"If liberal democracies are to be seen abiding by the rules, norms and ideals to which they subscribe, then so must their intelligence communities.
At the centre of the topic of ‘intelligence ethics’, often ridiculed as ‘oxymoronic’, is the tension between the belief that ‘there are aspects of the intelligence business, as practised by all major countries, that seem notably disreputable’, and the argument that ‘without secret intelligence we will not understand sufficiently the nature of some important threats that face us’; that political communities have an ethical obligation to act so as to protect its people."
Bellaby proposes an ethical framework for intelligence collection, building from primum non nocere --- the Hippocratic injunction of "first, do not harm". Bellaby states the following (emphasis is mine):
"The first step in establishing an ethic against harm begins with the realization that individuals have certain requirements that are both ‘vital’ to their well- being and vulnerable to external interference. These ‘vital interests’ are the prerequisites or preconditions that must be maintained if individuals are to fulfil their ultimate goals and aspirations. Joel Feinberg calls these requirements ‘welfare interests’. John Rawls calls them ‘primary goods’. Essentially they amount to the same thing – that is, regardless of what one’s conception of the good life might be, these preconditions must be first satisfied in order to achieve them. These interests include individuals’ physical and mental integrity, their autonomy, liberty, sense of self-worth and privacy. Without these vital interests any individual is unable to pursue other ultimate interests, purposes, goals or plans. Of such fundamental importance are these interests to the individual that they have intrinsic value. Damaging them can therefore cause harm regardless of the repercussions. That is, even if on balance the individual does not experience the harm in a ‘tangible and material’ way, s/he can still be said to be harmed if the vital interests are violated or wronged. In this way, these interests are a person’s most important ones and thus demand protection. (...)"Bellaby identifies the following `vital interests' of humans:
- Physical integrity: "for example, (...) what sort of physical treatment potentially dangerous suspects can expect."
- Mental integrity : concerns "actions that can cause debilitating levels of stress or anxiety to the individual."
- Autonomy: "the capacity for self-rule"; "one must be able to decide for oneself, without external manipulation or interference, what shape one’s own life will take."
- Liberty: "closely connected to the concept of autonomy". "Whereas autonomy is the freedom to decide one’s will, liberty is the freedom from constraints on acting out that will."
- Human Dignity as Amour-propre: A Sense of One’s Own Self-Worth: how individuals view themselves and how others view them. "Confidence in one’s self-worth is so fundamental that without it one can become unable to continue or realize endeavours that are needed to fulfil one’s aspirations. Without self-respect individuals feel worthless; nothing ‘seems worth doing’, activities become ‘empty and vain’ and people ‘sink into apathy and cynicism’."
- Privacy: in context of intelligence collection, two concepts are "of particular relevance": privacy as boundaries and privacy as control. "Boundaries mark out areas where outside intrusion is unwelcome. (...) In comparison, privacy as control is the right of individuals to control those things pertaining to themselves, that is, ‘the control we have over information about ourselves’ or the ‘control over one’s personal affairs’."
"However, by intercepting another’s communications, their privacy is violated. This is because, first, the activity involves intercepting and utilizing without consent information that is essentially the individual’s property, and second, by violating a sphere with a strong expectation that the individual is ‘in’ private, represented by the clear distinction between the ‘inside’ of the communication where the message exists and the ‘outside’ where the rest of society exists."Regarding surveillance (dataveillance, CCTV, data mining, covert surveillance), he states:
"By collecting individual personal information in this way, an individual’s privacy and autonomy is violated. The individual’s privacy is violated in that the information collected is the individual’s personal property; it pertains to their actions and personal details. By collecting and collating this information, the individual’s right to control and keep it private is violated."In order to limit the harm done to vital human interests by intelligence collection, and outline exactly when harm is justified, Bellaby proposes the following `just intelligence principles' as an ethical framework for intelligence collection:
- Just cause: there must be a sufficient threat to justify the harm that might be caused by the intelligence collection activity.
"Thomas Aquinas argued that for a war to be just there must be some reason or injury to give cause, namely that ‘those who are attacked must be attacked because they deserve it on account of some fault’. Currently, international law frames ‘self-defence’ as the main justification for going to war."
- Authority: there must be legitimate authority, representing the political community’s interests, sanctioning the activity.
"For a war to be considered morally permissible according to the just war tradition it must be authorized by the right authority, that is, those who have the right to command by virtue of their position. As Aquinas stated, ‘the ruler for whom the war is to be fought must have the authority to do so’ and ‘a private person does not have the right to make war’. (...) Similarly, one can argue that in order for intelligence collection to be just, there must be a legitimate authority present to sanction the harms that can be caused."
- Intention: the means should be used for the intended purpose and not for other (political, economic, social) objectives.
"Leaders must be able to justify their decisions, noting that they had the right intentions; ‘for those that slip the dogs of war, it is not sufficient that things turn out for the best’."
"Another implication of this principle is reflected in the current debate on personal information databases and how crossover information collection should be restricted. If information is collected – DNA, fingerprints, personal data for example – under a just cause with the appropriate degree of evidence, but was incidentally connected to another crime, then the information can be used since the original just cause and correct intention was present. This would be analogous to finding illegal goods incidentally while performing a legal search. However, what is not permissible is to use a just cause such as tax fraud to justify the collection and retention of DNA, as this type of information is unrelated and is not reflecting the original just cause, clearly outside what should be the correct intention."
- Proportion: the harm that is perceived to be caused should be outweighed by the perceived gains.
"One can argue that, for the intelligence collection to be just, the level of harm that one perceives to be caused, or prevented, by the collection should be outweighed by the perceived gains."
- Last resort [=subsidiarity]: less harmful acts should be attempted before more harmful ones are chosen.
"In order for an intelligence collection means to be just, it must only be used once other less or none harmful means have been exhausted or are redundant."
- Discrimination: There should be discrimination between legitimate and illegitimate targets.
"The principle of discrimination for the just intelligence principles therefore distinguishes between those individuals without involvement in a threat (and thereby protected), and those who have made themselves a part of the threat (and by so doing have become legitimate targets). According to the degree to which an individual has assimilated himself, either through making himself a threat or acting in a manner that forfeits his rights, the level of harm which can be used against him will alter."
For full context, always read the original document. (Which I'm sorry to say is paywalled.)
- 2013-11-09: Oversight on Dutch SIGINT is still broken (blog)