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WHY ETHICS EMERGES IN TRANSFORMING INTELLIGENCE



Intelligence services in Serbia are undergoing a profound soul-searching process in all of their facets, both as traditional military intelligence (counter-espionage), state-security centred intelligence (the Security-Intelligence Agency, the local acronym of which is BIA), military security intelligence (VBA), or the numerous criminal intelligence units established over the past years within the police service. Traditionally, intelligence was the exclusive prerogative of specialized intelligence services in Serbia; crimes could only be investigated with the help of such services if intelligence methodology was to be used. As of the latest reforms of the police service, the intelligence-led model of policing, championed by the UK and some other European countries, has started to become gradually adopted in the Serbian police force. While intelligence-led policing, unlike the traditional model of policing, is pro-active rather than reactive, and is thus more preventative than aimed at security legally admissible material for a conviction, its more interesting aspects involve the peculiar ways in which the traditional military intelligence methodology is being adopted by the police, and how such methodologies are cast in a new ethical light when applied to own citizens and in a criminal justice context. Such a different context in the use of intelligence often takes both sides of the “use of force” community aback: military intelligence professionals often simply do not understand that there is any ethical dilemma with regard to the use of their methods, because they are accustomed to applying such methods with a view of the national interest and within strictly hierarchical military structures that leave relatively little room for individual discretion. The police, on the other hand, have problems seeing the role ethics plays in addition to the law: their traditional way of thinking is based on the law, and thus everything that is legal appears automatically admissible. The fact that the use of authority, and especially the use of intelligence methods and the information gained through intelligence, at the upper ebb of the legal authorization without regard to the operational justification is unethical often escapes the strictly legalistic thinking. The common response to critique that is based on the claim: “But we acted fully in line with the law” is thus justifiably met with a startling, yet at least reasonable, response by the ethicist: “So what?”. In short, the fact that one can act legally, and yet immorally, and conversely, that one can act equally legally and also morally, tends to escape the legalistic frame of reference.

The truth in the use of intelligence for law-enforcement purposes is that intelligence methods (such as electronic or signals intelligence, for example) do not meet with particular moral dilemmas when they are applied by the military in an international context, because the military use of classic intelligence is not based on assumptions that any of the parties involved are guilty of anything or that the intelligence is to be used for proving anybody’s guilt or for establishing grounds for punishment. Military use of classic intelligence is simply aimed at gathering crucial information to project strategy and the moral justification of the use of intelligence techniques simply does not arise in many situations. This is not to say that it does not arise in any situations: whenever individual people are involved, such as in the recruitment of agents, their fate and motives for taking risks invite ethical considerations. However, the array of contexts where ethics comes into play in classic intelligence tends to be less controversial and more sparse than that peculiar to criminal intelligence.

The key difference between classic and criminal intelligence is perhaps their legal characterization: in many cases, perhaps most, classic intelligence tends to be illegal, especially when it is conducted abroad. This is why intelligence operatives tend to use diplomatic missions as staging posts abroad, so that they can be at least partially protected from criminal prosecution by diplomatic immunity. This does not always work, but it is the most widespread way in which states tend to reduce the risk to their intelligence staff in other countries. The fact that legality is usually not the issue means also that criteria of efficiency, including both efficacy in attaining the ends and the comparably low level of risk, tend to be dominant as opposed to ethical considerations. If one is allowed to break the law, then one is also allowed to break the usual ethical standards when relating to the population or officials of other states that one treats as a potential source of risk to one’s own state. At least this is the typical situation for intelligence operatives active abroad.

Criminal intelligence, while using many of the same techniques as classic intelligence (in fact intelligence as such was first developed as classic intelligence and by the military structures, only to be transferred into the criminal justice domain primarily as a new tool to respond to the threats of organized crime and terrorism), is fundamentally different in context, as it relates primarily to own citizens, is directed within the country, and must strictly conform to the law. Information obtained by criminal intelligence, while undoubtedly serving preventative purposes, especially in cases of preventing terrorist attacks, is also expected, whenever possible, to be used in judicial proceedings and thus must be admissible in court, which means that it must have been obtained entirely legally. Once the framework of legality is firmly established, it implies sets of rights that arise from the constitutional order, and thus also entails an ethical realm that can only convey meaning to the law itself. If criminal intelligence must be legal, it must, in a sense, also be ethically justifiable, because legality itself makes sense only if it is based on a particular concept of community ethics.

The ethics of intelligence is partly similar to the ethics of any societal repression over the individual: in order for such repression to be justified, it must be rationally acceptable for a democratic citizen, and this means that it must somehow be seen as being in their own interest in principle. The justification along the described lines is fairly straightforward, and is based on the familiar pattern of justifying rules: in order to maximize the possibilities for everyone to enjoy their freedoms and satisfaction in a community, the way individuals may pursue their interests is regulated by rules. Those who follow the rules automatically allow a maximum number of others to satisfy their interests, as well. Those who break the rules tend to deprive a number of others from pursuing their interests, and thus, automatically forfeit a degree of rights and legitimate expectations of deference by others: they are then the legitimate subject of repression, where they themselves, as rational subjects, cannot in principle object to the repression. While it may be unpleasant for me to be penalized for a traffic violation, I cannot rationally object to this in principle because, while in this particular case it was my driving that potentially endangered others, this could have been someone else who endangered me or my loved ones, and in such a case I would certainly consider it in my interest as a citizen that the violator be penalized. Thus the democratic concept of justification of repression is based on the familiar idea of “universalisation” of norms, that dates back at least to Immanuel Kant and one of the famous four formulations of his “categorical imperative”: “always act so that the maxim of your action can become a universal principle”, or always act so that you might desire others to act in the same way as long as their actions might impact on you.

The described ethics of intelligence clearly sets criminal intelligence apart from classic intelligence. While classic intelligence is always based on a desire to secure a critical advantage over the potential adversary, and thus does not invite reciprocal considerations as to what is moral and what is not moral in the described sense, criminal intelligence requires that the operative always considers the justifiability of one’s actions with a view of the quoted deontological principle: is the measure one plans to take really necessary, and would it pass the test of universalisation, or would the operative herself be able to wish the measure to be taken against her if she were a rational observer. This is tough thinking that requires far more than the traditional legalistic frame of reference demands.

Aleksandar Fatić