Military and Civilian Perspectives on the Ethics of Intelligence—

Report on a Workshop at the Department of Philosophy

Claremont Graduate University, September 29, 2000

Jean Maria Arrigo, Ph.D.

Virginia Foundation for the Humanities and Public Policy

145 Ednam Dr., Charlottesville, VA 22903

(804) 296-4714; jmarrigo@pacbell.net

Paper presented to

The Joint Services Conference on Professional Ethics

Springfield, Virginia

January 25-26, 2001

Introduction

The study of military ethics is incomplete, even evasive, unless coordinated with ethics of military and political intelligence, for military and intelligence operations are interdependent and share personnel and resources. A doctrine of just war should coordinate with a doctrine of just intelligence, especially for human source intelligence, counterintelligence, and covert operations. This was the premise of The Pilot Workshop on Ethics of Political and Military Intelligence for Insiders and Outsiders, held at the Department of Philosophy, Claremont Graduate University, September 29, 2000. Here I offer (1) a rationale for the essential involvement of outsiders in intelligence ethics, (2) an overview of the workshop, (3) a framework for interpretation of case presentations, (4) highlights from the plenary session, and (5) a summary of workshop follow-up activities. Appendix A argues for the specific importance of intelligence ethics to the Joint Services Conference on Professional Ethics. Appendix B is a copy of the workshop schedule.

I. Rationale for the Essential Involvement of Outsiders in Intelligence Ethics

My JSCOPE ‘00 paper on "Ethics of Weapons Research for Insiders and Outsiders" argued that insiders—members of the military and political intelligence community— and outsiders—nonmembers and even nonsympathizers—must jointly negotiate practicable ethical standards for intelligence operations. In short:

Outsiders cannot ultimately impose moral constraints on intelligence operations because they cannot monitor operations. Outsiders would have to breach barriers designed to thwart enemy intelligence agencies and to override the decisions of people who are willing to sacrifice their lives for national security goals. Insiders cannot ultimately impose moral constraints on operations because, under duress, their moral commitments to national security goals may override their moral commitments to military and civilian codes....

But how can outsiders contribute to a practical understanding of intelligence ethics? Here the difference between military ethics and intelligence ethics comes into play. Apart from law enforcement officers and prison guards, few civilians employ physical force against enemies of the public good, so few civilians can bring practical experience to military ethics. Almost all citizens, though, have practical experience as intelligence agents. Some familiar civilian intelligence contests are: Internal Revenue Service versus taxpayers, insurance underwriters and claims adjusters versus policy owners, lenders and credit agencies versus borrowers, plaintiffs versus defendants in the judicial system, corporations versus competitors, marketers versus consumers, educational testing services versus students, and job recruiters versus job candidates. To the extent that these enterprises involve transcendent goals, such as fair taxation, equal access to education, and equal employment opportunities, they generate difficult moral problems like those confronted by intelligence on behalf of national security. This is to say that outsiders to political and military intelligence can indeed bring practical experience to intelligence ethics.

II. Overview of the Pilot Workshop

At the Claremont Workshop, six insiders and six outsiders presented case histories of intelligence operations to several ethicists and a few artists.

We construed intelligence operations in the broad sense of

strategic collection, analysis, and deployment of information for advantage over adversaries or protection from adversaries.

Our goals were to search out the moral parameters for intelligence operations and to seek a common framework for military and civilian operations, not to establish moral principles or methods at this early stage of inquiry.

In most of the case histories, presenters had played morally significant roles, and operations had involved substantial moral trade-offs. One insider had served as an Office of Strategic Services (OSS) agent behind enemy lines in World War II and another insider had served as a military counternarcotics agent in Latin America. One outsider, a principal at a private school, had blown the whistle on an unethical academic intelligence operation, and another outsider, a civil litigation attorney, had revealed corporate fraud using a standard judicial intelligence operation. The workshop ethicists, drawn from the Claremont Colleges, were philosophers from various specialties, such as epistemology and naturalistic ethics, but all were broadly competent in traditional ethics. The task of the philosophers-as-ethicists was to inquire into a moral theory for intelligence operations—if possible, a moral theory encompassing both civilian and military perspectives. The artists consisted of a poet, a print maker, and a composer-guitarist. The task of the artists was to keep an eye on the limitations of case analysis and to expand the scope of inquiry with later art works. The ethicists were recruited by CGU Professor Charles Young, whose field is ancient Greek moral philosophy, especially Aristotelian ethics. As a social psychologist studying intelligence ethics and as daughter of an undercover intelligence officer, I recruited the insiders, outsiders, and artists for the workshop. Because of participants’ concerns about confidentiality, attendance was by invitation only.

