Over the last 6-7 years, a growing body of literature has coalesced around the idea of just intelligence theory. The burgeoning interest has resulted in the establishment of the International Intelligence Ethics Association, as well as the attendant International Journal of Intelligence Ethics. As a sub-specialty of intelligence ethics, its aim has been to integrate just war theory with intelligence collection, national security policing and domestic counterterrorism – subjects that fall in a murky “middle ground” between external and internal opponents.
Admittedly, the use of any war framework or language – just or unjust – to describe or explain intelligence affairs or domestic law enforcement matters quickly raises eyebrows. At its Clausewitzian core, war is about the use of physical coercion (i.e. the taking of life and the destruction of property/treasure) to bend the political will of one’s opponents – and these opponents, most would insist, are traditionally defined as rival and typically foreign political communities. On the other hand, policing is focused on the maintenance of internal stability and order within one’s own political community. One question therefore immediately arises as to how heavy a load just war theory can carry if the subject matter at hand is stability within a single polis rather than conflict between competing political communities.
James Turner Johnson has supplied one possible response eight years ago in the pages of First Things. Historically understood, bellum has involved “any use of armed force by a sovereign ruler, whether this force was applied internally [i.e. policing] or externally [i.e. war].” Referencing Augustine’s view that the good society was one “at peace both within itself and with other polities similarly justly ordered,” a sovereign ruler’s responsibility for the peace of his polis (and his duty to discharge this responsibility in a just manner) encompassed not only defense against foreign enemies, but also law enforcement.
Those who have worked in the past to apply just war theory to policing have focused less attention on Johnson’s concerns about sovereign authority, but have instead addressed the theory’s utility in restraining a police officer’s and/or police organization’s use of coercive – and especially deadly – force. In the wake of the 1991 Rodney King incident, one of the foremost authorities on just war and policing, Catholic ethicist (and, to be up front, Political Theology’s book editor) Tobias Winright, analyzed how Edward Malloy, an older writer on police ethics, had analogically applied jus ad bellum and jus in bello categories to explain and teach when and how officers should resort to deadly force. Winright disagreed with what he saw as Malloy’s theoretical over-reaching and his overly-procedural praxis (i.e. the suggestion that each aspect of just war theory is applicable, can be integrated by police departments in a checklist-type fashion and must be answered prior to any prospective use of deadly force). Instead, Winright argued that two components of the traditional framework – last resort and proportionality of means – are enough to provide general guidance for officers about when it is right to engage in coercive force and what mode of force to use (up to and including techniques that kill) once that decision has been made.
Malloy’s use of analogy for matching just war criteria to policing is, however, identical to the approach taken by Sir Michael Quinlan in a now-canonical 2007 article in which he posited a distinction between jus ad intelligentiam and jus in intelligentia. Following the just war framework, Quinlan’s first category centered on justifications for engaging in clandestine intelligence collection, while the second outlined possible limits if that collection is to be done in a just manner. The article devoted a number of pages to explain key in bello points: considerations about legitimate injury, harm and proportionality of means; the use of heavy-handed recruitment tactics; the resort to enhanced interrogation or torture in order to extract information; and (something rarely mentioned) the morality of integrating information into one’s intelligence cycle if it is known to have been collected using unjust means. Unfortunately, Quinlan’s discussion of ad bellum was comparatively sparse. He simply suggested a spectrum which, on one end, is defined by subjects that are probably not important enough to require clandestine collection (e.g. Ruritanian trade negotiations) and, on the other end, terrorist plans. His extremes are certainly clear, but he restrained himself from drawing any firm lines on issues that fall between the two poles. Quinlan offered a set of questions about where such lines might exist but, in the end, as did Winright with respect to policing, he fell back on the prudential (and more easily generalized) ad bellum categories. Clandestine intelligence collection can be done justly, Quinlan argued, if other, more open, avenues have been weighed, explored and perhaps tried (i.e. last resort), and if the expected harm will nonetheless help “[a government] to forestall, counter or alleviate actions that would be seriously damaging” to the peace and order of the political community, or to the physical and social wellbeing of those who fall within the government’s jurisdiction (i.e. proportionality of ends and probability of success).
