Intelligence Collection Efforts Intelligence Collection Efforts and the and the

Combatant/Noncombatant Combatant/Noncombatant DistinctionDistinction

Permissions and Prohibitions Permissions and Prohibitions on Information Gatheringon Information Gathering

Major (USAF) Bill CasebeerMajor (USAF) Bill CasebeerUSAF Academy Department of PhilosophyUSAF Academy Department of Philosophy

PreviewPreview

IntroductionIntroduction: Ethical issues in intelligence : Ethical issues in intelligence collectioncollection

The ProblemThe Problem: Motivating the discussion: Motivating the discussion Setting LimitsSetting Limits: Bounding the problem: Bounding the problem ApproachApproach: Methodology: Methodology TheoriesTheories: Approaches to combatancy: Approaches to combatancy ReconciliationReconciliation: Loosening the requirement: Loosening the requirement FuturesFutures: Resolution and suggestions for : Resolution and suggestions for

researchresearch

The ProblemThe Problem Collection may involve a rights violationCollection may involve a rights violation

• Compare open source vs. technical collectionCompare open source vs. technical collection• Privacy…closely related to private property…possibly a Privacy…closely related to private property…possibly a

foundationalfoundational right (Locke) right (Locke)• Insidious—harm not immediately apparentInsidious—harm not immediately apparent

““Worst” case: hard-line deontic viewWorst” case: hard-line deontic view• No ordinal ranking of rights (perfect duties)No ordinal ranking of rights (perfect duties)• Massive violations of respect for persons occurring Massive violations of respect for persons occurring

daily…intelligence collection as a “universal rights daily…intelligence collection as a “universal rights solvent”solvent”

Arguably just as important as moral issues associated with Arguably just as important as moral issues associated with wartime non-intel actionwartime non-intel action

Who deserves to be collected against?Who deserves to be collected against?

Setting LimitsSetting Limits

Bracket off wartime collectionBracket off wartime collection Assume relatively non-invasive collection Assume relatively non-invasive collection

efforteffort Assume international collection (avoid Assume international collection (avoid

domestic surveillance issues)domestic surveillance issues) Assume away “public space” collectionAssume away “public space” collection Ease consequential upshot (not Ease consequential upshot (not

discovered, no political fallout, etc.)discovered, no political fallout, etc.) Work with the problematic as defined by Work with the problematic as defined by

the hardcore deontologistthe hardcore deontologist

MethodologyMethodology ““Easy way out”—rush straight to the Easy way out”—rush straight to the

metaphysical question (e.g., abandon Kant metaphysical question (e.g., abandon Kant and embrace Mill or even a variant of act and embrace Mill or even a variant of act utilitarianism)utilitarianism)

Work with the deontologist: press on the Work with the deontologist: press on the issue of rights and duties…resolve the issue of rights and duties…resolve the combatant/noncombatant issue combatant/noncombatant issue while still while still working within a rights-based frameworkworking within a rights-based framework

If a proper theory of permissions exists If a proper theory of permissions exists within this framework, reasonable people within this framework, reasonable people who disagree can reach a practical shared who disagree can reach a practical shared modus vivendi modus vivendi

Issues of DessertIssues of Dessert Who can justifiably be collected against?Who can justifiably be collected against? Those who Those who deservedeserve it it

• Those engaged in wrong-doing…the guiltyThose engaged in wrong-doing…the guilty• Those who consent to be collected againstThose who consent to be collected against• Revolves around a respect-for-persons Revolves around a respect-for-persons

frameworkframework Obvious connection: combatant/non-Obvious connection: combatant/non-

combatant distinctioncombatant distinction Clearest rights-based theory: Jeffrie G. Clearest rights-based theory: Jeffrie G.

Murphy (“Is Killing the Innocent Absolutely Murphy (“Is Killing the Innocent Absolutely Immoral?”…in ’94 “Killing and Letting Die,” Immoral?”…in ’94 “Killing and Letting Die,” edited by Steibock and Norcross)…compare edited by Steibock and Norcross)…compare Richard BrandtRichard Brandt

Murphy’s PositionMurphy’s Position

Noncombatant/combatant distinction Noncombatant/combatant distinction is a proxy for the innocent/guilty is a proxy for the innocent/guilty distinctiondistinction• Normally a legal notion given force by a Normally a legal notion given force by a

moral intuition…no legal mechanics on moral intuition…no legal mechanics on the battlefield (but may be in collection)the battlefield (but may be in collection)

The guilty: The guilty: those who are part of those who are part of both the logical both the logical andand causal chain of causal chain of agency required to do harm to agency required to do harm to anotheranother

Murphy (Continued)Murphy (Continued)

Unpacking causal connectionUnpacking causal connection• Relatively straightforward notion: actions that Relatively straightforward notion: actions that

contribute to or constitute ability to harm contribute to or constitute ability to harm anotheranother

• Taxpayers…farmers…dual-use technologies…Taxpayers…farmers…dual-use technologies…uniform manufacturers…pilot training bases…uniform manufacturers…pilot training bases…soldiers using weaponssoldiers using weapons

• ““Percentage” of contribution varies—easy Percentage” of contribution varies—easy cases and hard casescases and hard cases

