Counterintelligence issues within the United States

Why Ethical Egoism is a Problematic Framework for Intelligence
CI Literature Review
Introduction
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 researchers on 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? 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. Therefore, the themes this review will examine are: 1) the problematic nature of deception in intelligence work; 2) the role of ethics in counterintelligence; 3) a framework for analyzing the past; and 4) the need for clarity and collaboration in counterintelligence efforts among the various agencies, organizations and actors.
The Problematic Nature of Deception
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). Mattox (2002) makes the good point that intelligence professionals must “act in good faith even with those who are their adversaries” (4). Yet, this point is not supported by all researchers, including Cohen (2016), who argues that there are no moral limits on military deception. Mattox (2002) makes the better argument for numerous reasons: first, he supports his argument with a moral framework that is justifiable based on long-term results, which Mattox (2002) calls the limitation of long-term negative effects. When deception is used cautiously and morally, the adversary is more willing to accept it as a norm of state conflict; moreover, the adversary, who may become a state ally in the future, will not hold any ill-will on this account (Mattox 2002). But when moral limits are off, as Cohen (2016) suggests should be the case, there is no foundation for future trust. Cohen’s (2016) argument fails because it is based on a zero sum game approach to statecraft: Cohen (2016) does not anticipate the reality of the very real possibility of and need for collaboration and partnership with states that are adversaries today but potential allies in the future. Cohen (2016) implicitly views the entire act of counterintelligence from the standpoint of ethical egoism, which is highly problematic both from a rational and ethical standpoint but also from a political standpoint (Lyons 1976). Part of the reason for Cohen’s (2016) problematic position is cultural: Cohen (2016) comes from a Jewish traditional of revolutionary behavior in which dominance is always the end goal (Jones 2008). Other cultures, both Western and Eastern, have tended to promote a position of statecraft that is in line with the doctrine of mutual beneficence put forward by Adam Smith in Wealth of Nations. Both Western and Eastern cultures developed the first and most fundamental ethical framework in virtue ethics, with Aristotle summarizing the framework in ancient Greece and Confucius summarizing the framework in ancient China thousands of years ago (Hursthouse 2016). Cohen’s (2016) position is not rooted in such a tradition but rather in the tradition of elitism that has tended to characterize some nations’ approaches to statecraft in the modern era.
Without imposing moral conditions on counterintelligence, the possibility of developing trusting relationships in the future is lost. Cohen (2016) has no answer to this because his view is colored by a zero sum game mentality, which is that all that matters is winning. Cohen’s (2016) view aligns well with the former motto of the Mossad, “Thou shalt make war by way of deception,” (Ostrovsky and Hoy 1991, 1). The fact that the Mossad abandoned this motto after other states expressed their displeasure with it proves the point that Mattox (2002) makes: states must be conscious of the moral limits of deception. The Mossad stepped back from their overt effrontery in terms of waving their no-limits-to-our-deception in the face of the world; but of course Israeli intelligence never stopped in terms of practice, which is why nations that support a multi-polar world, like Russia, Syria, Iran and China, are often at odds with Israeli aims (Kent 2019). Israel, like the US, is focused primarily on a zero sum game strategy (Kent 2019). Mattox (2002) at least approaches the issue of moral limits to deception from a practical, universal, political and diplomatic position that has utilitarian, deontological and even virtue ethics elements to it. The opposite position of Cohen (2016) can only be accepted from an ethical egoism point of view, and ethical egoism is the most relative and least effective ethical position, as pointed out by Lyons (1976).
Unfortunately, morality within the realm of modern 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, but there should be (Bailey and Galich 2012, 77). To make matters worse, in counterintelligence, there is even less emphasis on ethical cohesion, as Valentine (2016), Unkefer (2013), and Pfaff and Tiel (2004) point out. If there were a more unified, standardized moral framework applied throughout counterintelligence, it is likely that its history in the US would be less fraught with conflicts of interest, human failings, ulterior motives, problematic relationships, and questionable tactics. The reason such a framework has not been applied is that it is viewed as restrictive and inapplicable in the world of counterintelligence. In the American intelligence field, the position like that of Cohen (2016) has prevailed. This position is bad for counterintelligence because of the problems that arise. Valentine (2016) details these problems very well in his work on abuses within the CIA, FBN and FBI. Unkefer’s (2013) memoir of counterintelligence in the FBN supports Valentine’s claims and shows how dangerous and corrupting the lack of moral limits on deception can be. Their work provides ample support for moral limitations to deception. Yet, this support is slow in coming because opponents of such a view argue that the system works as is. Indeed, Unkefer (2013) admits as much, reluctantly—but he does also raise the question of whether the ends justify the means. It is a question that needs to be asked and that goes back to the issue of whether ethical egoism is a sufficient moral framework for counterintelligence. Valentine (2016) makes the best argument for why it is not: the damage to American ideals, America’s reputation, American diplomacy and politics, and American culture is too great.
