Transcript
INTEL 305 LAW AND ETHICS IN INTELLIGENCE
ORIGINAL FORUM POSTS
WEEK 1 Why was sorting out the future role of intelligence activities so important to US policymakers during the period of time right after World War II? What were they trying to accomplish? What did they accomplish?
Throughout World War II, even though the Soviet Union aligned with the United States to battle the Axis powers, their relationship was strained and conflicted. Most American citizens were suspicious of communism in the Soviet Union and relatively well-informed Americans were aware of Stalin’s tyranny. The Soviets, on the other hand, resented America’s late arrival into the war effort. Not only that, there was an acute disparity between the sacrifices befalling both countries throughout World War II. “What separates the battle histories of the war east of Berlin from the war west of it is the level of savagery” (Dykman, 2016). American military strategy was to surround and take the enemy captive, but the eastern clashes consisted mainly of brute-force frontal attacks approaching ‘annihilation’ (Dykman, 2016).
After the War, Russian-American grievances and grudges evolved into growing mutual distrust. Postwar, the Soviets expanded into Eastern Europe, giving rise to American concerns of Soviet global ambitions while, at the same time, the Soviets resented America’s postwar ‘bellicose rhetoric’ as well as the United States’ arms buildup and “interventionist approach to international relations” (History.com Staff, 2009). It is onto this backdrop of growing suspicion and global ambitions that the United States began to sort out and formulate intelligence approaches for the future.
American intelligence infrastructure during the War had been primarily based on the Great Britain model. “In the aftermath of World War II, with the Cold War looming on the horizon, the United States began the process of developing an elaborate peacetime intelligence structure that would extend across a number of governmental services and agencies” (National Security Agency, 1947-1989). In 1941, President Roosevelt appointed William J Donovan as Coordinator of Information to form a non-military intelligence organization. “Borrowing heavily from the British intelligence model, Donovan created a special staff to pull together and analyze all national security information” (Antoniou, 2013). The formal concept of centralized intelligence analysis was established for the first time in the United States government.
Following World War II, Americans sought a return to peace and normalcy and an end to wartime agencies. Transitioning from a war footing to peace time, US intelligence functions would require regrouping and refocus, at the same remaining capable of formidable responses while retooling the vision and scope of intelligence in a new postwar world. The Soviet Union remained a threat and “most American officials agreed that the best defense against the Soviet threat was a strategy called “containment.” George Kennan wrote, “The Soviet Union, was a political force committed fanatically to the belief that with the U.S. there can be no permanent modus vivendi [agreement between parties that disagree; as a result, America’s only choice was the “long-term, patient but firm and vigilant containment of Russian expansive tendencies” (1946). President Harry Truman agreed.
The Truman administration engaged in many-faceted debates regarding the future and form of intelligence capabilities. In 1941, William J Donovan was named Coordinator of Information to form a non-military intelligence organization. “Borrowing heavily from the British intelligence model, Donovan created a special staff to pull together and analyze all national security information” (Antoniou, 2013). The formal concept of centralized intelligence analysis was established for the first time in the United States government.
Those in favor of transitioning power to the State Department were against the Donovan approach while other elements of the Administrations favored a military course. In September 1945 Truman divided intelligence between the War and State Departments. State received the research and analysis function, combining it with the existing analytical office to form the Interim Research and Intelligence Service (IRIS).
On July 26, 1947, Congress passed the National Security Act which authorized the CIA as “an independent, central agency, but not a controlling one; it would both rival and complement the efforts of the departmental intelligence organizations (Appendix A, 1995).
“The Act also established the Director of Central Intelligence as the
head of the CIA and eventually the head of the US IC as a whole. The Act
set the foundation for the US Intelligence Community which would eventually
expand to the 17 different intelligence agencies we see today. The
National Security Act of 1947 also provided some limits for the US IC from
the beginning. The Act prevented the CIA from having any "police, subpoena,
law-enforcement, or internal security functions" (Appendix A, 1995).
The period immediately following World War II ushered in several major changes and reformations of the Intelligence Community. Some unity was achieved regarding collection and analysis, and matters or accountability and oversight were also addressed with action. Looking back now, in the light of history, it is easy to discern what they got right and what they missed while functioning in the shadow of the Cold War with limited perceptions. It seems to me, however, a strong foundation was put in place and, for the most part, the IC continues to learn and evolve from that positive starting place.
