Counterintelligence issues within United States

Morality of Counterintelligence Ethical Implications and the Need for a Theoretical Framework
CI Literature Review
Deception is at the core of counterintelligence: yet, it is a problematic core because of the corruption associated with deception in ethical systems. Mattox (2002), for example, observed that the practice of deception “is subject to limitations imposed by the demands of morality” (4). Unfortunately, morality within the realm of counterintelligence is often the first casualty, as history shows (Valentine 2016). The official beginnings of counterintelligence under the leadership of James Jesus Angleton have illustrated the extent to which the art of deception can create problems within the intelligence community (Morley 2017, 69). Within this community itself there is no standard ethical framework applied (Bailey and Galich 2012, 77). In counterintelligence, there is even less emphasis on ethical cohesion; as Valentine (2016) has revealed, the history of US counterintelligence is fraught with conflicts of interest, human failings, ulterior motives, problematic relationships, and questionable tactics (33-39). Counterintelligence has often been linked with the idea of national security, yet as Nolan (1997) shows it is dangerous to think of counterintelligence as a security exercise because it is literally nothing of the sort: writing from the standpoint of private industry, Nolan (1997) states explicitly that “while security seeks to protect a firm's assets by a combination of policies, procedures and practices, counterintelligence, properly understood, aims to engage and neutralize a competitor's collection efforts through a variety of imaginative, flexible, and active measures” (53). The point of concern, here, is not only the degree to which those “imaginative, flexible, and active measures” lead to the problems both for the agency and for the field it aims to serve (Nolan 1997, 53). There is also the matter of confusing counterintelligence with security, which is precisely what has happened in the past and is currently happening under the Trump Administration with its 2020-2022 National Counterintelligence Strategy.
The strategic objectives of the 2020-2022 National Counterintelligence Strategy of the United States (2020) are: 1) to protect the nation’s critical infrastructure, 2) reduce threats to supply chains, 3) counter the exploitation of the US economy, 4) defend American democracy against foreign influence, and 5) counter foreign intelligence cyber and technical operations (4). These objectives differ from the 2018-2022 National Counterintelligence and Security Center Strategic Plan. Under Director William R. Evanina, integration of CI and security activities was a top priority and theme of the strategy, but the strategic goals were quite distinct: Goal 1 was to “Advance our Knowledge of, and our Ability to Counter Foreign and other Threats and Incidents”; Goal 2 was to “Protect US Critical Infrastructure, Technologies, Facilities, Classified Networks, Sensitive Information, and Personnel”; Goal 3 was to “Advance our Counterintelligence and Security Mission and Optimize Enterprise Capabilities through Partnerships”; Goal 4 was to “Strengthen our Effectiveness through Stakeholder Engagement, Governance, and Advocacy”; and Goal 5 was to “Achieve our Mission through Organizational Excellence” (National Counterintelligence and Security Center Strategy 2018-2020 2020, ii). Meanwhile, the official responsibility of counterintelligence is to “collect information and conduct activities to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons or their agents, or international terrorist organizations” (National Counterintelligence and Security Center Strategy 2018-2020 2020, 2). The conflated, mixed, broad, and somewhat vague strategic objectives that have been developed for the counterintelligence community in the year 2020 reflects the same conflated, mixed, broad, and somewhat vague strategic objectives that plagued the CI’s Phoenix program, which Valentine (2016) has called the “blueprint” for all current intelligence action (50). Tromblay (2017) has concurred with the assessment that the intelligence community is overstretched and overtaxed and that counterintelligence is being tasked with too many objectives that are foreign to its mission. The issues identified by Tromblay (2017) are that “the U.S. government has attempted to partner with the private sector on counterintelligence (CI) awareness and response, [but that] these efforts have been plagued by a limited concept of which industry sectors are at risk, inconsistency in programs, and redundancies across agencies” (1). Overall, there is a lack of reconciliation between vision and mission and what is being asked of CI.
