Gendron 2005

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International Journal of Intelligence and

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Just War, Just Intelligence: An Ethical

Framework for Foreign Espionage
Angela Gendron
Published online: 23 Feb 2007.
To cite this article: Angela Gendron (2005) Just War, Just Intelligence: An Ethical Framework for
Foreign Espionage, International Journal of Intelligence and CounterIntelligence, 18:3, 398-434, DOI:
10.1080/08850600590945399
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DOI: 10.1080/08850600590945399
ANGELA GENDRON
Just War, Just Intelligence: An Ethical

Framework for Foreign Espionage
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There are great occasions in which some men are called to great services, in
the doing of which they are excused from the common rule of morality.
—Oliver Cromwell
Intelligence is one means by which a nation-state pursues its obligation to

protect the interests and rights of its citizens. Most of the information
referred to as ‘‘intelligence’’ is obtained from open sources, but some of it
is derived from secret intelligence; that is, actionable intelligence obtained
by covert means, through collection rather than operations. (Some
intelligence operations are for collection purposes, but generally speaking
the term ‘‘operations’’ refers to covert activities designed primarily to
influence foreign events.)
The demand for intelligence is being increasingly driven by global
interdependence and the emergence of diverse and asymmetric threats from
international terrorist networks and substate actors. The need to determine
and assess threats posed by regimes and groups which are openly hostile in
their intent, yet operate in a clandestine manner, affects both the demand
for and the nature of intelligence collection. Although comprehensive open
source information is low-cost and readily available, covert sources do
better in relation to the activities of terrorist groups, the machinations of
international criminals, and events and personalities in closed societies.
In other words, secret intelligence is still needed against adversaries
Angela Gendron is a Senior Fellow at the Canadian Centre of Intelligence and

Security Studies, The Norman Patterson School of International Affairs,
Carleton University, Ottawa, Canada, and a Research Fellow at the Centre
for Intelligence and Security Studies, Brunel University, the United Kingdom,
where she teaches intelligence studies. She was formerly an official with the
Ministry of Defence in London.
398 INTERNATIONAL JOURNAL OF INTELLIGENCE

JUST WAR, JUST INTELLIGENCE 399
who themselves operate secretively. A state’s duty to identify threats to its

national security and vital interests provides both a requirement and moral
justification for intelligence gathering in peacetime.
INFORMATION FROM ABROAD

Foreign intelligence collection aims to inform policymakers about the
intentions, capabilities, and activities of foreign governments, individuals,
and groups, insofar as they pose a current or potential threat to a nation’s
security or vital interests. The expectation is that other nations or foreign
groups may attempt to violate the individual and collective rights which a
state has an obligation to defend. Typically, foreign collection requirements

are fulfilled by external intelligence agencies, including those that specialize in
the interception and decryption of communications. Both technical and
human sources are used to meet collection requirements on serious threats
to national interests and security, such as the proliferation of weapons of
mass destruction; serious internationally organized crime; espionage;
terrorism; or other activities that threaten a state’s economic well-being.
But the covert collection of intelligence poses an ethical dilemma in liberal
democracies since it may be neither legally nor ethically acquired. A lack of
transparency makes democratic accountability difficult, and correspondingly
affects the level of public support and consent for such ventures. Citizens
expect that intelligence sector activities will protect and support liberal
democracy rather than undermine it. Although secrecy is a necessary
condition of the work, intelligence professionals must be accountable, act
in the public interest, and in conformance with a society’s moral values.
Lacking a direct means to confirm that this is so, the public tends to
suspect that what is secret must be perverse. This is especially true in the
case of foreign intelligence collection, where the purpose and moral criteria
for specific activities is poorly understood and rarely articulated.
Intelligence gathering overseas is less visible and subject to fewer legal
constraints than collection at home, in that it is beyond the reach of
domestic laws and is likely to contravene the spirit and the letter
of international law and the laws of other countries. The basic principle of
international law is the sovereign equality of all nations, yet a state’s
targeting and tasking of foreign sources and other secret and deniable
collection activities abroad fails to respect the individual and collective
privacy rights of others.
Deducing National Security

Under international law, states may legitimately limit certain basic rights on
grounds of clear and present danger or immediate threat to national security.
AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

400 ANGELA GENDRON
However, the subjectivity and flexibility of the term national security,

combined with its importance to the state, means that even liberal
democratic governments often invoke it in order to limit or refuse to carry
out international obligations. States tend to be unwilling to submit to legal
scrutiny, judicial review, or international supervision and control on
national security issues. How the meaning of the term national security is
determined, and who or what ultimately decides on the content of the
concept, is an ethical question which has clear implications for the
justification of covert intelligence collection.
States may subscribe to the view that ‘‘no governmental interest is more
compelling than the security of the nation’’ and that without security, ‘‘the
protection of other values and interests is not possible.’’ 1 Yet, liberal

democracies generally define themselves by the importance they place on
democratic values, human rights, and civil liberties. Thus, within this
context the balance must be struck between legitimate national interests
and security, and the rights, freedoms, and equality of individuals and
foreign states. Whether, even in very exceptional and temporary
circumstances, the security of any one society can ever be an absolute
value that precludes any constraints is arguable, because the most
fundamental of all moral principles is that of a shared humanity: every
human life has a distinct and equal inherent value.
Striking a Balance
Given the potential for the witting or unwitting abuse of power by
intelligence professionals, nation-states have approached the control and
oversight of intelligence through a variety of means, which can generally
be categorized as either formal and legalistic or informal. 2 The first
emphasizes legal and constitutional constraints and formal procedures; the
second focuses more on the norms and values of intelligence professionals
in their day-to-day functioning.
Formal controls define the mandate and establish the legal and judicial
framework which authorizes covert activities and enables retrospective
control by review and oversight bodies. These include budgetary, audit,
and internal administrative controls. However, formal controls and
oversight bodies can go only so far in regulating a public sector activity
which is opaque and which cites national interest and security as the
justification for secrecy. Formal controls focus on procedural matters
rather than on any substantive analysis of the ethical content of
decisionmaking.
Informal approaches to accountability and oversight are concerned with
the attitudes and beliefs of political leaders, the public, and the press
as safeguards against the abuse of power by intelligence services.
INTERNATIONAL JOURNAL OF INTELLIGENCE

Despite undoubted concern that agencies do not act ultra vires or interpret
their mandates too ‘‘flexibly,’’ the area of compliance with a society’s
accepted norms and principles elicits most public concern in relation to
intelligence activities. The large degree of autonomy intelligence agencies
h a v e i n d e f i n i n g t h r e a t s a l s o e m p o w e r s th e m t o de t e r m i n e t h e
countermeasures. The internal guidelines they use to select and approve
specific activities are not open to public scrutiny, and tend to focus on
legality, efficiency, effectiveness, and sound management rather than ethics,
although the need to comply with human rights legislation introduces an
ethical requirement.
Ethical Controls
Ultimately, informal influences and mechanisms must be relied upon to
counter any tendency by intelligence agencies to circumvent formal
controls and abuse their power. Deciding on proper conduct is a subjective
decision. Intelligence professionals are not immune to the dilemmas that
moral issues pose, and in making difficult decisions, they should be guided
by the values and mores of the society they serve. To that end, liberal
democratic norms and principles, which include political neutrality,
objectivity, and individual and collective moral responsibility, should be
embedded in the professional culture of intelligence services.
Where no public forum is available in which to debate the ethical issues
generated by intelligence work, public understanding and consensus about
its ends and means will be limited. Issues may be aired publicly when there
is alleged wrongdoing, but the quality of the debate will be dependent
upon attitudes to investigative press reporting, the degree of government
openness or obstruction, and the expertise and objectivity of commentators.
Too often, intelligence issues are portrayed in black and white terms, rather
than in the shades of grey more appropriate to moral questions.
Security and intelligence oversight issues are likely to remain debatable in
the foreseeable future despite the reforms many democratic states have
implemented since the early l990s to prevent the abuse of power. Current
attention is focused on the special powers conferred post–11 September
2001 (9=11) to enable internal agencies to deal more effectively with
serious security threats, but these also impact on the external services.
The collection and sharing of intelligence with foreign security services
that are known to resort to coercion and torture is one such issue. The
tendency for ‘‘group think’’ in the sharing of product and subsequent
reinforcement of intelligence assessments is another; and the proposition
that neither the rules of war nor domestic criminal laws are sufficient or
appropriate for dealing with large-scale organized international terror is a
third. All three underscore the need for an explicit ethical framework to

402 ANGELA GENDRON
serve as a practical guide to intelligence decision-makers and their

managers.
Explicit ethical standards have been embraced by most democratic
governments and the global private sector because of the perceived benefits
which derive from openly articulating organizational objectives and the
ideals, obligations, and commitments that shape the means to achieve
them. In setting such standards, private and public organizations
acknowledge that even in pursuit of legitimate objectives, they have
obligations to staff and customers which must guide their activities. Ethical
standards provide practical guidance to staff by stipulating acceptable
conduct, and seek to reassure customers that organizational practices are
fair and take account of their rights and interests. The ultimate aim is to
be effective in pursuit of legitimate aims, and build an organizational
reputation for fairness and integrity which customers can trust.
Fostering trust should also be an objective of intelligence services, yet
reconciling the imperatives of an effective intelligence capability with the
quite different, and in some respects, opposite imperatives of democracy
when the necessity for secrecy debars any revelation about the details
of foreign intelligence collection, provides a far greater challenge. 3
Democratic government rests on openness and participation, disaggregation
of power, rule of law, privacy, and mutual trust—conditions with which the
requirements and practices of intelligence are often at variance. Nevertheless,
an explicit statement of the ethical principles that guide decisions in
intelligence ‘‘monopolies’’ could help to enhance public trust in the work
of intelligence services. This is especially important following the findings
of the Hutton 4 and Butler 5 Reports in the United Kingdom; the Joint
Congressional Inquiry6 in the United States; and the Flood Commission7
in Australia, over the role of intelligence in the Allied decision to intervene
militarily in Iraq in 2003.
Intelligence gathering is a derivative moral obligation of a state’s duty to
defend its national interests and security, but prudence and zealous
dedication to national and world security may lead intelligence
professionals astray to the point where it may seem that the end always
justifies the means. In a democratic and pluralistic society, intelligence
work is legitimized by public consent, and is morally justifiable only if it
conforms with the moral criteria that reflect a society’s accepted values.
Clarifying the moral boundaries is therefore important.
An ethical framework to guide the use of intelligence can perhaps be based on
an analogy between intelligence and that other instrument of national power,
force. The armed forces of liberal democracies must comply with a code of
conduct so that their activities are seen to be justified, fair, objective, and
apolitical. John Keegan, defense editor for the British newspaper The Daily
Telegraph, has referred to democracies’ professional soldiers as ‘‘honourable

