VIEW THIS PAPER in its published format
- 320 KB, pdf format

Conference on "Intelligence and the
Threat from International Terrorism"

Zagreb, Croatia, November 30 - December 01, 2001
Participants

Section III

Legal, ethical and media aspects of
"Intelligence Wars".

Međimorec:

I would like to talk about the moral aspects of the intelligence profession. Admiral, I read your interview in today's paper. You stressed an important point - the morality of this profession. When I was called in 1992 to take one of the leading positions in our intelligence community, I was honored, but at the same time confused and reluctant to accept that responsibility. The late President asked me personally to join the service. My perception of this profession was biased by the negative examples and practices of Tito's former secret police. The secret services in communist Yugoslavia, civilian and military, controlled every aspect of our lives. Their methods were harsh, brutal, and terrifying,; there was even a rhyme that "OZNA sve dozna", "The secret police knows everything"! The former Yugoslavian secret police fought a bitter war against the so-called enemies of Socialist Yugoslavia; in fact, against people who left Yugoslavia, dissatisfied with the dictatorial nature of its regime. People were killed all over Western Europe; even liberal political activists who advocated democratization were persecuted. The majority of people, especially Croatian intellectuals, rejected any connection with such a compromised profession. A lot of prejudice existed. Even now, due to continuing media influence and bias, the majority of people in Croatia considers the intelligence profession to be dirty, immoral, and unacceptable. Terms like spies, dirty, illegal, indecent methods, and immorality are used to describe this profession. I talked to the late President about my dilemma, that I wasn't sure whether this profession was moral. Secret services participated in killings, kidnappings, and assassinations. I was not ready to perform such deeds. The late President rejected all my arguments, explaining that during World War Two, the top intellectuals in US and Britain were members of intelligence services. Even today, they are proud of their efforts in fighting Nazi Germany. Members of the intelligence profession in a democracy are responsible, he told me, for gathering and analyzing data. They are not members of a law-enforcement agency. And there is nothing immoral in collecting information, he said. I was finally persuaded by his arguments and agreed to enter the profession. From time to time, moral dilemmas have emerged. And I have learned that intelligence work is not only collecting information. Sometimes it is more than that - especially in time of war. What if I should, in the name of the State, be forced to perform an act which is against my conscience? What should I do? But I was never asked to do such a thing. The late President had told me the truth. In our service nobody was ever asked to perform an immoral, indecent, or criminal act. But this ethical dilemma will always be a fundamental one - the difference between morality and immorality; the thin red line which separates them. How do we deal with the under-cover agent who has infiltrated a terrorist organization such as Al Qaeda? Should he under certain special circumstances be permitted to act as a member of this terrorist organization? Should he be allowed to perpetrate an act against civilians or citizens of his own country? Which moral imperative is higher - toward the individual or the state? This is a perpetual dilemma and it has to be dealt with case by case.

Kerr:

I would like to go back to the issue the Admiral and Miro raised. It seems to me it would be unwise to try to define with precision the nature of terrorism and the equivalency of various kinds of terrorism. We cannot put on the same legal or moral equivalent the September 11 event and the killings conducted by both sides in the Palestinian/ Israeli conflict.

Smith:

The question of whether the asset, a penetration of a terrorist organization, should be permitted to commit a terrorist act is a very delicate but very important one. It is a difficult operational, political, and moral question. I want to be sure I do not leave the impression that I think the most important thing is to protect the agent; the most important thing is to prevent the attack, but a great effort should be made to protect the agent so that he can serve again. Stop the attack and preserve the agent's security - these two objectives must be met if possible, although obviously stopping the attack takes priority.

