Regaining the moral high ground: Time to think about ‘Just Intelligence’ doctrine

By Maj. John Jeffcoat, British Army

Best Defense guest columnist

The compounding impact of the Snowden leaks and the CIA’s use of torture represents a crisis for the legitimacy of the U.S. intelligence community and, by extension, this community’s allies. The immediate and visceral bipartisan reaction to the Senate Intelligence Committee’s majority report is as unseemly as it is inevitable given the political climate in Washington. However, in the longer term, when the fuss and froth die down, the key question that must be addressed is: How can that legitimacy be regained and protected?

Civilian intelligence professionals play an outsize role in protecting our respective countries. Consider for example that the U.K. intelligence agencies have a budget that is approximately equal to 10 percent of the U.K.’s defense budget. Clearly, the combined efforts of GCHQ, MI6, and MI5 amount to much more than 10 percent of what the U.K.’s Armed Forces achieve in protecting our interests at home and abroad.

As a serving soldier, I have often found myself in ethically ambiguous circumstances during my service abroad. Such situations create deep moral and legal concerns about what is the most appropriate course of action in achieving the mission. I imagine my civilian counterparts in the intelligence community find themselves in equally demanding dilemmas daily.

However, in contrast to them, my military service is directly supported by around 2000 years of distilled moral philosophy and precedent in the form of the “just war” tradition. I am the grateful beneficiary of countless forebears and the dilemmas they faced in understanding what is and what is not acceptable behavior in the conduct of war. Yet, if spying is indeed the second oldest profession, where is its equivalent code? If I can kill ethically, surely they can spy ethically too?

The just war tradition provides the bedrock for the law of armed conflict. It does not represent a mere philosophical abstraction or obscure jurisprudence. Instead, it is a vital instrument in the application of force. It is imperative in achieving sustainable political outcomes in positions of relative advantage — what we quaintly used to call victory. This is because just war is inextricable from the contest for legitimacy that underpins all conflict — armed or otherwise. In modern conflict, understanding military necessity, proportionality, humanity, and discrimination must be as integrated into the training of service personnel as the ability to call for fire.

When I gave orders to soldiers directing that there must be zero expectation of collateral damage in certain types of engagements, I was enacting my higher commander’s interpretation of the just war tradition. In that case, by weighing humanity and discrimination over military necessity while accepting increased tactical risk, we were seeking to protect the legitimacy of the overall mission.

Intelligence activities and armed conflict are not the same. They are however analogous. Both protect national security and include activities with the potential to cause harm to others: harm that might otherwise be considered unethical.

There are of course extant legal frameworks and policy documents that direct and regulate our intelligence communities. They are however relatively recent. In the U.K., MI5 and MI6 did not officially exist 25 years ago. When MI5’s own website claims that its statuary framework is “complex,” it is really saying that the relationship between philosophy, law, and policy as it relates to our intelligence community is unclear.

Some would claim that the cause of “national security” is sufficient cover for this ambiguity — out of sight, out of mind. For others, including the late Sir Michael Quinlan, the realm of intelligence can no more avoid ethics as you and I can avoid gravity. In 1985, the former CIA director, Admiral Stansfield Turner, wrote that the true test of ethics in intelligence is whether those authorizing the actions could justify them if they became public. This observation seems particularly appropriate now, as does Lord Acton’s aphorism that “everything secret degenerates.”

The just war tradition is a model of how this relationship can be calibrated to best serve the respective interests of our nations. Over the past decade or so, a handful of British academics and intelligence practitioners have begun to call for a parallel “just intelligence.” Taken together, their work attempts to articulate practical principles for the intelligence community in weighing up the moral hazards of any given course of action. The same principles would also serve regulatory bodies in analyzing evidence to fulfill their oversight functions. Their underlying and worthy intent is seeking to protect the legitimacy of the intelligence community.

Furthermore, I also believe the concept of just intelligence can be used by the media and public in better understanding what is and what is not acceptable behavior in intelligence. To take two examples: collateral damage has entered public discourse in rationalizing civilian casualties against military necessity. Is it unreasonable to expect that we may similarly use “collateral intrusion” resulting from unintentional collection of privileged material rather than reaching for the nearest copy of Orwell? Secondly, as just war helps us understand the difference between murder and lawful killing in war, can we not expect just intelligence to help frame the difference between the forbidden (torture) and the essential (interrogation)?

As with the relationship between just war and the law of armed conflict, just intelligence principles should be enshrined in law to form a concrete chain that links moral philosophy to policy. Strengthening such bonds does not guarantee future transgressions will not happen. Instead, it creates a narrative framework that practitioners, overseers, and the public alike can use to engage in a much more constructive deliberation when they do.

Absent a robust and evolving just intelligence tradition, the threat exists that our intelligence communities’ underlying legitimacy will continue to fray in the face of diminishing public confidence. The extant ethical and legal frameworks have not sufficed to protect against this disconcerting dynamic. Pursuing a tradition of just intelligence offers a pragmatic and proven approach. Perhaps the greatest single rationale for using it as a model is to regain and protect the legitimacy of the intelligence profession.

John Jeffcoat (“JJ”) is a major in the British Army. He is an infantry officer in the Royal Gurkha Rifles and is currently a student at the U.S. Army Command and General Staff College in Fort Leavenworth, KS. He is also reading for an online MA in War in the Modern World at King’s College, London. His thesis is on ethics in intelligence. The views expressed in this article are the author’s own and are not necessarily those of the British Army or any part thereof.

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