Antoniou, A. 2013. European Intelligence E-Book No.1. EU Intelligence Academy, 2013. Retrieved from: http://www.euintelligenceacademy.eu/sites/eia/files/EIA_REPORT_2013.pdf
Appendix A, 1995. "Appendix A: The Evolution of the US Intelligence Community - A Historical Overview." Retrieved from: https://fas.org/irp/offdocs/int022.html
Dykman, J. 2016. The Soviet Experience in World War Two. Eisenhower Institute at Getty College. May 11, 2016. Retrieved from: http://www.eisenhowerinstitute.org/about/living_history/wwii_soviet_experience.dot
History.com, Staff. 2009. Cold War History. 2009. Retrieved from: http://www.history.com/topics/cold-war/cold-war-history
Kennan, G. 1946. Long Telegram. The Charge in the Soviet Union (Kennan) to the Secretary of State. National Security Archives, February 22, 1946. Retrieved from: https://nsarchive2.gwu.edu//coldwar/documents/episode-1/kennan.htm
National Security Agency. 1947-1989. The U.S. Intelligence Community: Organization, Operations and Management, 1947-1989. NSA Archives, n.d. Retrieved from: https://nsarchive2.gwu.edu/nsa/publications/ic/intelligence_com.html
WEEK 2 Proponents of the Patriot Act say it allows law enforcement to use tools already available and facilitates information sharing among government agencies. Critics claim it threatens civil liberties. Make an argument in favor of or opposed to the Act.
The Patriot Act was offered to lawmakers and the American public as necessary and indispensable to enable the government to fight and win the “War on Terror” following 9/11. In a variety of ways, Americans were assured that the sole purpose of these unprecedented powers was to locate and catch terrorists.
Our readings this week summarized The Act with ten major facets which included giving law enforcement and intelligence officers greater authority to gather and share evidence; amend federal money laundering laws, especially overseas; create new federal crimes and increase their penalties; modify immigration law to enhance apprehension of foreign terrorists; authorize increased funding to enhance capacity of immigration and law enforcement activities. (Doyle, 2001).
For many, however, the most profound aspect of the Patriot Act was always its authorization of government agencies to share intelligence “so that a complete mosaic of information can be compiled to understand better what terrorists might be planning and to prevent attacks” (U.S. Department of Justice, 2004). Prior existing law had sharply limited sharing of information, leading to the oft-cited failure-to-connect the-dots explanation of the terrorists’ 9/11 success.
Two Sections of the Patriot Act have proven useful and controversial: Section 215 allows the FBI to ask a secret court to order production of “any tangible things” from a third party, which could include records, papers, documents, or books; and Section 805 of the USA PATRIOT Act bolstered the ban on providing material support to terrorists by clearly making it a crime to provide terrorists with “expert advice or assistance” and by clarifying that “material support” includes all forms of money, not just hard currency. (Sensenbrenner, 2013).
Finally, in provisions under Title II: In Enhanced Surveillance Procedures under Sections 201 and 202, Authority to intercept wire, oral, and electronic communications relating to terrorism (201) , computer fraud and abuse offenses (202); “information, whether or not concerning a United States person, that relates to the ability of the United States to protect against . . . actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power” (Public Law 107-56; 2001).
The three individual sections cited directly above prove any review or criticism of the Patriot Act must focus on both utility, ethics, and individual liberty. Since its inception, implementation of the Patriot Act has diverted from the spirit of the law. The Act did not provide a system of checks and balances and made “significant amendments to over 15 important statutes. It was introduced with great haste and passed with little debate, and without a House, Senate, or conference report. As a result, it lacks background legislative history that often retrospectively provides necessary statutory interpretation” (Oshana, 2006, p.139).
In other words, the Act did not provide for the system of checks and balances that traditionally safeguards civil liberties in the face of such legislation. NSA has collected millions of US phone records and digital communications stored by internet companies such as Google, Facebook, YouTube, Microsoft (Greenwald, 2013), violating both the First and Fourth amendment Bill of Rights and Executive Order 12333.