Wolf:

We can't separate the aspects of an intelligence war from the current war. Yesterday I had my problems with the term "war", but an intelligence war has now been declared against terrorism. I think it was good that Todor gave examples of existing conventions, international law, and of course we also have national laws in our countries, but the discussion has shown it is not easy to use all the rules of law. We can't allow the terrorists of September 11 to destroy the efforts we have made to establish some kind of international law. It seems to me a bit abstract that if a terrorist act is committed in one country, there exists a national law and it is possible to fight the terrorists and these activities on the basis of this national law. In the fight against international terrorism it's necessary to use existing rules; of course, they are not good enough, but they exist and I think it would be very dangerous to disregard them. I think the American government, the American president understood this when they tried to obtain a United Nations approval (but not during the Kosovo war). This is a very abstract statement, but I think it is the basis to use.

Lacoster:

I can raise another point. There are real differences between countries, even democratic countries. Look at the death sentence. Most democratic countries have abolished it. You can put a criminal in jail for life but not kill him. There are fierce debates between, for example, the US and several European countries on this issue. I agree with you; there are limits to theoretical discussions, even about the right of self-defense. In order to choose the best "ways and means" one has to consider the circumstances. Let's look again at the situation in Israel; wouldn't you say they are implementing the old Bible precept "eye for an eye, tooth for a tooth" ? We are horrified by this behavior because we know it is unleashing endless bloodshed and hatred.

Wolf:

There must be no license for killing in the services. Of course in a special situation - and Dick gave examples - it might happen, but then you have to use the right to self-defense. I agree with this. To give such an order would require a very special situation, and there must be a ruling from somebody who is empowered to give the order. This is a big problem. As to torture, we had advisers in Arab and African countries; in the GDR, and by orders of the Minister of Security of the GDR, there was a law prohibiting torture. Our advisers in Ethiopia and East Africa, however, observed some instances of torture and failed to respond. We did not want to train people for that kind of interrogation. There were recent reports in American publications about a joint co-operation between operatives of CIA and the Albanian Secret Service to arrest suspected Jihad members. They were brought to Egypt, and in Egypt they were tortured. They confessed their participation in terrorist activities; two of them were sentenced to death, and others to long- term imprisonment.
Should the use of torture be tolerated in the fight against terrorism? I think if we say there is no right to give an order to kill, then there is no right to give an order to torture, either, and we have to say this categorically. If, of course, the terrible attack on September 11 is used as an example, if terrorists surrounded by special forces resist arrest by force of arms, they can then be shot. But if captured, they should not be killed. This is the rule in civilized countries, and it is necessary to emphasize this.

Lacoster:

It is easier to deal with these delicate matters from a theoretical point of view than when you are engaged in action. I am old enough to remember some realities about war: in Europe, Indo-China, and Algeria, for example. Many times commanding officers had to subdue their own soldiers who had gone crazy after seeing friends horribly tortured by the enemy. There is a lot of discussion now in my country about torture in Algeria. It is not just an ethical problem; above all,it's a political debate. Nothing is said against the Algerian FLN terrorists who perpetrated horrible actions against innocent civilian victims for years. The French Army is the only target. Our governmenet was powerless to stop terrorism in the streets of Algiers, where bombings were a daily occurrence. They asked the military to do what the police was no longer able to do. Within a few days, they caught the main terrorist leaders and restored security. Of course there were some excesses during these tense times; we see a similar situation in Palestine between Tsahal and the Palestinians resisting colonization. There are no definitive solutions here. But I'd like to cite an old rule from the Catholic Church: if you have to make a choice based on your conscience, between two evils, then you consider which is the lesser of the two. If you can exert violent pressure upon a suspect in order to save hundreds of civilians, would you refuse to do so ? This is a human decision under real circumstances, and the theorizing of irresponsible intellectuals lends little to the discussion. Do you agree?

