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Intelligence Collection Efforts and the Combatant/Noncombatant Distinction Permissions and Prohibitions on Information Gathering Major (USAF) Bill Casebeer.

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Presentation on theme: "Intelligence Collection Efforts and the Combatant/Noncombatant Distinction Permissions and Prohibitions on Information Gathering Major (USAF) Bill Casebeer."— Presentation transcript:

1 Intelligence Collection Efforts and the Combatant/Noncombatant Distinction Permissions and Prohibitions on Information Gathering Major (USAF) Bill Casebeer USAF Academy Department of Philosophy

2 Preview Introduction: Ethical issues in intelligence collection Introduction: Ethical issues in intelligence collection The Problem: Motivating the discussion The Problem: Motivating the discussion Setting Limits: Bounding the problem Setting Limits: Bounding the problem Approach: Methodology Approach: Methodology Theories: Approaches to combatancy Theories: Approaches to combatancy Reconciliation: Loosening the requirement Reconciliation: Loosening the requirement Futures: Resolution and suggestions for research Futures: Resolution and suggestions for research

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5 The Problem Collection may involve a rights violation Collection may involve a rights violation Compare open source vs. technical collectionCompare open source vs. technical collection Privacy…closely related to private property…possibly a foundational right (Locke)Privacy…closely related to private property…possibly a foundational right (Locke) Insidious—harm not immediately apparentInsidious—harm not immediately apparent “Worst” case: hard-line deontic view “Worst” case: hard-line deontic view No ordinal ranking of rights (perfect duties)No ordinal ranking of rights (perfect duties) Massive violations of respect for persons occurring daily…intelligence collection as a “universal rights solvent”Massive violations of respect for persons occurring daily…intelligence collection as a “universal rights solvent” Arguably just as important as moral issues associated with wartime non-intel action Arguably just as important as moral issues associated with wartime non-intel action Who deserves to be collected against? Who deserves to be collected against?

6 Setting Limits Bracket off wartime collection Bracket off wartime collection Assume relatively non-invasive collection effort Assume relatively non-invasive collection effort Assume international collection (avoid domestic surveillance issues) Assume international collection (avoid domestic surveillance issues) Assume away “public space” collection Assume away “public space” collection Ease consequential upshot (not discovered, no political fallout, etc.) Ease consequential upshot (not discovered, no political fallout, etc.) Work with the problematic as defined by the hardcore deontologist Work with the problematic as defined by the hardcore deontologist

7 Methodology “Easy way out”—rush straight to the metaphysical question (e.g., abandon Kant and embrace Mill or even a variant of act utilitarianism) “Easy way out”—rush straight to the metaphysical question (e.g., abandon Kant and embrace Mill or even a variant of act utilitarianism) Work with the deontologist: press on the issue of rights and duties…resolve the combatant/noncombatant issue while still working within a rights-based framework Work with the deontologist: press on the issue of rights and duties…resolve the combatant/noncombatant issue while still working within a rights-based framework If a proper theory of permissions exists within this framework, reasonable people who disagree can reach a practical shared modus vivendi If a proper theory of permissions exists within this framework, reasonable people who disagree can reach a practical shared modus vivendi

8 Issues of Dessert Who can justifiably be collected against? Who can justifiably be collected against? Those who deserve it Those who deserve it Those engaged in wrong-doing…the guiltyThose engaged in wrong-doing…the guilty Those who consent to be collected againstThose who consent to be collected against Revolves around a respect-for-persons frameworkRevolves around a respect-for-persons framework Obvious connection: combatant/non- combatant distinction Obvious connection: combatant/non- combatant distinction Clearest rights-based theory: Jeffrie G. Murphy (“Is Killing the Innocent Absolutely Immoral?”…in ’94 “Killing and Letting Die,” edited by Steibock and Norcross)…compare Richard Brandt Clearest rights-based theory: Jeffrie G. Murphy (“Is Killing the Innocent Absolutely Immoral?”…in ’94 “Killing and Letting Die,” edited by Steibock and Norcross)…compare Richard Brandt

9 Murphy’s Position Noncombatant/combatant distinction is a proxy for the innocent/guilty distinction Noncombatant/combatant distinction is a proxy for the innocent/guilty distinction Normally a legal notion given force by a moral intuition…no legal mechanics on the battlefield (but may be in collection)Normally a legal notion given force by a moral intuition…no legal mechanics on the battlefield (but may be in collection) The guilty: those who are part of both the logical and causal chain of agency required to do harm to another The guilty: those who are part of both the logical and causal chain of agency required to do harm to another

10 Murphy (Continued) Unpacking causal connection Unpacking causal connection Relatively straightforward notion: actions that contribute to or constitute ability to harm anotherRelatively straightforward notion: actions that contribute to or constitute ability to harm another Taxpayers…farmers…dual-use technologies…uniform manufacturers…pilot training bases…soldiers using weaponsTaxpayers…farmers…dual-use technologies…uniform manufacturers…pilot training bases…soldiers using weapons “Percentage” of contribution varies—easy cases and hard cases“Percentage” of contribution varies—easy cases and hard cases Conjunctive requirement: and logical chain Conjunctive requirement: and logical chain

