Friday 22 January 2016

What important political and ethical questions are raised by the covert nature of secret intelligence?

What important political and ethical questions are raised by the covert nature of secret intelligence?

The practices and covert nature of secret intelligence always inspire public debate by raising difficult ethical and political questions. Most of these challenging questions can only be answered with more questions thus creating a cycle in which real answers prove almost impossible to achieve. The only ways in which these questions can be tackled is to look at the covert nature of secret intelligence through individual practices. Tactics such as torture, surveillance and ’honey traps’ bring in to question violations of basic human rights and the ethical issues surrounding intelligence gathering. However, most issues such as these are overruled by the need to maintain and support national security. Intelligence is a ‘hard security’ topic and realism would argue that national security, and all means used to protect and sustain it, is more important than individual rights, advocated and protected by the more liberal point of view. National security is a fundamental task of any government so its strategic decisions to maintain it at the cost of breaching human rights is supported by political rhetoric which justifies its existence. The justification is almost always that the practices and tactics employed are used against ‘the enemy’:

The political enemy need not be morally evil…But he is, nevertheless, the other, the stranger; and it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien, so that in the extreme case, conflicts with him are possible (Schmitt 2007 ed: 27)

Though espionage is not necessarily deemed as conflict, it is still justified in this way; preserving national security is of paramount importance and identifying the enemy in order to maintain this security means that there will always be a need for intelligence gathering to gain the upper hand against said enemy. However, the national security justification does not always convince the public if the presence of an enemy or a real threat is not posed. Just War theory and the theoretical concept of the political, as laid out by Carl Schmitt, being one in which an enemy must be identified coincide with realism to provide answers for the ethical and political questions raised by the covert nature of secret intelligence.

As there will always be an ‘enemy’, there will always be a need for intelligence. And intelligence gathering must always maintain its covert nature in order to continue to gather sensitive but useful information. One of the ways in which secret intelligence is continually justified, despite its questionable ethics, is that ethics and morality seem to be suspended in times of war or conflict. Interstate animosity “is the leading presupposition which determines in a characteristic way human action and thinking and thereby creates a specifically political behavior” (Schmitt 2007 ed: 34). Politics and international relations between states is moulded by external threats and the ever present possibility of war. Particularly in today’s world where warfare follows very different rules. Modern warfare is no longer confined to the battlefield. The threat is constant because the timing is not known, nor are the ways in which  attacks may be orchestrated. War is no longer state versus state, but more ideology versus ideology. The most blaringly obvious example of this is of course the Cold War period. Communism was the principle threat to the west and the challenges surrounding this threat demanded an upper hand, in the form of foreknowledge and information, or intelligence. In 1954, President Eisenhower established a panel whose specific objective was to “make recommendations regarding covert political action as an instrument of foreign policy” (Barry 1993: 19). This panel was headed by General Jimmy Doolittle, the namesake of the panel itself. The panel produced a report in which they said:

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply…American concepts of “fair play” must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated means than those used against us. It may become necessary that the American people be made acquainted with, understand and support this fundamentally repugnant philosophy (quoted in Barry 1993: 19)

Though this was written in 1954 with Communism being the main threat, this seems as relevant today with the threat of Islamic fundamentalists replacing that of Communism. So long as there is a major threat to security, there will always be justification for drastic measures. The national security of the state is of paramount importance so any techniques used to promote this security is justified and necessary. Though a lot of practices used by the intelligence community do not sit comfortably with the conscience of most in democratic societies, the majority of people are prepared to over-look questionable tactics if it means security and protection against a legitimate threat.