The pilot workshop was built around three workgroups, each consisting of two insiders and two outsiders, an artist, and one to three ethicists, with one ethicist serving as moderator. From 1:00 to 10:00 p.m., the workshop spanned an introductory lunch, two workgroup sessions for case presentations, a working dinner, a plenary session, and a social hour.

Inasmuch as some military, legal, and personal matters of confidentiality are still unsettled, at this point I will discuss the presentations in generalities and omit names of a few presenters.

III. An Interpretation of Case Presentations

In the plenary session, speaking for the philosophers, Charles Young identified what might be called a moderate consequentialist moral dynamic for intelligence operations. Loosely paraphrasing the transcript:

A lot of moral theories nowadays are consequentialist, in holding that morality requires you to do in any circumstance whatever makes for the best outcome—however it is you measure good outcomes.... But most of us believe there are constraints, cases or situations in which it's positively wrong for me to do what makes for the best outcome. It's immoral. Most of us, for example, probably think it's wrong for me to take your kid's book and give it to the library, even though—let's agree for the sake of the point— that would result in the greater public good....

One thing that seemed to come out in our sessions is that the constraints on intelligence practitioners turn out in many cases to be very small. The reason is that the good outcome that intelligence workers are aiming at—the continued existence of the United States with its military and industrial capacity and its political systems intact—is so important a goal that the usual constraints against harming other people are overridden. The result is that lots of things happened that just look on their face to be immoral. The higher the stakes, the easier it is to override the constraints.

Figure 1 schematizes the moral dynamic of this moderate consequentialist position.

Points on the graph represent operations. The height on the vertical axis indicates the degree of harm resulting from an operation. The width on the horizontal axis indicates the severity of the stakes. The curve—the moral divide —indicates the severity of stakes that entitle operators to override moral constraints on harms of a certain degree. Points below the moral divide represent morally tolerable operations, from the perspective of the political constituency of the intelligence unit (e.g., a congressional oversight committee). Similarly, points above the moral divide represent morally intolerable operations. (Of course, harms and stakes both have many aspects and can only be ranked approximately, at a particular point in history.)

The case history presented by a high school principal is illustrative. She reported on an academic intelligence operation at a private school. As a new principal, she had discovered an administrator's scheme for ensuring straight A's for a child of affluent parents. The administrator was a charismatic personality and a successful fundraiser for the school. The parents were influential and capable of making large donations to the school. The administrator’s grade scheme might be construed as a (barely) morally tolerable academic intelligence operation (point A on Figure 1), considering the high stakes: possible financial failure of the most successful school in the area to offer children a Christian education. The principal attempted to correct the situation by backing a teacher who gave the student an honest B grade. The administrator responsible for the grading scheme fired the teacher, sidelined the principal, and surreptitiously changed the student's transcript. The principal believed that it was illegal to change grades without the teacher’s consent (although the state statute may not have applied to private schools). The principal notified the assistant pastor of the church associated with the school, who passed on the information to the head pastor, who passed it on to the school board. Preoccupied with large financial losses due to a fraudulent building contractor, the school board did not respond. Eventually the head pastor confronted the administrator. Through months of apparent espionage and sabotage (e.g., taping telephone and private conversations secretly and sending tapes around), the administrator had allegedly laid the groundwork to discredit the head pastor, rally the school parents against him, and stage a successful coup in the congregation. This was surely a morally intolerable academic intelligence operation (point B), as the school board came to agree and finally dismissed her—with the assistance of the police because the administrator would not vacate the school premises.

In a strictly consequentialist model, the moral tolerability of operations would be tied only to their utility (to be discussed later), not to constraints based on the relationship between harms and stakes, as delineated by the moral divide in Figure 1. In this optimistic version of the moderate consequentialist model for intelligence operations, as the stakes increase, the tolerable harms never reach the point of atrocity but only rise asymptotically. I will elaborate this moral-dynamics graph as an interpretive framework for the workshop case histories. Then I will return to sample the comments in the workshop plenary session by insiders and outsiders, ethicists, and artists.

