Saturday, July 4, 2015

Seminar 3 Position Statement: Prof. Mark Phythian, Politics & International Relations, Univ. of Leicester

1.    It has long been an accepted principle that, as CIA analyst Ray Cline once put it: “There is no way to be on top of intelligence problems unless you collect much more extensively than any cost-accounting approach would justify…You might think you could do without most of what is collected; but in intelligence, in fact, as in ore-mining, there is no way to get at the nuggets without taking the whole ore-bearing compound.” (Cline 1976, quoted in Lathrop 2004, p.41.) The Snowden leaks detail how this principle has been applied in 21st century US intelligence collection, and expose the ethical tensions it can generate.
2.     The environment in which Ray Cline operated and the contemporary one are different in key respects. The contemporary intelligence environment is scarred by the experience of the 9/11 terrorist attacks; haunted by the belief that collecting more information would have resulted in better dot connection and prevention.
3.     While 9/11 provided the impetus to collect more, technological advances since then have made the goal of gathering all electronic communications seem feasible. Encouraged by a security industry with such close ties to the intelligence/security bureaucracy that they are not always easily distinguishable, it has emerged as a realistic aim.
4.     The Snowden leaks expose the extent to which this wide-ranging surveillance, while solely justified by reference to the potential terrorist threat, has had much broader targets; step forward Angela Merkel. The prevalence of diplomatic and economic espionage aimed at third countries and international organizations is a striking feature of the Snowden leaks.
5.     This points us towards the fact that the picture of global electronic communications collection provided by Snowden is not complete; it is extensive but one-dimensional. The complete picture would be more complex, featuring a wide range of actors engaging in a global electronic ‘great game’ - competing to collect information to the extent that their self-definitions of national security, alliance commitments and technological capabilities make necessary or feasible. Only snapshots of this wider picture emerge from the leaks; for example, that Israel is regarded as the third most aggressive intelligence service acting against the US and that France targets the US Department of Defense. Nevertheless, we should not lose sight of the existence of this broader ‘great game’.
6.     Public trust has been a notable casualty of the Snowden revelations – trust in technology providers, in intelligence providers, in government – and greater levels of resistance can be expected from providers and individuals in future (note the threat of encryption on the part of providers and the condemnation of this possibility by intelligence agency managers and the Intelligence and Security Committee).
7.     This, in turn, reflects the democratic deficit exposed by Snowden. There is a risk that aspects of intelligence are treated as a disfiguring birthmark on the democratic body politic, carefully concealed and never discussed. Yet, informed public debate is essential to democratic legitimacy here. This needs to consider what ‘security’ means and involves before it can consider the options for providing it and the price worth paying for it; in particular, whether attempted universal collection justifies the invasion of personal space that it involves. The conclusion of the President’s Review Group on Intelligence and Communications Technologies (2014) that, contrary to the view offered by the NSA, this global dragnet approach to collection “was not essential to preventing [terrorist] attacks” reinforces the need for public debate.
8.     The Intelligence and Security Committee (ISC) (2015) report represents a missed opportunity in terms of informing public debate. Some of its conclusions have already been undermined by the report from David Anderson (2015). The ISC has failed to recapture the trust it lost over issues relating to Iraq and the ‘war on terror’ and has little authority.
9.     Admiral Stansfield Turner (1985) once said that the ethics of intelligence rested on whether actions could be defended before the public if exposed. Reactions to the Snowden leaks suggest that mass electronic surveillance has failed the ‘Turner Test’. But the Snowden revelations also expose the limits of the ‘Turner Test’ itself. The practices revealed were linked to understandings of national security, but the targets were also international, and it is international as well as national public opinion that has been galvanized as a result, both at mass and elite levels. The decision of Germany’s federal prosecutor to open an investigation into the Merkel phone tapping is simply one of the most prominent expressions of this. In the 21st century, intelligence actions clearly need to be justifiable in normative terms beyond the water’s edge.
10.  In this regard, it has been suggested that principles of proportionality and last resort should and do provide an ethical guide for intelligence. However, the Snowden revelations suggest that these have been of only limited relevance, if any, with regard to electronic intelligence collection.
11.  In practice, notions of proportionality in relation to intelligence collection are likely to be misleading and heighten the trust problem. To understand why this is, return to my opening point.

Anderson, David QC, (2015) A Question of Trust: Report of theInvestigatory Powers Review (London, HMSO, June 2015).
Intelligence and Security Committee, (2015 Privacy andSecurity: A Modern and Transparent Legal Framework (HC 1075, London, HMSO, 12 March 2015).
Lathrop, Charles E.  (2004 ) The Literary Spy. New Haven, CT: Yale University Press.
Stansfield Turner ( 1985)  Secrecy and Democracy: The CIA in Transition (Boston, MA: Houghton Mifflin, p.178.
The President’s Review Group on Intelligence and Communications Technologies, The NSA Report: Liberty and Security in aChanging World (Princeton, NJ: Princeton University Press, 2014), p.57.

No comments:

Post a Comment