The term the ‘war on terror’ was first coined by President Bush in “an address to a joint session of Congress on 20 September 2001, in the aftermath of the attacks on New York and Washington” (Reynolds 2007). The Bush administration made the decision to not only identify the enemy, or the absolute enemy as Schmitt would suggest, but to also make the animosity between the west and Islamic fundamentalism the ‘just cause’ needed to term this struggle a war which would then justify any ethically problematic decisions in order to defeat the threat. War is a last resort and, according the guidelines laid out by the likes of Saint Augustine and Saint Thomas Aquinas, which today provide the backbone for theories such as Just War Theory, there are three conditions which must be followed for war to be justifiable: (1) “the action must be ordered by proper authority”, (2) “the cause must be just” and (3) “the authority must have a right intention of promoting good and avoiding evil” (paraphrasing Aquinas’s Summa Theologica in Barry 1993: 20). Bush’s use of the term ’war on terror’ provided validation for strong, decisive action. Bush declared that “On September the 11th, enemies of freedom committed an act of war against our country” (Bush quoted in Reynolds 2007) provoking a desire in the public for retribution and retaliation, while also highlighting that al-Qaeda was the enemy and a legitimate threat to the security of the United States. Thus any and all tactics and strategies used by the United States against al-Qaeda and other Islamic fundamentalist groups were in this one speech act made justifiable and morally right. This was now a ‘war’ with the “right intention of promoting good or avoiding evil” (Barry 1993: 20) and a ‘just cause’. According to Barry, the threat of a global spread of Communism during the Cold War “became a compelling rationale for covert action, to the extent that many operations needed no more specific justification” (Barry 1993: 19). He continues by suggesting that this threat “made it possible for policymakers to ignore competing ethical considerations when they endorsed covert actions” (Barry 1993: 19). This is also true for the ‘war on terror’. The threat of Islamic fundamentalism and al-Qaeda attacks has lead governments such as the United States government to make some ethically troubling decisions. The fear of terrorism has lead to issues with racial profiling, detaining suspects just because they fit a certain type, and, most controversially, intelligence gathering using the methods of torture.

The viability of the term ‘war on terror’ was “undermined when the controversy over the detention camp at Guantanamo Bay raised questions about the tactics being used” (Reynolds 2007). Torture is arguably the oldest and most controversial of tactics used by secret intelligence. Though it is now banned under human rights laws, its continued practice is undeniable. In 2011, the Human Rights Watch released a report in which they claimed that “there is enough strong evidence from the information made public over the past five years to not only suggest these officials authorized and oversaw widespread and serious violations of US and international law, but that they failed to act to stop mistreatment, or punish those responsible after they became aware of serious abuses” (Brody 2011: 2). If this is indeed the case, who needs to be held accountable and is there any way their actions can be justified? Even with the success story of tracking down and assassinating the key leader and figurehead of al-Qaeda, Osama Bin Laden, cannot escape controversy as questions have been raised about the methods used to achieve that goal. As one American journalist, Frank Bruni, so bluntly put it, “No waterboarding, no Bin Laden” (Shane 2012). But does that sit well with us as moral human beings? In the past couple of years, new information regarding the Bush administration’s stance on torture has come to light as President Barack Obama released top secret memos “that allowed the CIA under the Bush administration to torture al-Qaeda and other suspects held at Guantanamo” (MacAskill 2009). The memos prove that Bush has given the legal go-ahead to CIA officers to use torture to gather intelligence. However, though the president had made this legal, torture is illegal under international law. This seems to bring to the fore the question over whether or not, during ‘times of war’, ethics and legal obligations regarding ethics and morality are suspended. Bush made it clear in his speech that in his mind America was at war with terrorism, but does that really mean that his administration was above international law when it comes to torture? Though the age in which the ‘war on terror’ rhetoric could be flung about as justification for breaking international human rights laws has passed, there is still no real sign of accountability or retribution.