The Moral Dynamics Graph as an Interpretive Framework

Severe harms on the part of intelligence operations may be tolerated under threat of total loss. The prototypical example is the OSS response to Japanese and Nazi aggression in World War II. The former OSS agent, Tom Moon, said of operations in North Burma behind Japanese lines: "We had absolutely no compunction about what we were doing against the Japanese. We were losing the war at this time, and when somebody's got you up a dark alley and they're about to cut your throat, ... you'll do anything it takes to survive—immediately." He described paying 8000 guerilla troops with opium because money was worthless in the jungle and turning over probable spies, after interrogation, to the Burmese natives for "release”—then hearing the reliable gunshots of execution. “Two of our men were buried alive by the Japanese. One of their men then got burned at the stake in retaliation. It got that brutal. But word had to get back that we weren’t going to take it.” Yet Moon and his fellow agents embraced certain moral constraints. For instance, they refused to place in Japanese hospitals the cyanide-laced aspirins supplied to them for this purpose, because Burmese doctors and nurses or their children, that is, noncombatants, might consume the aspirins. But the severity of morally tolerable operations did increase beyond the atrocity level. In the realistic moderate consequentialist model, Figure 2, the degree of morally tolerable harms rises without bound as the stakes increase towards total loss, in the perception of the constituency of the intelligence unit. For the OSS, the total loss point was Nazi or Japanese defeat of the United States. Under conditions evocative of total loss, or “supreme emergency,” operations that result in atrocities may even be morally tolerable [Walzer, Michael, 1977, Just and Unjust Wars. New York: Basic Books, p. 247]. In Figure 2 the moral divide rises above the atrocity level in conditions of supreme emergency when the stakes are close to total loss.

Different stakeholders, such as militarists and environmentalists, may disagree as to what constitutes total loss. For militarists, total loss may mean military defeat of their own nation. For environmentalists, total loss may mean destruction of all human life or of ecological systems. John Lindsay-Poland, a specialist on U.S.- Panama relations for the Fellowship of Reconciliation, described his research into secret chemical weapons dumps in the Canal Zone. The chemical weapons could create uncontrollable environmental and human disasters. The departing U.S. military cannot clean up the weapons without acknowledging the problem, which militarists would believe jeopardizes security interests. For the Fellowship of Reconciliation, whose primary sphere of moral concern includes Third World peoples and local environments, the point of total loss is far beyond military defeat of the United States, as shown in Figure 3. (The harms and stakes axes for militarists and environmentalists are superimposed on a single graph for a very crude comparison.) In their view, jeopardy to U.S. military supremacy does not justify overriding major moral constraints, such as the "provision in the Canal treaties for the U.S. to 'remove hazards to human health and safety, insofar as may be practicable' by the time the U.S. withdraws." Severe threats to the habitability of the planet, however, would warrant overriding constraints.

Moon stated a moral principle for intelligence operations that his OSS unit had employed in evaluating "the whole catalogue of 'James Bond gadgetry'" the government had supplied to them. According to his utility principle, no harm can be justified unless it is actually believed to be useful in reducing the threat to security. Harms that are morally intolerable, however, such as burning enemy spies at the stake, may be useful if concealed from the constituency of the intelligence unit. The likelihood of exposure and, further, censure of secret operations depends very much on the political power of the intelligence unit. For a poorly positioned intelligence unit, even operations that are morally tolerable to its constituency may not be useful, because of the likelihood of exposure and censure by more powerful factions.

Tashi Namgyal, a former security official of the Tibetan Government-in-Exile, presented this example. In most countries, punishments for treason and sabotage are very severe—long imprisonment or execution. The Tibetan Security Department currently functions within other countries and must obey the laws of their hosts in prosecuting Tibetan agents who betray their compatriots. This results in near immunity for traitors and saboteurs, in spite of the great risk to the Dalai Lama from collaborators with the Chinese government. On the moral dynamics graph in Figure 4, the utility line for a very poorly positioned (“weak”) intelligence unit rises no higher than the maximum level of harms legally permitted in host countries, which is well below the moral divide when the stakes are high.

For a very well positioned (“powerful”) intelligence unit, operations may be useful that are not morally tolerable because exposure, or at least censure, can be suppressed. Jose Quiroga, the personal physician of President Salvador Allende, presented the case of the CIA-engineered military coup in Chile in 1973, which was instigated by President Richard Nixon and his national security advisor Henry Kissinger. In this case, as documented by Quiroga, neither U.S. congressional investigation nor presidential orders have forced revelation of all relevant CIA documents. Even the eventual exposure of morally intolerable aspects of the operation did not result in significant censure. As shown in Figure 4, the utility line for such a well-positioned intelligence unit as the CIA may run above the moral divide.

A civil litigation attorney, Rafael Chodos, contrasted this variable vulnerability to disclosure and censure, on the international political scene, to fairness in judicial intelligence operations under California's discovery process. By law, both plaintiff and defendant must fully disclose all evidence that is likely to be admitted into trial proceedings. When one party petitions the other for relevant information, the other party must supply it, if the court agrees to the relevance. Of course, there are flaws in the process. In the particular case presented, after a two-year delay and various deceptions by the defendant, Chodos was permitted to examine 37,000 of the defendant's documents, for only two hours, at a cost of $10,000—which he nevertheless accomplished to his satisfaction with a hand-held scanner. In California, he legal penalty for completely refusing to produce relevant information requested by the other party is a court decision in favor of that party. That is, in order to avoid disclosure the party must default. In military and political intelligence operations, only the defeated can be forced to show their hand.

