1. It has long been an accepted principle that, as CIA analyst Ray Cline once put it: “There is no way to be on top of intelligence problems unless you collect much more extensively than any cost-accounting approach would justify…You might think you could do without most of what is collected; but in intelligence, in fact, as in ore-mining, there is no way to get at the nuggets without taking the whole ore-bearing compound.” (Cline 1976, quoted in Lathrop 2004, p.41.) The Snowden leaks detail how this principle has been applied in 21st century US intelligence collection, and expose the ethical tensions it can generate.
2. The
environment in which Ray Cline operated and the contemporary one are different
in key respects. The contemporary intelligence environment is scarred by the
experience of the 9/11 terrorist attacks; haunted by the belief that collecting
more information would have resulted in better dot connection and prevention.
3. While
9/11 provided the impetus to collect more, technological advances since then
have made the goal of gathering all electronic communications seem feasible.
Encouraged by a security industry with such close ties to the
intelligence/security bureaucracy that they are not always easily
distinguishable, it has emerged as a realistic aim.
4. The
Snowden leaks expose the extent to which this wide-ranging surveillance, while
solely justified by reference to the potential terrorist threat, has had much
broader targets; step forward Angela Merkel. The prevalence of diplomatic and
economic espionage aimed at third countries and international organizations is
a striking feature of the Snowden leaks.
5. This
points us towards the fact that the picture of global electronic communications
collection provided by Snowden is not complete; it is extensive but
one-dimensional. The complete picture would be more complex, featuring a wide
range of actors engaging in a global electronic ‘great game’ - competing to
collect information to the extent that their self-definitions of national
security, alliance commitments and technological capabilities make necessary or
feasible. Only snapshots of this wider picture emerge from the leaks; for
example, that Israel is regarded as the third most aggressive intelligence
service acting against the US and that France targets the US Department of
Defense. Nevertheless, we should not lose sight of the existence of this
broader ‘great game’.
6. Public
trust has been a notable casualty of the Snowden revelations – trust in
technology providers, in intelligence providers, in government – and greater
levels of resistance can be expected from providers and individuals in future
(note the threat of encryption on the part of providers and the condemnation of
this possibility by intelligence agency managers and the Intelligence and
Security Committee).
7. This,
in turn, reflects the democratic deficit exposed by Snowden. There is a risk
that aspects of intelligence are treated as a disfiguring birthmark on the
democratic body politic, carefully concealed and never discussed. Yet, informed
public debate is essential to democratic legitimacy here. This needs to
consider what ‘security’ means and involves before it can consider the options
for providing it and the price worth paying for it; in particular, whether
attempted universal collection justifies the invasion of personal space that it
involves. The conclusion of the President’s Review Group on Intelligence and
Communications Technologies (2014) that, contrary to the view offered by
the NSA, this global dragnet approach to collection “was not essential to
preventing [terrorist] attacks” reinforces the need for public debate.
8. The
Intelligence and Security Committee (ISC) (2015) report represents a missed
opportunity in terms of informing public debate. Some of its conclusions have
already been undermined by the report from David Anderson (2015). The ISC has
failed to recapture the trust it lost over issues relating to Iraq and the ‘war
on terror’ and has little authority.
9. Admiral
Stansfield Turner (1985) once said that the ethics of intelligence rested on
whether actions could be defended before the public if exposed. Reactions to
the Snowden leaks suggest that mass electronic surveillance has failed the
‘Turner Test’. But the Snowden revelations also expose the limits of the
‘Turner Test’ itself. The practices revealed were linked to understandings of national security, but the targets were
also international, and it is
international as well as national public opinion that has been galvanized as a
result, both at mass and elite levels. The decision of Germany’s federal
prosecutor to open an investigation into the Merkel phone tapping is simply one
of the most prominent expressions of this. In the 21st century,
intelligence actions clearly need to be justifiable in normative terms beyond
the water’s edge.
10. In
this regard, it has been suggested that principles of proportionality and last
resort should and do provide an ethical guide for intelligence. However, the
Snowden revelations suggest that these have been of only limited relevance, if
any, with regard to electronic intelligence collection.
11. In
practice, notions of proportionality in relation to intelligence collection are
likely to be misleading and heighten the trust problem. To understand why this
is, return to my opening point.
References
Anderson, David QC,
(2015) A Question of Trust: Report of theInvestigatory Powers Review (London, HMSO, June 2015).
Intelligence
and Security Committee, (2015 Privacy andSecurity: A Modern and Transparent Legal Framework (HC 1075, London, HMSO,
12 March 2015).
Lathrop,
Charles E. (2004 ) The Literary Spy. New Haven, CT: Yale University Press.
Stansfield
Turner ( 1985) Secrecy and Democracy: The CIA in Transition (Boston, MA: Houghton
Mifflin, p.178.
The
President’s Review Group on Intelligence and Communications Technologies, The NSA Report: Liberty and Security in aChanging World (Princeton, NJ: Princeton University Press, 2014), p.57.
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