruffians, but in those
far-off days with the ability to make up the rules by which the game was
played or if the national survival stakes were high enough, to dispense with
rules altogether. As put to the British author, Bickham Sweet-Escott, on his
recruitment in 1940 into the Special Operations Executive (SOE): I cant
tell you what sort of a job it would be. All I can say is that if you join us,
you musnt be afraid of forgery, and you musnt be afraid of murder.
Contrast this with the evidence presented to the U.S. Congress a few years
ago by the then Director of the CIA Gen. Michael V. Hayden that We cant
break the law . . . You just cant go to that place . . . I actually said fairly
publicly to our workforce that, as director, I have to be certain that that
which Im asking a CIA officer to do is consistent with the Constitution,
the laws and the international treaty obligations of the United States. . . . If
I cant say that, I cant ask an officer to do it.22 Comparable statements
of reassurance would certainly be made today by the Heads of the British
intelligence agencies, and indeed were publicly made on their behalf by
Foreign Secretary William Hague in a speech in the Foreign Office on 16

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November 2011: I believe it is vital that the British public and Parliament
have confidence in the Agencies ability to keep us safe and to do so
within the framework of the law; and that they also have confidence in
government using this capability wisely, and in accordance with our
democratic values and principles of domestic and international law,
adding: Because I work so closely with them, I know that their values are
the finest values of the United Kingdom.23
An Authorized State Activity
What this illustrates is the way that secret intelligence has been made into an
accepted and properly authorized state activity, regulated so as to operate
within national law. The relevant UK domestic legislation has, however, a
unique character since it legitimizes activity that could otherwise involve
breaking domestic law, such as an agent posing as a member of a
prohibited terrorist organization. UK domestic law also provides that, by a
warrant from the Secretary of State, intelligence officers can carry out acts
overseas for which they would be liable in the UK, with the implication
that the acts in question will break the laws of another country, as they
certainly would in conducting espionage. Legal compliance certainly may
reduce the need for ethical concern if the public accepts, as it should in the
UK, that the law in a democracy embodies the prevailing moral consensus.
Nevertheless, in the U.S. after 9=11, President George W. Bush used his
powers as Commander in Chief to create in effect secret law as part of his
War on Terror, permitting for example extreme methods of coercive
interrogation, now prohibited by President Barack Obama. The UK
Foreign Secretarys reference to values is a reminder that necessary
compliance with domestic law does not remove the duty of thinking
ethically from those involved in authorizing and using secret intelligence.
Foreign Secretary Hague has described the nature of the decisions needed:
As Foreign Secretary, I see operational proposals from the Agencies
every day, amounting to hundreds every year. The proposals are
detailed. They set out the planned operation, the potential risks and
the likely benefits of the information to be gained. They include
substantial legal sections which set out the basis for the operation and
comments from senior Foreign Office officials and lawyers. I discuss
these with them and with officials from the Agencies, and I often work
closely with the Home Secretary. These are often not easy decisions,
and the majority involve judgments about cooperating with other
countries. I take ultimate responsibility for these operations, and I do
not approve them all.24

If accepting that ethics is simply a social, religious, or civil code of behavior

considered correct,25 then these are in part ethical judgments being made by

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Ministers and their officials in authorizing and conducting operational

activity that will, if disclosed, say much about their own standards of
morality. Ministers and intelligence chiefs have indeed to pay heed to the
wise advice of Stansfield Turner when Director of Central Intelligence, as
cited by Mark Phythian, There is one overall test of the ethics of human
intelligence activities. That is whether those approving them feel they could
defend their decisions before the public if their actions became public.
That is a statement of moral intent.
That international black letter law will develop to fall back on for regulating
intelligence activity26 and making such judgments easier is unlikely, not least
since what would to one nation be legitimate academic or journalistic inquiry
would be espionage to another, just as one nations terrorist is anothers
freedom fighter. Principles of international good conduct, such as the Vienna
Conventions governing the world of diplomacy, have value but that does not
stop the cyberspace equivalents of sixteenth-century black chambers from
attempting to decipher each others diplomatic correspondence. The most
that can be hoped for is the development of mutual understanding in a cyber
world of what would constitute unacceptable behavior. I wonder what will
be the cyber equivalent of the mass expulsion by UK Foreign Secretary Alec
Douglas-Home in 1971 of 105 Soviet diplomats and citizens from London.
Doing so did not stop espionage on either side, but it did send a clear
message that appears to have been accepted, that for the UK Soviet
espionage activity had then reached an intolerable level.
The Quest for Openness
The pressures on governments to be more open with each other and with their
publics about the work of the secret intelligence agencies goes back much further
than the current need to counter terrorism. For the United Kingdom, an
important enabling change was needed first: the removal of the all-enveloping
cloak of secrecy that used to allow the intelligence agencies to operate as they
thought best, with their very existence being unacknowledged by government.
That there were tears in the invisibility cloak was increasingly apparent by the
1960s and 1970s as investigative journalists such as Chapman Pincher exposed
a series of spy scandals that fed a public enthralled by fictional accounts of
espionage. The unstoppable flood of wartime memoirs, especially the
revelation of the World War II role of Bletchley Park, added to the sense of
unreality over official denials that such activity continued, despite the evident
work of thousands of public servants operating out of prominent buildings
known to the journalists (and the Soviet Union) if not the general public. The
agreement by Prime Minister Margaret Thatcher to the commissioning of an
Official History of Intelligence in the Second World War marked a forced
shift in government attitude.

