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Principled
Spying
ADVANCE PRAISE FOR PRINCIPLED SPYING
‘If spying is the world’s second oldest profession, or perhaps the oldest,
ethical issues it raises are almost as old. But as this wonderful conversation
between an eminent practitioner and a senior scholar displays, those have
been reshaped by the long transition from royal sovereigns to popular sov-
ereignty, and sharpened more recently by the focus on terrorism and the rise
of big data. The former both makes “war” continuous and puts enormous
pressure on warning. That pressure then stresses ethics in familiar collec-
tion, like interrogation, but also requires searching through big data sets,
including information about innocent citizens for tips about would-be ter-
rorists. Omand and Phythian creatively apply the principles of just war to
intelligence, and make a strong argument for a new “social compact,” one
that benefits from the paradox of Edward Snowden’s revelations, which were
very damaging but also sparked a real conversation about privacy and other
ethical issues inherent in intelligence in this era that is neither peace nor war.’
Gregory Treverton, former chair of the
US National Intelligence Council
‘Principled Spying is a must read for all involved in the intelligence profes-
sion as well as for those who are interested in understanding how intelli-
gence agencies can and should operate ethically in the 21st century. David
Omand and Mark Phythian provide a comprehensive review and stimulat-
ing discussion of the role and responsibilities of intelligence professionals
and how the ethical foundations of liberal democracies can be preserved and
even strengthened by “principled spying.” A most compelling narrative!’
John Brennan, Former Director, CIA
‘Most people agree that a safe society means that intelligence gathering
is necessary but too few agree on its limits in a free society. This valuable
book, a debate between two informed and experienced experts, provides
perceptive insights to help both the public and the policy makers come to
the right decisions.’
George Robertson, Secretary General, NATO 1999-2003,
UK Secretary of State for Defence 1997-99
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© David Omand and Mark Phythian 2018
The moral rights of the author have been asserted
First Edition published in 2018
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
British Library Cataloguing in Publication Data
Data available
ISBN 978–0–19–878559–0
Printed in Great Britain by
Clays Ltd, St Ives plc
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Contents
Preface vii
Introduction: Why Ethics Matters in Secret Intelligence 1
1. Thinking about the Ethical Conduct of Secret Intelligence 9
2. Ethics, Intelligence, and the Law 40
3. From Just War to Just Intelligence? 72
4. Secret Agents and Covert Human Sources 110
5. Digital Intelligence and Cyberspace 142
6. The Ethics of Using Intelligence 170
7. Building Confidence through Oversight and Accountability 200
Conclusion: Toward Principled Spying 225
Notes 241
Selected Bibliography 271
Index 277
About the Authors 286
v
Preface
vii
viii Preface
and technologies may bring and how far we should look to identify norms
of right conduct in global cyberspace.
In each chapter we identify the ethical issues and discuss them in the
form of a dialogue between us. Rather than simply presenting our posi-
tions, throughout the book we pose key questions to each other and to
the reader and offer different responses and perspectives that we hope can
stimulate lively debate and thinking.
1
2 Introduction
using had any democratic legitimacy. In Europe a series of cases from the
European Court of Human Rights in the 1970s challenged the traditional
view that raison d’état alone could justify the surveillance of citizens by secret
agencies that did not legally exist. The rule of law, fundamental to a liberal
democracy, requires that laws accessible to the citizen must prescribe when
rights could be intruded on, by whom, and with what safeguards.
Professions such as medicine, law, and education are partly defined by
having ethical codes of conduct that regulate their activity according to
generally accepted standards of right behavior, with severe sanctions for
those who do not conform. The public can therefore have reasonable con-
fidence that psychoanalysts will protect the confidences of their patients, as
do priests of their parishioners. Lawyers will not steal their clients’ money.
Teachers will not have sexual relationships with their pupils nor will doc-
tors with their patients. Company executives will not obtain contracts by
bribery. By contrast, secret intelligence might appear at first sight to be
the one profession that has to be governed by a code of anti-ethics, a code
of behavior with few, if any, rules so as to allow activity that most people
would consider unethical if applied to their everyday lives.