warriors who administer force in the cause of peace.’’ In the complex and uneasy
truce between conflict and cooperation often described as peace, and against the
backdrop of the ‘‘war on terrorism’’ by U.S. President George W. Bush and
America’s coalition allies, the use of secret intelligence by liberal democracies
against both hostile and friendly foreign powers should arguably be subject to
equal constraint. Moral criteria, such as those associated with traditional Just
War doctrine, and modified by Michael Walzer8 and others to regulate the
use of force in modern conflict situations, might be applicable to intelligence
collection decisions.
ACTING ETHICALLY
Liberal democracies purport to be civilized, rational, and decent societies,
governed by the rule of law and principles of individual freedoms and
human rights. They strive for political accountability, transparent
government, freedom of the press, justice for all, and laws that engage
sympathetically with human realities. The individual is paramount, and
representative government derives its authority from collective consensus
and consent. Although some social theories, such as Marxism, deny the
existence of moral principles and therefore the possibility of ethical
behavior, the assumption here is that the actions of both individuals and
states are at least generally guided by moral principles, and that they are
therefore capable of acting ethically.
To define what constitutes ethical behavior without some reference to a
theory or account of the nature of the moral principles that provide the
standard and guide actions in a particular time and place is not possible.
Moral concepts, although embedded in social life, are neither timeless nor
unchanging, and social changes can render not only the types of conduct,
but the concepts that once defined the moral framework, problematic.
Two broad accounts of moral concepts are available: (1) idealism, which
assesses ethical behavior in terms of actions (what is one doing to whom) and
how those actions accord with a set of moral rules; and (2) realism, which
judges the morality of behavior by its consequences or outcomes. In both
cases, rules that govern behavior have been developed in modern societies.
These rules may be accepted as given by virtue of belief or intuition, or
justified on the basis that adherence to the rules leads to the greatest good of
society. The problem with rules is that they are never precise, always admit of
exceptions, and may come into conflict with other rules.
Individuals have a sense of what is ethical. This is visceral rather than
intellectual and, at an intuitive and primary level, objective and universal.
‘‘Natural law’’ principles of practical reasoning form the basis of
everyone’s day-to-day relations with strangers, and some of these have
been incorporated into international law. Included is the notion that rights

404 ANGELA GENDRON
are to be respected, obligations fulfilled, agreements honored, and disputes

settled rationally and not by force. The broad assumption is that all
reasonable people accept these principles. Applied with an impartial eye,
they offer a procedure for determining right behavior in relating
individuals and the conduct of their institutions and society to the needs
and claims of others—even to the extent of overriding their own interests.
Thus, the practice of collecting intelligence covertly from other states
would appear to contradict these moral principles.
KANTIAN IDEALISM
Western moral values articulate philosopher Immanuel Kant’s idea of a

community of rational beings, living in mutual respect, and resolving their
disputes by negotiation and agreement.9 In other words, the general sense
is that stealing other peoples’ secrets by listening to or reading their private
communications is improper because the assumption is that various
individuals and societies are part of a ‘‘civilized’’ community sharing basic
values. This can be extended also to the ‘‘civilized’’ nation-states that
comprise the current international order. Although perhaps differing in
many of their cultural, traditional, and moral principles, they share the
core values underpinning international law that govern the rights,
obligations, and relations of sovereign states. The way a nation treat
others serves to enhance, or diminish, itself.
Idealism is deeply rooted in human nature, even though, at its extreme, it
may be considered unworkable in a modern society. Most individuals
recognize that, in their personal moral decisionmaking, idealism or aspiration
lies at one end of the moral continuum, and realism at the other. Although
Kant did allow exceptions in particular circumstances, he was convinced that
some principles had to be absolute, since human beings had a natural
inclination to make excuses for failing to apply or follow the moral rules.
Kant’s categorical imperative, or moral rule that admits of no exception,
requires that people should be treated as ends in themselves and not merely
as means. An individual’s duties toward them must be acknowledged even
though, in so doing, one may have to subordinate one’s own interests.
Kant’s guiding moral principle was the belief that people act within a
moral world and share fundamental values with other rational human
beings who should be respected. At the opposite end of the moral
spectrum, realists take a different view.
Realism
In its extreme form, realism assumes that conflict is a never-ending feature of
the human condition; the world is anarchic, and therefore individuals and
states will be driven to ensure their safety through force. Prudence, it

holds, must be the guide in relation to actions necessary to preserve the

independence, security, and continuity of the state. It emphasizes that
political leaders seldom act disinterestedly, and that when the interests of
the political community are threatened, moral exhortation is ineffective.
Reason—the guide of Kant’s rational human beings—may eventually
transform society and prevail over ideological extremists, but repressive
measures may be necessary to overcome forces resistant to change. Realists
counsel against the adoption of ethical systems that ‘‘convince everybody
but change nobody,’’ i.e., those that demand too much disinterest and self-
sacrifice.
The emphasis in this view of society is on the consequences of actions
rather than ideals of behavior in accordance with some moral rule. Duty
or obligation to others is subordinated to duty to oneself through a
utilitarian calculus which judges actions in terms of outcomes.
Consequentialism considers any action which leads to the desired outcome
to be morally defensible. A utilitarian approach aggregates the welfare of
individuals as the basis for ethical thought. Right behavior is that which
brings the most welfare or utility into the world or the greatest possible
balance of good over evil. Difficulties in measuring and balancing goods
and evils for each and every act have led to a rules-based approach for
determining the greatest good, which essentially asks, ‘‘What would be the
result if everyone were to act in such a way?’’
Pragmatism
The morality of engaging in covert intelligence collection depends upon what
account is used to explain the nature of moral principles. At one end of the
ethical spectrum, theft and deception are innately immoral and corrupting
acts; at the other end, they are perfectly acceptable if they produce the
desired outcome. Between the two extremes, a number of possible
positions on the moral continuum give greater or lesser moral value to
actions, outcomes, intentions, and means. To some extent, they indicate
where on the liberal=authoritarian spectrum a state is. Kant stressed the
concept of duty; contractualists argue that people are motivated to behave
morally by the need to justify their behavior to others; consequentialists
judge actions by outcomes, and exceptions to the rules are allowable if
they achieve certain desired outcomes.
For most individuals and states, both moral ideals and outcomes matter.
The balance depends upon perceived threats and circumstances, but a
pragmatic approach allows that exceptions to the rules are valid in order
to fulfill a higher obligation. Whereas realists might agree with Oliver
Cromwell that on ‘‘great occasions’’ (i.e., national security) some men are
‘‘exempt from the moral rules which bind others,’’ pragmatic realists,

406 ANGELA GENDRON
accepting that morality matters, are likely to agree with idealists that the
moral obligation to others, even when the survival of the state is at issue,
is suspended, not absolved.
No matter how different the various definitions of behaving ‘‘ethically,’’
most concur in rejecting the notion that behavior based on pure short-run
self-interest, with no regard for the concerns or welfare of others, can be
regarded as moral.
PRACTICAL MORAL CONFLICTS

Ethical decisionmaking entails choosing between different actions or
outcomes that may be in practical conflict because of their moral
components. The values which give rise to such conflicts are those of
obligations, rights, utility, ideals, and commitments. These values could be
prioritized for all situations if there were a general acceptance that
particular values would always outweigh others, i.e., that obligations
always outweigh rights, or ideals take precedence over utility. Such
absoluteness could prove inappropriate if not absurd. Over time and place,
the emphasis is likely to change; but only in exceptional circumstances, if
at all, is an ‘‘absolute’’ value likely to dominate all others and preclude
any constraints. Security, the state’s obligation to defend its territorial
integrity and the freedoms and safety of its citizens, was claimed to be
such an absolute value by President Bush following the events of
11 September 2001.
The members of terrorist networks such as Al-Qaeda and its affiliated
groups are nihilistic terrorists who regard mass slaughter as a holy
mission. Thousands of lives are at stake, and the United States
government is rightly more concerned with protecting them than with
pleasing human rights activists.
The U.S. National Security Strategy in 2002 declared that ‘‘The nature of the
enemy has changed, the nature of the threat has changed, and so the response
has to change.’’ In other words, the rules of engagement were to be altered to
give greater emphasis to duties to oneself (national security considerations)
than duties to respect the rights of others.
The prevailing political climate is one of responding to a perceived
wide-reaching, organized international terror emanating from a religious
extremist ideology. Since September 2001, national security specialists have
been in general agreement that the greatest threat comes from international
terrorist networks, motivated by religious extremism and prepared to use
powerful conventional explosives and chemical, biological, radiological, or
nuclear weapons of mass destruction. Faced with such a climate of wide-
reaching, organized international terror, security is regarded by many to be
the value that must trump all others.