Bush, though having given the go-ahead to gross human rights violations, has not been tried in international courts of justice. Nor has current President, Obama, branded his decisions during this time as criminal acts. When the memos were released in 2009, Obama issued an accompanying statement which “ruled out prosecutions against those who had been involved. It is a “time for reflection, not retribution,” he said” (MacAskill 2009). The attorney-general, Eric Holder, backed up Obama by saying that the CIA operatives who did use torture should not be subject to persecution as these guidelines were set by their administration. They were operating within the law as set out by their government which confuses the matter even more. Do we hold those who abused the human rights of a detainee accountable if they were merely following orders and guidelines set out by a person of higher rank? According to Eric Holder “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the justice department” (Holder quoted in MacAskill 2009). Though perhaps persecution for all involved would be a fairly drastic undertaking, it is unsettling that members of the Bush administration (in particular former vice-president Dick Cheney) claimed that “waterboarding did not amount to torture” (MacAskill 2009). Bush’s speech act creating a ‘just cause’ and identifying the evil of al-Qaeda is constantly being brought up in an attempt to create a sense of the west’s ‘moral high ground’ but debating the actual definition of torture does not eclipse the fact that it was used. Ironically, the decision to use such tactics during this ‘war on terror’ actually undermines the ‘moral high ground’ Bush attempted to establish:

The US government’s disregard for human rights in fighting terrorism in the years following the September 11, 2001 attacks diminished the US’ moral standing, set a negative example for other governments, and undermined US government efforts to reduce anti-American militancy around the world (Brody 2011: 4)

Effectively the establishment of secret prisons, detention camps and a legal fall-back for the usage of torture did exactly the opposite of what the US wanted to achieve. At least publicly. Thought it is important that covert operations within intelligence agencies remain classified, the use of torture is abhorrent and morally wrong and those that use it and those that sanction its use are in the wrong and should be held accountable. However, when its use culminates in a ‘success story’, it is very easy to turn a blind eye.

The film Zero Dark Thirty has reopened the torture debate as it’s brutal depiction of torture has been dubbed by critics as glorifying the use of torture and presenting it as a vital step in finding bin Laden, something which irks the conscience. However, torture raises questions about whether or not we are willing to overlook the human rights of one if it means saving the lives of potentially thousands. Its claimed that the film depicted the CIA as the ’Good Guy’ and the detainees subjected to the brutal torture as being the bad, thus giving an impression that all methods used are necessary for good to triumph over evil (Greenwald 2012), which seems to hark back to the idea of identifying the enemy and the need for just cause. If you have set up an enemy, it will always be considered the ‘other’. Greenwald, a political journalist, claimed that “[p]eople who support torture don’t support it because they don’t realize it’s brutal […but…] they believe it’s justifiable because of its brutality”, and that the film depicts “torture exactly as its supporters like to see it: as an ugly though necessary tactic used by brave and patriotic CIA agents in stopping hateful, violent terrorists” (Greenwald 2012). A lot of documents from the Bush administration regarding torture and the detention camps have been ordered to be released by the American Civil Liberties Union (ACLU) under the Freedom of Information Act (FOIA), but many documents remain classified meaning the public is still in the dark over the complete picture. The Human Rights Watch believe that the classified documents could contain “incriminating information, strengthening the cases for criminal investigation” (Brody 2011: 2). The film itself and its depiction of torture actually led a handful of US Senators to launch an investigation in to Bigelow and scriptwriter Mark Boal’s connection to the CIA. It was known that leading figures within the CIA had been talking to the pair, but exactly how much was what the investigation hoped to find out (Zakarin 2013). If information is still classified, neither the CIA nor the American government can allow that information to be released publicly by any of its operatives. Least of all to the media and the film industry. Thus the purpose of the investigation was to determine whether or not the CIA had explicitly told them that torture had led to useful leads, not whether torture was used. However, the investigation has since been dropped as controversy surrounding the film has died down since the Oscar boycott meant that the film missed out on many of the big awards it was nominated for (Zakarin 2013). With the need for answers no longer under such scrutiny, the pressure for the investigation was lifted in a sort of out-of-sight-out-of-mind kind of way. Though it is through movies such as these that torture and its association with intelligence gathering is embedded within the public consciousness, often meaning that people have become desensitized to its uses as it has more to do with the fact that we only associate it wit the ‘other’ not with our own. While torture is morally and ethically repugnant, when it is used against the ’bad guy’ it is necessary evil.