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A second set of pressures, however, from judgments of the European

Court of Human Rights then served to accelerate openness. Key secret
investigative techniques such as telephone interception and bugging were
found by the Court to be legitimate tools for government to protect
national security, but, crucially, to be used only within a legal framework
of authorization, and an independent mechanism for investigating and
redressing alleged abuses by the citizen of such powers. 2 7 British
intelligence work could no longer just be capital sport played by gifted
amateurs to their own rules; it had become a legally constrained and
overseen legitimate activity of government.
This openness is part of the shift in paradigm from what Peter Hennessy
has written about28 as the Secret State of the Cold War, in which the
government acts in secret to defend the nation, to what I describe as the
Protecting State of today.29 National security for an open society has to
be defined more broadly as a state of confidence on the part of the public:
that they can go freely about their normal business in a networked world,
sufficiently confident that threats are being adequately managed by the
authorities. Management of threats implies that trouble can be anticipated.
But anticipation of threats, even if only to prepare for possible
consequences, does require pre-emptive intelligence to give insights into
what the adversary might be planning to do.
More precisely, the consistent use of intelligence will improve decision
taking by better situational awareness (who, what, where, when?), by
sounder explanation of what is going on (why, what for?), and thus lead to
more reliable predictions (what next, where next?). As a result of using
intelligence intelligently, governments can be better placed to anticipate
sometimes to prevent bad things from happening, sometimes to act to
reduce the vulnerability to threats, and sometimes to acquire just enough
information to allow flexibility of responseall for the purpose of
protecting the public now, as well as the future public interest.
The Value of Intelligence
The public value of intelligence thus lies in its effect on decisions, whether by
military commanders, policymakers, diplomats, or police officers. As Mark
Phythian correctly points out, for tactical intelligence today the intelligence
cycle involves interaction at every step with the user of intelligence, often
ending in what are known as action-on requests to the intelligence
provider to authorize the use of intelligence for disruption of terrorist or
criminal networks, or for guiding protective security measures in the field.
Intelligence and security operations may well involve joint activity between
different services, and distinctions are hard to draw between the ethical
issues arising from pure intelligence-gathering operations and from

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stings, deceptions, and disruptions designed principally to neuter threats. In

discussing the ethics of intelligence, I accept, therefore, Professor Phythians
argument that we should examine not just the ethics of collection, but also of
direct use. Even the analyst is a moral actor when making a judgment about
the degree of confidence in a piece of analysis before releasing it, knowing
that it may trigger violent action.
Care is necessary, however, about drawing a sensible boundary around
what scholars should define as intelligence. All serious military operations
use intelligence, but examining the ethics of generalship through the prism
of intelligence would not make sense, and similarly, although secret
agencies may have their part to play in an operation to help support the
government of a friendly state, the key decisions to be examined are those
about the wisdom and ethical justification of policy, not intelligence
doing in the dark what governments fear to be seen doing in the light. The
danger of including all covert action as part of the general definition of
intelligence is that it will muddle thinking about the public value of secret
intelligence itself, whether or not intelligence activity is characterized in
terms of the classic cycle or, as I have argued elsewhere, of an updated
network model. 30 Phythian also emphasizes that modern intelligence is
now an active rather than a passive activity, one for hunters not
gatherers. True, but I would not exaggerate the extent to which Cold War
intelligence collection, for example as described by Michael Herman in his
well-known writings on intelligence, was passive.
The Current Goals
Today, much intelligence effort is directed to counter non-state actors
terrorists, proliferators, and international narcotics and other criminal
gangsand to assist threatened governments overseas to build the capacity
of their security and intelligence services to enable them to take
responsibility for their own security, as well as their ability and willingness
to investigate and disrupt terrorist targets plotting against the UK.31 This
includes training and education on legal and human rights obligations,
responsibilities, and ways of working. The need to protect the UK
necessarily sometimes requires intelligence officers working with countries
that do not fully share British values, but which may be able to provide
life-saving intelligence. Such liaison work can help the services of these
countries come closer to sharing the UKs values, for example in methods
of detention and interrogation, but runs the risk (realized in a few cases) of
officers being accused of collusion in unacceptable activity.
Mark Phythian, on the other hand, centers his emphasis on state-on-state
espionage, where the objective is the traditional one of trying to divine state
intentions in an increasingly cosmopolitan world. I am not convinced that
is the best framework for examining the ethics of intelligence, when perhaps