While extraordinary circumstances may temporarily give precedence to

security over human rights, they should not be seen as trade-offs since
each is a component part of the other and any loss must be counted to
both sides.10 Balance must be achieved in resolving conflicts since many
values coexist, and together they contribute to liberal democratic societies.
For democracies the dilemma is whether they can develop and maintain an
effective intelligence capability as a first line of defense against such threats
without violating the norms, processes, and institutions of democracy
itself. Ironically, the very power of liberalism and human rights ideology
has led to the dominance of national security as the rationale for repressive
measures.11
Every state has a special responsibility to look after its own citizens’
safety and may, when necessary, use violence in fulfilling that obligation,
even if, in putting its own security absolutely first, especially for only
marginal or speculative benefits, it violates the principle of shared
humanity. The concept of human rights, indispensable to an international
moral order, is based on the principle that every human life has a
distinct and equal value, even though an intuitively acknowledged
hierarchy of obligations gives precedence to family, friends, and one’s
own society above others.
In dealing with other societies, cultures, and nations, value sets may differ,
even if at some profound level we share universal moral principles. The way
societies interpret and derive rules from these principles reflects cultural,
ideological, and governance differences which can lead to the creation of
different ‘‘ethical edifices.’’ These determine the application of moral rules
or the exceptions admitted, even to such a fundamental principle as the
prohibition on the killing of other human beings.
Divergences from an ethical stance are likely to be perceived as perverse
and threatening, and raise questions about moral obligations to those not
sharing those values. Religious beliefs and political philosophies can be
significant factors in such disparities. When obligations conflict, the higher
obligation and commitment to one’s own may be used to justify the
temporary breaching of others’ rights of privacy and political and
territorial sovereignty.
Apparent divergences from established norms of behavior may reflect not
differences, but failures. In the real world, some states are more democratic
than others, just as some individuals may fail to achieve the standards of
behavior that society expects. The abuses at the Abu Ghraib Prison in
Iraq, for example, do not reflect the prevailing moral standards of the
American people, but the lack of transparency and the absence of a
professional ethic clearly led to behavior that undermined rather than
served the needs of national security. While short-term advantages may
present themselves in violating or circumventing human rights when faced

408 ANGELA GENDRON
with threats to security, persistent abuse can only undermine the longer term
survival prospects of liberal democratic states and increase the threat to
international peace and security.
Part of the problem arises because public office confers power: the power
to do things which would not be regarded as moral or lawful for private
citizens. This discontinuity between private and public morality arises
because public officials make decisions on the basis of principles which are
embedded in the design and moral features of the institutions they serve.
Individuals often cite this as a reason for failing to exercise individual
responsibility and morality. Nowhere is this discontinuity between public
and private morality greater than in the intelligence business where the
nature of the work demands unique skills, and professional standards may
require practitioners to lie and deceive or perform a variety of acts which
in any other context would be illegal. Such tradecraft may be justifiable,
but the assumption that the nature of the work is mitigated by the moral
rectitude of practitioners (encapsulated in the phrase ‘‘intelligence is a dirty
affair done by gentlemen’’) is credible only if the public believes that
explicit ethical principles guide the work of intelligence professionals, both
individually and collectively. If not, public confidence and support may be
found wanting.
ENDS AND MEANS OF AN ETHICAL FOREIGN POLICY

Intelligence and force, as sources of national power and instruments of
foreign policy, are used by states as means by which to defend their own
national interests and manage world peace and stability. In the uneasy
peace which characterizes world order today, and in their attempts to
counter the threats which international terrorism and low intensity
conflicts pose, states are increasingly likely to justify the use of both in
their pursuit of foreign policy objectives.
The question often arises as to whether any government can claim to have
an ethical foreign policy if theft and deception are the means of achieving its
objectives. Politics has practical priorities, but aspirations and moral values
are the basis of good governance and democracy. Realists often cite
Machiavelli as claiming that states are not bound by the morality which
governs individuals, and that raison d’état justifies any action or means.
Dr. Alessandro Politi asserts that the statement ‘‘the end justifies the
means’’ is a vulgarized version of Machiavelli’s original dictum, which was
‘‘let the means be adequate to your ends.’’12 Like many modern realists,
Machiavelli was concerned that being too particular about the means
could undermine a state’s ability to achieve its legitimate objectives.
Poisoning princes might indeed have been necessary to establish a secure
and unified state, but while modern realists may assert that there are no

moral imperatives for states, only strategic ones, they nevertheless accept that
morality matters because the citizens of liberal democracies expect their
governments to pursue an ethical foreign policy. No absolute moral
imperatives may be present, but decisionmakers recognize that certain
moral constraints govern the means to be used in achieving desired
outcomes, even if those outcomes are ethical in the sense of advancing
others’ interests.
Idealists, on the other hand, contend that an ethical foreign policy must, as
a matter of duty and obligation, take account of the needs, interests, and
rights of others, even if such a policy imposes additional costs or the
sacrifice of a state’s own interests, and further believe that no objective
justifies the use of unethical means.

But pragmatic idealists recognize that outcomes do matter, and that
democratic values must be defended, just as modern realists concede that
in a liberal democracy, constraints will govern the means used. Nations
cannot be expected to sacrifice their vital interests for the welfare of the
international community, but they can be expected to set aside traditional
sovereign state concerns with balance of power and raison d’état, and
identify their interests with broader cooperative security and humanitarian
aims.
Whereas ‘‘might makes right’’ could once have described the reality of
international relations, power alone can no longer confer legitimacy.
Today, the question is less one of ‘‘because we can’’ and more one of
‘‘because we should.’’ Liberal democratic states engage in a form of
contractualism when they seek to justify their actions and secure for
themselves wider support from within the represented community and
from others who share a common set of values. Not only are states
justified in using their power to protect their own interests, but they must
be willing and prepared to use it to advance the interests of others or risk
losing their ability to act ethically. According to Robert Kagan, ‘‘overly
rigid respect for principles of international law can impede the pursuit of
morality and justice, as Europe recognized in the case of Kosovo.’’13
The notion that morals count was expressed in 1997 by Great Britain’s
Foreign Secretary, Robin Cook, who announced that henceforth UK
foreign policy would be bound by ‘‘an ethical dimension.’’14 This seemed
to suggest that while geopolitical self-interests would continue to shape
foreign policy decisions, the balance struck between the competing claims
of national interests and ethical intentions would be influenced by values
and a sense of national identity.
Advancing the interests of others may also be self-serving in the longer
term; however, since globalization has meant that the domestic policies
of all states are now affected by events in the world at-large. Liberal
internationalism posits that if diplomatic, economic, and military efforts

410 ANGELA GENDRON
are used to advance the broad goals of self-determination, human rights, the
rule of law, free trade, and democracy, the world will become more stable and
less prone to war. Idealists might question the morality of imposing liberal
democratic values on others, but realists accept it as a necessary and
legitimate strategy for managing conflict.
The Ethics of Intelligence Collection

Covert foreign intelligence collection, like the use of force, gives rise to ethical
concerns because it violates the principle of the sovereign equality of all
nations that underlies the current international order. During the Cold
War, realism, in the form of pragmatic self-interest and a consensus about

core security concerns, shaped great power politics. Collective self-defense
was used to justify any perceived violation of states’ sovereignty, but since
then differences have emerged about the ends and means of foreign
policy aims. No common conception has been manifest among liberal
democracies about the meaning of national security, nor any consensus
about what constitutes ‘‘legitimate grounds’’ for humanitarian interventions.
Still less is there agreement about the use of covert intelligence collection.
Post–Cold War, the threats to peace and stability have become more
diverse and asymmetric. International terrorist networks rather than states
have become the main adversary, and their members and supporters are
less visible and identifiable than the former enemies. The terrorists live
among the rest of the citizenry and exploit the freedoms and opportunities
offered by democratic societies. The political response has been an increase
in the budgets of intelligence services and an acceptance that intelligence is
now the first line of defense. Rather than being antithetical to ethical
concerns, intelligence should allow decisionmakers to make informed
judgments about policy options, and to identify those strategies that may
be most effective in targeting the malign and avoiding the benign. In fact,
to eschew any policy instrument that has the potential to save lives by
obviating or minimizing the use force or enhancing its effectiveness would
be unethical.
However, the case for secret intelligence collection in defending liberal
democratic values and human rights is not widely understood, with little
substantive debate about the ethical issues and how these are resolved.
Using covert means to defend or promote liberal democratic values which
are rooted in individual freedoms and the rule of law can seem
paradoxical, especially when used proactively to prevent the realization of
a threat rather than in response to a clear and present danger. Yet,
championing the cause of liberal democracy without having the power or
will to enforce such ideas is arguably as morally bankrupt as using power
solely to further self-interest.15

To the extent that a state’s foreign policy objectives aim to contribute to

the collective defense of its allies, the maintenance of international order,
stability, and global peace, it may justifiably claim that its foreign policy
has an ethical dimension. But both the ends and the means of that policy
objective must conform with a society’s moral norms and principles, and
comply with what is deemed acceptable behavior for a member state of the
international order.
COLLECTING SECRET INTELLIGENCE

As an instrument of diplomacy and foreign policy, the value of intelligence
lies in providing information about intentions and capabilities that is not

otherwise openly available but that contributes to rational decision-
making. But how far should governments go in trying to satisfy their need
to know?
Recent revelations about the electronic bugging of the office of United
Nations (UN) Secretary General Kofi Annan in order to determine how
UN members were likely to vote on a Security Council resolution
concerned with intervention in Iraq were probably too far for some to
accept. Others would claim that a state’s failure to use all available means
to inform itself about events which could impact its domestic and foreign
policy and threaten the lives of its citizens would be equally unethical.
The global interdependence of states increases their vulnerability to covert
actions undertaken by foreign powers intent upon protecting their own
interests. States spy on each other even when they are on good terms, as
was revealed by the Echelon system of communications surveillance in
1998.16 The pragmatic acceptance of others’ intelligence collection needs
and activities was balanced by an unease that the rules of the game are
opaque and weighted in favor of the more powerful players.
During the Cold War, covert intelligence gathering was an accepted part of
a serious power play where both sides knew the rules and played accordingly.
The common consent among Western democracies was that covert
intelligence activities were a necessary and justifiable response to threats
emanating from attempts by regimes with different values to shift the
East=West power balance and dominate the world.
A similar threat exists post–Cold War, but now it comes from Islamic
extremism, though no longer can a consensus be found in the Western
world about the threat or the means of countering it. Although national
security is a legitimate and primary concern, security is just one value
among many held to be important by liberal democracies. According to
Professor Glenn Hastedt, intelligence must work ‘‘within the context of
respect for civil rights, free speech, the rule of law, checks and balances or
other values held to be important by society.’’17

