WAR AND PEACE. Moral philosophers and states have long presumed that the conditions of war and peace are different and allow different types of activity. The most obvious wartime activity is organized violence against the territory and citizens of other states. During peacetime, overt conflict is precluded. Does this division between acceptable peacetime and wartime norms extend to intelligence activities? Are efforts to subvert and overthrow the governments of enemy states acceptable in peacetime, as they are in wartime?
Even during periods of peace, the United States has relations with states that are hostile. The cold war between the United States and the Soviet Union may have been the epitome of such relationships: hostile at virtually all levels but never reaching the point of overt conflict between the two primary antagonists (as opposed to some of their surrogates).
A relationship such as that between the two cold war antagonists occupies a gray middle ground between peace and war. Intelligence activities—both collection and covert action—became one of the principal means by which the two countries could attack each other. Even in this unique situation, however, the United States and the Soviet Union accepted some limits. The two sides did not kill each other’s nationals who were caught spying. Instead, they jailed the spies and sometimes exchanged them, as was the case with Col. Rudolf Abel, a Soviet spy imprisoned in the United States in 1957, and U-2 pilot Francis Gary Powers. (One’s own national caught spying for the other side could be executed, as were Julius Rosenberg in the United States and Col. Oleg Penkovsky in the Soviet Union.) The national leadership of each side was safe from physical attacks. But did these unwritten rules create necessary boundaries or did they serve to allow a great many other activities, including propaganda and subversion?
If a country threatens to make war or if war seems imminent, does the concept of self-defense allow states to engage preemptively in certain activities, including intelligence operations? In an age of information operations, this question is increasingly important. The George W. Bush administration in 2003 advocated a preemptive strategy as part of its rationale for the war against Iraq, but it is not clear that this will have continued support in that war’s aftermath, given that the expected weapons of mass destruction (WMDs) were not found.
The campaign against terrorists occupies a still undefined middle ground between war and peace. In part, it is a military campaign, largely being conducted in Afghanistan and in Iraq against pro-al Qaeda elements (as distinct from efforts against Iraqi Sunnis or Shi’ites who are not supportive of al Qaeda). In part it is a law enforcement activity, within the United States and overseas as well. But there are also aspects of the effort against terrorists that fall in between these two positions. The implications of this issue are discussed later in the chapter.
ENDS VERSUS MEANS. The usual answer to the question “Do the ends justify the means?” is no. But if the ends do not justify the means, what does? Policy makers face difficult choices when means and ends are in conflict. For example, during the cold war, was it proper for the United States, which advocated free elections, to interfere in Western European elections in the late 1940s to preclude communist victories? Which choice was preferable: upholding moral principles or allowing a politically unpalatable and perhaps threatening outcome? How does U.S. interference in postwar European elections compare with the subversion of the Chilean economy as a means of undermining the government of Salvador Allende?
Within the U.S. political experience, such questions represent two deeply rooted concepts: realpolitik and idealism. In the milieu of the cold war, realpolitik predominated. The moral aspect of the cold war (Western democratic ideals versus Soviet communism) made choices such as those described above easy for policy makers. Would they make the same choices in the post-cold war world in the absence of such a moral imperative?
Again, these concerns are at issue in the campaign against terrorism and the constant struggle to balance civil liberties and national security. Some of those who believe that it is necessary to make adjustments to civil liberties in order to preserve the larger framework of our government use the phrase “the Constitution is not a suicide pact.” Federal appellate court Judge Richard Posner is a leading proponent of this view, which has its roots in the similar dilemma faced by President Abraham Lincoln and the suspension of habeas corpus during the Civil War. Lincoln argued that it was necessary to suspend one law, habeas corpus, in order to preserve the Union and enforce all laws in the seceding states. In a July 1861 message to Congress, Lincoln posed the question this way: “To state the question more directly, are all the laws, but one [habeas corpus], to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?” Again, the issue is one of balance.
THE NATURE OF THE OPPONENT. For nearly half a century the United States faced successive totalitarian threats: the Axis and then the Soviet Union and its satellite states. A vast gulf existed between the accepted values and behavioral norms of the United States and its allies and their opponents. Do the actions of your opponents affect the actions you may undertake? Are they a useful guide to action?
“All’s fair in . . .” is one response. On the one hand, a state would be foolish to deny itself weapons or tactics that are being used by an opponent bent on the state’s destruction. On the other hand, does a state not lose something important when it sinks to the level of an opponent who is amoral or immoral? John Le Carré, in his novels featuring the spy George Smiley, argued that little difference can be found between the actions of the United States and the Soviet Union during the cold war, that a certain moral equivalence existed. Was Le Carré correct, or did the moral distinctions between the two states remain strong and important, even if similarities existed in some types of intelligence operations?
NATIONAL INTEREST. The concept of national interest is not new. In the period that historians refer to as “early modern Europe,” roughly the seventeenth century, all statesmen agreed that
raison d‘état—
literally “reason of state”—guided their actions.
Raison d’état
implied two tenets: first, that the state embodied its own ends, and, second, that the interests of the state were the only guides for actions, not resentments, emotions, or other subjective impulses.
Raison d’état,
as practiced in early modern Europe, also implied the use of intrigue by one state against another and the ultimate sanction: the use of force.
In the late seventeenth and eighteenth centuries, international relations were, beneath a refined veneer, brutal. One could argue that even the creation of an international body, the United Nations (UN), has done little to modify the behavior of states in the late twentieth and early twenty-first centuries. For example, witness the brutality of many parties in the dismemberment of Yugoslavia or of the Khmer Rouge in Cambodia. A direct line follows from seventeenth-century
raison d’état
to twentieth-first-century national interest.
