Intelligence Oversight Ethics

This literature review first looks at the history if intelligence oversight (IO) and then explains the current problem it faces in terms of ethics and the arrival of the Digital Age, which has complicated the matter. It next synthesizes the literature on what the various ethical theories are and how this further complicates the issue of IO. Finally, it discusses research on the fundamentals of ethics and gives recommendations for future research.
History of IO
The history of IO begins with the purpose for which it was established, which was to safeguard the privacy and rights of U.S. persons while enabling the Department of Defense to carry out its intelligence functions most effectively (Ford 2006, 721). The question that has always been at the forefront of IO, however, is the question of ethics. As Goldman (2013) notes, as far back as 1929 this question of ethics and its role in intelligence gathering was addressed by Secretary of State Stimson, who made his views on the matter clear when he stated, “Gentlemen do not read each others’ mail. Idealism aside, since antiquity virtually all major powers have maintained intelligence services for the basic purpose of ensuring their security and existence” (79). In short, Stimson’s point was that government service and security should be provided within an ethical framework, which means the government should not be in the business of spying on citizens or of violating the constitutional rights of citizens.
A lot has changed since the 1920s when Stimson made those remarks. Just in the past two decades the nation has undergone a serious transformation into more of a security state than was ever thought possible. 9/11 was the main impetus for this transformation, but the populace was not as aware of the change until the revelations of Edward Snowden, the NSA whistleblower who revealed to the public the extent to which intelligence was being gathered on U.S. persons in obvious violation of privacy rights (Landau 2013). Snowden showed that by the second decade of the 21st century the United States had become a surveillance state.
And yet in the face of Snowden’s revelations, Wizner (2017) affirms that the nation’s institutions and organizations have altered the ways and have swung from collecting every piece of digital data on Internet users to being more mindful of the privacy rights of persons: from courts to Congress to media firms and technology companies, changes have been introduced designed to protect the privacy rights of Internet users (Wizner 2017). However, the effect of Snowden’s revelations on the NSA’s spying practices has yet to be determined when it comes to actual IO within the federal government and its various intelligence agencies. Today, the question of IO is more important than ever before.
From Reagan to Now
President Reagan signed Executive Order 12333 into law in 1981 and this order was meant to provide for “the effective conduct of United States intelligence activities and the protection of constitutional rights”—though the degree to which that would be made possible has been debated (Brown and Cinquegrana 1985, 98). As Brown and Cinquegrana (1985) observe, 2 Section 2.5 of that Order delegates to the Attorney General
the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power (99).
One of the authorized techniques was the warrantless searching of real and personal property. Five years earlier, Ford had issues Executive Order 11905, which prohibited such searches. Carter in 1978 had issued Executive Order 12036, which built on the Ford prohibition to include foreign agents, unless specifically authorized by the President. Reagan’s order swept both aside. Prior to Reagan’s EO, the federal government had struggled with the issue of IO, and had gone to the FISA courts for surveillance requests (Brown and Cinquegrana 1985). Reagan’s EO, however, put an end to who had the authority to grant surveillance. What remained to be seen was how and in what manner that authority would be carried out.