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Authoritarian regimes choose to gather secret intelligence against other

foreign powers ‘‘because they can’’ and find it useful—not least to control
their own citizens. Liberal democracies tend to claim that they do so
exceptionally, and only when national security and vital interests, however
these may be determined, are at stake. For them, the legitimacy of
intelligence work derives from public consent and support. Some other
states do not have an ‘‘intelligence culture,’’ and prefer wherever possible
to use open sources of information and those means which are the least
intrusive. Much depends upon a state’s sense of identity, its history, and
role in the wider world, as well as its experience and perceptions of past
and current threats.
Nations have a multiplicity of vital values, interests, and national security

concerns to protect, but the suspicion lingers that these may occasionally
serve as excuses to limit human rights and democratic freedoms. Secret
intelligence is generally obtained from clandestine sources such as signals
intelligence, the placement and tasking of human agents, satellite imagery,
listening devices, the interception of cyber and other communications, and
covert searches of private premises. Even when national security is invoked
in order to justify activities which would otherwise be criminal, private
citizens may remain sceptical about the validity of the claim and the means
that they know or suspect are used to further national security objectives.
Intuitively, people sense that some types of conduct are unacceptable.
On 2 November 2003, the British Sunday Times described an infiltration
operation carried out by the United Kingdom’s domestic Security Service
against the Pakistan High Commission in London in order to gather
valuable intelligence for the war on terrorism. Later allegations held that
this spying operation against an ostensibly friendly ally was not authorized
by the Home Secretary. 18 The attempt to place listening devices in the
building, and surreptitiously obtain, through an agent, material relating to
visa applications, came unravelled when the agent lost his nerve and
revealed all. If the reports are correct, the UK and U.S. would appear to
have had very little confidence in the willingness or ability of the
Pakistanis to identify, investigate, or share intelligence on potential Islamic
radicals based in Britain. It was therefore decided, as a matter of necessity,
to obtain intelligence deemed vital to national security by other means.
Such covert activities are not intended to come to public attention. When
they do, the public often has difficulty understanding how such activities
can be justified in support of liberal democracy.
When the covert collection activities of foreign intelligence services are
exposed, political embarrassment, if not a breach in diplomatic relations
with other states, can result. Consequently, the political and diplomatic
repercussions can dissuade intelligence professionals, or their political
masters, from attempting to obtain intelligence on some hard targets,

especially if the lives of collectors or their agents are at risk, and the current
or potential benefits seem disproportional to the risk. Arguably, a lack of
current intelligence on Iraq’s weapons and capabilities led to the decision
to intervene in 2003. Even with hindsight, justifying covert collection, or a
decision not to do so, will usually be difficult in terms of outcomes. The
only possibility is to ensure that the collection process, in terms of
identifying legitimate targets and selecting appropriate means, accords with
culturally and politically agreed and accepted rules.
LEGALITY AND MORALITY

Most people are generally concerned not simply with the question of whether
something is lawful but whether it is right. But not every lawful action is
morally defensible. Legitimacy depends upon morality, as well as legality
or strict compliance with the law. That an intelligence service is legally
mandated and subject to oversight does not mean that every objective it
pursues, nor every means to do so, will be either lawful or morally
justifiable. Collecting intelligence covertly is an illegal act, insofar as it fails
to respect others’ right to privacy and the inviolability of communications.
But if claimed to be necessary on grounds of national security or
protection of vital interests, intelligence activities can be legalized by the
state and deemed justifiable. Nevertheless, they must still conform to some
notion of reasonableness which usually assesses them for proportionality
and anticipated collateral privacy damage. Concentrating on legality is not
enough. The moral questions must also be addressed.
Perhaps the only grounds on which liberal democracies can refuse to carry
out an obligation under international law today are those of national
security. Yet, the meaning of the term national security is ill-defined, and
the auto-interpretive nature of international law means that a state can
invoke national security to justify foreign intelligence activities with little
risk of challenge. The use of the national security exception clause is
therefore a matter of ethics.
Furthermore, even if legalized in terms of domestic laws, foreign
intelligence collection activities may still contravene international law or
the laws of other states. But because they are secret and deniable, the
effectiveness of those laws in deterring foreign intelligence gathering is
doubtful. A lack of transparency means that intelligence collection can
contravene the principle of the sovereign equality of nations without being
called to account, even where laws exist and are applicable.
Where the law is weak, intelligence professionals must look particularly to
the moral basis of what they do and how they do it in order to foster
individual and collective confidence in their integrity and competence.
In liberal democracies, public consensus and consent give legitimacy to

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their work. Nevertheless, that moral basis is often poorly understood and
rarely articulated or given expression, even though it may be an implicit
element in the internal authorization process.
Legitimacy can be conferred by wide moral consensus and support as in
the case of the Kosovo peace enforcement mission in 1999, when,
according to Robert Kagan, despite lacking the legal approval of the
Security Council and the sanction of international law, ‘‘History and
morality trumped traditional principles of state sovereignty and non-
intervention.’’19 Moral justification for the use of force in that case was
derived from a higher humanitarian obligation. In the case of intelligence,
its sanction is derived from the state’s moral obligation to defend the
rights of its citizens.

Despite Kant’s belief that some rules must be unconditional precisely
because of the human tendency to find grounds for exceptions, realists such
as Robert Cooper have argued, with respect to military operations, that
overly rigid respect for the principles of international law not only impedes
the obligation to act prudently with respect to national security, but
undermine the ability to act ethically.20 While not holding that the end
justifies all means, it does suggest that the ethical focus should be on
intentions and objectives, while permitting an element of pragmatism in the
way they are pursued. But, military operations are transparent and open to
international observation and judgment, while the potential for the abuse of
power with regard to secret intelligence activities is much greater.
Intelligence collection may be a moral derivative of the state’s obligation
to defend the rights of its citizens, but in liberal democracies justification
for doing so is conditional upon the nature and degree of those activities.
Secret intelligence activities give rise to public concern because few people
subscribe to the view that any activity or conduct is acceptable in
pursuance of an objective. A moral minimum exists, even if knowing
where exactly to draw the line is sometimes difficult.
The critical issue is how secret intelligence can be effective yet operate
within the law and in a way that is consistent with democratic norms and
principles. Intelligence decisionmakers must be positioned appropriately
along the moral continuum, which at one end gives primacy to the desired
outcome and the means necessary to achieve it, and at the other eschews
any covert action as unethical, no matter what the cause. While citizens
expect the state to defend their rights and provide them with security, they
are intuitively also concerned with the morality of what is being done in
their name.
Just War doctrine gives expression to this intuition with respect to the use
of force. It offers a practical moral guide that acknowledges the necessity of
war and specifies grounds when it is justifiable, yet seeks to set limits on its
conduct. Realism is tempered by an idealism in establishing moral criteria

that govern both the resort to war (Jus ad Bellum) and the conduct of war
(Jus in Bello). The Just War tradition is rooted in, and emerged from, an
obligation of Christian caritas, or neighbor love, and included the use of
force in order to spare the innocent. The tradition assumed that human
beings acted within a moral world and shared fundamental values that all
respected. Whether Just War is about righting wrongs, distributing justice,
bringing about peace, or making injustices a little less unjust, the doctrine
is there to guide conscience.
JUST WAR DOCTRINE

Determining Just Cause

Since aggression is a crime that violates the individual and collective rights of
a state and its citizens, traditional Just War doctrine allowed that a legally
constituted authority could justifiably wage a defensive war in response to
an imminent and certain threat, provided that its response was conducted
within a moral framework. Moral criteria based on a state’s right to
political sovereignty and territorial integrity, its duty to defend those rights
against aggressors, and its obligations to others determined whether just
cause was present and how a war should be conducted.
The resort to war and the way war was waged had to pass tests of last
resort, right intention, proportional means, probability of success, regard
for human consequences, and discrimination. These are largely self-
explanatory, but the use of force must be a necessary and last resort in
responding to a certain and imminent threat; war should not be declared if
it is unlikely to achieve the desired objective. The force employed must be
proportionate to the desired outcome or between the injustice that is
suffered and the harm that the remedial use of force is likely to cause. And
care must be taken to ensure that noncombatants and innocent persons are
not the intentional objects of attack. In planning and approving the use of
force, account must be taken of unforeseen consequences. Human
consequences may be a necessary and sufficient condition to either use or
refrain from using force.
Traditional Just War conditions required a ‘‘right intention,’’ but this has
been used, and abused, to justify all forms of modern warfare, including
covert action. A modern interpretation calls for objectivity in defining the
threat and claiming exceptions to international law and moral rules, either
on grounds of national interest and security or to protect human rights,
peace, and stability.
The traditional Just War paradigm was criticized as being too legalistic
and restrictive. No right to launch preemptive war existed, for example, in
theory and therefore it was not accommodated in international law.
However, as Lord David Hannay, Britain’s Ambassador to the United