It is certainly the case that an everyday morality that rules out theft, brib-
ery, and corruption and emphasizes the value of honor and the duties of con-
fidentiality and privacy rights cannot simply be applied to the business of
getting and using secret intelligence. However, that does not have to mean
there should be no limits on what should be sanctioned when trying to obtain
secrets of value. In this book we aim to provide a vade mecum, or working
guide, to thinking about norms of right conduct for intelligence activity. We
believe that is essential since liberal democracies will certainly go on trying to
obtain secret intelligence to defend themselves just as their adversaries must
be expected to deploy secret intelligence to undermine them.
We do not believe there are any simple answers to the interlaced set
of complex questions around the ethical standards we would want applied
to modern intelligence activity. Dangerous times will call for different
measures than peaceable ones. The technologies that can be harnessed to
intelligence gathering will continue to change. International patterns of
cooperation and competition may shift, along with recognition of the value
of accepting norms of good conduct in cyberspace. Societal attitudes to val-
ues such as privacy may also continue to evolve.
Clearly these issues are important and deserve increasing attention.
The approach we recommend is engaging in patient and rational debate
Why Ethics Matters in Secret Intelligence 5
that recognizes there is always more than one point of view and that each
has validity and deserves consideration. Only through the clash of ideas
informed by a consciousness of historical experience will the best approach
for the moment appear. Nor do we believe that any single ethical methodol-
ogy that moral philosophy can supply—such as the teleological, the deon-
tological, and the aretaic—can be brought to bear on its own.5
Most of our debates in this book are informed by consequentialist argu-
ments drawing on teleological schools of thought—that is, judging acts by
their consequences. It matters that intelligence officers act with good intent
and that they think hard on the unintended as well as intended outcomes
from their actions. The degree of ethical risk of harm to others that they
judge acceptable must bear a relationship to the harms they are trying to
prevent through authorizing intelligence operations. For example, “dog foul-
ing” is unpleasant and unhealthy but does not justify the intrusive surveil-
lance British local government authorities used to identify the dog owners
who fail to pick up after the dogs.6 The principle of proportionality, however,
should not mean that when the potential harm to society is very great, any
method, including torture, would be justified. Nor does the value of ano-
nymity to protect free speech mean that child abusers could claim a right to
view anonymously criminally indecent images of children, even in private.
In talking to intelligence officers, it becomes clear that most of those
who serve the interests of democratic nations implicitly follow an aretaic
moral philosophy of life that emphasizes personal virtues and good char-
acter. They have ways of behaving well, even when knowingly encouraging
betrayal or intruding on the privacy of private communications and family
life. But experimental psychology amply demonstrates that even those who
see themselves as highly moral actors can be led to behave in unacceptable
ways when placed in an unhealthy environment.7 So ethical issues in intel-
ligence have a situational as well as a personal dimension, not least when
it comes to designing safeguards to ensure that future governments cannot
misuse intelligence capabilities.
To unpack the issues, this volume takes the form of a debate between us,
where in each chapter one of us puts forward a set of arguments, the other
responds, and we engage in discussion designed to encourage reflection on
6 Introduction
misused, and that taxpayer funds are being spent wisely and to good effect.
Ethical issues abound here. For example, when intelligence activity is car-
ried out in the public’s name, how can it be truly subject to the public’s
consent when so many details of the activity must remain secret?
We conclude by looking ahead to some of the ethical dilemmas of the
future as intelligence responds to changes in threat and technology. We
illustrate the ethical issues that arise in liberal democratic contexts from the
tensions between the value of secrecy and of transparency, between domes-
tic and overseas intelligence gathering, between reliance on the use of open
sources and of secret sources, between conducting surveillance on known
suspects and intelligence gathering to uncover new threats, between the
interests of law enforcement and of national security, and finally between
the use of military and civilian assets. We end with an appeal for a new social
contract between the public, their representatives in elected government
and its intelligence agencies, and the private corporations that increasingly
manage and use our personal information. In the end, liberal democra-
cies need the consent of the public to confirm the ethical soundness of the
activities carried out in their citizens’ names and in their interest.