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well over three-quarters of the British intelligence effort now goes toward
countering what has been described by the United Nations as the dark side
of globalization.32 The UK intelligence budget is no longer sustained by
just state-on-state espionage.
Recognizing Moral Hazards
At this point in the argument the nature of the inevitable moral hazards
involved with secret intelligence must be recognized. To overcome the
obstacles that are placed in the way of obtaining such secret intelligence
requires extraordinary methods, involving a different morality than that of
everyday life: the equivalent in domestic terms of steaming open the
familys letters, hacking into their e-mails, listening at keyholes, spying on
their movements, and persuading them to inform on their friends.
Any important agent in place inside a terrorist network is, for example,
likely to be involved in criminal behaviorotherwise he or she is unlikely
to continue being in a position to acquire the inside information being
sought. But such an agent in place will create all the risks Professor
Phythian outlines of allegations of collusion with serious wrongdoing.
Much has been written33 about the powerful surveillance technology now
available for monitoring Internet communication, and the use of advanced
data mining of electronically stored personal information. Such exploitation
of personal data raises ethical issues over the extent and justification of
state surveillance, with the risk of a Panoptic chilling effect on public
behavior. Moral considerations will therefore be involved in intelligence
work across the spectrum, from the officer recruiting an agent in the field
to the analysts back in headquarters seeking to establish the degree of
confidence in a controversial assessment. Secret intelligence must be secret
because it is information others, be they military adversaries, terrorists, or
criminal gangs, are trying the utmost to prevent their opponents from
acquiring. Exposed agents may face torture and execution. The fact that the
individual sources and methods involved have to be kept highly secret (even
if the general nature of the type of activity is being acknowledged as part of
the intelligence arsenal) increases the potential for moral hazard.
In days far past, moral hazard may have been accepted as part of the
unwritten recruitment deal, with a willingness of the officer to accept
personal responsibility for his actions, and if it came to it, disavowal by
the authorities. But, the modern British intelligence agencies are an
acknowledged part of government, not just operating within a framework
of law, but also with the British public and Parliament retaining, in the
words of Foreign Secretary Hague, confidence in government using this
capability wisely, and in accordance with our democratic values and
principles of domestic and international law.34 I sense agreement between

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Mark Phythian and me that intelligence activity need not be accepted as an

ethics-free zone, nor one where decisions are taken in only strictly
utilitarian or consequentialist terms.
Mitigating Risk
On what basis should moral risk mitigation best be conducted? The first and
most effective form of regulation is self-regulation. Recruitment, training,
codes of conduct, and consolidated guidance for the UKs intelligence
agencies can incorporate a moral sensethe equivalent of what the British
Army would refer to as the moral component of warfarefor example, the
recent guidance governing the passing on and receipt of intelligence
relating to detainees. 35 Lawfulness can be assured by the work of the
Commissioners (senior judges) and Tribunals appointed under the relevant
Acts and propriety by parliamentary oversight. 36 Lacking has been a
consistent framework of principles to give the public confidence in the
approach being taken to the ethical thinking involved.
Here I would stoutly defend learning the lessons of the Just War tradition
in balancing three different propositions that are in tension: (1) states have a
positive dutyas part of their contract with the citizen, not least in giving the
state a monopoly of the use of forceto defend and protect their citizens
when need arises and uphold justice and the rule of law in the face of
violent challenge; but (2) protecting the innocent and defending moral
values sometimes requires a willingness to use force in response; and yet
(3) causing harm to individuals is generally accepted as ethically wrong,
including the ultimate step of taking life. As the late Sir Michael Quinlan
pointed out, by analogy we could think of Jus ad Intelligentiam and Jus in
Intelligentia to govern when the recourse to the moral hazards of secret
intelligence is justified and to limit the methods employed.37 To which he
might have added, Jus post Intelligentiamthe necessity for oversight and
redress for the citizen if the powers of the intelligence establishment are
shown to have been misused. What Just War thinking has left therefore is
not an a priori formula to distinguish just from unjust intelligence,38
but a set of tests to apply to such individual cases as just cause, right
authority, necessity, discrimination, and proportionality. The approach has
yielded a way of thinking about the issues that can be applied to mitigate
the moral hazards otherwise associated with secret intelligence.
Applying Just War Rationale
Professor Phythian raises an objection to drawing on the Just War tradition
since war is an exceptional case and intelligence is an enduring state. The Just
War conditions govern the transition from peace to war. But the intelligence
machine is always active in some form. The point deserves a considered

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response. The precedent I rest my argument on is that of nuclear deterrence.