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Nations during the 1991 Gulf War, and now a member of Secretary General
Annan’s High Level Panel on Threats, Challenges and Change, said the
nature of the threat has changed and with it a need to look at some of the
traditional rules of war.21 He considers that, even in 1945, the UN Charter
allowed for the possibility of preemption against threats to international
peace and security. But, if preemptive action becomes a new principle of
international law it must apply to all states which, for some commentators,
raises the spectre of greater instability, not less. Moreover, the intelligence
on which action is based and justification sought should be available to
the wider community.
The philosopher Michael Walzer’s reformulation of traditional Just War
doctrine in the 1970s was intended to make it more applicable to modern,

low intensity warfare, human rights interventions, and counterterrorism
operations. 22 In modern conflict situations, violence is no longer the
preserve of legally constituted authorities with the power to declare war,
but may be perpetrated by international terrorist networks who use
nihilistic and indiscriminate means. They operate covertly or through
surrogates and are motivated by extreme, faith-based ideologies. Their
weapons and methods are alien to the norms and principles of civilized
societies and to accepted rules of war. By including new aggressive threats
and alternative methods and preventive responses, such as preemptive ‘‘hot
pursuit,’’ Walzer attempted to provide a relevant and practical guide to
morality and counter the popularly held, realist view that it was not
possible to talk of war within a moral framework.
Walzer accepted that the preemptive use of force to prevent the realization
of threats could be justified. He condoned the ongoing U.S.-led Coalition’s
counterterrorism campaign in Afghanistan and supported the inclusion in
the United States’s National Security Strategy of ‘‘preemption and
defensive intervention’’ as formal options for striking at hostile nations or
groups. In defending this broadening of the Strategy, U.S. officials
declared ‘‘the nature of the enemy has changed, the nature of the threat
has changed and so the response has to change.’’ In other words, greater
emphasis is to be given to the state’s duty to defend its interests and
security, even at the expense of its obligation to respect the human,
political, and territorial rights of others.
This extension of the grounds for war and the moral criteria to cover acts
short of war, such as terrorism, accords with a realist’s view of the use of
force but, unlike them, Walzer continued to maintain that the necessity to act
did not remove the evil of the actions used to secure the ends. Limiting those
occasions on which necessity could be cited as justification for war, even while
extending the grounds for the just use of force, was therefore important.
The way states respond to or counter threats has changed, and not just in
their willingness to use force preemptively or to intervene in the affairs of

other states on humanitarian grounds. The events on 9=11 thrust intelligence

into the forefront of national security strategies through its acceptance
as a first line of defense that not only enhances the effectiveness of force
but—in its capacity to forewarn, deter, and prevent—serves also to
minimize or obviate the use of force.
A similar explicit ethical framework to that of Just War, applied to the
moral boundaries regarding intelligence gathering and the means used,
could be of assistance to intelligence decisionmakers, and reassure the
public that what is done in their name and on their behalf is in
conformance with accepted norms and principles.
A JUST WAR APPROACH TO INTELLIGENCE COLLECTION

Just as a democracy’s soldiers have an honorable task in serving and
supporting states faced with threats to their existence and values, so too do
intelligence professionals—but morality does matter, and secret intelligence
must be used within an ethical framework. If the armed forces of liberal
democracies must comply with a code of conduct so that their activities
are seen to be just, fair, objective, and apolitical, so too should their
intelligence services.
A Just War approach to foreign intelligence collection would acknowledge
the necessity of using covert and intrusive methods in exceptional
circumstances, but limit those occasions whenever possible on grounds that
they are corrosive of democratic ideals and principles and, in the longer
term, may undermine, rather than enhance, national security. Conditions
would be applied not only to the use of secret intelligence but to the
nature of the means of collection and to the conduct of intelligence
professionals. Failure to meet the conditions would invalidate the
justification for covert collection.
Extreme realists might contend that to constrain the use of secret
intelligence by moral conditions is to give adversaries an unnecessary
advantage; they would contend that outcomes matter, not morality.
Immanuel Kant and other idealists would claim that no threats justify the
use of covert methods, and that open sources must suffice to counter any
threats, even if that increases the risks. Citizens of liberal democracies,
more pragmatically, seem to accept that both overt and covert sources
may be necessary elements of an effective intelligence gathering which is, in
itself, a moral derivative of the state’s obligation to provide security.
Just Cause and Secret Measures

Just Cause with respect to the use of intelligence requires that the need to
know be not merely speculative or a matter of curiosity, but deemed
necessary to identify, clarify, prevent, or counter real and certain threats to

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national security. The claim must be real and not spurious, and capable of
being demonstrated as such within oversight procedures.
But the fundamental reality is that to apply a traditional Just War
approach to intelligence gathering, i.e., that it be used only in response to
imminent and certain threats to national interests and security, would be
unrealistic. If the use of force to prevent attacks is acceptable within a
moral framework, the same must be true of proactive intelligence gathering
which can illuminate, forewarn, and possibly deter threats from
materializing. Grave threats—such as those posed by nihilistic terrorist
groups or regimes prepared to use chemical, biological, radiological, or
nuclear weapons—may not be certain, immediate, or specific but of
sufficient potential gravity to justify whatever means are likely to be most

effective in monitoring their development. Some risks are unacceptable.
A more elastic interpretation of self-defense is needed.
But clandestine and proactive intelligence gathering against developing
and future threats, just as much as the preemptive use of force, can seem
paradoxical and inimitable to democratic ends. Even when exceptional
circumstances justify proactive intelligence gathering, the intelligence
identifying that threat is usually not available to the wider community to
assist justification and accountability.
Ideally, open sources of information will be used wherever possible, but
some threats warrant early clarification and monitoring, and covert
intelligence gathering may be the only effective means to do so against
closed regimes which pose a threat, or groups that themselves operate in
secrecy. The aim should be to limit use of the most intrusive collection
means to those situations where, as a necessary and last resort, no
alternative is possible, either because open sources are not available, or are
likely to prove insufficient, unreliable, or incapable of producing what is
required within the necessary time frame.
Too strict an adherence to the principle of ‘‘last resort’’ can be a license to
a delay that could be costly in terms of lives lost or funds reaching terrorist
groups. In the case of Rwanda, many actions could have been taken, but only
force would likely have been adequate to stop the massacres. Just War theory
is riven with contradictions, but in intelligence terms, ‘‘last resort’’ must be
interpreted not as a process which first exhausts the contributions of open
and less intrusive sources, but as one which matches the objective, the time
frame, and the permeability of the target to the means used.
Necessity can be too lightly claimed. Security, though a legitimate and
fundamental value, is not the only one. In balancing competing claims, a
consideration of different means and acceptance of greater risks may be
necessary because the failure to treat people as ends and not merely as
means, and to show care and respect for others, will remove the moral
justification for covert intelligence collection.

Although the European Commission on Human Rights (ECHR) has

expressed the view that national security cannot be defined exhaustively,23
the security services of member nations have accepted the reality that
espionage, terrorism, incitement to or approval of terrorism, subversion,
separatist organization activities, and the inciting of disaffection of
military personnel are threats to national security. Most foreign and
communications intelligence agencies would also include the proliferation
of weapons of mass destruction and, more controversially, threats from
serious organized crime and other individuals for groups that threaten
states’ economic well-being. The justification rests on the extent to which
national interests and security are seriously undermined by activities which
target the integrity of a state’s democratic institutions and the viability of

its economic base and way of life.
RIGHT CONDUCT
Once Just Cause is established, the tests of last resort, proportionality,
probability of success, regard for human consequences, and discrimination
must still be met with regard to the choice of particular collection means
and the conduct of intelligence professionals in recruiting and handling
agent sources, making assessments, and engaging in liaison relationships.
These activities must comply with accepted moral criteria. Failure to do so
will undermine the justification for the use of intelligence, just as failures in
the conduct of war vitiate the justice of the noblest cause.
The discrimination condition requires that care should be taken to ensure
that the innocent do not become unintended victims. Differentiating
legitimate targets from innocent bystanders, in relation to intelligence
gathering during peacetime, can pose an ethical dilemma in that a proactive
collection policy inevitably leads to a degree of speculative targeting where
some people become the targets of preliminary and exploratory
investigations by virtue only of their links to others. Thomas Nagel argued
that ‘‘there must be something about the person that justifies it’’ (being
selected as a target) whether that be a person’s telephone number, the fact
that they had been in a certain place at a particular time, or been observed
with someone who might themselves have been the subject of intelligence
collection.24 Harm to innocent bystanders must be minimized by selecting
the least intrusive means wherever possible.
An interesting way of assessing innocence in such cases is put forward by
Tony Pfaff and Jeffrey R. Tiel, who focus on the degree to which bystanders
may be deemed to be consenting players in the game of intelligence. 25
A robust approach is permissible against foreign intelligence officers
because they are deemed to be full and consenting players in the game,
whereas more care must be exercised to protect the human rights and

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privacy of others whose degree of involvement is less certain and who may be
unaware.
In assessing innocence, Just War tradition looked at the intention and
capability to harm even if, at a particular moment, the adversary is not
threatening (e.g., a sleeping soldier). This becomes more difficult when the
malign are indistinguishable from the benign, and attempts to identify
them are constrained by human rights legislation. In intelligence terms,
those who may not themselves pose a threat may be involved, wittingly or
unwittingly, in supporting or financing those who do, and are therefore
legitimate targets. A Muslim who has been on Jihad or has attended a
training camp and is linked in some way to known extremists, their
supporters, or activities, would qualify as a legitimate target for

intelligence collection purposes.
Even if the purpose of an act has a right intention, the human
consequences may mean that it cannot be pursued. The high risk of
‘‘collateral damage,’’ i.e., civilian casualties, led the Central Intelligence
Agency (CIA) in 1998 to twice cancel a planned counterterrorism
operation to take Osama bin Laden captive and remove him from
Kandahar in Afghanistan to stand trial.26
The human costs of intelligence collection, in terms of the invasion of
privacy or injustices against others, must not outweigh the anticipated
beneficial outcome. Conversely, the overruling of basic moral principles in
a higher interest may be necessary. In such a case, consequences are said
to be both a necessary and sufficient condition to break the moral rules.
Israel’s government might claim such justification for its policy of
assassinating the leaders of terrorist organizations in order to deter
continuing attacks against the general public.
But idealists would view such means as violating the categorical imperative
to treat human beings as ends and never merely as means. Similar claims
have long been made to justify espionage activities in wartime, but Kant
rejected them years ago as ‘‘intrinsically despicable,’’ even though he
conceded that the particular circumstances might justify breaking the
moral rules. However, the risk that such corrosive conduct would continue
into peacetime led him to condemn espionage activities unconditionally.
Today, pragmatic idealists would probably argue that ‘‘peacetime’’ threats
are no less grave and, as long as the use of intelligence is constrained by
formal and informal controls, the costs in terms of human consequences
are likely to be outweighed by the benefits.
Notwithstanding the pressure for secret intelligence, Just War criteria
cautions against denying a nation’s moral obligations to others, even those
not sharing the same values. Just War theory holds that the equal status of
human beings must be recognized and provided for, even though that
might be costly or entail greater risks. Thus applied, using intelligence for

marginal or speculative benefits assumes that other peoples’ lives count for
nothing. Unethical means have a long-term, corrosive effect on the ideals
and values of democratic societies. The challenge in countering perceived
threats is doing so within an ethical framework that is effective yet just.
MAKING COLLECTION DECISIONS