Greenwald outlined a top-secret court order in 2013 which required “Verizon on an ongoing daily basis to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries” (2013). The document showed for the first time that under the Obama administration the communication records of millions of US citizens being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing (NSA Records, 2013).
When Russell Tice, a retired National Security Agency intelligence analyst and whistleblower, testified to Congress: "What is going on is much larger and more systemic than anything anyone has ever suspected or imagined. I figured it would probably be about 2015 before the NSA had the computer capacity … to collect all digital communications word for word, but I think they have it right now" (2013), he was illustrating the many problems and dangers of the Patriot Act.
In balanced terms, the Patriot Act is a necessary and, in many ways, important weapon for identifying and fighting terrorism here and abroad. It strengthened many weak links between intel agencies and law enforcement and created powerful punishments for those aiding and abetting the acts of terrorism by opportunistic and financial means. It was created in haste in reaction to a climate of fear, and its proponents still often lay claim to the legitimacy of such concerns. What I see is an Act with many advantages and many dangers. What I don’t see are leaders prepared to check or balance the Act’s proposed or existing actions comprehensively.
Congress does not provide sufficient oversight and seems to function exclusively in a reactionary manner when it comes to the Patriot Act. I don’t believe there will ever be a singular answer to the question posed this week. A more reasonable assessment might be that the Act itself will be beneficial as it is, weaknesses and all, in times of certain danger and in more peaceful times, it will cause concern for its boundaries and ethical considerations. No American wants to believe that Big Brother has access to and is examining the most personal aspects of their law-abiding lives but in dangerous times and when war threatens they are more than likely to look the other way. Although Ben Franklin was talking about taxation, his quote, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” is still relevant today and outcome yet known.
References
Bill of Rights, December 15, 1791. Transcript. Retrieved from: http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Doyle, C. (2001). Terrorism: Section by Section Analysis of the USA PATRIOT Act. Congressional Research Service - The Library of Congress. December 10, 2001. Retrieved from: https://edge.apus.edu/access/content/group/security-and-global-studies-common/Intelligence%20Studies/INTL%20305/Week%202/CRS%20Patriot%20Act%20Analysis.pdf
Executive Order 12333—United States intelligence activities, December 4, 1981. Transcript. http://www.archives.gov/federal-register/codification/executive-order/12333.html.
Greenwald, G. (2013). NSA collecting phone records of millions of Verizon customers daily. The Guardian. June 6, 2013. Retrieved from: https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order
NSA Records. 2013. Verizon Telephone Data Court Order. The Guardian. June 6, 2013. Retrieved from: https://www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-order
Oshana, M. (2006) Personal Autonomy in Society. NY: Ashgate Publishing. September 6, 2006.
Public Law 107-56; The Patriot Act of 2001 (107th Congress, 2001), 115 STAT. 279. 2011. Retrieved from: https://www.documentcloud.org/documents/714346-patriot-act-plaw-107publ56#document/p17
Tice, R. 2013. Russel Tice statement on NSA surveillance to Congress. C-Span.org. June 18, 2013. Retrieved from: https://www.c-span.org/video/?c4456335/russel-tice-statement-nsa-surveillance
WEEK 3 Title V of the IRTPA deals with Border Security. What changes were made? Are these changes being implemented effectively? Are our borders secure?
Title V of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 follows the recommendations of the 9/11 Commission dealing with border protection, immigration, and visa matters. It tests advanced technology including sensors, video and unmanned aerial vehicles to secure northern border; requires DHS to devise plans for systemic surveillance of the southwest border by remotely piloted aircraft; increases the number of full-time border patrol agents by 2,000 per year for five years; increases the number of full-time Immigration and Customs Enforcement Investigators by 8oo per year for five years; increases the number of detention beds available to DHS for immigration detentions and removal by 8.000 per year for five years. It also strengthens visa application requirements; criminalizes alien smuggling; makes receipt of military type training from designated terrorist organizations a deportable offense; mandates GAO study on potential weaknesses in US asylum system. Finally, IRTPA makes inadmissable and deportable any alien who commits acts of torture, extrajudicial killing or atrocities abroad; and establishes the DOJ Office of Special Investigations. (United States Department of Justice, 2004).
