What is the moral justification for espionage and counter-intelligence? Should those engaged in such work feel good about what they do, or are their labors, as Kant had it, an “infernal art”? In Spying Through a Glass Darkly: The ethics of espionage and counter-intelligence, Cécile Fabre offers “an account of the rights and duties which all individuals wherever they reside have vis-à-vis one another; and an account of when individuals are justified in harming one another in defense of those rights” – for example by spying.
Though this is a work of academic philosophy, it is nonetheless of considerable interest to those actively working in the UK intelligence community, many of whom (contrary to popular imagination, perhaps) take very seriously the ethical dimensions of their work. Fabre acknowledges the support and she has received from former members of this community, and writes of her “hope that the world of which I attempt to make normative sense here is not too far away from the world in encouraging which they operated”. Naturally, the world of intelligence involves a necessary degree of secrecy, and Fabre is aware that she, like any external observer, is attempting to describe and analyze a state of affairs that must remain largely opaque.
To the practitioner, Fabre’s account is both encouraging and admonitory. The first of her two central theses is that “intelligence activities are morally justified only as a means to thwart violations of fundamental rights and subject to meeting the requirements of necessity, effectiveness, and proportionality”. It is accompanied by a warning: “It is entirely possible – perhaps even likely – that much of what intelligence agencies have done and are currently doing is morally wrong, at the bar of the account I defend here.”
In that warning there is an implied acknowledgment of the limits of what a book such as this can hope to achieve. The activities of the intelligence agencies are not open to public scrutiny and accountability in the normal sense, and the author rightly argues that the solution to the “accountability conundrum” lies not in theory, but in “the proper vetting and ethical training of intelligence officers; in fostering constant awareness amongst citizens and officials of the dangers of a culture of excessive secrecy; and in the normatively directed institutional design of intelligence oversight.” In the UK the activities of the three intelligence and security agencies – GCHQ, MI5 and SIS – are governed by law and subject to executive, legal and judicial oversight, through ministers, the Intelligence and Security Committee, and the investigatory powers commissioner and judicial commissioners . Ultimately, however, the ethical health of the organizations depends not on regulation, but on good leadership and on their people having a strong moral compass; As Onora O’Neill has convincingly argued, there needs to be “trustworthiness before trust”.
As part of the mission to develop and nurture this trustworthiness, the agencies invest heavily in initial and continued vetting, induction and training. Each agency also has an ethics counsellor. This role has three functions: the first is to act as an independent point of contact for any staff member who might have a concern of an ethical nature that they would prefer to discuss privately; the second is to champion the open internal discussion of matters that are inherently problematic from an ethical perspective; The third is to foster a culture of challenge, including, if necessary, to the leadership.
The second of Fabre’s central theses is that espionage is not only morally legal in some circumstances, but “sometimes morally mandatory”. The claim sits in direct opposition to those made by philosophers such as Kant, who compared espionage to activities that were “inherently despicable”. Kant argued that, by developing “instrumental relationships” (that is, using other people to advance our own interests), we offend against the principle of treating our fellow humans as ends in themselves, rather than as a means to an end, which also destroys trust. (One might note that Kant’s principle poses problems to many other areas of human activity – to any salesperson, for example.) Other thinkers over the centuries have taken an equally dismissive view of espionage, though it has also had a number of distinguished defenders. Fabre cites Sun Tzu, who argued that the leader who refuses to use spies is a “completely devoid of humanity”, and Thomas Hobbes, who claimed that leaders are not only permitted to send out spies, but “may not do otherwise”.
Fabre suggests that the question of “what one is morally permitted or obliged to do to reduce uncertainty” is at least as important as the question of “what one is morally permitted or obliged to do under conditions of uncertainty”, and that, in discussions about the ethics of decision-making, the former question is relatively neglected compared to the latter. Governments need to know whether actions they might take to defend themselves against hostile intent are necessary and proportionate. And sometimes espionage (defined by Fabre as “the act of seeking to acquire information about third parties that is thought to be needed to conduct foreign policy, and that there are reasons to believe those parties would rather keep secret”) is the only way of accquiring this knowledge. The better the intelligence, therefore, the less the uncertainty and the more likely it is that the decision will be taken on sound moral grounds. Of course, the intelligence may be inconclusive, and a decision still has to be taken. Good intelligence can only ever inform policy; it is not a substitute for it. But having it is better than not.