The late Sir Michael Quinlan demonstrated powerfully that the continuing
possession of nuclear weapons in peacetime under certain stringent
conditions contributed to the prevention of serious armed conflict and thus
passed the ethical test. So, I would argue, does the maintenance in
peacetime of a serious intelligence capability, despite its moral hazards.
Determining Ethical Conduct. I have suggested six headings that should help
ministers, officials, and Parliamentary overseers judge whether instructions
and codes of conductand decisionsare soundly based ethically given
the inevitable moral hazard involved in intelligence work.39
A. There must be sufficient sustainable cause.
This is the Jus ad Intelligentiam condition to justify the maintenance and
development of the national intelligence machine. Application of this Just
War principle is not an assertion of some supposed moral superiority in
intelligence workthe golden rule is that whatever is claimed by one side in
the way of intelligence methods should be expected of the others to also
claim. The techniques of modern secret intelligence are powerful and get
results, but they carry moral hazard. The principle is a prudent check on any
tendency for the secret world to expand into areas unjustified by the scale of
potential harm to national interests, either driven by bureaucratic empire
building, or a sense that because it can technically be done, that it should, and
to avoid pressure to use the intelligence machine for political or personal
purposes. The 2006 German film, The Lives of Others, gave a gripping
account of such systemic abuse by senior officials of the East German Stasi.
For the UK, safeguards are built into the legislation governing the agencies
the Security Service for example cannot be directed by Ministers to investigate
political opponents. The legislation specifies only three proper uses of the
national intelligence machine: national security, the prevention and detection
of serious crime, and protecting the economic well-being of the nation.
B. There must be integrity of motive.
Integrity is necessary throughout the whole intelligence system, from
collection through to the analysis, assessment, and presentation of the
resulting intelligence to which, following Mark Phythian, should be added
actions taken based on the intelligence. An awareness is necessary of all
the well-known epistemological and psychological traps into which
intelligence analysts and policymakers alike can fall, with a shared
commitment to honest and reasoned argument. After the Iraq experience,
awareness of the need to be able to demonstrate integrity in intelligence
processes does not need to be spelled out.
C. The methods to be used must be proportionate and necessary.
The likely impact and intrusion of any specific proposed intelligence
gathering operation or action that is based on the use of secret

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intelligence, taking account of the methods to be used, must be

proportionate to the harm that it seeks to prevent. This principle is well
known from its common law application in the doctrine of minimum
necessary force, i.e., using only such force as necessary to achieve the
lawful objective. The late R. V. Jones coined the equivalent term of
minimum necessary intrusion as the rule governing surveillance
operations.
D. There must be right authority, validated by external oversight.
A sufficiently senior-level sign off on sensitive operations and
unambiguous accountability up a recognized chain of command is
required. Having an adequate paper trail, or its electronic equivalent, of
key decisions is essential for the confidence of both staff and Ministers.
The warranting and certification processes laid down in statute ensure
that commands are lawful, including the upholding of the universal ban
on torture, since any such instruction would itself not be lawful.
Self-regulation must be the main guidance system for approval processes,
based on an ethos that has internalized ethical principles. External
oversight can then provide added reassurance or corrective pressure if
problems emerge.
E. There must be reasonable prospect of success.
Even if the purpose is valid (guideline 1) and the methods to be used are
proportionate to the issue (guideline 3) a hard-headed assessment of the
consequences of failure is required: risk to agents and those to whom a
duty of care is owed, risks of collateral damage to others, and, not least,
the risk to future operations and to institutional reputations if the
operation were to go wrong. Parallels exist here with the distinctive
principle of Just War thinking, where acceptance that, in authorizing an
operation, the risks of collateral damage to innocents have been weighed
as part of the decision, with every effort made to minimize casualties.
What is not acceptable ethically, however, is recklessness or even
deliberately setting out to cause civilian casualties (such as reprisals) as a
means to an end. Comparable distinctions should be applied in the world
of intelligence.
F. Recourse to secret intelligence must be a last resort if there are open
sources that can be used.
Precisely because of the moral hazards of secret methods, the searcher for
intelligence should first look to see if the information can reasonably be
expected to be obtained through other means, ranging from open sources
to information volunteered from within the community. Last resort here
carries a different meaning from the Just War injunction to have tried
peaceful means before resort to violence. Intelligence is in that sense the
first resort, with secret intelligence methods the second resort if open
sources are not likely to yield the information.

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Defensible Positions
In summary, an ethically defensible position is possible based on these
propositions:
The security and intelligence authorities are charged with the protection of the
public. They have a duty to seek and use secret information to help manage
threats to national security.
. Secret intelligence, because it involves overcoming the efforts of others to prevent
its acquisition, inevitably involves running a moral hazard.
. Intelligence activity can nevertheless be constrained by an ethical code that
embodies several well understood and tested Just War concepts, while also
embodying respect for human rights, including the prohibition of torture and
inhumane and degrading treatment.
. The effectiveness of secret intelligence rests on sources and methods that must
remain hidden, not least to protect the lives of those involved. Oversight has to
be by proxy: by senior judges and Parliamentarians who can, on the publics
behalf, be trusted to enter the ring of secrecy and to give citizens confidence
that these ethical standards are being maintained.