The first question regarding Title V provisions must be “are the northern and southern borders secure?” Today, the border between the United States and Mexico is currently more secure and protected than at any time in history. Every border security standard outlined in Congressional legislation since 2006 has already been met and in many cases exceeded (United States Department of Homeland Security, 2016). Annual federal spending on the border has nearly quadrupled in the last 15 years, from $1.1 billion in 2001 to nearly $4 billion today and, in that time, Congress has also authorized an additional $1.5 billion to increase security at border checkpoints (Caldwell and Hamilton, 2016). Under the 1033 Program, which allows transfer of military equipment from the Pentagon to law enforcement and DHS agencies along the border, records show the Obama administration provided DHS at least “300,000 items from the program since 2009, although the actual number is almost certainly much higher” (Fox and Cook, 2014). While most Americans are aware of the problems at the southern border, the northern border is even more unprotected and most people do not realize the northern border, 4,000 miles long with 32 miles under control, is even more unprotected. (Mora, 2011, 1).
The enactment of IRTPA, including Titles V and VI, provided the FBI with the necessary tools to enhance intelligence capabilities with state and local law enforcement. The FBI has expanded its efforts to share intelligence and analysis with state, local, and tribal entities on Law Enforcement Online. The FBI also produces joint bulletins with the Department of Homeland Security for law enforcement partners on threat issues. Fusion Centers have become frontline centers to develop and share local information. With an initial shaky start, and some setbacks in the early phases, fusion centers are becoming more effective in developing and sharing border and other intelligence vulnerabilities.
As with everything that flows from the halls of Congress or the purses of politicians, these reformations seem promising, and some have even proceeded beyond the early stages of ironing out unexpected complications. For the most part, however, the verdict is not in yet, and a lot can still go wrong along the way. Agencies will always put the best face forward on their reforms and successes but until a trial by fire arises, and theories and probabilities on paper prove worthy, it is impossible to know what will emerge in the wake of a true crucible when the stakes are excruciatingly high.
References
Caldwell, L. (2017). “The U.S. Already Spends Billions on Border Security,” NBC News, August 31, 2016. Retrieved from: http://www.nbcnews.com/politics/2016-election/trump-s-wall-would-add-billions-u-s-spends-border-n640251.
Cardillo, R. (2010). Intelligence Community Reform
A Cultural Evolution. 2010. CIA Library Center. 2010. Retrieved from: https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/vol.-54-no.-3/pdfs/Extract-Cardillo%20IC%20Reform-Cultural%20Evolution.pdf
Congressional Resource Summary. (2004). Intelligence Reform and Terrorism
Prevention Act of 2004. Rretrieved from: https://edge.apus.edu/access/content/group/security-and-global-studies-common/Intelligence%20Studies/INTL%20305/Week%203/CRS%20Analysis%20Intelligence%20Reform%20and%20Terrorism%20Prevention%20Act%20of%202004.pdf
Department of Homeland Security, Customs and Border Protection, Border Patrol, “United States Border Patrol Sector Profile . Fiscal Year 2016.” Retrieved from: https://www.cbp.gov/sites/default/files/assets/documents/2017-Jan/USBP%20Stats%20FY2016%20sector%20profile.pdf.
Fox & Cook. (2014). Border War: Pentagon Program Sends Military Gear South. US News and World Report. Sept. 17, 2014. Retrieved from: https://www.usnews.com/news/articles/2014/09/17/pentagon-1033-program-sends-surplus-military-gear-to-us-borders
Johanson, David. (2013). THE LONG AND WINDING ROAD: POST-9/11
INTELLIGENCE REFORMS A DECADE LATER. The NPS Institutional Archive. March, 2013. Retrieved from: https://calhoun.nps.edu/bitstream/handle/10945/32841/13Mar_Johanson_David.pdf?sequence=1
WEEK 4 Congress has to reauthorize FISA periodically. What were the recent changes/actions on the Foreign Intelligence Surveillance Act?
It was difficult for me to decide on a way to present my information this week. I decided finally to include what I considered the most important and far-reaching changes to the 2017 Reauthorization Act which exceeded the recommend line limit.