Though of course torture and human rights violations are perhaps the most glaringly obvious of all ethical questions levelled at secret intelligence, other tactics are used with damaging effects. In 2009, MI5 released a report titled “The Threat from Chinese Espionage” that explicitly drew attention to the practice of operatives who “exploit vulnerabilities such as sexual relationships…to pressurise individuals to co-operate with them” (MI5 report quoted in Knightley 2010). Sexual relationship, though frowned upon by security services, have a history in intelligence gathering and the “report on Chinese corporate espionage tactics is only the most recent installment in a long and sordid history of spies and sex” (Knightley 2010). The practice of what has been dubbed ‘Honey Traps’, or honey pots, has “been a favourite spying tactic as long as sex and espionage have existed - in other words, forever” (Beam 2010). There are numerous, and some notorious, examples of these honey traps. For example, the case of Mata Hari. During WWI she was arrested by the French accused of spying for the Germans. The French had intercepted telegraphs between her and a German military attaché in Spain. It was thought that he was her control officer to whom she was passing secrets obtained by seducing prominent French politicians and officers. Though she denied the claims, she was executed by firing squad. Such was considered the severity of her alleged crime and the danger that other women were also using the “amorous arts to obtain secret information” (Knightley 2010), that after the war it came to light that there had never been any real evidence against her, leading many modern historians to believe that she was executed “to send a powerful message to any women who might be tempted to follow her example” (Knightley 2010). Here, of course we are faced with not only the ethical quandaries surrounding the death penalty but also the questions that arise about exploiting people using sex as it takes advantage of a certain vulnerability and weakness. After WWII and the division of east and west Germany, the notorious spy master Markus Wolf recognised an opportunity for the Stasi to exploit: “with marriageable German men killed in large numbers during World War II and more and more German women turning to careers, the higher echelons of German government, commerce, and industry were now stocked with lonely single women” (Knightley 2010), women who would fall very easily into the ‘honey trap’ set up by Wolf and his attractive and intelligent officers nicknamed the “Romeo Spies”. These ‘honey traps’ were hugely successful for a time. The Stasi managed to penetrate most levels of West German government and industry, at one point going as high up as NATO. Though West German security services soon devised ways to track down and spot these Eastern “Romeo Spies”, damage was still done. These women had been duped and played in the most unfair ways, being made into traitors by people whom they believed they could trust. In his autobiography, Wolf claimed that though his operators “realized a lot can be done with sex” (Wolf quoted in Knightley 2010), he never put pressure on his officers to seduce these women. Though using sex as a means of getting information is unethical and morally dubious, there “is nothing in the law…to prohibit undercover officers having sexual relationships with those they are spying on” (Deith 2012). Not only that, but “…the government has also hinted it is unlikely to make it illegal for undercover officers to sleep with people they are spying on” (Deith 2012). Unlike torture, I would argue, there is not the same justification for it as it is not about identifying an enemy in times of war, it is simply to gather intelligence using any means at your disposal. But it does work from the point of view of the operatives as they can get the information that they want by exploiting that weakness. In a world of realists, what must be done for the protection of the state regardless of the consequences to the individual, is justified. Ethical issues surrounding the art of seduction, in order to obtain information, are often in the background of the issues which come with the need for accountability.