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MARK PHYTHIAN
While our approaches to this debate are somewhat differentI focus on
problems and dilemmas while David Omand (perhaps more helpfully)
focuses on possible solutionsI agree with much in Sir Davids argument.
But our perspectives differ in some areas. These seem to be rooted in
differing understandings of the states role at the domestic level and the
role and relative significance of states in the international system. This
point is important because it suggests that thinking about the relationship
between ethics and intelligence needs to be rooted in an understanding of
the role of the state, and of states internationally. This aspect determines
the realm of the feasible and, therefore, what can be expected of
intelligence in terms of compliance with ethical norms.
In terms of the states role, Sir David combines a broadly Weberian
conception of the state as being defined by its claim to the monopoly of
legitimate violence with the idea of the protecting statea distinct shift
from the national security state of the Cold War era. Although I agree
that a Weberian conception of the state is an appropriate starting point for
thinking about the role of intelligence, we may differ slightly here. Max
Webers original 1919 definition was that a state could be considered to
exist if and insofar as its administrative staff successfully upholds a claim
on the monopoly of the legitimate use of violence (das Monopol legitimen
physischen Zwanges) in the enforcement of its order.40 The implication of
this, as John Hoffman has suggested, is that:

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The very need to exercise a monopoly of legitimate force arises only because
states are challenged by rebels and criminals who themselves resort to force,
and who (either implicitly or explicitly) contest the legitimacy of the laws
they break. . . . The state which actually succeeds in imposing a monopoly
of legitimate force thereby makes itself redundant since a gulf between
ideals and reality is essential to the states very raison detre.41

In other words, the fate of the state is to assert its monopoly but never fully
achieve it. For example, all states face potential challenges from those who
contest their territorial claims and reject the territorial identity ascribed to
them. Individual policies, whether economic (e.g., the prioritization of debt
reduction over public expenditure), political (e.g., whether to go to war in
Iraq), or ethical (e.g., whether to ban fox hunting) can all result in
challenges to this monopoly, thus generating the requirement for
intelligence. At any one time, even the protecting state will be involved in
shielding some citizens against others, although the composition of the
others will shift over time and by issue.42 This has clear implications for
the role of intelligence and the question of intelligence ethics.
Sir David and I also differ over the emphasis that should be attached to
state-on-state espionage in framing the intelligence ethics debate. Again,
this may be rooted in different understandings of the states role in
international relations. At issue is the nature of risks and threats in an era
of globalization. David Omand points out that, as a consequence of the
threat posed by al-Qaeda, affiliated groups, and self-identifying individuals
that largely dominated the security and intelligence landscape over the last
10 to 15 years, UK intelligence has developed a significant
counterterrorism focus. However, risk lies in assuming that the challenges
of a specific era define those of the future, and thereby overlooking the
persistence of concurrent risks and concerns generated by state activities.
For example: Irans nuclear program; questions relating to Pakistan
(indicative of the importance of focusing on states having the possibility of
their becoming failing states with all of the attendant risks such a shift
would poseexacerbated in Pakistans case by its nuclear weapons status);
the challenges involved in relations with Russia (highlighted in the UK
context by the Litvinenko case); for the U.S. in particular, the implications
of the rise of Chinaall these are issues of first-order importance for
intelligence. Moreover, one development held to be most emblematic of the
dark side of globalizationthe rise of cyber crime and the emphasis that
now needs to be placed on cyber securityclearly has a significant state
basis. As Sir David suggests, cyber security may well require a distinct
ethical code of its own (I would have little confidence in the effectiveness
of any international regulatory regime in this field), and presents severe
challenges for the democratic oversight of intelligence. Hence, I retain my
emphasis on the centrality of states and the importance of recognizing this

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in framing the debate on the relationship between ethics and intelligence.

Indeed, a striking feature of the UKs 2010 National Security Strategy is
the continued prominence of state-based risks in its higher-risk tiers.43
Applying Ethical Standards
For these reasons, I asked about the possibity of moving beyond what might
be termed the Stansfield Turner test in applying ethical standards to the
conduct of intelligence. Is there a prospect, in an era of globalization and of
enhanced international intelligence cooperation, of the emergence of a
globalized ethics of intelligencea corollary of the argument that a
globalized world should result in a globalization of ethics?44 I think that
this is highly desirablein effect, the codification of the sharing of values
that David Omand sees as possibly growing out of enhanced international
intelligence co-operationbut because of the factors outlined earlier, also
highly unlikely in practice. Given that both Sir David and I agree that what
is being aimed for here via consciously linking ethics to the practice of
intelligence is mitigation of dilemmas rather than their elimination, perhaps
the most appropriate way forward is to provide a framework that gives the
Stansfield Turner test teeth and therefore meaning. This is precisely what
Omand sets out at the end of his argument. This kind of basis is important
in meeting the democratic requirements set out by Dennis Thompson to
which I referred previously. Sir Davids tests can be a starting point for the
collective deliberation that Thompson calls for.
However, I remain skeptical about the value of rooting this framework in
Just War theory. To take one contemporary area of ethical controversy, I can
see nothing in David Omands tests that would result in the CIAs targeted
assassination by armed drone practices being judged impermissible, even
though the policy is in tension with international human rights law, as well
as Just War theory. This is because the proposed tests involve subjective
judgments taken in specific national contexts. How is this problem to be
overcome? Alternatively, does this actually indicate that the drone practice
is permissible? This leads to another questioncan any or all of these
criteria be suspended in situations of supreme emergency (and the
post-9=11 security context is routinely referred to by reference to its
exceptionalism45)what Michael Walzer terms those rare moments
when the negative value that we assign . . . to the disaster that looms before
us devalues morality itself and leaves us free to do whatever is militarily
necessary to avoid the disaster, so long as what we do doesnt produce an
even worse disaster. 46 This last clause is also, of course, understood
subjectively in national contexts. In other words, what is the certainty that
these tests apply at times of stressthe very times when, arguably, ethical
norms are most important?