Conjunctive requirement: Conjunctive requirement: andand logical chain logical chain

Murphy (Continued)Murphy (Continued)

Logical chain of agency (Kantian colors)Logical chain of agency (Kantian colors) Certain actions reflect maleficent Certain actions reflect maleficent

intention…by necessity (non-contingent intention…by necessity (non-contingent connection) these actions involve forming connection) these actions involve forming the intention to harm othersthe intention to harm others

Tests: qua human vs. qua soldier needsTests: qua human vs. qua soldier needs ““Run the counterfactual”Run the counterfactual” Heavy lifting…but epistemically Heavy lifting…but epistemically

inaccessibleinaccessible

Murphy (Continued)Murphy (Continued) Reasonability clauseReasonability clause

• “…“…those whom it is reasonable to believe those whom it is reasonable to believe that…”that…”

Notoriously slippery, but…Notoriously slippery, but…• External signalsExternal signals

UniformsUniforms ArmamentArmament Belligerent actionBelligerent action Context counts…Context counts… Ideally: intention meter (but tantamount to pacifism)Ideally: intention meter (but tantamount to pacifism)

All against a background of All against a background of due caredue care• Innocent until proven guilty…legal analogyInnocent until proven guilty…legal analogy

CasesCases

Applying the MachineryApplying the Machinery MuchMuch more difficult in the case of more difficult in the case of

intelligence collectionintelligence collection Issues:Issues:

• Ascertaining intention is problematicAscertaining intention is problematic• Post hoc justification is standard practicePost hoc justification is standard practice• Exact same physical action (save brain states, Exact same physical action (save brain states,

which are difficult to observe) driven by wildly which are difficult to observe) driven by wildly different intentions…can happen in traditional different intentions…can happen in traditional combatancy determinations, but not as oftencombatancy determinations, but not as often

• Range of actions to which the test applies is vast Range of actions to which the test applies is vast (context (context explodesexplodes))

Examples…Examples…

CasesCases

I love you too, Mom…can’t wait to visit with Dad…by the way, I got fired from work today…

Yes, Vladimir, I procured the crack cocaine as you directed and will launder it with our front man Rhodes in Colorado Springs…

CasesCases

In the face of the problem…In the face of the problem… Options:Options:

• Double effect (but does not pass “bad effect cannot be the Double effect (but does not pass “bad effect cannot be the means to the good effect” prong)means to the good effect” prong)

• Embrace hard-line view…almost all collection is unjustified Embrace hard-line view…almost all collection is unjustified (reductio…but recall brackets)(reductio…but recall brackets)

• Rights hierarchy…abandon Kant (W. D. Ross) (not true to Rights hierarchy…abandon Kant (W. D. Ross) (not true to assumptions)assumptions)

• Argue for implicit consent/game playing (not plausible)Argue for implicit consent/game playing (not plausible)• Admit that in the case of the non-consequentially injurious Admit that in the case of the non-consequentially injurious

rights violations of the kind that occur in most dragnet intel rights violations of the kind that occur in most dragnet intel collection, connection to the causal chain is collection, connection to the causal chain is allall that is required that is required (open the floodgates)(open the floodgates)

• Abandon deontic view when stakes are high (Walzer on Abandon deontic view when stakes are high (Walzer on “Supreme Emergency”)“Supreme Emergency”)

• Leverage legal analogy (put in place mechanisms at planning Leverage legal analogy (put in place mechanisms at planning level to check abuse)level to check abuse)

My favorite: My favorite: some combination of the last two…some combination of the last two…true to true to much of the hard-line view without sacrificing too many much of the hard-line view without sacrificing too many considered moral intuitionsconsidered moral intuitions

For a review, see Casebeer (2004) “Intelligence Oversight” (in R. Carlisle, ed., Encyclopedia of Intelligence and Counterintelligence, M.E. Sharpe)

SummarySummary

Intelligence collection presents important moral Intelligence collection presents important moral issues, especially for the rights theorist…issues, especially for the rights theorist…

Collection should generally occur only against Collection should generally occur only against those who deserve it, just as in the application of those who deserve it, just as in the application of force…force…

But the traditional tests are difficult to apply…But the traditional tests are difficult to apply… Which means some intelligence collection Which means some intelligence collection

operations should be conducted only when a legal operations should be conducted only when a legal proceeding has determined sufficient evidence proceeding has determined sufficient evidence exists to establish reasonable cause…exists to establish reasonable cause…

Or not, if the heavens really are about to fall!Or not, if the heavens really are about to fall! Much remains to be done, though.Much remains to be done, though.

ReviewReview

IntroductionIntroduction: Ethical issues in intelligence : Ethical issues in intelligence collectioncollection

The ProblemThe Problem: Motivating the discussion: Motivating the discussion Setting LimitsSetting Limits: Bounding the problem: Bounding the problem ApproachApproach: Methodology: Methodology TheoriesTheories: Approaches to combatancy: Approaches to combatancy ReconciliationReconciliation: Loosening the requirement: Loosening the requirement FuturesFutures: Resolution and suggestions for : Resolution and suggestions for

researchresearch

william.casebeer@usafa.af.milwilliam.casebeer@usafa.af.mil