Is national interest a sufficient guide to the ethics and morality of intelligence? On the one hand, it is the only guide. If intelligence activities are not undertaken in support of the policies of the legitimate government, then they are meaningless at best or dangerous rogue operations at worst. On the other hand, legitimate governments—even those that adhere to democratic ideals and principles—can sometimes reach decisions and take actions that are morally or ethically questionable.
Thus, national interest is a difficult guideline, both indispensable and insufficient at the same time.
CHANGES IN ETHICS AND MORALS. Ethics and morals change over time. For example, slavery was accepted in Britain as late as the 1830s, in some parts of the United States as late as the 1860s, and in Brazil as late as the 1880s. Slavery reportedly continued in Sudan in the late 1990s. Less than one hundred years ago, in the 1910s, the issue of women’s suffrage was still being vigorously debated in Britain and the United States; in Switzerland, the debate continued into the 1960s.
Assuming that intelligence activities are undertaken on lawful authority, should they keep abreast of changes in ethics and morality? Citizens should want to say yes. But who decides when these changes have come? How quickly do changes in ethics and morals get translated into policies and actions? For example, political intervention of the sort undertaken in Europe during the cold war is probably insupportable today (with the 1998 Iraq Liberation Act, which publicly appropriated money to foster a change in the regime in Iraq, a notable exception). But when did that change come? When the Soviet Union collapsed, or earlier? In 1975 the United States faced the prospect of seeing one of its North Atlantic Treaty Organization (NATO) allies, Portugal, elect a communist government. After a strenuous debate between the U.S. ambassador (who opposed covert intervention in the Portuguese elections) and the national security adviser (who advocated it), the United States opted not to intervene, and the Communists lost the election. The decision was based not on a new morality but on the view that the United States had more to lose by intervening and possibly being exposed than by allowing the elections to take their course. The outcome proved favorable from the U.S. perspective, as the ambassador believed it would. The same debate arose in 1990, when the Sandinista government in Nicaragua agreed to open elections (much to the chagrin of their patron, Fidel Castro). Again, some in the United States urged covert intervention. President Oscar Arias Sanchez argued against the intervention, saying that, given what they had done to the Nicaraguan economy, the Sandinistas could not win an open election. The United States listened and the Sandinistas lost.
A second important question prompted by changes in values is whether new standards should be imposed after the fact. For example, during the cold war the United States often supported regimes that were undemocratic and sometimes brutal, but they were anticommunist. Although some people in the United States found these relationships objectionable, many accepted their apparent necessity. In the mid-1990s, Director of Central Intelligence (DCI) John M. Deutch (1995-1997) ordered the CIA to review all of its contacts and operations to see if any involved links to human rights abuses. Many in the CIA felt that this review, and some of the actions that the CIA leadership took against some officers, was an unfair ex post facto imposition of standards. (The Constitution bars laws that are ex post facto in nature.) Was Deutch’s action a necessary cleaning up of past errors or an unfair imposition of new standards on officers who had acted in good faith under old standards? In the aftermath of the September 2001 attacks, many people felt that the so-called Deutch rules had placed hobbling limits on human intelligence (HUMINT). The CIA claimed that no useful contact had been turned away because of the rules, but critics argued that their mere existence and the threat of some later punishment bred extreme caution in the Directorate of Operations. At any rate, the Deutch rules were abandoned after the terrorist attacks.
Markus Wolf ran East German intelligence operations for years, successfully penetrating many levels of the West German government, including the chancellor’s office. When East Germany collapsed and was absorbed by West Germany, the German government put Wolf on trial for treason. Its rationale for doing so ran as follows: According to the constitution of West Germany, it was the one legitimate government of all Germany, and Wolf had carried out espionage against that government. (Despite its constitutional claims, West Germany had granted East Germany diplomatic recognition, and the two states had exchanged ambassadors.) Wolf argued that he had been the citizen of a separate state and therefore could not be guilty of treason. In 1993 he was convicted of espionage, but in 1995 the highest German court voided the verdict, accepting Wolfs argument that the charge should not have been made in the first place because he had not broken the laws of the state he had served, East Germany. After receiving a suspended sentence for kidnappings carried out by agents under his authority, Wolf, in 1998, was jailed for refusing to identify an agent he had referred to in his memoirs.
A case similar to Wolf’s—but with an odd twist—is that of Col. Ryszard Kuklinski, a Polish general staff officer. Kuklinski provided the United States with crucial intelligence on the Warsaw Pact during the late 1970s and early 1980s, including a December 1980 warning that the Soviets were preparing to invade Poland to end the protests of the labor movement Solidarity. The intelligence allowed the United States to use diplomatic means to forestall the Soviet invasion. Kuklinski was brought out of Poland just before martial law was declared. Kuklinski was sentenced to death in absentia. But even after the fall of the communist regime in Warsaw, many Poles were ambivalent about what Kuklinski had done. He had been motivated by his dislike of the Soviet Union and the regime it had imposed on Poland. Some Poles, however, felt that Kuklinski had spied on Poland, regardless of the Soviet issue. Even Lech Walesa, as president of Poland, refused to pardon Kuklinski. The charges were finally dropped in 1998.
The issue of changing moral standards arises again with the interrogation of known or suspected terrorists. As was noted earlier, the various interrogation techniques that have been used were vetted by the Justice Department and others in the executive branch and were briefed to a limited number of senators and representatives, who were also supportive, according to press accounts. But between these decisions in 2002 and 2006, there had been a shift in political opinion, with many members of Congress expressing more qualms about the types of techniques that could be used. Director of the CIA (DCIA) General Hayden said in February 2008 that water boarding—a form of interrogation—was undertaken based on this Justice Department ruling, only used in a few cases and that, in his opinion, it would no longer be allowed under the rules now in force. If the standards for interrogation do change, should officers who conducted interrogations based on former standards be held liable for their actions?