Principled Spying: The Ethics of Secret Intelligence, by David Omand and Mark Phythian

| December 2018
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Principled Spying: The Ethics of Secret Intelligence, David Omand and Mark Phythian (Washington, D.C.: Georgetown University Press, 2018), 304 pp., $32.95 cloth, $32.95 eBook.

To outsiders, the world of espionage can often seem a shadowy and unintelligible realm. It is therefore refreshing to find that Principled Spying is an interesting, thorough, and accessible engagement of the ethical issues associated with intelligence gathering and covert operations. Coauthored by Sir David Omand, the former head of the British intelligence agency GCHQ, and Mark Phythian, a professor of politics at the University of Leicester, the book takes the form of a dialogue between the intelligence officer and the academic, a format that marries well with the subject matter. As the authors make clear, in a liberal state, government agencies and the citizenry must continually negotiate over the proper scope of state power.

One of the book’s major themes, introduced in the first chapter, is the “liberal dilemma of intelligence.” Liberal states are rooted in respect for universal human rights, but intelligence operations are generally in the service of one state and infringe upon, if not violate, the human rights of citizens in other states. It is not that liberty and security are opposed to each other, the authors argue; security is a precondition for liberty. People cannot exercise their rights when they are under attack or threatened with rights violations. Yet all states need security, so it seems the security of one state comes at the expense of another. The question then becomes the following: Is there a characteristically liberal way in which liberal states should engage in intelligence operations or are all intelligence operations inherently rights-violating? The authors rightly point to formal procedures constitutively distinguishing liberal from illiberal intelligence practices: civilian oversight entities, legal control, public disclosure of macro-level intelligence policies, and the ability to investigate abuses.

At the heart of the authors’ constructive argument is a “just intelligence” framework adapted from just war theory’s familiar criteria. The authors discuss how the jus ad bellum criteria for going to war are not apt for judging the initiation of interstate intelligence operations since intelligence agencies need to be constantly engaged in collection in order to prevent war in the first place.

The authors combine the criteria for jus ad bellum and jus in bello in order to judge the justice of particular intelligence operations (loosely terming the results jus ad intelligentiam and jus in intelligentia). Such operations need a just cause (in the service of national security); right intention (acting for national security reasons rather than partisan ones); proportionality (the ethical risks of the operation should not exceed the harms the operation is meant to prevent); right authority (authorized by a legitimate, transparent, accountable body); and a reasonable prospect of success. They also need to be discriminate (minimizing harm or privacy intrusions to nontargets) and necessary (ensuring there is no other way to achieve the objective at a lesser ethical risk).

The dialogic form of the book can sometimes make it hard to discern what points the authors wish to fully endorse, but it seems that this conflation of ad bellum and in bello criteria is due to the fluid nature of intelligence operations. Thus, ad intelligentiam and in intelligentia criteria are equally relevant to judge whether an agency may collect signals intelligence from, say, the entire Middle East or from a particular person’s satellite phone. A just cause, right intention, and legitimate authority are clearly necessary for both operations.

The authors seem to endorse a sliding scale on which the discrimination and proportionality criteria are interdependent: for example, a collection method that imposes little harm (such as the retention of telephonic metadata) can be used in a more indiscriminate manner, perhaps across a whole region. Ordering human analysts to listen in on a particular person’s calls would require a finer-grained type of discrimination; analysts would need to be able to claim that a target is “highly likely to be of intelligence value” rather than “possibly of intelligence value.”

The level of discrimination shown when it comes to privacy infringements should also distinguish intelligence collection by liberal states from illiberal states, the authors contend. Liberal states should employ collection algorithms allowing extensive filtering so that human analysts are only likely to see communications from people who have a high likelihood of being “just” intelligence targets. On this point, Omand may be too blithe about the distinction between storing and accessing data, asserting that storage does not meaningfully infringe upon anyone’s rights. It is, of course, true that accessing someone’s personal data is much more invasive than simply storing it, but it is the storage that makes the access possible in the first place.

Readers familiar with the just war tradition will note the absence of the “last resort” category. This criterion does not ably fit into the authors’ framework since intelligence collection has to be ongoing and proactive, always scanning the horizon in order to meet its purpose. The authors spend significant time discussing what “necessity” (as a substitute for last resort) means in an intelligence collection context. States do not “go to intelligence” in the way that they “go to war” because they are always engaged in intelligence collection. The necessity criterion therefore helps determine the aperture of the collection portal, as it were.

The authors go on to discuss ethical questions regarding covert actions such as incitement, targeted killing, and sabotage. Notably, they address the legal controversy surrounding targeted killing by drone, presenting ethical arguments that will be familiar to specialists but will be of interest to nonspecialists as well. Most interestingly, the authors wrestle with the question of what constitutes last resort for performing covert actions, given that intelligence is inherently uncertain and the risks that covert actions seek to forestall are not yet fully mature.

In all, Principled Spying is an engaging and enjoyable read, full of accessible references to both historical and current events, as well as lucid explanations of the relevant moral issues. While academic specialists may want more technical discussions of moral theory, they will nevertheless appreciate and benefit from the well-chosen and illustrative cases. For all readers, the book serves as an important reminder of the need to constantly assess and reassess what it means for liberal states to spy.

—Michael Skerker

Michael Skerker is associate professor in the Leadership, Ethics, and Law Department at the U.S. Naval Academy. His forthcoming book is Soldiers and Soldiers: The Moral Equality of Combatants.

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Category: Book Review, Issue 32.4

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