To summarize the problem, the area of action for counterintelligence may be one thing in terms of a mission, but the strategic operations and integration of counterintelligence with security and other state-sanctioned actions has refueled and threatens to perpetuate the same problems that led to the Church Committee’s (1976) conclusion that the CIA had created a counterintelligence monster (172). While it is acknowledged that the CI community should work more closely with private industry to engage effectively in its official mission (Nakashima 2020), the reality of how this collaboration is to take place, ethically and practically, is a problem that remains to be addressed. The risk of not addressing it puts the CI community in danger of operating outside of its scope and engaging in the precise problematic misinterpretation of counterintelligence warned against by Nolan (1997).
The aim of this examination of the literature is to fill the wide gap that remains in counterintelligence research regarding an appropriate ethical standard that can guide and foster an ethical culture, as called for by Bellaby (2012) and Valentine (2016). The purpose of this review is to identify the lessons that have been learned and presented by researches into this topic, and to identify an appropriate theoretical framework for assessing the way forward.
The research question for this study is: How can the US counterintelligence enterprise support collaboration among the various USIC members and the private sector in an ethical and productive manner? To understand the issues and policies of counterintelligence today, it is necessary to identify and evaluate the mistakes and lessons that can be learned from the past when the counterintelligence program formally began under Angleton. The ultimate purpose of this study is to propose a standardized ethical framework for guiding the counterintelligence program as it works to collaborate with the private sector in the 21st century.
The Role of Ethics
One of the problems encountered in studying counterintelligence is how to approach it from an ethical point of view (Pfaff and Tiel, 2004). Defining an ethical framework is essential in approaching the subject, yet problematic at the same time because counterintelligence has not been approached in the same way by those who practiced or continue to practice it (Bailey and Galich 2012). Various theoretical assumptions have been applied to critical studies of the CI community in the past: Erskine (2004) addressed the utilitarian ethics of CI (360); Pfaff and Tiel (2004) argued that every ethical approach to CI is rooted in Lockean or deontological ethics (1-2); Mattox (2002) approaches the topic from the standpoint of virtue ethics, arguing that if leaders do not “act in good faith even with those who are their adversaries” the potential risk of damaged reputations can undermine the diplomatic strategies of the state and create greater problems than before (4). To support the point of Mattox (2002), Lieberthal and Jisi (2012) explain that the alliance among China, Russia, and Iran (all considered counterintelligence targets in the 2020-2022 National Counterintelligence Strategy of the United States) has come about as a direct response to the perception of these states that the US has acted in bad faith and cannot be trusted.
Researchers consistently suggest that ethics matter in all aspects of statehood, no less in counterintelligence than in any other sphere (Bellaby 2012; Erskine 2004; Bailey and Galitch 2012; Pfaff and Tiel 2004). Because, however, there has been no standard ethical framework used in counterintelligence, an apparent need for consistency in application of an ethical system to CI can be assumed. Developing a theoretical approach to discuss the early history of counterintelligence from the standpoint of the major ethical perspectives can support this need. With power as the main impetus, other drivers of human action, such as virtue ethics, duty ethics, utilitarianism, and ethical egoism, may be used to explain the problems that arose within the counterintelligence program from the 1950s to the 1970s (Valentine 2016). Relevant theories include conflict theory, structural functionalism, and critical theory. Conflict theory was posited as a response to structural functionalism, and critical theory arose out of the failure of conflict theory to fully account for the failure of the Marxist prophecy (Horkheimer 1972, 246). By itself critical theory is criticized as an inadequate theory by structural functionalists who view society as more than a quest for liberation—but with a focus on how ethics play a part in decision-making, all three of these might help to explain the complex nature of the subject (Bartos and Wehr 2002). Defining these theories and perspectives is important.
Virtue Ethics
Also known as character ethics, virtue ethics is not unique to the West but was embraced equally in the East for thousands of years. In the West, it dates back to Aristotle; in the East, to Confucius (Slingerland 2011). The basic idea of virtue ethics is that actions are deemed moral if they contribute to the cultivation and development of one’s character. Character and reputation go together as individuals in society judge one another based on reputation, which serves as the indicator of the person’s character. A state that has tarnished its reputation through bad faith interactions signals an untrustworthy character and thus risks exclusion from a larger network of international collaboration (Mattox 2002).