1
Mark Phythian: Those setting out to think about the relationship between
ethics and secret intelligence are immediately confronted with a serious
problem—the absence of a clear framework within which to proceed. The
starting point in the construction of a framework needs to be the concept of
intelligence itself. As the study of intelligence has developed, a range of defi-
nitions have been offered. Some are pithy but consequently partial; some
others are elaborate but fail to capture the essence of their subject. There
is at present no consensus over how intelligence can best be defined. One
of the better shorter approaches involves the idea that intelligence is about
stealing secrets. As former US director of central intelligence George Tenet
explained in a 1998 interview, “Let’s be blunt about what we do. There is no
dishonor in it. We steal secrets for a living. If we do not steal secrets for a
living, then we ought to shut the doors and do something else for a living.”1
Definitions are, of course, significant to any discussion of the relationship
between ethics and intelligence because they determine the boundaries of
the subject. Writing during the interregnum between the Cold War and
the “war on terror,” Michael Herman offered the view that “intelligence
is information and information gathering, not doing things to people; no
one gets hurt by it, at least not directly. Some agencies do indeed carry out
covert action, which confuses the ethical issues, but this is a separable and
subsidiary function.”2 Whether covert action is regarded as part of intel-
ligence or as something separate clearly impacts the ethical landscape we
are considering.
One thing both definitions have in common is that they treat intelli-
gence as a process; however, it is important not to lose sight of the functional
9
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no related content on Scribd:
METEOROLOGICAL TABLE.
6 3
Aug. Noon.
A.M. P.M.
25. Dull morning, 6 A.M.; 12 noon, clear; 3 P.M. clear 76° 84° 85°
26. A thunder storm and heavy rain; 12 noon, dull; 3 P.M. do. 75 79 79
27. 6 A.M. clear light air; 12 noon, clear; 3 P.M. clear 76 81 84
28. Clear at 6 A.M.; 12 noon, calm and cloudy; 3 P.M. light airs 77 81 85
29. 6 A.M. heavy rain; 12 noon, clear and calm; 3 P.M. clear and
calm 73 82 83
30. 6 A.M. clear; 12 noon, a thunder storm and heavy rain 72 79 79
31. Clear and cold; 12 noon, clear and cold 73 80 84
Sept.
1. Dull morning; 12 noon, dull; 3 P.M. dull and cloudy 77 81 80
8. Dull morning; 12 noon, clear; 3 P.M. clear 76 83 82
10. Dull morning; 12 noon, dull; 3 P.M. heavy rain 77 80 79
11. Clear and calm 77 85 86
12. Clear and calm 80 85 86
13. Clear and light air 79 84 83
14. Clear and light air 77 86 85
15. Clear and light air 80 85 86
16. Clear and light air 75 85 86
17. Clear and light air 77 85 84
18. Clear until noon; 3 P.M. a thunder storm and rain 79 86 83
19. Clear and calm 78 84 88
20. Clear and calm until 3 P.M. and light air 78 84 87
21. Clear and calm 77 84 88
22. Clear and calm until 12 noon, light air 76 85 88
23. Clear, light air 79 90 90
24. Clear and calm; 12 noon, and light air 80 89 89
25. Clear and calm 79 86 88
26. Clear; 12 noon, light breezes 79 86 89
27. Clear, light air 79 86 89
28. Clear; 12 noon, light rain 80 86 90
29. Clear; 3 P.M. heavy rain 79 86 89
30. Dull and foggy; 3 P.M. heavy rain and wind 79 85 87
Oct.