Tuđman:

We're mixing things up a little, because we were talking about the approach and response to terror and the role of intelligence. Intelligence services do not have law enforcement units so they are usually not performing law enforcement tasks. So if you are allowed to do something, it doesn't mean the intelligence service will be involved. The moral problem still exists, but I think it would be a bigger problem if intelligence services collect intelligence and somebody else executes the action. But if we are talking about the legal framework, I think there has to be a division. Very often we have to solve a problem quickly, so we have to find a way to create a legal structure to address such circumstances. As I said, what I don't like is force. We have to observe basic principles or a legal framework; otherwise we are in a very difficult situation. If we are talking about international terrorism, certain international principles and laws must exist and must be followed by every partner. Those who are contemplating committing a crime need to create a legal basis.

Kerr:

Todor presented a long list of UN prohibitions against terrorism. My question is, have these had any impact? Is there any reason to believe that a long list approved and passed by the United Nations has had any impact on the actions of members of the UN? I'm skeptical, but I don't know the answer to that question.

Lange:

Just out of curiosity: what is the legal basis for President Bush's statement that "we want this Bin Laden guy, I want to catch him or to kill him?" To the best of my knowledge, he has not been convicted by the courts, not even in absentia.

Kerr:

He's been indicted by the US Justice Department. In accordance with American law he will be brought to trial.

Lange:

Can he be killed as well?

Smith:

That's where the war part comes in.

Kerr:

That's not possible; he hasn't been convicted yet.

Lange:

So what is the legal position? They say that they can locate him and then direct a laser-guided bomb to his cave or tent and kill him. But what is the definition of this war? War in international law is something different. This is a different kind of war, one that hasn't been described yet by international law.

Kerr:

Your observation is right. I don't think the President's asserting that he's doing this under any particular legal framework or under any law; he is asserting that we will do it.

Smith:

Under the law of self-defense.

Wolf:

I would like to add one statement to Todor's list that I noted here before our discussion. Any order to kill violates the Universal Declaration of Human Rights of 1948, which stipulates that every person charged with an offense is to be presumed innocent until proven guilty. He's proven guilty or innocent in a public trial in accordance with the law, and he should be given all guarantees necessary for his defense. In my opinion there is no denying that after September 11 there might be, as far as human and civil rights are concerned, a relapse into a situation which was thought to be a thing of the past. Now in the United States and Germany a lot of laws have been changed. It is understandable because of this situation and the terrible events of September 11, but I think it's necessary to understand that civil rights activists might become suspicious. That applies to the imposition of military jurisdiction for suspected foreigners in the USA, and for a considerable expansion of the powers of secret services and police powers by amendments to the law in the Federal Republic of Germany. This is the reason for my beginning statement; I think it would be dangerous to allow terrorists to have such an influence on democratic life and regulations. Measures against terrorist activities, yes, but in Germany we are looking now at the implementation of all-encompassing surveillance which will affect millions of people.

Kerr:

I don't think you'd want to confuse rhetoric with the legal position the Government would take. But if I can go back to something that you raised, I agree with you that we have to be very careful about changing rules we've established and developed over many years to protect our rights and our freedom. I think the Americans are particularly cautious of that. The other point though is that your own rules are used against you and become your vulnerabilities as well. Then the question is what right do you have to protect yourself when there is a direct use of your own freedoms to attack the very freedoms that you're trying to protect? That is an interesting problem.

Lacoster:

Along the same lines, I think it is the obligation of every government not only to punish but to prevent and deter. That is why the law must punish criminals and terrorists harshly to deter others. Of course the law must also protect civil rights, but one must be careful not to indulge in other excesses. There is an example in my country of socialist politicians, probably driven by generous, idealistic motivations, voting in new laws which provide suspects with the opportunity to escape justice with the aid of astute lawyers. A few weeks after the laws were implemented, there was a large rise in criminality. The young people living in the poor "gray" areas of some suburbs realized that they could break the law yet remain unpunished. We must stick to moral, democratic rules protecting the individuual, but at the same time devote attention to rights and obligations toward society. Take the situation where one state is threatened by another; it is morally defensible to maintain a strong military to deter aggression.