Individual Role Players in Intelligence Operations

From a consequentialist perspective, the points on the moral-dynamics graph must represent operations, not decisions or actions by individual agents, because operations coordinate the actions of individuals to produce the consequence. In intelligence operations, individuals are frequently uninformed or deceived as to the full meaning of their actions, or they are goaded by hard circumstance to act contrary to their intentions. The poor correspondence among knowledge, intention, and action on the part of individuals is not remediable because it is essential to the success of secretive and deceptive operations.

A medical engineer, Eldon Byrd, reported a case that illustrates this point. After working on the Polaris submarine, which carried long-range nuclear weapons, Byrd developed nonlethal weapons with reversible effects. He regarded this as a humanitarian alternative to "punching holes in people and having their blood leak out" in battle. His inventions used magnetic fields at biologically active wave frequencies to affect brain function. Byrd could put animals to sleep at a distance and influence their movements. When the success of his research became evident, suddenly he was pulled off the project and it went "black." His believes the electromagnetic resonance weapons he developed have been used for psychological control of civilians rather than for exigencies in battle. That is, to ensure his participation, he was uninformed about the true nature of the project. Byrd’s case also illustrates how morally tolerable operations may transition to morally intolerable operations, or at least rise above the atrocity line.

Moon, the OSS agent, spoke more favorably of the moral choices accorded him: "One thing I liked about our government was we were told if ever we were given an assignment and you don't want to do it..., you just say, 'I choose not to do that,' and you walk away and you will not be questioned. It will be given to someone else. If someone else accepts the assignment, though, the operation itself may proceed in the same way with different role players, with no change of location on the moral dynamics graph.

Another presenter, who can only be identified as a military commissary man, related a worse moral experience in the "war against drugs." He was repeatedly drawn into irregular procedures, such as the burial at sea of a boat pilot shot by narcotics traffickers. When the counternarcotics unit he supported met armed resistance, he was pressed into hostilities against noncombatants, including children. Serious violations of the military rules of engagement led to very bad morale in his unit: "We wouldn't even talk to each other for days.... Most of us felt so dirty, like the filth we thought we were stopping." One of his fellow agents responded by committing suicide on military premises. But crewmembers who had remained aboard ship to provide regular logistical support "were almost euphoric" with the success of the drug interdiction and praise from superiors. Closely coordinated participants in an operation can have very different moral experiences because of their different roles and the tight compartmentalization of knowledge.

As a further complication, individuals can play sincere roles in conflicting operations. In researching abandoned U.S. weapons and contaminants in the Canal Zone, Lindsay-Poland depended on covert assistance from both U.S. and Panamanian officials. A U.S. military intelligence officer passed him critical information—once—and encouraged him to continue his environmentalist efforts for the good of the whole system.

Breakdown of the Moral-Dynamics Graph

As an interpretative framework for the cases, the moral-dynamics graph breaks down at extremes. The two axes are not truly independent (in spite of their perpendicularity on the graph): the stakes are not independent of the harms committed in intelligence operations. Large, powerful systems may be able to absorb the harms, such as citizens' diminished trust of government, without much overall change, but small systems may collapse, as did the Christian school described by principal. In the fracas with the charismatic administrator, the head pastor, and the school board, the enrollment dropped from 750 to 250 students in one month, which brought financial collapse.

A physician at the workshop, Sue Arrigo (my sister), discussed medical intelligence operations in hospital intensive care units (ICUs). Especially in regard to terminal patients, hospital administration, residents and nurses, and patients' families have competing intelligence goals. Her case of an ICU patient with Adult Respiratory Distress Syndrome, among other ailments, offers a striking metaphor for small-system interdependence of operational harms and security risks. The patient "lost his ability to speak when put on a ventilator [to help him breathe], lost his clarity of mind when sedated to prevent his gagging on the ventilator tube in his mouth, lost his ability to move when tied down so as not to pull out his tubes, and finally lost his sanity as he developed ICU psychosis."

A second cause of breakdown of the moral dynamics graph derives from the confound in some intelligence operations between responding to reality and creating reality. A targeting intelligence officer illustrated how—in this era of high-speed communications and technologies—intelligence operations can create the image of risk and damage in which the war is conceptualized and fought. But on the moral dynamics graph, the stakes falsely appear to underlie such formative intelligence operations.

IV. Highlights of the Plenary Session