Fabre’s justification of intelligence activities as a means of defending fundamental rights should be understood as a universal obligations: “respect for fundamental moral rights does not depend on national-cum-political borders”. But the author also claims that “espionage in the service of an unjust foreign policy is generally not justified”. In that sense “there remains a moral asymmetry between intelligence agents on different sides of a conflict; some dirty their hands, while others keep theirs clean.” To support this argument she compares two of the best-known spies of the Cold War era: Oleg Gordievsky, the KGB officer who spied for the UK, and Kim Philby, the SIS (MI6) officer who spied for the Soviet Union. “Thus, while Gordievsky did have pretty good evidence that the British authorities would make morally justified use of the information he was able to provide them (based on Britain’s relatively democratic traditions, commitment to the rule of law, etc.), Philby had no Such evidence (on the contrary) that the Soviet authorities would do the same. Therein lies a morally crucial difference between their two acts of treason.”
We can conclude that, for Fabre, the morality of intelligence work derives primarily from the justness of the cause it serves; her justification is entirely values-based. But her account does not have much to say on the subject of interests – and as such it is too restrictive. All foreign policy has to balance values and interests; without the former it is morally derelict, but the idea that one can ignore the latter is an illusion. Even Robin Cook, often credited with a (failed) attempt to craft an “ethical foreign policy” for Tony Blair’s government, actually spoke of policy “with an ethical dimension”. In reality intelligence agenciesed by their governments to promote the national interest as well as to defend core values, and, although this may involve thwarting violations of fundamental rights, it does not necessarily do so, or at least not directly.
One hopes that most people in the UK would agree that we want to live in a world where fundamental rights are respected, and that this is in the national interest. Yet intelligence agencies are tasked to defend the national interest for its own sake, against others who do not share the same values. Those of us working in the intelligence community have to accept that we are engaged in a struggle that is as potent now as it was during the Cold War; Ultimately, we have to know which side we are on and what we are prepared to fight for.
This is an important debate. But most of the time intelligence officers’ ethical preoccupations are at the next level down, less focused on the “whether” of spying than on the “how”. It is abundantly clear that there are significant differences in the ways that intelligence and security services from different “sides” conduct their operations; And it is not hard to make the case that, while some methods are morally acceptable, others definitely are not. As Fabre puts it: “Spies lie, cheat, and betray as a means to procure the information their paymasters want and to protect the information they want to keep secret … yet … there are wrongs and rights in attempting to see through the darkly glass” . Having set out her central argument justifying political and economic espionage, the explores a number of these methods of intelligence activity. These include, as she describes them, deception, treason, recruitment, exploitation, the use of technology and, finally, mass surveillance.
The specifics of intelligence techniques and methods are especially challenging for outside observers to explore, because so much (one hopes pretty well all) of the actual practice of secret intelligence work remains hidden from view. There is, nevertheless, much in Fabre’s account that rings true. All three UK agencies have their own ethical frameworks, based on their values. In SIS, where the emphasis is on recruiting human sources, the guiding principles are informed consent, professional care and proportionality. This means that, first, we want those who take risks on our behalf to be as aware as possible of what these risks are, and what we can and cannot do if things go wrong; second, given that we are the more powerful party in the relationship, that we must take for responsibility it in the safest way possible, using all of our creative skills and energies to keep our agents safe; third, that we must be rigorous in weighing the intelligence benefits of any agent relationship against the ethical harms that are intrinsic to it. One hopes Fabre would approve.
The author is the ethics counsellor at the Secret Intelligence Service (MI6)
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