Some intelligence services deal with a wide range of threats, while others
focus only on those to national security and vital interests. As with any
other public sector activity, intelligence practitioners are required to
demonstrate efficiency, effectiveness, and sound management. But the
function of intelligence work in countering grave threats means that

effectiveness may take precedence over efficiency—the relationship between
‘‘inputs’’ and ‘‘outputs.’’ The desired outcome—the successful detection
and prevention of a threat—will be prime and all other considerations
contingent.
In protecting the integrity and security of the state, or preventing major
loss of life, prudence and precaution will sanction the most intrusive
collection means necessary to illuminate or counter the threat. In liberal
democracies, however, security is recognized as only one value among
many, and intelligence decisions must be made within that context.
Demonstrating effectiveness may mean having to prove the negative, i.e.,
that nothing has happened. Sometimes, only hindsight makes it possible to
conclude that intelligence has been effective in deterring a threat (e.g.,
information from detainees) or ineffective (e.g., leads missed, ignored, or
given low priority). Furthermore, effectiveness depends not only upon
‘‘intelligence telling truth unto power’’ but in policymakers listening to and
acting upon that intelligence. Many ‘‘intelligence failures’’ are attributable
to those in power not listening to the truth.
While the internal procedures and processes that guide intelligence
decisionmaking give primacy to effectiveness or right outcomes, the
allocation of resources to competing ends and their management are
determinants of effectiveness. Resources must be allocated to the
monitoring of developing future threats even while countering those more
manifest and immediate. A failure to manage resources efficiently can lead
to a loss of credibility, decline in public support and cooperation, and a
consequent reduction in the ability of intelligence to function effectively.
The intelligence agencies of liberal democracies apply internal rules and
guidelines to the use and allocation of resources for both domestic and
foreign intelligence collection. These rules reflect the constraints
and requirements of any statutory mandate and the details of legislative
orders. The outcomes tend to focus on allocating resources efficiently and
effectively. Although internal agency bodies are generally sufficient to

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select and approve collection activities, they may identify particular cases
which require authorization from an external and higher authority such as
the president or prime minister, or a designated cabinet member.
Apart from ensuring compliance with the law, internal rules and guidelines
are used to satisfy oversight bodies that agency powers exempted from the law
have not been abused. Canada’s oversight body, the Security and Intelligence
Review Committee (SIRC), for example, examines whether the intelligence
service has used its powers ‘‘appropriately,’’ i.e., not just in compliance with
the law, but in a way which reflects the values and norms of society.
Because this is a subjective judgment, it is reasonable to ask on what basis
the assessment is made and how the balance between effectiveness in
achieving the desired outcome (i.e., security) and the appropriateness of the
means used is determined. Principles of proportionality and discrimination
may underpin the authorization process, but lacking specific criteria which
give content to concepts, intelligence services and review bodies will be
open to charges of inconsistency and ethical flexibility.
FACTORS INFLUENCING COLLECTION

Once critical gaps in knowledge have been identified and resources
marshalled to close them, the most appropriate means to do so depends
upon the following factors:
Threats
Both the gravity and the immediacy in relation to threats to national interests
and security will determine whether covert collection activity is justified and
what means should be used. The definition of a grave threat, although
varying from one society to another, always includes the potential for
widespread loss of life. Such a threat, particularly if time specific, justifies
the most intrusive means. The need to avert an immediate threat may best
be met by tasking existing agents, conducting a covert search of premises,
or arresting and questioning detainees. Conversely, a grave threat may
relate to the long term. Less intrusive means may then be sufficient to
clarify the risk, provided the potential perpetrators are not insulated by
their own security measures, or by location within an opaque environment.
Target Security Awareness

Technical surveillance or eavesdropping sources may be efficient in obtaining
intelligence but unreliable in their ability to provide specific intelligence on an
adversary’s intentions or operational plans which may be critical for

preventing an incident. The target’s security awareness will be a factor in the

means used to collect intelligence. The more the target is deemed to be a
consenting player in the ‘‘intelligence game’’ and to possess quality
information of significant value, the more covert collection methods are
justified.27 The security awareness of the target may make it necessary to
use covert and sophisticated intelligence-gathering means. Ultimately,
human sources may be needed to penetrate the security barrier and obtain
useful intelligence.
Risk
Contrary to public perception, the intelligence services of liberal democracies

tend to be risk averse. The exposure of covert collection activities can
jeopardize the reputation of an agency and deprive it of ministerial and
public support. Apart from political repercussions, a risk to the life of an
agent or the ‘‘discovery and capture’’ of a technical device may also exist.
Both could have an impact on the viability and security of other agency
operations, or the ability to recruit new agents. The risk of discovery
reinforces the natural bias against unnecessarily intrusive methods, but the
risk of failing to avert a threat tends in the opposite direction. Prudence
and worst case scenarios can lead to overreaction. Even though some risks
are slight, the consequences of doing nothing or too little are unacceptable.
Costs
These must be proportional to the potential benefits and justifiable in terms
of ‘‘opportunity cost,’’ meaning that other opportunities may be foregone.
Since resources are limited, i.e., surveillance capacity or intelligence
professionals with the right language skills or agent handling experience
may not be available, they must be allocated where they are likely to be
most effective and where the potential benefit is greatest.
Availability of Intelligence
The availability and reliability of open sources of information will influence
the decision to collect intelligence covertly and the nature of the means used,
but the assessment of the threat will be the determinant. If open sources are
available and can provide the required information, the preference will be to
use them: Efficiency and ethical preferences coincide to produce an effective
outcome. But where the target operates secretly, is engaged in subterfuge and
deception, or is out of reach in a closed and hostile environment, open
sources will not only fail to provide what is required but may be
misleading. Secrecy is needed to counter the activities of those who
themselves operate in secret.

424 ANGELA GENDRON
Opportunities and Capabilities

Intelligence collection capability depends on resources and opportunities.
Technical equipment, skilled intelligence professionals, well-placed sources,
and even fortuitous circumstances, may allow access to a target or target
premises at any particular time. Intelligence is an art form not a science:
the analyst’s ability to identify collection opportunities, the agent handler’s
sensitivity to the needs and vulnerabilities of sources, and the surveillance
team’s intuition regarding target movement patterns can all be critical in
anticipating, creating, and exploiting opportunities.
Technological Developments
The opportunities for surveillance offered by new technologies can shape
intelligence collection decisions purely on grounds of existing availability
and capacity. Modern surveillance and data processing equipment allow
large-scale monitoring that may afford opportunities hitherto not
available, at low or no extra cost. Such developments can reinforce ethical
preferences if they allow greater discrimination between targets and
innocent bystanders, but conversely may, by the very fact that they are
available and can be deployed quickly and easily, have the opposite effect.
If the target is unaware of the enabling technology, the monitoring of
satellite telephone calls can, for example, provide valuable intelligence, but
since globalization and the Internet age have combined to lower the
barriers that once compartmentalized knowledge, adversaries are
increasingly more sophisticated and knowledgeable. There is now an
awareness that technology is no substitute for human sources when faced
with a sophisticated and security-aware adversary.
Probability of Success
Installing a deep-plant listening device in a building is pointless if the identified
target is not in residence or unlikely to visit. The probability of success will
normally be taken into account on pure efficiency grounds, but if a threat is
grave and imminent, or the risk, however slight, unacceptable, covert
collection decisions may be made, irrespective of cost, proportionality, or
collateral damage to innocent bystanders. Even a low probability of success
may be accepted as justifiable in some extreme circumstances.
Discrimination
Clearly, practical as well as moral arguments are possible for ensuring that
covert collection activities focus on the target and measures are taken to
avoid including innocent bystanders or causing collateral damage. Not the
least of these is the success and security of current and future collection

efforts, and the need to avoid complaints under human rights legislation
that can lead to the loss of the collection agency’s reputation and public
support.
THE DYNAMICS OF POWER

An understanding of the dynamics of power in relation to the source of a
threat will be critical to the collection method used and the probability of
success. Gathering intelligence on rogue regimes to determine their hostile
intentions and capabilities or those of terrorist groups that they harbor
will be difficult, requiring covert collection means developed over time.
Dictatorships and authoritarian states are usually closed societies where

concentric rings of power, a culture of institutionalized brutality, and a
security apparatus designed to induce fear combine to produce a difficult
environment to penetrate. Infiltrating security conscious terrorist groups
organized in tight cell structures is equally difficult. In such cases, the
nature of the target, as much as the assessment of the threat it poses,
determines which methods of collection are likely to be effective.
The perception of the threat, the resources and capabilities which can be
brought to bear to illuminate or counter it, and the opportunities which
exist or can be created to do so, will influence decisionmaking about the
means used to gather intelligence. The focus will be on efficiency,
effectiveness, and sound management—but not to the exclusion of ethical
concerns, since liberal democracies have a legal and moral obligation to
comply with human rights legislation. Although secret and deniable
activities may remain outside the scope of formal controls, and intelligence
services may seek derogation from legislation on national security grounds,
the moral obligation persists. The desire for legitimacy and public support
requires that conduct which fails to conform to accepted moral norms and
principles will not be justified. That process is in itself a form of control,
albeit one which is voluntary and subjective.
The balance struck between a society’s perceived national interest and its
obligations to others is a product of its political and constitutional history
and structure, as well as a range of other factors, such as its geography
and military experience, which contribute to its intelligence culture and
sense of national identity.
THE NEED FOR AN ETHICAL FRAMEWORK

Just War doctrine has been criticized for failing to limit the use and abuse of
force. Nevertheless, by providing a practical moral guide to those who are
disposed to act in a ‘‘civilized’’ manner, a standard of acceptable behavior
has been established with regard to the use of force in modern conflict