Duty Ethics
Kant put forward the concept of deontology, also known as duty ethics. The concept is that morality is determined by the extent to which one does one’s duty of state (Messilbrook 2013). Duty can be dictated by an authority, and that is why counterintelligence has been described as a duty in the past (Pfaff and Tiel 2004). The line between duty to state and personal ambition, however, has been crossed innumerable times throughout the history of counterintelligence (Morley 2017; Valentine 2016). This makes deontology a complicated framework with serious limitations in terms of utility and application.
Lockean Ethics
Locke’s view was that liberty is the fundamental law of nature and that the state should preserve liberty insofar as it is able (Pettit 1997). Lockean ethics as a system does not exist other than in the advocacy of freedom for action. This is a problematic ethical framework because it can branch off in two directions at once—one way to utilitarianism in which liberty is curbed only by utility to the common good; the other way to ethical egoism in which the ends justify the means.
Utilitarian Ethics
Utilitarianism defines the moral action as that which has the greatest common good (Carson 2010). However, it has no framework for defining the “good”—unlike in the system of virtue ethics, which associates the “good” with transcendental ideals that form a person’s character as they are pursued in thought and action.
Ethical Egoism
Ethical egoism is the notion that the ends justify the means and so long as one can identify a personal benefit to what one does, it can be morally justified. Essentially, it goes against the notion of Kant’s deontology by advocating subjective desire over external duty (O’Neill 1989). However, Sheppard (2012) explains that the world of deception that runs through counterintelligence aligns with the “general tenor of ethical egoism” (19). Sheppard’s (2012) suggestion implies that an unhealthy subjective character animates the CI community.
Structural Functionalism
Structural functionalism is a theory that explains social organization in terms of how relationships and institutions work together to bring stability and functionality to a community (Ritzer and Stepinsky 2017). Rather than identifying the problematic nature of these relationships and how oppression may figure into the equation, this theory identifies the positive aspects of these relationships. Its inverse theoretical approach could be called conflict theory.
Conflict Theory
Marxism is the root of conflict theory, but Ralf Dahrendorf promoted conflict theory by comparing it to structural functionalism and arguing that societies have two orientations or ‘two faces” (Ritzer and Stepinsky 2017,120). One face suggests cooperation, consensus and agreement; the other face suggests conflict between a class with power and a class without. Conflict between these two faces is what explains, according to this theory, the actions of individuals and institutions.
Critical Theory
Critical theory stems from the post-Marxist view that the revolution predicted by Marx failed to occur because of cultural factors and institutions that prevented the class without power from fulfilling their Marxist mandate. This theory explores the reasons and ways the culture of those with power is used to prevent those without power from rising up to challenge those with power (Horkheimer 1972). The theory assumes that Marx was correct in predicting a worker uprising.
Framework for Analyzing the Past
To understand the mistakes and the lessons that can be learned from the past, it is necessary to consider the role that ethics plays in the field of counterintelligence. Counterintelligence is, after all, an exercise in deception. Bellaby (2012) defines counterintelligence as “any action or activity that is knowingly designed and intended to encourage an audience of some sort to believe in something which is untrue” (147). Erskine (2004) states that “not only is deception intrinsic to clandestine collection, but it is also central to counter-intelligence activities such as the deployment of ‘double agents’ and the sending of false messages when it is we who would rather keep our secrets to ourselves” (372). More to the point, in terms of the danger posed by an unethical approach to counterintelligence, is Bellaby’s (2012) assessment of the underlying reason for the failure within the counterintelligence program in the past: the application of widespread deception represents a danger for one’s own nation because “lying can damage society as it chips away at, and could destroy the social bonds of trust and as a result breaks down the moral and social relationships that hold a society together” (149). This danger is highlighted by Valentine (2016) who cites the Phoenix Program, initiated in Vietnam as a template for corruption within the intelligence community and one that is still promoted to this day (40). A further problem, identified by Bailey and Galich (2012) is that there is no standardized ethical framework used within the counterintelligence program and that, just as freedom of religion can quickly lead to freedom from religion, freedom of choice with regards to ethics can quickly lead to freedom from ethics. That problem has been documented extensively by Valentine (2016). The fact is that deception is part of the trade in counterintelligence: “intelligence professionals around the world are taught and encouraged by their leaders and agencies to use unethical tactics or ‘tradecraft’ (e.g. lie, deceive, steal, and manipulate) in order to obtain [crucial] information” (Coyne et al. 2013, 27). There is no way to avoid this fact and negotiating with it from an ethical standpoint puts or removes limitations on human behavior. Those limitations, moreover, can be the difference between a successful counterintelligence operation and a failed operation (Unkefer 2013).