1. Heavy rain and a thunder storm 70 76 79
2. Clear and cold, light breezes 70 80 80
3. Clear and cold, light breezes 70 83 85
4. Clear, light air, and cold 71 84 84
5. Clear and light breezes 70 83 85
6. Clear and calm 80 88 88
7. Clear, light air 80 87 87
8. Clear and calm 75 89 89
9. Clear and light breezes 80 87 88
10. Clear and light breezes 75 88 88
11. Clear and calm 75 87 87
12. Clear and fine breezes 75 88 88
13. Clear, light air 76 89 89
14. Clear, light breezes 76 87 87
24. Clear and cold 75 86 86
25. Clear light breezes 75 83 87
26. Clear and cold, light air 75 84 83
27. Clear and cold, light air 75 87 86
28. Clear and cold, light breezes 75 85 85
29. Clear and light breezes 75 86 85
30. Clear; 12 at noon, light breeze from east 75 84 85
31. Clear; 12 noon, light breeze 76 85 86
Nov.
1. Clear and calm 76 84 85
2. Clear; 12 noon, light air 76 88 88
3. Clear; 12 noon, light breeze 76 85 86
4. Dull and hazy 76 86 86
5. Clear; 12 noon, a light breeze 75 87 86
6. Clear; 12 noon, light breeze 75 85 86
7. Clear; 12 noon, light breeze 75 85 86
8. Clear at 8; 12 noon, hazy and light breeze 75 85 86
9. Clear at 9; 12 noon, cloudy, and light breeze 75 86 87
10. Clear at 8; 12, light breezes 75 88 88
11. Clear at 9; 12, light breezes 75 85 86
12. Clear at 8; 12, light breezes 77 86 87
13. Clear at 9; 12, light air 76 85 86
14. Clear; 12, light breezes 75 85 87
15. Clear; 12 at noon, a light breeze 75 86 86
16. Clear; 12, light breezes 76 84 85
17. Clear; 12 noon, a light breeze 77 85 87
18. Clear; 12 noon, a light air 76 86 86
19. Clear; 12 noon, a light breeze 76 85 85
20. Clear, strong breeze, wind east 75 85 85
21. Clear, light breezes 75 89 89
Jan.
7. Strong breeze from east-north-east, clear 70 90 92
8. Monday, 6 A.M. light breeze, hazy; 12 noon, wind east-
north-east 70 90 92
9. 6 A.M. cold and clear, a strong wind east-north-east; 12,
clear, light air 65 89 90
10. 6 A.M. cold and hazy; 12, strong breezes, clear, north-east
wind; 3 P.M. clear 60 90 90
11. Cold and hazy; 12, a fine breeze, wind north-east, clear,
light breeze 60 89 90
12. 6 A.M. cold and hazy; 12, light breeze, wind north-east, 64 86 85
clear; 3 P.M. clear
13. Clear and cold, wind north-east; 12 at noon, clear and cold;
3 P.M. clear 62 89 89
14. 6 A.M. hazy, calm; 12, strong breezes, wind north-east; 3
P.M. clear 62 88 88
15. Clear, cold, wind north-east; 12, strong breezes; 3 P.M. clear 62 86 86
16. Clear and cold, wind north-east, strong breeze, clear; 3 P.M.
clear 60 80 80
17. Hazy calm; 12 noon, strong breeze and clear, wind north-
east 62 80 80
18. Thursday, clear and cold, wind north-east; 12 noon, clear,
strong breeze, wind north-east 62 81 83
19. Clear and cold, a strong breeze from north-east 65 84 86
20. Clear; 12 at noon, strong breeze, wind east, 3 P.M. clear 64 88 89
21. Sunday, clear and calm; 12 noon, light breeze, wind east; 3
P.M. clear 64 88 89
22. Morning hazy, a light air; 12 noon, clear, light breeze, wind
east 62 89 90
23. Morning hazy; 12 noon, light breeze and clear, wind north-
east 65 90 93
24. Wednesday, morning hazy, calm; 12 noon, clear, fine
breeze, east; 3 P.M. clear 72 96 98
25. Morning hazy, calm; 12 noon, clear, a light breeze, wind
east; 3 P.M. clear 70 96 98
26. Hazy, calm; 12 noon, clear, a light breeze, wind north-east;
3 P.M. clear 72 94 95
27. Morning hazy and calm; 12 noon, light breezes, clear, wind
north-east; 3 P.M. clear 62 83 90
28. Morning hazy and calm; 12 noon, light breeze; 3 P.M. clear,
wind east 65 93 96
29. Morning clear, a light air; 12 noon, light breeze, clear, wind
east; 3 P.M. clear 75 99 100
30. Hazy and a light air; 12 noon, clear, light breeze, wind north-
east; 3 P.M. clear 74 98 99
31. Wednesday, clear; 12 noon, clear, light breeze, wind south-
east; 3 P.M. clear 75 98 99
Feb.