Sec. 101. Querying Procedures Required. The AG and DNI must adopt procedures “consistent with the requirements of the fourth amendment” for querying information collected pursuant to Section 702 authority.
Sec. 102. Use and Disclosure Provisions. Restricts the use of U.S. person information obtained under Section 702 as evidence in a criminal proceeding; codifies Justice Department guidelines concerning the use of collected information in criminal proceedings.
Section 102 (B) Amends the mandatory reporting requirements to require the release of information on the breakdown of U.S. and non-U.S. person targets of electronic surveillance.
Section 103. If the AG and DNI recommence the “Abouts” communications, they must inform Congress by written notice thirty days prior to restarting the program.
Section 105. Section 304. If the AG attorney general authorizes “the emergency employment of electronic surveillance or a physical search pursuant to section 105 or 304,” Sections 105 and 304 require an application to be submitted to a judge no later than seven days following an emergency authorization.
Sec. 110. Whistleblower Protections for Contractors of the Intelligence Community. Extends whistleblower protections against reprisals to contractor employees in the intelligence community and of the FBI.
Section 201: Use and Disclosure Provisions. The FISC must review querying procedures adopted by the AG and applications for court orders submitted by FBI to access the contents of certain information acquired under section 1881a of title 50, United States Code.
Section 203: Congressional Review and Oversight of Abouts Collection. Required the FISC to appoint an amicus curiae (friend of the court) when it reviews the first certification, or amendment thereto, submitted by the federal government to conduct certain surveillance activities as specified in the bill.
Section 702 pre-Amendments. Allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats." 702 does not allow the government to target the communications of any American, even if that American is a terrorist. The ODNI reports the use of 702, which "cannot be used to intentionally target any US citizen, or any other US person, or to intentionally target any person known to be in the United States." Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information from a person inside the United States.
Amendments:
(Section 702) A new procedure for targeting non-U.S. persons abroad without individualized court orders;
(Sections 703) Provides new procedures for domestic electronic surveillance targeted at U.S. persons who are abroad; and
(Section 704) Provides procedures for other surveillance that is targeted at U.S. persons who are abroad.
Kohse, Emma. "Summary: The FISA Amendments Reauthorization Act of 2017." Lawfare. January 22, 2018. Retrieved from: https://www.lawfareblog.com/summary-fisa-amendments-reauthorization-act-2017.
Week 5 Drawing from the Just War concept give examples of when human source intelligence, counterintelligence, or covert operations pass the moral divide and violate the Just War doctrine.
It would be difficult to isolate a society or period in history where the reality of war did not at some point prevail. War inevitably yields situations where traditional normal ethics are not easily applied, or even given lip service. The Just War tradition has its roots in Christian thinking and has evolved over centuries as a careful, shared endeavour to impose moral discipline and humanity on acts of war. "The tradition sets rational limits and respects the adversary's humanity amid the chaos of war, and provides systematic questions which governments and armed forces must ask themselves before they engage in war" (Guthrie, Quinlan 2010). Briefly, the Just War concept includes: War as a last resort only waged by a legitimate authority to redress major wrongs, and fought only with strong possibilities of success. Wars must bring about peace with proportional violence to injury by weapons' capacities that distinguish combatants and non (Week 5, n.d.).
The moral issues surrounding war in the Just War theory fall into two main categories: Jus ad bellum, which concerns the justification for war in the first place, typically addressed to heads of state. Jus in bello is justice in war, referring to correct conduct in battle once the decision to go to war has been made, usually the concern of combatants, generals and soldiers (Emba, 2015). There are times when states knowingly allow intelligence operations that are deemed to be immoral to be carried out in the international politics arena. As the stakes of the operation organically and unexpectedly increase, and the possibibility of loss equally increases, the "morally" allowed harms of the operation increase as well - if only in the eyes of the intel agents (Arrigo, 2000). Examples of this can be drawn from a variety of actions of individual agents or organizations in the past, and interrogation and torture cases witnessed during the Iraq War.