Over the past few years cases such as that of Mark Kennedy have sparked some debate over not only sexual relationships had by an officer while working undercover but also questions about the overall covert nature which seems to be unable to offer any amount of accountability as questions remain unanswered. Mark Kennedy, alias Mark Stone, was an undercover officer who had been infiltrating a leftist environmental protest group for seven years. His cover was only blown when he swapped sides and gave evidence in defence of members of the group who had been arrested for plotting to shut down an important, coal-fuelled power station (Prodger 2013). When his cover was blown, it came to light that he had had sexual relations with at least two of the women in the group. The case raised two interesting ethical question; first, is it ethical to spy on a legitimate group that pose no serious threat to the security of civilians or the state, and second, is it right to then have sexual relationship while ‘on the job’? It is fairly easy to assume that an environmental protest group poses little danger to the overall security of a state. However, so long as this group was objecting to official government policy regarding whatever issues it wishes to tackle, it could still be technically classified as an enemy. And any enemy is capable of disrupting the security of a state, however mildly or indirectly. But, the real issue here is of course the sexual relationships had by Kennedy during his time undercover. According to Deputy Assistant Commissioner Patricia Gallan, there are “lots of safeguards put in place to ensure officers are not only gathering evidence, but it is done ethically and with integrity” (Deith 2012). Though this may the case, there is still no real legal guidelines which prohibit sexual relationships: it “is not explicitly banned under the code but is considered to be “grossly unprofessional”” (‘Undercover police officer Mark Kennedy ‘defied’ bosses’ 2012). The word ‘unprofessional’ seems to almost make light of the severity of the lasting psychological and emotional effect on the women (and men) who do partake in these affairs. It makes it seem as though the officers who do enter in to sexual relationships while undercover get no more than a spell on the naughty step as opposed to actual punishment, as it is not illegal. The Kennedy case brought about questions of the laws governing these undercover policing operations and the stance on these inappropriate relationships. One woman who had been romantically involved with Kennedy for six years made a statement, after herself and seven other women had brought a lawsuit against the Metropolitan Police for lasting emotional damage, saying that learning the truth meant her “sense of what was reality and what wasn’t was completely turned on its head…it is also important to remember that that person that I cared about deeply did not in fact exist” (’Lisa‘ quoted in ‘The women betrayed by undercover officers’ 2013). Similarly, ‘Alison’ (all the women involved in the trail were given false names to use in the press to protect their identity) had a relationship with another undercover officer known as Mark Cassidy in 1994 said that “This is not about just a lying boyfriend or a boyfriend who has cheated on you…It is about a fictional character who was created by the state and funded by taxpayers’ money” (quoted in ‘The women betrayed by undercover officers’ 2013). Undercover policing operations are part of the intelligence community, and therefore funded by the taxpayer. These women are entitled to closure and to justice as there is a case in which you can say that this is a violation of human rights.

The deceit of these officers has lead to a trial in which eight women are suing because of lasting damage. The trial is being heard in secret in a closed court known as the Investigatory Powers Tribunal (IPT), which has jurisdiction over the women’s human rights claims (Prodger 2012). Harriet Wistrich, a solicitor for six of the claimants, believed that the decision to have the trial heard in secret “prevents both the claimants and the public from seeing the extent of the violation of human rights and abuses of public office perpetrated by these undercover units” (quoted in Prodger 2013). The case brings the covert nature of secret intelligence in to serious question, perhaps even more so than the relationships themselves do, as the legal proceedings underway stemming from the relationships are still being kept shrouded from the public. According to the home affairs committee chairman, Keith Vaz, the “families who have been affected by this deserve an explanation and a full and unambiguous apology from the forces concerned” (’Undercover policing: MPs demand reforms’ 2013). But, as with most secret intelligence, the justification for it is that information was being gathered, cover stories were being kept intact and the groups targeted were being infiltrated and watched in order to protect national security interests. Its easy to question the ethics surrounding sexual relationships while working undercover, but if it is the best way in which to gather information is it more acceptable, or does it depend on the case? It could potentially be considered less morally corrupt if the stakes are higher. No one really questions the ethics of war time ‘honey traps’ as gathering information was essential for the war effort by any means necessary. But a leftist environmental protest group seems fairly harmless in comparison to wartime ‘honey traps‘, so there does seem to be very little in the way of validation for the need of this kind of intelligence gathering. In the Kennedy case, it was not a deliberate ‘honey trap’ as it was with the likes of the ‘Romeo Spies’. Kennedy’s job was simply to infiltrate the group and to gather information. But were these relationships part of that job? Jon Murphy, Merseyside Chief Constable, claimed that undercover policing, when used correctly, is “lawful, ethical, necessary and proportionate” (quoted in ’Undercover policing: MPs demand reforms’ 2013). Though he also claims that it is “one of the most challenging areas of operational policing and can have considerable impact on public confidence” (quoted in ’Undercover policing: MPs demand reforms’ 2013) as we are seeing with the Kennedy case. The use of undercover policing may be necessary, but can it really be argued that sexual relationships are also justified? James Bannon, former undercover officer, would say yes:

If you have exhausted every other avenue of infiltration in order to gather evidence on a particular person or particular group and your only course of action after you’ve exhausted everything else is to have a relation in order to effect your cover with somebody, then I think there’s a justification around it (quoted in ’Undercover policing: MPs demand reforms’ 2013)

It may be morally and ethically questionable, and it certainly has lead to a call for political responses and changes to legislation, but any form of espionage is almost irreversible linked to the need to obtain information in any way possible regardless of damage to the individual involved. It is troubling and the lasting emotional effects are difficult to overlook, but as Wolf put it “[a]s long as there is espionage, there will be Romeo’s seducing unsuspecting [targets]” (Wolf quoted in Knightley 2010). Though this by no means excuses its practice, it does offer an insight into the ways in which honey traps are treated by those involved with secret intelligence. It may be ‘grossly unprofessional’, but it could be seen as another necessary ethical evil when it comes to intelligence gathering. If it protects the cover of the undercover officer and means that important information will be collected perhaps we can agree with Mr. Bannon is suggesting that there are times when it is justified.

There are two main aspects to discussions of the ethics of intelligence collection: (1) “As long as the purpose of the espionage is to protect and enhance a nation’s security […] many deem intelligence collection as ethical, particularly if the state is democratic and affords its citizens human rights” (Taylor 2010: 310) (2) “As long as other nations are spying on us and, in effect, are compromising our security, it is ethical for us to spy on them if it enhances our security” (Taylor 2010: 310). Because intelligence agencies work for and at the expense of the people, there should be a clear line of accountability. But when an enemy is established and a ‘just cause’ provided, tactics and strategies normally considered unethical and politically questionable become less offensive to the public as national security is and always will be the main objective. If the human rights of a state’s own people are being protected by the violation  of human rights of someone considered the enemy, there is a suggestion that the public are more willing to turn a blind eye. The establishment of an enemy helps to create a political environment which defends the use of strategic tactics, like covert intelligence, as conflict changes the rules: war “has its own strategic, tactical, and other rules and points of view, but they all presuppose that the political decision had already been made as to who the enemy is” (Schmitt 2007 ed: 34). By securitizing an issue such as Bush’s ’war on terror’, unethical tactics that provide national security to a state become forgivable. Torture led to the death one of the world’s most dangerous men which could be said to have saved potentially thousands of lives. War time ‘honey traps’ could be awarded the same justification, but when a genuine threat to the lives and well being of a state’s people is not the target but a benign threat to the official position of the government, human rights violations which result in lasting emotional damage for those involved, morality and accountability must once again take centre stage. Though it is important that ethical questions continue to be raised, as it allows for the continuing evolution of laws that govern secret intelligence, it is for the benefit of the agencies and their ability to protect the state and its citizens that the covert nature of their work is not jeopardised. Though accountability when required and called for should be readily available, transparency for transparency’s sake could be argued to do more harm than good as “Secrecy is essential if the agencies are to be able to perform their statutory functions effectively” (‘Policy of Disclosure’ MI5: Security Service 2013). Of course when ethics regarding the practices of secret intelligence are called into question, accountability and retribution are necessary. Torture, surveillance and honey traps may sit uncomfortably with most people’s conscience but in some cases, usually extreme cases, it can be justified. Regardless of whether or not we as people agree with all of their practices, we are living in relative security because of their continued work. Secret intelligence is here to stay, and if its highly covert nature is not compromised in any way, its ethically and morally challenged practices will continue to aid maintenance of our national security and thus remain justifiable.


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