426 ANGELA GENDRON
situations, which aims to promote and reinforce the fundamental moral

principles that lie at the heart of democratic societies. Michael Walzer
maintains that Just War theory is unlikely to bring either justice or peace,
but might persuade some people to limit the occasions on which they fight
and to limit the means they use once they are fighting. An ethical
framework to guide the use of intelligence would have similar goals.
Intelligence, like force, is an instrument of national power and arguably
ought to be regulated. A measure of accountability through formal
controls is achievable, depending upon the degree of transparency and the
cooperation of intelligence professionals, but secrecy, deniability, and
derogation claims impose limits. Further regulation could lead to
unintended consequences: a culture of avoidance in terms of controls, or

an aversion to risk, which could undermine effectiveness. Informal controls
that focus on the norms and values of intelligence professionals must fill
the gap, but since there is no objective standard for determining moral
boundaries, rules can still be interpreted so that ends which are judged to
be desirable can be achieved. This means that any moral criteria regulating
the use of intelligence critically depend upon the integrity of the
decisionmakers, since observance of moral criteria is voluntary and largely
self-regulating.
The moral continuum has sometimes been described as running from duty
to aspiration. Democratic societies should aspire to the best not the worst of
human values in their attempts to provide security, individual liberty, and the
rule of law. This aspiration should be made explicit, and the ethical
framework which gives it expression and articulates acceptable standards
of conduct may be safely broadcast, even if the details of effective
intelligence work may not.
Ultimately, the individuals who make and manage the decision process on
whom the nation depends, and the measures to win public support and trust
for the work that intelligence services do, should focus on demonstrating
their integrity and that of the institutionalized ethic which guides them.
As an example, when national interests and security are claimed as
grounds for covert collection methods or a derogation from human rights
legislation, justification will depend upon the integrity of that claim, since
the meaning of ‘‘national security’’ is open to interpretation.
As Richard K. Betts has put it: ‘‘At the end of the day, the strongest
defense against intelligence mistakes will come less from any structural or
procedural . . . than from the good sense, good character and good mental
habits of senior officials.’’28
The necessity of choosing between two or more important moral principles
where there is no ‘‘right answer’’ is a common feature of intelligence
decisions. Acknowledging an overriding obligation to its own citizens and
society may force a democracy’s intelligence service to suspend its

obligations to others. Ethnic profiling, for example, chooses collective

security over individual human rights, and in doing so, fails to discriminate
in favor of the innocent bystander. But morally right actions do not
always produce outcomes that are wholly good, and instead may require a
difficult choice between the lesser of two evils. Designing a practical
framework for dealing with ethical dilemmas should provide practical
assistance to intelligence practitioners and reassure the domestic public
they serve.
An Ethical Matrix
The practical challenge faced in choosing the manner to deal with threats to
liberal democracies is doing so within an ethical framework that allows

effectiveness yet serves the cause of justice. To answer the large question
‘‘When is it necessary, appropriate, and ethical to gather secret intelligence,
and what degree of intrusiveness is justified?’’, devising a risk management
matrix that identifies the core components of the decisionmaking process
should be possible. (See Figure 1.)
A developed ethical matrix, based on the simplified concept in Figure 1,
would juxtapose the options relating to the means of collection alongside
the nature of the target and the threat. The target is there described as
hostile, adversarial, or passive, but other adjectives describing the degree of
active engagement might be used, as is the case for the other variables.
When intelligence is required, often no one response is ‘‘correct,’’ but a
number of options present themselves, each with its own practical and
Figure 1. The core components of intelligence decisionmaking.

428 ANGELA GENDRON
ethical implications. The default should always be toward open sources of

information, but a matrix which set out the parameters of those choices
would make explicit the ‘‘moral costs.’’
KEY VARIABLES GOVERNING THE COLLECTION DECISION

The Threat
The gravity of a threat as well as its immediacy provide justification for the
use of secret intelligence. A threat may be described as grave, serious, or
potential, within a time frame that is manifest, imminent (potential), or
latent. The assumption is that the gravity of a situation incorporates target

specificity and vulnerability. Putting both together produces threat
assessment combinations, which may be described as high, medium, and
low—or whatever descriptions pertaining to the severity of the threat and
its imminence are deemed appropriate.
In liberal democracies, secret intelligence is justifiable only in relation to
threats to a state’s national interests and security. These include the
‘‘traditional’’ threats: terrorism, espionage, subversion, and the proliferation
of weapons of mass destruction, as well as more recent threats to public
health and the environment which impact human life, and others which
pose a threat to the integrity of the state and its democratic institutions
and values. The fight against international crime, for example, has become
intelligence-led in recent years and, more controversially, threats to a
state’s economic well-being may also be considered sufficiently grave as to
warrant the use of covert intelligence gathering.
The use of covert means to detect, deter, or prevent threats to national
interests and security is justifiable only if there is no viable alternative
within an acceptable time frame. Time is an important element. A
potential threat may be serious but still sufficiently distant to allow a
proactive information gathering effort to monitor and clarify the threat,
but much will depend on the target environment and whether accurate
information about the threat can be obtained through open sources rather
than covert means.
At the other end of the spectrum, open sources of information might well
be sufficient to monitor and clarify more general and potential threats which
are not time sensitive. Those assessed as low and latent would not justify the
use of covert collection since the threat is not certain and may never happen.
If the threat later develops to the point where it is deemed more serious and
specific, intelligence collectors would be justified in employing increasingly
intrusive means as the risks rise and open sources prove insufficient. In
certain cases, the difficulty of illuminating a potential threat in an opaque
environment may warrant using covert means.

The Objective
The goal of intelligence collection will always be to prevent hostile or life-
threatening behavior. But in a more particular sense, averting or mitigating
the effects will be a priority where there is an imminent threat, whereas
clarifying or monitoring might be the objective where a threat is thought
to be developing.
The Target and Its Environment

The threat may emanate from a foreign state or group operating in a manner
or in an environment that could vary from difficult to easy to penetrate. The

continuum runs from a transparent society that is open to information
gathering to one that is opaque and closed. The nature of a regime or the
structure of hostile groups will determine the means used to gather in
intelligence. The structure of power in countries differs widely, with
authoritarian regimes and outright dictatorships at the ‘‘hard end’’ of the
spectrum, and open liberal democratic governments at the other.
Understanding the power dynamics of the target country, or that of a host
country that harbors threatening substate actors and groups will also help
determine which collection methods are likely to be the most effective.
In an open society nonintrusive sources of information are possible. Public
records, telephone directories, voting lists, newspaper reports, etc. may shed
light on an intelligence target. But in a closed society, information is
produced and monopolized by the government or regime, and open sources
are likely to give a distorted picture or may be deliberately misleading.
Although intelligence aims to ‘‘tell truth to power,’’ obtaining the truth
about a closed society or group is often very difficult. This was certainly the
case in Iraq, where institutionalized brutality made even secret intelligence
gathering on the regime’s intentions and capabilities difficult, with respect
to recruiting and protecting human sources. For many reasons, even
satellite imagery, a useful ‘‘remote’’ covert means, also failed to provide
accurate intelligence on the threat from weapons of mass destruction.
The Means of Collection

A continuum of sources, running from open information gathering to covert
intelligence collection activities, helps provide information. Some collection
agencies focus only on secret intelligence, while others gather information
from all sources. The term ‘‘means’’ refers to both the gathering of
intelligence by overt or covert activities, and to a proactive or reactive
decision to engage in an intelligence-sharing arrangement with other
nations and collection agencies.

430 ANGELA GENDRON
Moving along the continuum from overt to covert involves increasingly

intrusive activities into the privacy of others, be they individuals, groups,
or foreign states. The ethical justification for using covert means is
always subject to conditions relating to necessity, proportionality, and
discrimination. Although prevention is a nation’s first line of defense,
intrusive intelligence gathering undertaken for marginal or purely
speculative gain is not justified. In liberal democracies, the overriding ethos
is that secret intelligence collection must serve only the cause of national
interest and security.
The ‘‘means’’ of a collection menu progresses from a search of open
sources of information, such as newspapers, journals, telephone directories,
and public records, to a privileged access to government or banking

records, and finally to the most covert and intrusive of means, such as the
technical interception of private communications, movement surveillance,
and covert searches of private premises.
On efficiency grounds, a graduated approach using increasingly intrusive
methods is common practice among the collection agencies of liberal
democracies, since overt sources are relatively cheap and readily available.
Covert sources are more controversial, more expensive to develop and
implement, and more complex with regard to planning and authorization.
Recruiting and developing human sources to the point where they can
provide valuable intelligence can take years, whereas a meticulous
examination of open sources might provide much of the information that
is required.
The graduated approach, where the default is toward open sources, is
reinforced when decisionmaking is also guided by the legal and moral
obligation to respect human rights. If open sources of information are
considered incapable of delivering the desired outcome, however, necessity
may justify highly intrusive means against specific targets where only
covert means are likely to provide the intelligence required.
The Canadian scholar Martin Rudner has pointed out that liaison with the
intelligence services of other countries is hedged with caveats and agreements
that operate to exclude material from oversight bodies.29 The originator
service will specify its marking, or classification, which in turn stipulates
with who else it may be shared or how it is used. Third-party intelligence
can be elusive of formal controls and difficult to verify, especially if it
emanates from closed regimes.
And, as a source of intelligence, liaison material can pose an ethical
dilemma for a democratic state or its collection agency where there is a
likelihood that it has been extracted by torture or other coercive means.
While a liberal state has a duty to identify and prevent threats to its own
integrity and to the lives of its citizens, the operating maxim is that it must
not give primacy to its own security over the human rights of others,

particularly the absolute right to freedom from torture. To do so breaks

the moral law of equal human value. Only extreme realists accept as
morally justifiable any means necessary to produce the desired outcome.
To receive intelligence obtained by such means condones the abuse of
human rights.
Since the product of coercion also tends to be unreliable, neither morality
nor efficiency may be well served by sharing intelligence with rogue regimes.
Treating the information received with scepticism and ensuring that it is not
used without corroboration might meet the efficiency requirement, but
morally the potentially adverse human consequences and the terms of any
liaison quid pro quo would provide both necessary and sufficient grounds
for rejecting such material and attempting to find alternative sources, even
if that entails acceptance of greater risks.
Again, in exceptional cases, absolute primacy may be given to security,
and liaison-produced intelligence accepted if there is good reason to believe
that it is directly related to an immediate threat, but a democratic
nation’s obligation to others is not thereby absolved, and it would debar a
continuation of the liaison where coercion is a factor.
If the way force is used can invalidate the Just Cause for waging war, then
the corollary for intelligence is that accepting or exchanging information with
regimes whose methods of obtaining information are known to be ruthless in
violating human rights will remove the grounds that justify the use of covert
means. No justification can be claimed for a just cause that resorts to unjust
means.
ASSURING INTELLIGENCE JUST CAUSE