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One answer lies in the publics having confidence in democratic oversight of

intelligence. Self-regulation is not sufficient. As the anecdotes provided by Sir
David at the beginning of his argument suggest, the history of the security and
intelligence agencies in the UK can be read as one of progressive
professionalization, and self-regulation is a characteristic of professions. But,
the record of the recent past has raised sufficient concerns that substantial
reform of oversight in the UK ought to be formally contemplated. A reformed
oversight body should consider as part of its core business the development of
this aspect of what Thompson terms the collective deliberation on disputes
about fundamental values, and therefore play a positive role in generating
improved levels of public confidence. Further discussion of the tests proposed
by David Omand would represent a good starting point.
SIR DAVID OMAND
The purpose of these exchanges has been to encourage scholars and
practitioners alike to participate in such discussions.
So, I return to the starting point chosen by Mark Phythian: the perennial
debate within Intelligence Studies about whether intelligence should be
understood to include covert action. Like a wave=particle duality,
accepting that both aspects of reality exist is necessary, and which is more
important at any one time depends upon the questions Intelligence Studies
should be asked to illuminate.
For example, to ignore covert actions by the CIA would be to miss much
of what influences its relationship with the policy community and with its
overseers, as well as what fundamentally has made such an organization
tick over the years. When considering the ethics of such operations, the
distinction is less that an intelligence agency such as the CIA is funded and
managed so as to be able to carry out in the dark tasks which the U.S.
government is reluctant to be seen doing in the light. The greater task is
examining in ethical terms the end of the covert policies themselves,
whether they be the overthrow of a foreign leader hostile to U.S. interests
or the killing of wanted terrorists bent on attacking the U.S. A subsidiary
set of moral issues then arises for the Intelligence Community around how
the secrecy inherent in intelligence activity is being exploited. As a
necessary condition of achieving success, a policy otherwise judged
legitimate gives it acceptability (for example, the opening of a secret
backchannel to an opposition movement overseas), but if the secrecy is to
avoid having to subject the policy itself to normal political debate (as in
the case of Iran-Contra), or to avoid the regular processes and restrictions
of domestic law (as in the case of the covert assassination of U.S. citizens
such as Anwar al-Awlaki), then ethical questions remain to be answered by
the Intelligence Community, as well as by its policy masters.

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Discerning Ethical Implications

Adopting that approach facilitates the examination of the ethical
implications for the Intelligence Community of covert activity that is not
carried out by intelligence agencies but by other organs of government.
For example, the U.S. militarys Joint Special Operations Command is
reportedly pursuing the same terrorist adversaries as the CIA with nearly
identical pilotless drones, alternating in taking the lead on strikes to
exploit their separate legal authorities and maintaining separate kill lists
that overlap but do not match. 47 A recent study by the Congressional
Budget Office counted 775 Predators, Reapers, and other medium- and
long-range drones in the U.S. inventory, of which 30 were allocated to the
CIA, with hundreds more in the pipeline.
The primary ethical issues to be examined when looking at the Intelligence
Community come down to the acquisition, analysis, and sharing of the secret
intelligence, without which action on the information would not be possible.
Professor Phythian has nevertheless observed that he can see nothing in my
set of six ethical principles that would result in the CIAs policies regarding
targeted assassination by armed drones being judged impermissible. I would
not expect any set of ethical principles to rule out such action a priori, since in
circumstances of war such attacks could well satisfy the criteria of military
necessity, proportionality, right authority, etc., and thus be regarded as
legitimate under international humanitarian law. In 1942, for example, the
British Special Operations Executive (SOE) assisted the Czech governmentin-exile in assassinating SS General Reinhard Heydrich, the architect of the
final solution. What a set of ethical principles can do in such a case is
provide structure for the process of debate which should always take place
before any such operation is authorized, posing such questions as military
necessityanswered by the impact of Heydrichs crackdown on
SOE-inspired sabotageand the acceptability of collateral damage, that
tragically turned out to be much more severe than anticipated, including
the Germans destruction of the village of Lidice and the murder of its
inhabitants.
Given that a comprehensive ethical framework must cover such extreme
cases, should anything be ruled out a priori? A general international
consensus exists on the absolute prohibition, without the possibility of
derogation, of torture and inhumane and degrading treatment and
punishment. That is incorporated into UK law,48 and so, in the case of the
British security and intelligence services today, no such authorizing order
could be lawful, and thus would fail on my fourth principle of right authority.
An important question raised by Phythian, and not satisfactorily answered
by my response so far, is how best to take account of the increasingly
dominant position of non-state actors as the subject of intelligence activity,

