Introduction & Notes

I am taking a second master's, this time in Intelligence Studies. I am sharing the work I do there here, and at the blog for my first masters, Grad School Fool. You'll note there is little discussion of the Deep State in these posts. Although I did my final paper for the class regarding the Deep State (or public perception thereof), for most of these discussions, I stuck to the "school" perspective, i.e, I didn't want spend all my time arguing a known fact with people who had a vested interest in a corrupt status quo. I did, however, demonstrate to the professor that there was sufficient theoretical grounds for the existence of such a conspiracy (Bageshot & Olson, to begin with...but that's a post for another day ;>). That was enough for me to proceed ;>

The question

Image Source - Wikimedia Commons

Within the national Intelligence Community what are the primary legal restrictions to comprehensive integration? For example, can federal law enforcement share criminal information with the DoD? Use outside sources in developing your response. Additionally, what ethical concerns confront an analyst in the modern joint/inter-agency era.

---

Post

Legality and morality are two completely different animals, but intelligence professionals need to understand how to operate within the reach of each animal. Mission overrides all other considerations, and the mission of the IC is to defend the Constitution, which itself is meant to defend the citizen of the United States. All IC members swear the oath (“5 U.S. Code § 3331—Oath of office,” 1966.)

The Principles of Professional Ethics for the Intelligence Community (2017) state this quite clearly as the first principle: “mission requires selfless dedication to the security of our Nation.”

While these are different animals, I will assume that law flows from ethics. I will focus on ethics, then, and be brief in discussing law (with the understanding that both must be taken into account in intelligence operations). With the Constitution as a legal foundation, there are a plethora of laws and Executive orders that determine the legal boundaries of the IC, beginning with the National Security Act of 1947 (I will post an incomplete timeline of the evolution, or possibly devolution, of these legal definitions as a separate comment).

There are two major divisions in the way that ethics are approached, the Kantian (or deontological) mode and the utilitarian mode. Gross (2010) and Bellaby (2012) lay out the Kantian mode, which takes a universalist approach to how ethics are viewed; in which all actions are judged by a common standard. Kaplan (2002), on the other hand, presents an argument that national defense ethics should be based on the defense of the nation, a fully utilitarian point of view. Kaplan also notes that law is downstream of ethics, and makes the point that “Americans can afford optimism partly because their institutions, including the Constitution, were conceived by men who thought tragically.”

Michael Herman, in Andregg’s 2007 collection on intelligence ethics, asks, “How does collection for purposes of 'national interest', considerably broader than security, rank among the moral hierarchy of causes? Does promoting national economic well-being warrant methods that might be justified by considerations of national security?” This is hard to answer on deontological grounds, and easy to answer on utilitarian grounds.

Seeking to layer on absolutist morals on a dirty and necessary job leads to confusion. Let’s go back to the Principles of Professional Ethics for the Intelligence Community and look at some self-contradictory ideas. Remember, “mission requires selfless dedication to the security of our Nation” yet “all our actions, whether public or not, should reflect positively on the Intelligence Community at large” leads to institution protection CYA behavior like the redaction of extravagant expenses like a $70,000 table from corruption hearings (Chapman, 2018). Don’t get me started on “Diversity” for it’s own sake; if we need a Mandarin speaker, we go get a mandarin speaker...keeping a Mandarin speaker hanging around for no other reason than “Diversity” is counter-productive, and a waste of limited taxpayer resources.

Too many contradictory goals leads to confusion.

“We support and defend the Constitution, and comply with the laws of the United States, ensuring that we carry out our mission in a manner that respects privacy, civil liberties, and human rights obligations” should end at “defend the Constitution”. Where the Constitution defines privacy and rights of American citizens is the final determination; USC may be followed as a guide unless it contradicts the Constitution.

In other words, the intelligence professional needs to primarily concern himself with protecting Americans. Do what needs to be done to defend the Constitution in selfless dedication, and let the judges make their decisions afterwards.

REFERENCES:
5 U.S. Code § 3331—Oath of office. (n.d.). Retrieved November 12, 2019, from LII / Legal Information Institute website: https://www.law.cornell.edu/uscode/text/5/3331

Andregg, M. (Ed.). (2007). Intelligence ethics: The definitive work of 2007. St. Paul, Minn.: Center for the Study of Intelligence and Wisdom : Ground Zero Minnesota.

Bellaby, R. (2012). What’s the Harm? The Ethics of Intelligence Collection. Intelligence and National Security, 27(1), 93–117. https://doi.org/10.1080/02684527.2012.621600

Chapman, M. (2018, May 29). FBI Redacted Cost of McCabe’s Office Conference Table: $70,000. Retrieved November 14, 2019, from CNSNews.com website: https://www.cnsnews.com/news/article/michael-w-chapman/fbi-redacted-cost-mccabes-office-conference-table-70000

Gross, M. L. (2010). Moral dilemmas of modern war: Torture, assassination, and blackmail in an age of asymmetric conflict. Cambridge ; New York: Cambridge University Press.

Kaplan, R. D. (2002). Warrior politics: Why leadership demands a pagan ethos (1st ed). New York: Random House.

Principles of Professional Ethics for the Intelligence Community. (2017). Retrieved November 14, 2019, from https://www.dni.gov/index.php/who-we-are/organizations/clpt/clpt-features/1789-principles-of-professional-ethics-for-the-intelligence-community

---

Discussion

You took the bull by the horns. Law is derived from ethics, so ethics must be understood to make good law. Placing your discussion on a continuum of idealism to reality highlights problems with absolutist moral values.
And intelligence is a field where these problems stand out the greatest. Especially when we try to apply universal moral values across different interest/cultural groups. Some cultures value lying to out group members.

Al-Taqiyya fi’l Islam, written by Professor Sami Mukaram.Taqiyya [“religious dissimulation”] is of fundamental importance in Islam. Practically every Islamic sect agrees to it and practices it . . . We can go so far as to say that the practice of taqiyya is mainstream in Islam, and that those few sects not practicing it diverge from the mainstream . . . Taqiyya is very prevalent in Islamic politics, especially in the modern era (Ibrahim, 2009)
So applying a universal approach to morals is certainly not on the reality end of the spectrum.

REFERENCES:
Ibrahim, R. (2009). Taqiyya: War and Deceit in Islam. In E. D. Patterson & J. Gallagher (Eds.), Debating the War of Ideas (pp. 67–81). https://doi.org/10.1057/9780230101982_5

…

“In the world of intelligence it is a necessity to partake in unethical practices in order to protect a nation and the people within in it”
Coyne makes a good point, and it highlights the difference between deotological ethics (the ethics of intent) versus utilitarian ethics (the ethics of results). Under deotological (Kantian) ethics, moral values are universal and absolute. Under utilitarian ethics (Jeremy Bentham), moral value is determined by actions which bring the greatest utility to the greatest amount of people (which is gross oversimplification, but works as a summary); utilitarian ethics ethics can be applied locally (i.e, putting the interests of American citizens over non-citizens).
You bring up a good test for these morals with the "concern of whether information sharing violates people’s civil liberties." let's extend that to privacy versus security with mass surveillance; Kantian ethics forces you to make a absolute moral choice...which is better, spying on everyone for security is always good or always bad, and privacy is either valued or it is not. Utilitarian ethics allows for spying directly on those presenting a threat to the American people as a moral option.
…

Coyne, John, Dr. Peter Bell and Shannon Merrington. 2013. "Exploring Ethics in Intelligence and the Role of Leadership." International Journal of Business and Commerce 2, no. 10: 29-32. Accessed November 11, 2019: http://www.ijbcnet.com/2-10/IJBC-13-2905.pdf