Valentine’s study of the CIA from its inception is unique among other researchers, as he was given special access to CIA agents by Director Colby, and much of the information given him by agents was considered “safe” as the agents assumed Valentine was in the CIA and was not going to publish what was being told to him. Valentine’s reporting provides a unique but personal look into the history of intelligence in the US. It differs from other studies, such as that of Bellaby (2012) and Pfaff and Tiel (2004), which are scholarly-oriented rather than historically-oriented. Valentine’s work serves as an historical record of errors, mistakes and problems within the intelligence and counterintelligence enterprise resulting from a lack of ethical imperatives. Pfaff and Tiel (2004) indicate that essentially they all combine aspects of deontology and Lockean ethics, in that the practice of deception is perceived as a duty to the state, one that must be practiced in order to safeguard the state’s own secrets and to prevent foreign actors from acquiring truthful information that might compromise a mission in the field. Yet, deontology and Lockean ethics have not safeguarded the intelligence community from errors and abuses (Pfaff and Tiel, 2004; Valentine, 2016).
The Need for Collaboration and Clarity
Not only has a need been identified for collaboration between the CI community and private industry, but there is a recognized need that the globalized world has changed the way in which nations must interact: more collaboration and less intrigue is required. For example, Godson and Wirtz (2000) state that “the breakdown of the traditional barriers to national sovereignty—increases the information and economic channels” that international players must navigate, foster and maintain (432). Godson and Wirtz (2000) further point out that “foreign denial and deception affects the quality of life in the United States by causing policymakers to waste scarce public resources and to fail to anticipate strategic threats” (435). This point raises the question of whether deception should have any part in statecraft period. Kent (2019) explains that to boast of openly deceiving by engaging in counterintelligence is to put one’s own national reputation at risk: that is one reason the Israeli Mossad changed its motto, which used to state, “By way of deception, thou shalt conduct war” (86). Nations thus openly admit that engaging in deception is a bad look.
There is also an escalation problem involved, from a practical standpoint. As Bernardi (2013) states, “Usually, information control generates an escalation of counterintelligence measures, because information control on the part of one State invites other governments and agencies to counteract, by means of countermeasures against espionage and deception” (50). In this context, the Intelligence and National Security Alliance (2020) has identified a “need to clarify the role of CI in the era of globalization” (1). Given the use of technology today, however, clarifying that role is no easy process. Developers, technicians, production personnel, IT personnel, business development personnel, human resources personnel, and facility personnel are all potential targets of foreign actors and foreign collectors of intelligence (National Counterintelligence and Security Center n.d.). Private industry is at risk because it possesses intellectual property that foreign actors covet and business activities can be exploited. Cyber operations are also at risk, as is confidential information, which can be mishandled by employees. Counterintelligence operations could be used to deliberately leak false information to known foreign actors, but doing so runs the risk of escalating a larger conflict among nations, as Bernardi (2013) notes, and from an ethical standpoint it is difficult to determine where the line should be in terms of using deception.
The ethics of deception may have practical use from a utilitarian standpoint if the concept of the “good” is limited to a specific objective. This was the case with the Federal Bureau of Narcotics (FBN), headquartered at 90 Church in New York City. The FBN was very effective in using counterintelligence tactics to undermine and prevent drug trafficking in the US (Unkefer 2013). However, these tactics were often seen as immoral and unlawful by supervisors and the FBN was eventually closed for that reason (Valentine 2016).