Technology also improved, which made the gathering of Big Data a major opportunity for intelligence agencies to gather as much information on people as they possibly could. This was a game changer for intelligence, and the Digital Age was the portal by which intelligence oversight would enter into an entirely new realm, where moral and ethical questions would have to be asked all anew. Cantarella (2016) notes that “the revelations coming from the Snowden Archives have shown how the recent technological developments have led to a quantitative and qualitative breakthrough in Signals Intelligence” but also how “the mass data gathering plans of the NSA and its American and British partners” were being used to spy on companies and individuals who were not considered foreign agents (21). How far had it gone? Cantarella (2016) notes to readers, who by now are likely to accept the following as par for the course, a matter of fact, a price that is paid to have cell phones and instant communication—but at the time, the Snowden revelations were controversial to say the least because they begged the question of just what kind of IO was in place in the intelligence community when it came to Big Data: “phone companies were sharing their consumer data with the NSA; private conversations were data mined and monitored by the NSA with the collaboration of ITC giants such as Apple, Google, Facebook and Microsoft” (Cantarella 2016, 21). It was a brave new world in which all digital information was up for grabs and no one’s rights had been defined in the digital frontier. Even today it is still unclear as to what is moral and immoral when it comes to surveillance and intelligence gathering. Part of the problem is that there are so many different ethical theories and systems that virtually anything can be justified if the right theoretical framework is applied. That is why some intelligence agencies apply a legalistic framework, as the only question becomes, “What does the letter of the law say?” This is the approach of the CIA (Congressional Research Service 2018)—but critics have accused the CIA of having a legalistic framework that falls short of what is meant by ethics, for one can maneuver one’s way around the letter of the law—which is what lawyers are trained to do, and this type of maneuvering can undermine the entire foundation of ethical theory, unless one embraces moral relativism (Cantarella 2016)
What is Moral? The Code of Ethics
There are many ethical systems. There is the philosophical perspective of virtue ethics, deontological ethics, utilitarian ethics, and Egoism to name a few. Virtue ethics pertains to the cultivation of one’s character in line with the virtues that allow one to lead a good and moral life. It is based on the teachings of the classical Greek philosophers, Socrates, Plato and Aristotle. Plato (2010) stated that “a man must have intelligence of universals, and be able to proceed from the many particulars of sense to one conception of reason” (417)—i.e., man must be objective when it comes to morality in order to see how all things must align with the good for which they were intended.
Deontology refers to the duty ethics—the idea that what is moral is determined by one’s duty, i.e., if one is doing one’s duty one is acting morally. Kant is known as the philosopher to put forward this view, though it has changed over the years. Some argue that one’s duty depends on the circumstances; for instance, it is always one’s duty to tell the truth—but if a murderer is trying to find his victim and the victim has asked to be hidden, it is argued that one may tell a lie to save a life. This is the concept of moral relativism that is sometimes linked with duty ethics (Sen 1983). It complicates the matter and makes the issue of what is ethical and what is unethical when it comes to the issue of national security somewhat more complex (Ferrari 2018).
Utilitarianism refers to the idea that what is best for the common good is what will be most moral in any given setting. This idea originated with Mill (1859) and his discourse on liberty. Mill argued that the whole of society must be considered when one thinks about an ethical system. However, in Mill’s ethical theory, there is still no consensus or standard regarding what constitutes the good. One has to go back to the Greeks to understand the Ideal Forms that guided them: they recognized the good as an objective truth that all men could know through the use of reason and logic (Mosser 2013).
Egoism is based on the notion that what is right and morally good will be determined by one’s aims and goals in life. If it helps one achieve a goal, then that action may be said to be good (Mosser 2013). One can see how Egoism would be appealing to many leaders and those in IO, as it is basically the idea that the ends do justify the means. Egoism falls in line more or less with moral relativism and opens up an entirely gray area regarding the issue of what sort of “spying” should be permitted and not permitted. If the ends justify the means, “spying” is going to be tolerated in a security and surveillance state—and such a state is what has emerged in the wake of 9/11 in America. Snowden’s revelations helped to expose the extent to which that state was spying on U.S. persons—but three years later does anyone still care? Oliver Stone, long known for being a critic of authoritarian government, made a film about Snowden—but it did not perform well at the box office and the public in general appeared disinterested (Hayes 2019).
With all of these different ethical theories, it is difficult for there to be agreement or consistency, which makes the IO’s work all the more impossible. As Bailey and Galich (2012) point out, “different agencies have varying mission requirements and cultures and will likely need different codes” (82). With such a fractured outlook, the question of ethics in intelligence oversight is like wading into a murky pool of mud in the middle of the night.