During the Cold War, fearing correctly that the Soviet Union had a large bioweapons program, "CIA technicians developed drugs and stockpiled bacteriological toxins that could immobilize an individual for hours, days or months, or kill him in a manner that could not be ascertained by autopsy" (Perry, 1995). The top-secret program, which was ended by President Nixon in 1969, was designed to destroy enemy troops with such exotic weapons as botulism, smallpox, plague and paralytic shellfish poison (Shane, 2001). In 2001, the Pentagon drew up plans to engineer genetically a potentially more potent variant of the bacterium that causes anthrax, a deadly disease ideal for germ warfare. The plan was started in the Clinton Administration (Miller 2001).
It is still an ongoing controversy, but it is generally believed that numerous Iraqi prisoners of war had been mistreated by the Coalition force during human source intelligence operations that included interrogations that consisted of "immoral" torture tactics. Even though public officials and their public policies forbid mistreatment of prisoners of war, much of what really happens is often decided by individuals in the field. In the case of the Iraq War, the moral divide perceived by intelligence agents on the ground differed from that of the government officials due to the urgency of operations affecting forces on the ground in their most hellish moments.
Arrigo argues that, during times of conflict, "the degree of morally tolerable harm rises without bound as the stakes increase towards total loss" (2000). The recent past provides ample evidence that leaders in leather chairs are not always the best choice to write the rules of war for warriors actually in the fight. Any practicum or theory of war produced by chalkboard or pen in neat stacks of paper is lacking the authority to decide what is moral millions of miles away in the war with evil.
Arrigo, Jean Maria. (2000). “Military and Civilian Perspectives in the Ethics of Intelligence: Report on a Workshop at the Department of Philosophy, Claremont Graduate University.” Claremont Graduate University (September 2000): 1-15. APUS.
Canon, David. (1980). "Intelligence and Ethics: The Cia's Covert Operations." Journal of Libertarian Studies 4, No.2 (1980): 197-214.
Emba, C. (2015). Just War Theory: A primer. Washington Post, November 30, 2015. Retrieved from: https://www.washingtonpost.com/news/in-theory/wp/2015/11/30/just-war-theory-a-primer/?utm_term=.14fa72f38c34
Guthrie, C and Quinlan, M. (2007). Just War: The Just War Tradition: Ethics in Modern Warfare New York: Walker Publishing Company. (November 13, 2007).
Week 5. "Perspectives on Ethics.” INTL305. n.d. APUS.
Miller, J. (2001). U.S. Germ Warfare Research Pushes Treaty Limits. New York Times, September 4, 2001.
Perry, David L. 1995. "Repugnant Philosophy": Ethics, Espionage, and Covert Action. Journal of Conflict Studies. Spring 1995.
WEEK 6 The Executive Branch and NSA have recently been under fire for collecting phone and email records on hundreds of millions of Americans - sans terrorist activity or probable cause or warrants/subpoenas. Do you believe this activity to be ethical/unethical? Should the government be doing this? Does this violate the Patriot Act or FISA or the Fourth Amendment?
There was one phrase that jumped out at me during this week's readings and that was Pekel's descriptive "arrogance of certainty" (1998). There was a second, equally powerful statement from Bamford: "I would submit once the door is open for the government to spy on US citizens, there are often great temptations to abuse that power for political purposes" (2012). I believe positioning these two thoughts side-by-side accounts for a large percentage of the abuses and illegalities committed by the CIA/NSA. The Fourth Amendment to the U.S. Constitution guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (Government Publishing Office n.d.), and it is that Amendment which has been, and probably will continue to be, debated when it comes to the rights of Americans pushed up against the growing expanse of government surveillance fueled by new technologies and geometric multiples of opportunities to collect data on Americans. The Fourth Amendment does not protect citizens from all types of searches, only those categorized as unreasonable under the law. In this context, the NSA and Executive Branch are charged to evaluate the basis on which the searches are established.