11 Murphy (Continued) Logical chain of agency (Kantian colors) Logical chain of agency (Kantian colors) Certain actions reflect maleficent intention…by necessity (non-contingent connection) these actions involve forming the intention to harm others Certain actions reflect maleficent intention…by necessity (non-contingent connection) these actions involve forming the intention to harm others Tests: qua human vs. qua soldier needs Tests: qua human vs. qua soldier needs “Run the counterfactual” “Run the counterfactual” Heavy lifting…but epistemically inaccessible Heavy lifting…but epistemically inaccessible

12 Murphy (Continued) Reasonability clause Reasonability clause “…those whom it is reasonable to believe that…”“…those whom it is reasonable to believe that…” Notoriously slippery, but… Notoriously slippery, but… External signalsExternal signals Uniforms Uniforms Armament Armament Belligerent action Belligerent action Context counts… Context counts… Ideally: intention meter (but tantamount to pacifism) Ideally: intention meter (but tantamount to pacifism) All against a background of due care All against a background of due care Innocent until proven guilty…legal analogyInnocent until proven guilty…legal analogy

13 Cases

14 Applying the Machinery Much more difficult in the case of intelligence collection Much more difficult in the case of intelligence collection Issues: Issues: Ascertaining intention is problematicAscertaining intention is problematic Post hoc justification is standard practicePost hoc justification is standard practice Exact same physical action (save brain states, which are difficult to observe) driven by wildly different intentions…can happen in traditional combatancy determinations, but not as oftenExact same physical action (save brain states, which are difficult to observe) driven by wildly different intentions…can happen in traditional combatancy determinations, but not as often Range of actions to which the test applies is vast (context explodes)Range of actions to which the test applies is vast (context explodes) Examples… Examples…

15 Cases I love you too, Mom…can’t wait to visit with Dad…by the way, I got fired from work today… Yes, Vladimir, I procured the crack cocaine as you directed and will launder it with our front man Rhodes in Colorado Springs…

16 Cases

17 In the face of the problem… Options: Options: Double effect (but does not pass “bad effect cannot be the means to the good effect” prong)Double effect (but does not pass “bad effect cannot be the means to the good effect” prong) Embrace hard-line view…almost all collection is unjustified (reductio…but recall brackets)Embrace hard-line view…almost all collection is unjustified (reductio…but recall brackets) Rights hierarchy…abandon Kant (W. D. Ross) (not true to assumptions)Rights hierarchy…abandon Kant (W. D. Ross) (not true to assumptions) Argue for implicit consent/game playing (not plausible)Argue for implicit consent/game playing (not plausible) Admit that in the case of the non-consequentially injurious rights violations of the kind that occur in most dragnet intel collection, connection to the causal chain is all that is required (open the floodgates)Admit that in the case of the non-consequentially injurious rights violations of the kind that occur in most dragnet intel collection, connection to the causal chain is all that is required (open the floodgates) Abandon deontic view when stakes are high (Walzer on “Supreme Emergency”)Abandon deontic view when stakes are high (Walzer on “Supreme Emergency”) Leverage legal analogy (put in place mechanisms at planning level to check abuse)Leverage legal analogy (put in place mechanisms at planning level to check abuse) My favorite: some combination of the last two…true to much of the hard-line view without sacrificing too many considered moral intuitions My favorite: some combination of the last two…true to much of the hard-line view without sacrificing too many considered moral intuitions

18 For a review, see Casebeer (2004) “Intelligence Oversight” (in R. Carlisle, ed., Encyclopedia of Intelligence and Counterintelligence, M.E. Sharpe)

19 Summary Intelligence collection presents important moral issues, especially for the rights theorist… Intelligence collection presents important moral issues, especially for the rights theorist… Collection should generally occur only against those who deserve it, just as in the application of force… Collection should generally occur only against those who deserve it, just as in the application of force… But the traditional tests are difficult to apply… But the traditional tests are difficult to apply… Which means some intelligence collection operations should be conducted only when a legal proceeding has determined sufficient evidence exists to establish reasonable cause… Which means some intelligence collection operations should be conducted only when a legal proceeding has determined sufficient evidence exists to establish reasonable cause… Or not, if the heavens really are about to fall! Or not, if the heavens really are about to fall! Much remains to be done, though. Much remains to be done, though.

20 Review Introduction: Ethical issues in intelligence collection Introduction: Ethical issues in intelligence collection The Problem: Motivating the discussion The Problem: Motivating the discussion Setting Limits: Bounding the problem Setting Limits: Bounding the problem Approach: Methodology Approach: Methodology Theories: Approaches to combatancy Theories: Approaches to combatancy Reconciliation: Loosening the requirement Reconciliation: Loosening the requirement Futures: Resolution and suggestions for research Futures: Resolution and suggestions for research william.casebeer@usafa.af.mil william.casebeer@usafa.af.mil


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