A newcomer to the just intelligence theory field, Ross Bellaby – a recently-minted doctoral student from Aberystwyth University whose thesis examined the applicability of just war theory to intelligence operations – is, like Quinlan, much more focused on in bello matters than on ad bellum. Following in the footsteps of Toni Erskine, his thesis advisor, Bellaby highlights moral agency and the ethical responsibilities of both individual collectors and their institutions. Intelligence officers, analysts, and the organizations in which they are embedded are all “moral agents,” Erskine has argued, because “[their] possession of certain capacities for deliberation and action meant that we can expect them to respond to moral guidelines, and, by extension, hold them accountable for their conduct.” In order to cement a foundation for intelligence ethics within political philosophy, Bellaby analyzes the concept of harm and the potential for intelligence collection techniques to violate what he terms an individual’s “vital interests” (defined as physical and mental integrity, personal autonomy, liberty, human dignity or self-worth and privacy). One of his important assertions – somewhat similar to a criticism made by Erskine against Michael Herman and an act-consequentialist approach to intelligence ethics – is that an individual’s vital interests interlock and, because of this, it is difficult to map out direct and indirect harm in any accurate way. The greater number of interconnected “vital interests” that are violated during, or as a result of, intelligence collection operations, concludes Bellaby, the greater the harm. Bellaby’s focus on injury and harm, however, makes for case studies and conclusions that are, arguably, too skewed towards ostensible in bello violations of “vital interests,” for example, surreptitious video surveillance, satellite imagery (in which Bellaby argues not for an individual’s privacy rights, but a state’s), the exploitation of a foreign intelligence officer’s sexual orientation during a coercive recruitment pitch, and, lastly, torture.
It is this in bello over-emphasis that I presently find most concerning in the current just intelligence theory literature. While undoubtedly influenced by the past decade’s controversies over enhanced interrogation and torture, the in bello focus, particularly among those who are looking to just war theory as a framework of analysis, may also indicate the field is being unduly influenced by jus contra bellum thinking. Originating with the work of moral theologians James Gustafson and James Childress and integrated by J. Bryan Hehir into The Challenge of Peace, the 1983 Catholic Bishops’ pastoral letter on nuclear warfare and deterrence, jus contra bellum has been succinctly described by Serena Sharma as the “application of in bello principles at the ad bellum level.” George Weigel has argued that Gustafson and Childress introduced the erroneous idea that just war historically originated with “a prima facie moral duty to do no harm” and, as a result, a “presumption against war” rather than as Weigel and Johnson insist, a “presumption against injustice.” Jus contra bellum, Weigel explains, wrongly prioritizes noncombatant immunity (discrimination) and proportionality of means over, as he puts it, the “morally prior” ad bellum categories. Moreover, whereas in the classical Augustinian/Thomist framework, the prudential ad bellum categories like last resort and proportionality of ends were considered secondary to sovereign authority, just cause and right intention, jus contra bellum elevates their overall importance. Altogether, as Weigel, Sharma and Johnson have all expounded, jus contra bellum shrinks just war theory into a set of in bello and prudential-focused ad bellum “hurdles” or “tests” that a statesman has to overcome before his or her decision to employ force is considered just. Indeed, Bellaby has said as much in his discussion of the “harm ethic”: “[F]or intelligence to be ethical, the first step must be to understand the harm that it [can possibly] cause.” He continues, “By doing this it is then possible to decide if the harm it can cause is justified given the circumstances at the time.” In Bellaby’s framework (and, I would suggest, in much of the current discussion on intelligence ethics), in bello is taking ad bellum’s historical place in the driver’s seat.
Brian J. Auten currently serves as an intelligence analyst with the United States government and is an adjunct professor in the Department of Government at Patrick Henry College in Purcellville, Virginia. All views, opinions and conclusions are solely those of the author and not the US government, or any entity within the US intelligence community.