Ethics and Counterintelligence: The Case for a Theoretical Framework

Introduction: Deception at the Core of Counterintelligence

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) 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 illustrated the extent to which the art of deception can create problems within the intelligence community (Morley 2017, 69). Within the intelligence 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 conflate the two. 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 is not only the degree to which those "imaginative, flexible, and active measures" lead to problems for both the agency and the field it aims to serve (Nolan 1997, 53), but also the matter of confusing counterintelligence with security — which is precisely what has happened in the past and is currently happening under the 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, 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 2018–2022 2018, ii). The official responsibility of counterintelligence, meanwhile, 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 2018–2022 2018, 2).

The conflated, mixed, broad, and somewhat vague strategic objectives developed for the counterintelligence community in 2020 reflect the same conflated, mixed, broad, and somewhat vague strategic objectives that plagued the CIA'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. As Tromblay (2017) identifies, "the U.S. government has attempted to partner with the private sector on counterintelligence (CI) awareness and response, [but] 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 integration of counterintelligence with security and other state-sanctioned activities 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 — remains to be addressed. The risk of not addressing it puts the CI community in danger of operating outside its scope and engaging in the precise misinterpretation of counterintelligence warned against by Nolan (1997).

The aim of this literature review 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 is to identify the lessons that have been learned and presented by researchers, and to identify an appropriate theoretical framework for assessing the way forward. The central research question 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 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 in Counterintelligence

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 have practiced or continue to practice it (Bailey and Galich 2012). Various theoretical assumptions have been applied to critical studies of the CI community: 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); and 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 Mattox's point, Lieberthal and Jisi (2012) explain that the alliance among China, Russia, and Iran — all considered counterintelligence targets in the 2020–2022 National Counterintelligence Strategy — came about as a direct response to those states' perception 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 Galich 2012; Pfaff and Tiel 2004). Because there has been no standard ethical framework used in counterintelligence, an apparent need for consistency in the application of an ethical system to CI can be assumed. Developing a theoretical approach to 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 — 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 sociological 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 inadequate 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 may help to explain the complex nature of the subject (Bartos and Wehr 2002).

Major Ethical Frameworks and Their Limitations

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).

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 fulfills one's duty to the 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.

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 of action. This is a problematic ethical framework because it can branch off in two directions at once — one way toward utilitarianism, in which liberty is curbed only by utility to the common good; the other toward ethical egoism, in which the ends justify the means.

Utilitarianism defines the moral action as that which produces the greatest common good (Carson 2010). However, it provides no framework for defining what the "good" actually is — unlike 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 is the notion that the ends justify the means and that, so long as one can identify a personal benefit in what one does, it can be morally justified. Essentially, it goes against Kant's deontology by advocating subjective desire over external duty (O'Neill 1989). Sheppard (2012) explains that the world of deception running through counterintelligence aligns with the "general tenor of ethical egoism" (19). Sheppard's suggestion implies that an unhealthy subjective character animates the CI community.

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 past failure: the application of widespread deception represents a danger to 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 today (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 regard 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 places or removes limitations on human behavior. Those limitations, moreover, can be the difference between a successful counterintelligence operation and a failed one (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 shared with him was considered "safe" because the agents assumed Valentine was affiliated with the CIA and would not publish what was told to him. Valentine's reporting provides a unique but personal look into the history of US intelligence. It differs from other studies, such as those of Bellaby (2012) and Pfaff and Tiel (2004), which are scholarly-oriented rather than historically-oriented. Valentine's work serves as a 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 practitioners essentially 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 to safeguard the state's own secrets and to prevent foreign actors from acquiring truthful information that might compromise a field mission. Yet, deontology and Lockean ethics have not safeguarded the intelligence community from errors and abuses (Pfaff and Tiel 2004; Valentine 2016).

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