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 fact that counterintelligence has been conflated with security is part of the problem: it has led to a kind of self-deception with the government. It is no secret that self-deception weakens one’s ability to engage in counterintelligence effectively (Unkefer 2013), and even the ancient art of war practiced by Sun Tzu suggests as much. American policy on counterintelligence has not been developed with the important warning from Nolan (1997) in mind. Instead, it has been formulated with a view towards removing all moral limits and constraints on counterintelligence and recommitting itself to the pursuit of victory in the zero sum game policymakers wish to see the nation playing.
Deceptive Policy
It is helpful to consider how self-deceptive American policy has become to illustrate the important points that Nolan (1997), Mattox (2002) and Valentine (2016) make. For instance, 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 2018-2022 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). The difference reveals the issue of mission creep—the gradual blurring of lines, blurring of objectives, expansion of meanings, and taking liberties with original mandates. It should be considered, after all, that 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. It appears that policymakers are either unclear about the limitations of counterintelligence work or are not interested in these limitations and seek a more expansive use of counterintelligence, i.e., to use deception to bolster security—against the warnings of Nolan (1997). In either case, it is an effort in self-deception that will likely only lead to more problems for the CI community.
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). Nolan’s (1997) warning is important to consider, but it has been largely ignored because the framework of ethical egoism has been adopted from the beginning under Angleton, who worked closely with the Mossad from the start of CI operations (Morley 2017). Morley (2017) does an excellent job in identifying the close relationship between Angleton and Tel Aviv, a relationship ignored by most other researchers. Understanding this relationship is important because it reveals the cultural influence that Israeli intelligence had on Angleton. Rather than rooting CI in the strong moral foundations of the West (virtue ethics, deontology or utilitarianism), Angleton adopted the ethical egoism framework of the Mossad, and that has made all the difference.
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) make a very effective argument for why a more traditional and defined ethical framework is needed in CI. Pfaff and Tiel (2004) explain that currently there is a lack of ethical focus in CI, but Bailey and Galich (2012) get to the root of the matter: no agencies in CI appear to be interested in setting moral limitations to the practice of CI. While various theoretical assumptions have been applied to critical studies of the CI community in the past, none of these studies have actually gone so far as to recommend an ethical framework. 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). Each of these studies is effective in illustrating the short-comings of ethical application in CI, but none of them present a way forward or a solution to the problem. Each highlights a part of the problem, but none of them proposes a sufficient solution. The problem is real: 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. What is the solution? None of these studies by themselves provides a holistic solution because the problem ultimately is cultural. To understand that point, one has to consider the traditional purpose of ethics in the West and in the East and how that purpose differs from the modern approach to ethics from the standpoint of egoism.
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, a need for consistency in application of an ethical system to CI must be assumed. Bailey and Galitch (2012) make this point most effectively by explaining the code of ethics in the intelligence community and identifying its weaknesses and problem areas. However, having a code and implementing a code are two different things, and this is where culture comes into play. The Mossad changed its motto to appease the world, but it did not change its tactics. In short, its words changed, but its actions stayed the same: the same culture remained. The culture in the US is what must be addressed, as Valentine (2016) deftly shows.
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. 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). Horkheimer (1972) fills the gap in cultural studies left by other researchers who failed to draw the connection between media, the state, and the cultural aims of the elite. Coming from a Jewish cultural background himself, Horkheimer (1972) understood the role that the elite play in the formation of culture in the modern US and describes better than anyone else in the field how the ethics of the people have been formed by an elitist group in power. However, by itself critical theory is an inadequate theory because social action is more than a quest for liberation. In other words, Horkheimer (1972) represents only one type of culture—a non-traditional culture that is neither in line with traditional Western or Eastern values but rather one that has had its own values and traditions predicated on its own special place in God’s eyes and in relation to the rest of the world. Equally inadequate by itself is structural functionalism, because it does not consider the role that conflict plays in society. Obviously with different cultures and values clashing at different levels of society there will be conflict. With a focus on how ethics play a part in decision-making, structural functionalism, conflict theory and critical theory can help to explain the complex culture of CI in America. There is no one researcher who makes this point, but various researchers have made valid arguments in defense of their own theoretical positions.