Fundamentals of Ethics
The best way to resolve this issue is to look at the fundamentals of ethics, in so far as they can be considered. Shafer-Landau’s Fundamentals of Ethics provides an opportunity to gain this insight. The main purpose of Shafer-Landau’s (2014) The Fundamentals of Ethics is to show the various takes on metaethics—i.e., the status of morality. First, the Shafer-Landau describes ethical relativism, then moral nihilism, and finally presents eleven arguments against moral objectivity. In doing so, the author presents both the arguments for and against moral objectivity and moral skepticism. The purpose of what Shafer-Landau is doing here is show that, with fair and accurate assessments, the two sides of the coin of ethics have very different faces: moral objectivity on the one hand, and moral skepticism on the other. Moral skepticism, Shafer-Landau shows, consists of ethical relativism—the idea that morality is dependent upon context and authority—and moral nihilism—the idea that all morality is make-believe and therefore false (Shafer-Landau, 2014).
The key question that Shafer-Landau poses here is to ask what the nature of the status of morality is today. By examining the strengths and weaknesses of each of the main three moral arguments—objectivity, relativism and nihilism—the Shafer-Landau shows that in order to fortify the position of any one moral line of reasoning, the proponents of that line have to address the questions that their critics present. For instance, the Shafer-Landau looks at what it means for a moral rule to be objective but not absolute at the same time (in this case, the author gives the example of how lying could be said to be objectively immoral though it might be moral to lie at one time or another, which means the moral rule against lying is objective but not absolute). This is essentially the same view of moral relativism offered by Sen (1983). Shafer-Landau gives numerous examples of this type of moral relativism in the world today in order to probe the question of the status of morality today. What he reveals is that moral-relativism is quite common in today’s world. Thus, it should be no surprise that Bailey and Galich (2012) point out the need for each intelligence agency to have its own ethical system when it comes to IO.
The most important information that Shafer-Landau (2014) provides are the definitions he uses to explain moral objectivity, ethical relativism, and moral nihilism. These definitions allow him to expand on the ideas ethical systems by supplying numerous real world examples of how the moral concept would play out in real life. For example, he defines subjectivism (the foundation of ethical relativism) and proceeds to explain how subjectivists see the world—i.e., they believe that right and wrong exist but these concepts are dependent not on an objective standard that is external to oneself but rather depend on the “person’s values” (Shafer-Landau 2014, 293). Thus, even in an agency like the CIA where a legalistic framework is used to guide ethical policy, one can adopt a subjective approach to legalism and find ways to twist words and ideas around until the fit the “legal” definitions or policies regulating action, as the Congressional Research Service (2018) study showed. If subjectivity is given primacy over objectivity, the end result will be a subjective ethical system regardless of what the actual foundation of the ethical framework is.
By going through each of the types of morality, Shafer-Landau (2014) covers the ground of the status of morality and concludes that there are arguments to consider on all sides of the issue and one should not rush to dismiss one or the other. Instead, one should slowly think about them and what the criticisms are of each one.
The main inference/conclusions in Shafer-Landau’s Fundamentals are that though there is no easy way to demolish the idea of moral objectivity there is no quick and easy way to prove it, either. This is important information because it shows how the arguments over morality continue to this day, as they are essentially arguments that pertain just as much to reason, logic and philosophy as they do to the realm of morality and ethics. The main point that the author makes is that moral objectivists can poke a great many holes in the positions of the ethical relativists and the moral nihilists, but the moral objectivists must also be ready to defend their own positions and there are certainly arguments and criticisms that can be made against objectivism that are quite difficult to address—such as the argument of moral motivation.
How does this apply to the issue of IO and ethics? This can be seen in the key concepts to understand in Shafer-Landau’s (2014) book, which are that 1) subjectivism and relativism are a kind of halfway point between moral objectivism and moral nihilism; 2) Subjectivists themselves are divided on the matter of cultural relativism, as some believe that society can have very wrong views on morality; 3) moral knowledge depends upon moral truth, so if there is no objective moral truth there is nothing (the argument of the moral nihilists); and 4) moral objectivism depends upon the idea of universal moral laws existing; however, there are also cultural norms that create a kind of moral subjectivity that must also be taken into consideration. By these concepts Shafer-Landau shows that there is no one way to conclude that the status of morality can be wholly determined by moral objectivists, subjectivists or nihilists, which gives support to the argument by Bailey and Galich (2012) that multiple ethical systems are likely to be needed for each different intelligence agency. There are many points among the three ethical perspectives that must be considered in order to make sense of the world.