1. Thursday, morning hazy and calm; 12 noon, light breeze,
wind south-east, clear; 3 P.M. clear 75 98 100
2. Morning hazy and calm; 12 noon, a light breeze, wind north-
east; 3 P.M. clear 75 99 100
3. Morning hazy and calm; 12 noon, light breeze, wind north- 75 97 99
east; 3 P.M. clear
4. Sunday, morning hazy and calm; 12 noon, light breeze and
clear, wind north-east 75 98 99
5. Morning hazy and calm; 12 noon, light breeze, clear, wind
north-east 75 100 104
20. Morning hazy and calm; 12 noon, light breeze, clear, wind
ditto 75 95 100
21. Morning hazy; 12 noon, light breeze and clear, wind north-
east 75 100 100
22. Thursday, morning hazy; 12 noon, light breeze and clear,
wind north-east 75 100 100
23. Morning hazy; 12 noon, light breeze and clear, wind north-
east 77 100 100
24. Saturday, morning hazy; 12 noon, light breeze, clear, wind
north-east 75 95 100
25. Morning hazy; 12 noon, a fine breeze, wind north-east 75 100 100
26. Morning hazy, calm; 12 noon, light breeze, wind north-east;
3 P.M. clear 75 100 100
27. Tuesday, morning hazy, calm; 12 noon, light breeze, clear,
north-east wind 65 85 85
28. Strong gales, hazy; 12 noon, strong gales; 3 P.M. strong
gales, north-east wind 65 85 85
During a whirlwind at 2 P.M. the thermometer fell from 100½
to 98, and at 3 P.M. rose to 101.
March.
1. Strong gales during the day, and hazy, north-east wind 85 85 100
2. Strong gales and hazy during the day, north-east wind 65 85 85
3. Strong gales and cloudy during the day, north-east wind 65 85 85
4. Sundry light breezes during the day, north-east wind 74 89 90
5. Morning hazy; 12 noon, light breeze, north-east 72 95 98
6. Calm and hazy; 12 noon, clear, east wind; 3 P.M. hazy, light
air 71 96 96
7. 6 A.M. hazy, calm; 12 noon, cloudy, a light breeze, east
wind; 3 P.M. cloudy 72 95 96
8. Hazy, calm; 12 noon, hazy, a light breeze; 3 P.M. hazy, light
air 70 96 95
9. Friday, 6 A.M. hazy, calm; 12 noon, light breeze, clear, east
wind 70 95 96
10. 6 A.M. hazy and calm; 12 noon, strong breeze, clear; 3 P.M.
clear 70 99 96
11. Hazy and calm; 12 noon, a light breeze, clear; 3 P.M. clear,
east wind 70 98 96
12. Hazy and calm; 12 noon, fine breeze and clear, east wind 70 95 96
13. 6 A.M. strong breeze, south-by-east wind; 12 noon, strong
breezes, south-by-east wind; 3 P.M. a fine breeze 70 99 97
14. Hazy, light air; 12 noon, strong breeze, south-by-east wind,
clear 70 95 96
15. Hazy and calm; 12 noon, strong breezes, south-by-east
wind, clear; 3 P.M. clear 70 96 95
16. Light breeze and hazy; 12 noon, light breeze and clear; 3
P.M. clear 70 100 98
17. Hazy and calm; 12 noon, a light breeze, clear, east-north-
east wind; 3 P.M. clear 70 98 99
18. Sunday, calm and hazy; 12 noon, light breeze and clear,
east wind 70 100 100
19. 6 A.M. calm and clear; 12 noon, calm and clear; 3 P.M. light
wind 73 101 101
20. Calm and clear; 3 P.M. a light breeze, west wind 71 102 102
21. Calm and clear until 3 P.M., a fine breeze, west wind 75 102 103
22. 6 A.M. calm and clear; 12 noon, a strong breeze, east wind 75 104 105
23. 6 A.M. calm and clear; 12 noon, light breeze; 3 P.M. light
breeze, clear 74 101 100
24. 6 A.M. calm and hazy; 12 noon, light breeze, hazy; 3 P.M.