Framework for Analyzing the Past
Because of the confusion regarding culture, cultural values, and ethics, there is no consensus on how to analyze the past, as Pfaff and Tiel (2004) show. Nonetheless, there is a need for a framework for analyzing the past, because only with such a framework can one begin to understand the mistakes and the lessons that can be learned from the past. To decide on that framework, one has to decide on what values are most important—but this is the crux of the matter. Before one can rightly consider the role that ethics should play in the field of counterintelligence, one must decide on the cultural perspective from which to judge. Morley (2013) illustrates how Angleton was influenced by Israel’s culture of statecraft. Though he does not emphasize the point, it is necessary to do so. That influence is what is at the heart of America’s lack of moral restraint in counterintelligence. The lack of moral restraint has been well documented (Valentine 2016). The cultural influence responsible for that lack has not received much focus from researchers like Valentine (2016), Morley (2013) or Pfaff and Tiel (2004). Whether they have intentionally turned a blind eye to it or have simply passed over the influence of culture on the matter is unknown. What is known is that, as Bellaby (2012) states, counterintelligence is “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). Trafficking in untruths can be highly risky if not approached with a firm ethical framework in place.
For example, what are acceptable counterintelligence actions and what unacceptable counterintelligence actions? Mattox (2002) asserts that there should be moral limits on CI, but does not go into considerable detail to explicitly state what those limits should be. Again, the issue of delineation is avoided because it is an issue of culture at root, and cultural conflicts exist throughout American society from top to bottom.
Erskine (2004) provides an initial step towards thinking about CI from a more traditional ethical perspective, one that is realistic, consequentialist and deontological—but, again, the same problems emerge. Duty is relative to one’s cultural imperative and one’s perceived objective. Erskine (2004) is not unrealistic either in appreciating the ambiguous moral nature of CI as he 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). Erskine’s (2004) approach towards suggesting an ethical framework for examining the past is helpful, but it does not provide any conclusive answers. 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 has never been a 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. Those who analyze the past tend to do so without committing themselves to an ethical perspective. Cohen (2016) is alone among researchers in that his perspective is obvious even if not explicit: his is elitist and ethical egoism is the framework. Other researchers, from Erskine (2004) to Bailey and Galich (2012) avoid making any explicit statements on ethical egoism. It is almost as though they are trying to avoid a confrontation. To call out the purveyors of ethical egoism in policymaking in the CI community would be akin to throwing down a gauntlet and inviting blowback. Realizing that is why it is important to keep conflict theory in mind when addressing these points.
The ethical framework used to analyze the past must be realistic, however, as Erskine (2004) argues. That is one of the best points that Erskine (2004) makes. CI is by nature morally ambiguous. 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). This reality may be why researchers like Bailey and Galich (2012) and Erskine (2004) have been reluctant to provide an ethical framework for the CI community. Regardless, their studies indicate the need for one.
To prove the need for such a framework, it is helpful to draw upon Valentine’s (2016) work, which is factual rather than theoretical like the work of Erskine (2004) and Mattox (2002). 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. Both Kent (2019) and Godson and Wirtz (2000) help to make the problem of morality in CI even more complicated by asking if deception should have any part in policy. They represent one side of the ethical spectrum and Cohen (2016) represents the other side. Kent (2019) and Godson and Wirtz (2000) represent the absolutist side of the discussion; Cohen (2016) represents the relativistic side.
The absolutist side of the discussion has a much better argument than the relativistic side. The reason for this is that there is 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). When one nation deceives, another will follow. Angleton faced the problem of escalation his entire career (Morley 2013). This is why the absolutist position of Kent (2019) makes sense, practically speaking. It may be better simply to focus on collaboration and clarity than on attempting to deceive. Ironically, it is in this context that the Intelligence and National Security Alliance (2020) has identified a “need to clarify the role of CI in the era of globalization” (1). Yet the culture of deception has spread all over the globe. 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. Bernardi (2013), like the others, highlights the problem but does not point to a solution. From an ethical standpoint it is difficult to determine where the line should be in terms of using deception. Thus, one must step back to the standpoint of culture and perhaps even to absolutism in order to establish the conditions necessary for collaboration and clarity, as Kent (2019) proposes.
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.
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