The main assumptions underlying the Shafer-Landau’s thinking is that moral objectivity cannot be true if subjectivity exists or rather if the subjective experience is a reality that coincides with objectivity. This assumption leads the author into thinking about all of the moral positions in terms of an either/or type of situation. One is either an objectivist or a relativist or a subjectivist or a nihilist. Reality should indicate, however, that objectivity and subjectivity coincide and that it is up to the individual or society to elevate one over the other (Mosser 2013).
Conclusion: Future Research
The literature shows that IO was instituted out of an ethical awareness of the need to protect the rights and privacy of U.S. persons. With the arrival of the Digital Age, however, a new frontier has opened up and it is unclear exactly what people want or expect in terms of protection and privacy. The culture and reality are changing.
The reason that privacy has served as the underlying foundation of all ethical guidelines related to intelligence oversight is that the very essence of information security is rooted in the concept of keeping information out of the hands of people who should not have access to it. The Digital Age has allowed for information to be accessed by individuals who may not be authorized to have it, and because information flows are so essential in the transfer of data communications, making it possible for people to share messages and data in ways that are easier today than ever before, there has to be some common understanding that risks are attached to these flows.
Future research should consider, therefore, analyzing the possibility of legislation that would create an information superhighway intelligence team that legally oversees or has the ability to oversee what passes through the system. Data may need to be considered a type of commerce, and just as all commerce is subject to oversight, so too should data potentially be. The ethical and legal ramifications of this concept should be studied and analyzed and whether or not such an idea would have public approval should also be considered.
References
Bailey, Christopher and Susan M. Galich. “Codes of Ethics: The Intelligence Community.” International Journal of Intelligence Ethics 35.2 (2012), 77-99.
Brown, William F., and Americo R. Cinquegrana. "Warrantless Physical Searches for Foreign Intelligence Purposes: Executive Order 12,333 and the Fourth Amendment." Cath. UL Rev. 35 (1985): 97.
Cantarella, Michele. "Intelligence ethics in the digital age." (2016).
Congressional Research Service, “CIA Ethics Education: Background and Perspectives” (2018).
Ferrari, Rachel. "Moral Relativism and Dangerous Ethical Dilemmas in the US Intelligence Community." (2018).
Ford, Christopher M. "Intelligence Demands in a Democratic State: Congressional Intelligence Oversight." Tul. L. Rev. 81 (2006): 721.
Goldman, Jan. "Teaching About Intelligjence and Ethics." Journal of US Intelligence Studies 20, no. 2 (2013): 79.
Hayes, Jonathan. "The Cinema of Oliver Stone: Art, Authorship and Activism by Ian
Scott and Henry Thompson." Film & History: An Interdisciplinary Journal 49, no. 1 (2019): 78-80.
Landau, Susan. "Making sense from Snowden: What's significant in the NSA surveillance revelations." IEEE Security & Privacy 11, no. 4 (2013): 54-63.
Mill, J. S. On Liberty. London: John W. Parker and Son, West Strand, 1859.
Mosser, Kurt. "Ethics and Social Responsibility." (2013) San Diego: Bridgepoint.
Plato. The Dialouges, vol. 1. Online Library of Liberty (2010). Retrieved from http://lfoll.s3.amazonaws.com/titles/111/Plato_0131-01_EBk_v6.0.pdf
Sen, Amartya. "Evaluator relativity and consequential evaluation." Philosophy & Public Affairs (1983): 113-132.
Shafer-Landau, R. (2014). The fundamentals of ethics. UK: Oxford University Press.
Wizner, Ben. "What Changed After Snowden? A US Perspective." International Journal of Communication (19328036) 11 (2017).