light air, east wind 74 100 100
25. Sunday, 6 A.M. calm and hazy; 12 noon, hazy, light breeze,
east wind 74 104 103
26. 6 A.M. a clear light breeze; 12 noon, hazy, a light breeze,
east wind; 3 P.M. a light breeze 74 101 100
27. 6 A.M. a light breeze; 12 noon, hazy, a light breeze, east
wind; 3 P.M. light breeze 73 104 101
28. 6 A.M. light breeze; 12 noon, a light breeze, clear, south-
east wind; 3 P.M. clear 72 100 100
29. 6 A.M. strong breeze, clear, south-east wind; 12 noon, light
air; 3 P.M. light air 72 99 100
30. 6 A.M. hazy, a light air; 12 noon, hazy, a light breeze, east
wind; 3 P.M. a light air 72 101 100
31. 6 A.M. hazy, a light south-east wind; 12 noon, hazy, light
south-east wind; 3 P.M. hazy, light air 57 106 105
April.
1. Sunday, sultry and hazy, calm; 12 noon, sultry and hazy 74 101 102
2. Hazy during the day, light air 70 101 105
3. Hazy and calm; 12 noon, light breeze, south-east wind, light
air 74 103 107
4. Calm and hazy; 12 noon, light breeze, south-west wind; 3 78 104 104
P.M. hazy, light breeze
5. A dull hazy day, light breezes 78 110 108
6. Dull and hazy; 3 P.M. a light breeze from west 77 100 100
7. Dull and hazy; 3 P.M. light breezes, south-west wind 79 100 100
8. Sunday, dull and hazy, light air during the day 77 102 103
9. Clear day and light breezes, south-west wind 77 103 104
10. Tuesday, clear day and light breezes, south-west wind 77 104 107
11. Clear, and light breezes from the south-west 77 104 103
12. Clear morning, and light breezes 3 P.M. 77 104 104
14. Clear morning, calm; 12 noon, light breezes, south-west
wind 77 105 106
15. Clear morning, calm; 3 P.M. light breezes, south-west wind,
clear 80 105 106
16. 6 A.M. misty and calm; 12 noon, light breezes, south-west
wind; 3 P.M. light breezes, south-west wind 79 106 106
17. 6 A.M. misty, west wind; 12 noon, light air; 3 P.M. calm and
misty 80 109 108
23. 6 A.M. clear morning, a fine breeze from the west; 3 P.M.
calm 76 105 106
24. Cloudy day, a fine breeze from the west 77 102 103
25. Cloudy and calm; 12 noon, a strong breeze from the west; 3
P.M. calm and clear; 6 P.M. a thunder storm 78 102 104
26. Clear and calm; 12 noon, light breeze from the west, and
clear; 3 P.M. calm and misty 77 103 105
27. Clear and calm; 12 noon, light breeze from the west; 3 P.M.
clear 78 105 106
28. Clear morning, light air; 12 noon, a fine breeze from the
west; 3 P.M. fine breeze 77 103 105
29. Sunday, morning clear and calm; 12 noon, cloudy, light
breeze; 3 P.M. a gale of wind, with thunder storm 76 100 90
30. Morning calm and clear; 12 noon, light breeze from the
west; 3 P.M. light breezes and clear 78 100 100
May.
1. Tuesday, cloudy during the day, light breeze from the west 77 100 102
THE END.
LONDON:
PRINTED BY THOMAS DAVISON, WHITEFRIARS.
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