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as against classic state-on-state espionage. Perhaps the need has arisen to

analyze more clearly the trend in the real world for intelligence to be
sought on individuals, their movements, finances, identities, and so on.
This trend is very unlikely to be reversed since it stems from both the rise
of new threats, including international criminality, weapons of mass
destruction (WMD) proliferation networks, cyber attacks, and the many
forms of terrorism, and from the technological revolution that has led to
the digitization of every aspect of modern life, providing intelligence
agencies with the rich seam of information to mine. So, the ethical
framework needs to be able to take account of the ethical issues that arise.
Intelligence in Peacetime
What this exchange illustrates may be the deeper argument that has to be
confronted when thinking about the use of intelligence in peacetime.
Traditional Just War thinking uses the categories familiar in humanitarian
law, such as combatants, non-combatants, irregulars, shipwrecked sailors,
prisoners of war, and others. The Argentine battleship Belgrano was in
1982 a surface combatant that secret intelligence had revealed had engaged
in operational maneuvers during the state of armed hostilities that existed
with Great Britain over the Argentine occupation of the Falkland Islands.
The warship, and therefore the sailors on board, were a legitimate British
target under the laws of war, and the ship was sunk without warning. But
consider the notorious al-Qaeda terrorist located overseas today by equally
skilfull intelligence: is he a combatant to be attacked without warning and
killed, perhaps by drone, or an individual with the right to a fair trial
before the deprivation of liberty, let alone life?
As Professor Phythian has acutely observed, intelligence activity is an
enduring state in peacetime and not confined to the intelligence support
for combat operations in war. So, to be of use in intelligence work, the
Just War tradition has to incorporate the development of human rights
thinking that treats with the individual under International Human Rights
Law (IHRL) and not judged just by the categories of international
humanitarian law (IHL) that would apply during hostilities. Such
circumstances require an assurance that ethical principles can also apply in
the very different circumstances of IHRL. Thus, in the case of the
terrorist, decisions must not depend on the membership of the IHL
category of an enemy combatant who is liable to be attacked wherever
found, even when patently not engaged at that moment in hostilities.
Rather, the decision must hinge on the balancing of the inherent human
rights of the terrorist as an individual against the protection of the human
rights of others by terminally frustrating his terrorist activity. An extreme
example of this thinking can be found in the 2003 policy of the UK

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Association of Chief Police Officers (Operation KRATOS), under which

police officers could be authorized to open fire with lethal force on a
terrorist identified as being a suicide bomber if that is judged to be the
only way to protect the lives of innocent bystanders and the officers
themselves.49 To take a less dramatic example, during the inquest into the
7 July 2005 bombings of the London transport system the argument was
advanced by Christopher Coltart, a leading Queens counsel acting on
behalf of the bereaved families, that the Security Service had failed, on
human rights grounds, in its duty to safeguard the right to life of the
general traveling public through not pursuing more intrusive investigations
into those who might have been possible associates of terrorists.
This posits a balance within the basket of human rights in which, under
certain circumstances, even the individuals fundamental rights, including
right to life, to respect for private and family life, and to freedom of
opinion and expression, may have to be sacrificed so that the rights of
others may be protected. This is the parallel with the balancing act
involved in Just War thinking that has led me to try to apply principles
derived from that long tradition to the very different circumstances of
intelligence activity in peacetime.
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7
8

Michael Herman, Ethics and Intelligence after September 2001, Intelligence and
National Security, Vol. 19, No. 2, 2004, p. 342.
Charles Cogan, Hunters Not Gatherers: Intelligence in the Twenty-First
Century, Intelligence and National Security, Vol. 19, No. 2, 2004, p. 317.
For a critique of the intelligence cycle concept, see, for example, Arthur S. Hulnick,
Whats Wrong with the Intelligence Cycle? International Journal of Intelligence
and CounterIntelligence, Vol. 21, No. 4, Winter 20062007, pp. 959979.
John J. Mearsheimer, The Tragedy of Great Power Politics (New York: W.W.
Norton, 2001), pp. 3031.
This characterization of the role of intelligence draws on Mark Phythian,
Policing Uncertainty: Intelligence, Security and Risk, Intelligence and
National Security, Vol. 27, No. 2, 2012, and the definitional debate in Peter
Gill and Mark Phythian, Intelligence in an Insecure World (Cambridge: Polity
Press, 2006), Chapter 1.
Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA:
Belknap=Harvard University Press, 2010), p. 13.
Stansfield Turner, Secrecy and Democracy: The CIA in Transition (Boston:
Houghton Mifflin, 1985), p. 48.
For example, Michael Quinlan, Just Intelligence: Prolegomena to an Ethical
Theory, Intelligence and National Security, Vol. 22, No. 1, 2007, pp. 113; and
David Omand, Securing the State (London: Hurts & Co. 2010).