The Patriot Act made valuable improvements in our intelligence laws, but its true purpose was to update the outmoded law enforcement approach to national security that prevailed before 9/11. The Patriot Act does not create or regulate war power itself. The Act instead assumes that the government already has enough information to believe that a target is the “agent of a foreign power” before it even asks for a warrant (USA PATRIOT ACT, 2001). Bulk collection of citizens' phone data under section 215 of the Patriot Act has caused the greatest controversy following revelations of the NSA acquiring bulk collections of phone data from cooperating communications giants. On 24 July 2013, 205 members of the House of Representatives voted in favor of the Amash-Conyers amendment to end the indiscriminate collection of telephone records" (Staff, Guardian 2014). FISA, on the other hand, operates from the assumption that easily identifiable foreign intelligence agents work for hostile nation-states. On October 26, 2017, a FISC court order revealed NSA routinely violated American privacy protections while scouring overseas intercepts. The FISA court explained that upstream collection involves the interception of communications “as they transit the facilities of Internet backbone carriers whose routes are hosted by government, academic, commercial, and similar high-capacity network centers which facilitate the global exchange of Internet traffic" (MCarthy 2017). The illegal surveillance involved more than 5% of NSA databases derived upstream.
The NSA routinely intercepted communications of Americans in violation of the Constitution. The most current example may be the one of the most egregious and, if not, its present-day timeline permits clearer context and understanding of the abuses. During the Obama years, the NSA routinely reviewed communications of Americans in violation of the Constitution and court-ordered guidelines. "For years, U.S. intelligence agencies have not just sought any communications to or from their (foreign) target; they have also sought any communications about the target when the target was simply referred to" (McCarthy 2017). As a result, communications of Americans inside the United States are far more likely to be accessed without warrant or probable cause, with no direct communication with an intelligence target, and when the Americans' communications are likely of no foreign intelligence importance. "NSA analysts used U.S.-person identifiers to query the result of Internet upstream collection, even though NSA's section 702 minimization procedures prohibited such queries...this disclosure gave the Court "substantial concern" (Durden 2017).
Regarding the question of ethics in and throughout these actions and organizations, I don't think there is a workable answer. Today's headlines are filled with stories of the seemingly ongoing abuses of the Mueller investigation, fetching beyond its limits, acting without real accountability, and turning the Constitution inside out when it comes to the privacy protections of US citizens, even if they belong to the opposition party. It is political power run amuck and it has been predicted and warned about for years. Yet, it is happening before our eyes and is fueled by the elites' "arrogance of certainty" that they know what is best for the country, and a small matter like the US Constitution should not be allowed to stand in the way of their passing through the open door spoken of by Bramford.
Bamford, J. (2012). The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say). Wired. March 15, 2012. Retrieved from: https://www.wired.com/2012/03/ff_nsadatacenter/all/1/
Durden, FISA Court Finds "Serious Fourth Amendment Issue" In Obama's "Widespread" Illegal Searches Of American Citizens. Zero Hedge. May 24, 2017. Retrieved from: https://www.zerohedge.com/news/2017-05-24/fisa-court-finds-very-serious-fourth-amendment-issue-obamas-widespread-illegal-searc
McCarthy, A. (2017). Explosive Revelation of Obama Administration Illegal Surveillance of Americans. National Review. May 25, 2017. Retrieved from: https://www.nationalreview.com/2017/05/nsa-illegal-surveillance-americans-obama-administration-abuse-fisa-court-response/
Pekel, K. (1998). Integrity, Ethics, and the CIA. The Need for Improvement. CIA Library, Spring 1998. Retrieved from: https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/spring98/Integrity.html
Staff, The Guardian. (2014). 'This overreach is unacceptable': the case against NSA bulk collection. The Guardian. January 23, 2014. Retrieved from: https://www.theguardian.com/world/2014/jan/23/nsa-bulk-collection-chorus-surveillance-under-patriot-act
WEEK 7 The ethical dilemma – conducting illegal activities in order to penetrate a target for the purpose of accomplishing the mission. What issues are at play in the McLaughlin article? In complying with the request, would the agent cross the moral divide?
The most important thing about the McLaughlin article is the time frame in which it was written. Many of the issues at play in McLaughlin's piece were in a state of maximum flux, far from the point where they eventually settled or as we see them today. The methods, protocols, technology, and agencies we rely on today are far different than the ones available and operational directly following 9/11. It doesn't seem like a question particularly grounded in the reality of war - the "dilemma" of whether or not to conduct illegal activities in order to penetrate a target during a mission. The risks, losses, behaviors, principles and tactics would have all been thrashed out well before the decision or when the actual infiltration was at hand. At that point, the question would have answered itself.