Summation
Since counterintelligence came to maturity in the US in an era of conflict, it is helpful to approach the subject from the standpoint of conflict theory and the theories developed around it, all of which focus on the ways in which power is sought and used by groups in order to obtain or maintain possession of vital resources or maintain a balance of relationships that ensure stability and order in a system. This approach allows the research to explore the ways in which power drove the initiatives of counterintelligence policies during the 50s, 60s and 70s. However, the literature shows that the problem of ethics in counterintelligence has had no easy solution and that the art of deception is such that it fosters a gray zone of disinformation, conflicts of interest and corruption. The outcome of this situation was that counterintelligence suffered from a poor culture and various other issues, resulting ultimately in the dismissal of Angleton and an attempt to restart the program. As the program now tries to address the issues of the 21st century, it appears that guidance could be used to help steer the counterintelligence program away from the same errors and policies that derailed it in the past. The literature suggests that a need exists for this problem to be addressed, and to help respond to that need a theoretical approach to the problem should be defined.
Bibliography
2020-2022 National Counterintelligence Strategy of the United States. 2020. Washington, DC: National Counterintelligence and Security Center
Bailey, Christopher and Susan M. Galich. 2012. “Codes of Ethics: The Intelligence Community.” International Journal of Intelligence Ethics 35 (2): 77-99.
Bernardi, Beatrice. 2013. "The Role of Intelligence in the Fight Against International Terrorism: Legal Profiles." Bachelor's thesis, Università Ca'Foscari Venezia.
Carson, Thomas L. 2010. Lying and Deception: Theory and Practice. Oxford University Press.
Erskine, Toni. 2004. "'As Rays of Light to the Human Soul'? Moral Agents and Intelligence Gathering." Intelligence & National Security 19 (2): 359-381.
Godson, Roy, and James J. Wirtz. 2000. "Strategic denial and deception." International Journal of Intelligence and Counterintelligence 13 (4): 424-437.
Horkheimer, Max. 1972. Critical Theory. New York: Seabury Press.
Intelligence and National Security Alliance. 2020. Counterintelligence for the 21st Century. Arlington, VA.
Kent, Neil. 2019. "The Secret World: A History of Intelligence." The Rusi Journal 164 (1): 86-93.
Lieberthal, Kenneth, and Wang Jisi. 2012. Addressing US-China strategic distrust. Vol. 4. Washington, DC: Brookings.
Mattox, John Mark. 2002. "The Moral Limits of Military Deception." Journal of Military Ethics 1 (1): 4-15.
Morley, Jefferson. 2017. The Ghost: The Secret Life of CIA Spymaster James Jesus Angleton. St. Martin's Press.
Nakashima, Ellen. 2020. “Top counterintelligence official challenges the private sector to step up defenses against foreign spying.” Washington Post. https://www.washingtonpost.com/national-security/top-counterintelligence-official-challenges-the-private-sector-to-step-up-defenses-against-foreign-spying/2020/02/10/d842d83c-4c15-11ea-9b5c-eac5b16dafaa_story.html
National Counterintelligence and Security Center Strategy 2018-2022. 2018. Washington, DC: National Counterintelligence and Security Center.
National Counterintelligence and Security Center. n.d. Counterintelligence: Best Practices for Cleared Industry. Washington, DC.
Nolan III, John A. 1997. "Confusing Counterintelligence with Security can Wreck Your Afternoon." Competitive Intelligence Review 8 (3): 53-61.
O’Neill, Onora. 1989. Constructions of Reason: Explorations of Kant’s Practical Philosophy. Cambridge: Cambridge University Press.
Pettit, Philip. 1997. Republicanism: a Theory of Freedom and Government. Oxford: OUP.
Pfaff, T., and J. R. Tiel. 2004. “The Ethics of Espionage.” Journal of Military Ethics, 3 (1): 1-15.
Ritzer, G. and J. Stepnisky. 2017. Modern Sociological Theory. Thousand Oaks, CA: SAGE.
Sheppard, J. A. 2012. "The Roots of Deception." American Intelligence Journal 30 (2): 17-21.
Tromblay, Darren. 2017. “Protecting Partners or Preserving Fiefdoms? How to Reform Counterintelligence Outreach to Industry.” Information Technology & Innovation Foundation, October 2017: 1-28.
Unkefer, Dean. 2013. 90 Church. New York: Virgin.