Secret intelligence has a mystique that creates its own demand. The tendency
has been to assume that it is both indispensable in its own right, and valuable
as a means of rooting out open source information. Subsequent review of
the events leading up to the U.S.–UK intervention in Iraq in 2003 certainly
indicated that a lack of reliable intelligence hampered decisionmaking. Yet,
there has also been an acknowledgement that, in today’s information age,
the meticulous examination of open sources of information can illuminate
a threat and provide much, if not all, the information required.
Ethical guidelines would serve to check the temptation to use covert means
unnecessarily by stipulating ‘‘just cause’’ for the use of secret intelligence, and
providing criteria for the selection and use of particular means. In the United
Kingdom, the Regulation of Investigatory Powers Act (RIPA) serves to
constrain activities that are likely to encroach upon human rights and
cause collateral damage. Other states have similar legislation, but moral
criteria are most needed when exceptions are claimed in the national
interest. The higher-level authorization process undoubtedly acts to limit

432 ANGELA GENDRON
such claims and encourage less intrusive means, but an ethical framework
should do more: It should provide practical assistance in justifying covert
intelligence collection in those extreme cases required by necessity and
national interest.
An ethical framework should establish and reflect the moral boundaries
that are acceptable in a liberal democratic society since public consent and
support give legitimacy to its intelligence work. Some degree of public
debate is required to promote an understanding of the issues and elicit a
collective consensus on what is ethically acceptable, but the details of
foreign intelligence collection must remain with the intelligence
professionals whose responsibility it is to counter threats to the national
interest.
Implicit moral values undoubtedly influence intelligence decisionmaking,
but unless an attempt is made to inform and educate the public about the
ethical dilemmas which underlie intelligence work, a lack of public
confidence in the competence and integrity of national intelligence services
will continue. Moral criteria need to be made explicit in order to generate
public trust and support, and to guard against inconsistency and ethical
flexibility.
Foreign intelligence collection has a reputation for being unprincipled and
antithetical to the pursuit of an ethical foreign policy. The public expects its
intelligence warriors to act in a manner that is effective in countering the
threats, yet also conforms to and sustains rather than undermines
democratic values and principles. An explicit and publicly acknowledged
ethical framework that provides a practical guide to intelligence
decisionmakers could go some way to restoring much of the moral
legitimacy of secret intelligence collection.
REFERENCES
1
Comment of Superior Court Justice Warren Burger, Haig v. Agee, US280 (1981)
p. 307.
2
Marina Caparini, Challenges of Control and Oversight of Intelligence in a Liberal
Democracy, Conference Paper (Geneva: Centre for the Democratic Control of
Armed Forces (DCAF)), October 2002.
3
Marvin Ott, ‘‘Partisanship and the Decline of Intelligence Oversight,’’
International Journal of Intelligence and CounterIntelligence, Vol. 16, No. 1,
Spring 2003, p. 71.
4
Lord Hutton, Report of the Inquiry into the Circumstances Surrounding the Death
of Dr. David Kelly CMG, House of Commons, 28 January 2004.
5
The Rt. Hon. The Lord Butler of Brockwell KG GCB CVO, Review of
Intelligence on Weapons of Mass Destruction, House of Commons 898, 14 July
2004.

6
United States. Joint Inquiry into Intelligence Community Activities Before and
After the Terrorist Attacks of September 11, 2001. Report of the U.S. House
Permanent Select Committee on Intelligence and the US Senate Select
Committee on Intelligence, December 2002. Senate–House Report No. 107–792,
Report No. 107–351.
7
Philip Flood, Report of the Inquiry into Australian Intelligence Agencies, 20 July
2004.
8
Michael Walzer, Just and Unjust Wars 3rd ed. (New York: Basic Books, 1977).
9
Immanuel Kant, Groundwork for the Metaphysics of Morals, 64, p. 392=785 (UP
1992).
10
Lawrence Lustgarten and Ian Leigh, In from the Cold: National Security and
Parliamentary Democracy (Oxford: Clarendon Press, 1994), pp. 5–7.

11
Francis Jacobs and Robin C.A. White, The European Convention on Human
Rights, 2nd ed. (Oxford: Clarendon Press, 1996).
12
Dr. Alessandro Politi, ‘‘The Citizen as Intelligence Minuteman,’’ International
Journal of Intelligence and CounterIntelligence, Vol. 16, No. 1, Spring 2003, p. 35.
13
Robert Kagan, ‘‘America’s Crisis of Legitimacy,’’ Foreign Affairs, March=April,
2004, p. 77.
14
Robin Cook, ‘‘British Foreign Policy.’’ Opening statement by the Foreign
Secretary, at a Press Conference on the FCO Mission Statement, London,
Daily Bulletin, 12 May, 1987.
15
David Fromkin, Kosovo Crossing: American Ideals Meet Reality on the Balkan
Battlefields (New York: The Free Press, 1999), p. 31.
16
European Parliament, STOA Interim Study, ‘‘An Appraisal of the Technology of
Political Controls,’’ 1997 (PE166.499).
17
Glenn Hastedt, ed., ‘‘Controlling Intelligence: Defining the Problem,’’ in
Controlling Intelligence (London: Frank Cass, 1999), p. 10.
18
Richard Norton-Taylor, ‘‘Embassy Bug Not Approved,’’ The Guardian, 7
November 2003.
19
Robert Kagan, ‘‘American’s Crisis of Legitimacy,’’ p. 74, citing Joschka Fischer,
Germany’s Foreign Minister, March 2003.
20
Robert Cooper, The Breaking of Nations: Order and Chaos in the 21st Century
(New York: Atlantic Books, 2003).
21
The Lord Hannay of Chiswick, G.C.M.G, C.H, ‘‘Just Wars or Just More Wars?,’’
BBC Analysis Programme, Radio 4, 19 August 2004. See also A More Secure
World: Our Shared Responsibility, Report of the High-Level Panel on Threats,
Challenges and Change (New York: United Nations, 2004).
22
Michael Walzer, Wars and Unjust Wars.
23
Esbester v. UK, No. 18601=91 18 EHRR CD 72 (1993).
24
Thomas Nagel, ‘‘War and Massacre,’’ in Ethics, Timothy Challens, ed. (New
York: McGraw-Hill), pp. 209–213.
25
Tony Pfaff and Jeffrey R. Tiel, ‘‘The Ethics of Espionage,’’ Journal of Military
Ethics, Vol. 3, No. 1, 2004.

434 ANGELA GENDRON
26
Julian Borger, ‘‘We Could Have Stopped Him,’’ The Guardian (UK), 20 August
2004, p. 62.
27
Tony Pfaff and Jeffrey R. Tiel, ‘‘The Ethics of Espionage.’’
28
Richard K. Betts, ‘‘Fixing Intelligence,’’ Foreign Affairs, Vol. 81, No. 1,
January=February 2002.
29
Martin Rudner, ‘‘Hunters and Gatherers: The Intelligence Coalition Against
Islamic Terrorism.’’ International Journal of Intelligence and CounterIntelligence,
Vol. 17, No. 2, Summer 2004, p. 214.

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International Journal of Intelligence and

Just War, Just Intelligence: An Ethical

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Just War, Just Intelligence: An Ethical

Intelligence is one means by which a nation-state pursues its obligation to

Angela Gendron is a Senior Fellow at the Canadian Centre of Intelligence and

398 INTERNATIONAL JOURNAL OF INTELLIGENCE

who themselves operate secretively. A state’s duty to identify threats to its

INFORMATION FROM ABROAD

state has an obligation to defend. Typically, foreign collection requirements

Deducing National Security

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

However, the subjectivity and flexibility of the term national security,

protection of other values and interests is not possible.’’ 1 Yet, liberal

INTERNATIONAL JOURNAL OF INTELLIGENCE

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

serve as a practical guide to intelligence decision-makers and their

INTERNATIONAL JOURNAL OF INTELLIGENCE

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

are to be respected, obligations fulfilled, agreements honored, and disputes

Western moral values articulate philosopher Immanuel Kant’s idea of a

INTERNATIONAL JOURNAL OF INTELLIGENCE

holds, must be the guide in relation to actions necessary to preserve the

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

PRACTICAL MORAL CONFLICTS

INTERNATIONAL JOURNAL OF INTELLIGENCE

While extraordinary circumstances may temporarily give precedence to

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

ENDS AND MEANS OF AN ETHICAL FOREIGN POLICY

INTERNATIONAL JOURNAL OF INTELLIGENCE

justifies the use of unethical means.

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

The Ethics of Intelligence Collection

War, realism, in the form of pragmatic self-interest and a consensus about

INTERNATIONAL JOURNAL OF INTELLIGENCE

To the extent that a state’s foreign policy objectives aim to contribute to

COLLECTING SECRET INTELLIGENCE

lies in providing information about intentions and capabilities that is not

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

Authoritarian regimes choose to gather secret intelligence against other

Nations have a multiplicity of vital values, interests, and national security

INTERNATIONAL JOURNAL OF INTELLIGENCE

LEGALITY AND MORALITY

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

rights of its citizens.

INTERNATIONAL JOURNAL OF INTELLIGENCE

JUST WAR DOCTRINE

Determining Just Cause

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

doctrine in the 1970s was intended to make it more applicable to modern,

INTERNATIONAL JOURNAL OF INTELLIGENCE

other states on humanitarian grounds. The events on 9=11 thrust intelligence

A JUST WAR APPROACH TO INTELLIGENCE COLLECTION

Just Cause and Secret Measures

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3

sufficient potential gravity to justify whatever means are likely to be most

INTERNATIONAL JOURNAL OF INTELLIGENCE

Although the European Commission on Human Rights (ECHR) has

target the integrity of a state’s democratic institutions and the viability of

AND COUNTERINTELLIGENCE VOLUME 18, NUMBER 3