I would like like to believe that at the level of decision-making and priority setting, the factors impacting ethical dimensions are thoroughly weighed and reasonable. The act of agent infiltration into a terrorist group, and carrying out an assassination are two very different matters, and there are different models governing each. Still, I think a case can be made for killing a high-level target if it has been established concretely the act will save a large number of lives, whether by rendered intelligence or readjustment of the current ruling order.
The drone attacks so prolific during the Obama administration were specifically targeted, often giving rise to collateral damage. It is hard to justify such warfare as outside the realm of assassination, yet the ethical divide has never been clearly or publicly established in government quarters and beyond. Drone attacks do reduce the cost of counterinsurgency operations and protect the government from criticism at home. However, there are big risks associated with overriding international norms and law.
By declaring drone attacks as "war overseas" in the territories of states that the United States is not in combat with, the lines remain blurred ethically and morally. Washington claims to operate under the lex specialis of warfare where specific laws (concerning drone targets) are given precedence over general laws concerning war at large (with traditional enemies). "Creating a situation in between combat and noncombat, drone attacks defile such international norms and risk conceiving an international world order that is in a state of perpetual indefinite war with eliminated domestic costs" (Ozergin, 2017) qualifies as an important ethical dilemma the IC as a whole must continue to grapple with.
Mclaughlin, Abraham. 2001. A matter of ethics for cloak-and-dagger set. The Christian Science Monitor. 5 Oct 2001. Retrieved from: https://edge.apus.edu/access/content/group/security-and-global-studies-common/Intelligence%20Studies/INTL%20305/Week%207/Ethics%20for%20Cloak-and-Dagger%20Set.pdf
Ozgercin, P. 2017. Collateral Damage: Drone Strikes in International Law and Warfare Ethics. The Market Mogul. July 17, 2017. Retrieved from: https://themarketmogul.com/drone-strikes-warfare-ethics/
Week 8 Sometimes what is legal is not ethical. And sometimes what is not legal seems like the ethical choice. How do we reconcile these contradictions? Which action should we take when faced with such contradictions?
The line between war and espionage is getting fuzzier all the time. War is traditionally seen as armed and physical conflict, but because so many of our assets are now digital or information based, the conflict between ethics and legality is beginning to take on further dimensions than in the past. The ambiguity increases and the arguments for and against are more controversial and contain more considerations than ever. Nolte talks about the inherent difficulty to conduct ethical action in an ethical framework inside an environment that requires and relies on unethical and/or illegal behavior. He reverts to reliance on the traditional definitions of Just War as they apply to the "first generation of leaders to confront the reality that any armed conflict could escalate to nuclear war" (Nolte, 2009).
Thomas Jefferson himself weighed in on the pursuit of purely legal activity in pursuit of national security: "Strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means" (1830). Tactical opportunities are not an end to themselves and do not justify means. At the same time, Just War permits the relaxation of certain constraints for survival or defense of innocent others and, for the most part, partnering nations and societies justify these kinds of generalized responses in the face of threatening or warlike conditions.
I think the question boils down to is the IC, along with its agents of every kind, doing honorable things in secret, or doing dishonorable things for honorable reasons? And although it betrays some serious cynicism on my part, I don't think that legal/ethical considerations often enter into development of or carrying out most intelligence activities. I offer that knowing every public utterance on the subject by IC leaders and others throughout the government in charge is that ethics and legality are among their top concerns. The answer is not in drawing scenarios, which can derive from millions of different examples, but understanding what an extraordinary upheaval war of any kind or strength is to the human existence and the meager means we have to contain or ethically and legally manage it.
Intelligence work is accomplished by intrusion and deceit. It is invasion of national and individual privacy and the spreading of someone else's secrets to those that shouldn't have them. It is by its definition immoral. We only succeed as a nation when we realize that there are sometimes no "right" answers, but only "less wrong" ones.
Nolte, William M. "Ethics and Intelligence." Military Force and Ethics (Joint Forces Quarterly, Issue 54), no. 54 (2009): 22-29.
Snow, B and Brooks, C. 2009. Privacy and Security: An Ethics Code For U.S. Intelligence Officers. Communications of the ACM, Vol. 52 No. 8, Pages 30-32. August, 2009. Retrieved from: https://www.schneier.com/blog/archives/2009/08/an_ethical_code.html