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Cited in Charles E. Lathrop, The Literary Spy (New Haven, CT: Yale University
Press, 2004), p. 205.
10
On this, see Mark Phythian, Policing Uncertainty.
11
Dennis F. Thompson, Political Ethics and Public Office (Cambridge, MA:
Harvard University Press, 1987), p. 11.
12
Niccolo` Machiavelli, The Prince (London: Penguin, 2003), Chapter 15.
13
http://www.legislation.gov.uk/ukpga/1994/13/section/7
14
For example, Philippe Sands, Torture Team: Uncovering War Crimes in the Land
of the Free (London: Allen Lane, 2008).
15
George Tenet, At the Center of the Storm: My Years at the CIA (New York:
HarperCollins, 2007), p. 241.
16
Harold Hongju Koh, The Obama Administration and International Law,
Speech to the Annual Meeting of the American Society of International Law,
Washington, D.C., 25 March 2010, at http://www.state.gov/s/l/releases/
remarks/139119.htm
17
On this, see Bob Brecher, Torture and the Ticking Bomb (Malden, MA: Blackwell
Publishing, 2007).
18
See, for example, Mary Ellen OConnell, When Is a War Not a War? The Myth
of the Global War on Terror, ILSA Journal of International and Comparative
Law, Vol. 12, No. 2, 2005, pp. 535540.
19
http://www.newyorker.com/online/blogs/newsdesk/2009/10/jane-mayerpredators-drones-pakistan.html
20
Bernard Williams, A Critique of Utilitarianism, in J. J. C. Smart and Bernard
Williams, eds., Utilitarianism: For and Against (Cambridge: Cambridge
University Press, 1973), p. 113.
21
Dennis F. Thompson, Political Ethics and Public Office, p. 3.
22
Evidence to Congress, Gen. Michael V. Hayden, April 2007, at http://
www.q-and-a.org/Transcript/?.ProgrameID=1123, on 24 September 2009.
23
William Hague, Securing our Future, speech given in the Foreign and
Commonwealth Office, London, on 16 November 2011, at http://www.fco.
gov.uk/en/news/latest-news/?view=Speech&id=692973282
24
Ibid.
25
Extract from the Chambers Dictionary definition of ethics.
26
A. John Radsan, The Unresolved Equation of Espionage and International
Law, Michigan Journal of International Law, Vol. 28, No. 3, 2007, pp. 595623.
27
UK legislation was passed in 1985 requiring the agencies and the police to seek
warrants to permit interception of communications, an approach that was
subsequently extended in an Act to regulate all intrusive investigative powers.
Legislation putting first the Security Service (1989) and then the other
intelligence agencies (1994) on a statutory footing with oversight by senior
judges and Parliamentarians inevitably followed.
28
Peter Hennessy, The Secret State (London: Allen Lane, 2002).
29
David Omand, Securing the State.

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30

63

David Omand, The National Security Strategy: Implications for the UK

Intelligence Community (London: IPPR, 2008).
31
HMG, A Strong Britain in an Age of Uncertainty: The National Security Strategy
(Cm 7953) (London: The Stationery Office, 2010).
32
Jorge Heine and Ramesh Thakur, eds., The Dark Side of Globalization (New York:
United Nations University Press, 2011).
33
Most recently by James Bamford, The Shadow Factory: The Ultra-Secret NSA from
9=11 to the Eavesdropping on America (New York: Doubleday, 2008).
34
William Hague, Securing Our Future.
35
See http://www.parliament.uk/deposits/depositedpapers/2011/
DEP2011-1796.pdf, accessed 10 July 2010.
36
Peter Gill and Mark Phythian, Intelligence in an Insecure World, Chapter 8.
37
Michael Quinlan, The Just War Tradition and the Use of Armed Force in the
Twenty-First Century, annual lecture of the War Studies Department, Kings
College London, 25 January 2006.
38
A line of thinking I owe to discussion with the late Sir Michael Quinlan, as set out in
David Omand, Ethical Guidelines in Using Secret Intelligence for Public Security,
Cambridge Review of International Affairs, Vol. 19, No. 4, 2006, pp. 613628.
39
Ibid. See also David Omand. Securing the State, Chapter 10.
40
Max Weber, The Profession and Vocation of Politics, in Peter Lassman and
Ronald Speirs, eds., Weber: Political Writings (Cambridge: Cambridge
University Press, 1994), pp. 309369.
41
John Hoffman, Beyond the State: An Introductory Critique (Cambridge: Polity
Press, 1995), p. 5.
42
To quote John Hoffman again: Imagine a state which successfully monopolizes all
legitimacy within a given territory. Under these circumstances none of its subjects
have cause to dissent from the moral justifications the state invokes in passing laws.
No dissent, no subversion, no law-breaking, no criminals. As a result there would
be no need for force. Government . . . would exist but the state disappears. Ibid., p. 65.
43
HMG, A Strong Britain in an Age of Uncertainty, p. 27.
44
On this, see, for example, William M. Sullivan and Will Kymlicka, eds., The
Globalization of Ethics (New York: Cambridge University Press, 2007).
45
See, for example, Mark Danner, After September 11: Our State of Exception,
New York Review of Books, 13 October 2011.
46
Michael Walzer, Arguing About War (New Haven, CT: Yale University Press,
2004), p. 40.
47
Greg Miller, Under Obama, an Emerging Global Apparatus for Drone Killing,
The Washington Post, 28 December 2011.
48
As stated in Article 3 of Schedule 1 of the UK Human Rights Act 2000.
49
As described on 8 August 2005 by the Metropolitan Police Authority after the
fatal shooting in error of Jean-Charles de Menendez on the London
Underground, http://www.mpa.gov.uk/downloads/foi/log/kratos-attach.pdf,
accessed 29 December 2011.

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