Dedijer:

I realize the deep shock of this event on the United States mass psychology. It is much deeper than I thought. I think time will cure that shock. I'm not going to take seriously much of what you have said because I think you're all under shock. What have I learned about war? If you read my memoirs about the war, you'll see that all the things my mother taught me - don't lie, don't kill, don't steal, don't destroy - have all been turned upside down by war. In war you kill, you destroy, you lie, whatever you can do. I think the danger of this whole idea of war against terorrism is that it gives us permission to do whatever we want. I've said for a long time that the United States is the most democratic and creative country in the world, but not the best country. I think Sweden, Scandinavia, many European countries are better countries socially, more comfortable to live in, better than the United States. I think we should look at what I mentioned earlier, that the people who are not free have no other weapon to use but terrorism. We've got to consider how to eliminate that.

Ćosić:

Ethical and moral aspects of this problem are very important, but how about a systematic approach to the problem? What about education and training, which are fundamental for future agents, analysts, and decision makers? Of course some people will have problems performing their missions under certain circumstances, so how can a compromise be made in view of legal or moral constraints? We need more education to deal with this issue. It is not only an individual but a general dilemma: how to be effective, how to fulfill the mission and at the same time respect legal and ethical constraints. We still have major problems seven years after the war. We have to build a common culture through appropriate curricula. What about the code of conduct, do we have code of conduct?

Kerr:

I think the answer is we do have a code of conduct; we do have a training program that talks about the ethics of intelligence. We talk about the very issues that we're talking about here. We talk about our own legal structure and the requirements of executive orders, the limitations, the oversight process, and the law in terms of congressional oversight. We spend a good deal of time talking to our young officers about this very aspect. I'm sorry I talk too much but I always have to respond to Stevan. I think he's mistaken in his judgment that this event of September 11 is going to be forgotten relatively quickly. I think the implications of this event are significant. While the war, the military conflict in Afghanistan, will go away in the not too distant future, it would be a serious mistake to assume that other things growing out of this attack of September 11 are going to disappear soon. I think the changes will be seen in our legal systems, our conduct overseas, and our attitude toward our allies and friends and enemies. I think it will be seen in our response to weapons of mass destruction and our responses to the Islamic world. I'm not saying that as a US spokesman but I think you are underestimating the wider implications of this. You said something the other day that I found very interesting, you said an intelligence officer's responsibility is strictly to predict the future. I would say, no, no, no, not predict the future. What you do is provide some warning and assess the implications of events. As an intelligence officer I cannot predict events in the Middle East, but I can assess the implications of various outcomes based on my knowledge of the area and of current events.

Lacoster:

The point about the code of conduct is interesting. As in other allied armies, we in the French Navy have also had precise "rules of conduct" and "rules of engagement". I remember how difficult it has been to explain that to our politicians, when most of them were ignorant of conditions required for the use of military force. They were reluctant to assume responsibility. When you asked them when you were allowed to use your weapon, under which circumstances, and in which way, they only gave a vague or irrelevant answer. We prepared precise lists of all eventual scenarios in order to facilitate a dialogue between the officer in charge of using military force, and the government leader in charge of making the political decision. I think we should do the same thing between the politicians and those in charge of intelligence.

Wolf:

But bear in mind that hundreds of soldiers, border guards of the former GDR, were brought to trial because they used their weapons, they followed an order.

Međimorec:

There is a lack of law and order, a lack of an ethical code, a "code of conduct". Legal and ethical regulations are always closely linked. Now we are back at the starting point. We must create a new set of laws in order to fight terrorism. If we create a new set of rules for post-September 11 engagement, we should know exactly what terrorism is. We will have rules on the activities of the law-enforcement agencies, intelligence services, and armed forces. But we can still make mistakes in distinctions between terrorism, liberation movements, and struggles for national freedom. There are nuances and differences we should be aware of. The whole world is in the process of re-evaluation; barriers are falling, technology is uniting the world in a thus far incomprensible manner. Philosophers, scientists, artists, and politicians are seeking new ways to explain the future. The theories of Huntington and Fukuyama are relevant here. We should not be satisfied with dogma; we must study all the new elements. We are aware that terrorism has many faces, in Europe, the Middle East, Somalia, Sudan, Afghanistan, Indonesia, and the Philippines. In different regions or countries, terrorists call themselves freedom fighters, liberators, fighters for national independence. We have to make a precise distinction - theoretical, political, cultural, and legal - between true freedom fighters and terrorists. Democracy will have a difficult and sophisticated battle to fight against terrorism in Afghanistan and most likely in Yemen, Somalia, North Korea, and Iraq. Preconditions for the growth of terrorism, disguised under the auspices of a national movement, have been created in Kosovo and Macedonia. If we fail to clearly define terrorism, we are neglecting the essence of the issue. Democracies are waging a prolonged and uncertain war, yet we can't identify the enemy at his core. Admiral Lacoste said in his interview that using the army against civilians is not only illegal - it is immoral. I fully agree with him. Future wars against terrorism in Afghanistan or some other part of the world will probably be a combination of intelligence (targeting) and special military operations (destroying the enemy). Intelligence services will look for them, and special forces using modern weaponry will neutralize the terrorists. And finally, we are entering a globalized world in which there is a push for intelligence and security matters to be transparent and open to society. Every day our societies become more transparent, so everyone will be forced to abide by the law and follow the code of conduct. The media and public will ask more and more questions, wanting to be informed about important matters such as security. They will want to know what we (intelligence and security people) are doing, and whether what we are doing is transparent, moral, legal and above all - efficient.

Wolf:

Let me use my position to support Stevan, who has repeated his position about the causes of terrorism on several occasions. Of course, it is primarily a question of policy, but the services can support by contributing information and analyses. Since September 11, the world public has felt frightened and been deeply affected by pictures of war, aircraft carriers, bombers, and so on. Politicians addressing the causes of terror have for the most part limited their statements to mere lip-service. Photos - of refugees approaching the Afghanistan- Pakistan border, for example - illustrate only a small part of the misery. In all years terrorist attacks in Israel were being shown, where were the photos of Palestinian refugee camps? Why is there no initiative or international plan to end the misery of the Palestinians, to do away with the camps? Why are there not measures executed and supported with the same intensity as the war declared by the President of the United States? The problem of the Palestinian refugees is certainly only one of the causes of terrorism, and a complicated and complex problem which cannot be solved overnight. It will take time,

Lange:

You rightfully pointed out that there are different types of tragedies valued in different ways. Just to make one point: I spoke to an African colleague recently and he asked me: "Why do those 4500 Americans appear to be more important than the 2.5 million that were killed in Central Africa over the last few years?" I couldn't give him an answer. I'm horrified by the events of September 11, but on the other hand, there are similar events occurring regularly which are less spectacular but equally horrifying. I have no answer and I am not passing judgment, but I just wanted to mention this.

Kerr:

That is a specious argument, I have to admit. I don't think there is comparability at all. That does not mean some individuals are more valuable than others. There are certain things, though, that a nation can and must act on and there are other things that it believes either are not its direct responsibility or are the responsibility of others. There is a difference between the responsibility of the United States for 4000 people that were killed in United States terrorist attacks and the responsibility of the United States for a conflict between the Hutus and the Tutsis in Africa. A nation has a fundamental responsibility to protect its own people. Again, I think the Palestinian argument is not valid. They have suffered greatly and they have been taken advantage of. They have been pushed out of their homeland. But at the same time one has to be a little careful about comparability again. Israel is a democracy and it does have elections. The United States should not have responsibility for responding to all the injustice in the world. I think we can argue that in another forum.

Lacoster:

I think there's a dangerous election practice in several democratic regimes; that is, "proportionality" is often not in operation. Deputies elected should reflect the opinions of the majority of citizens. This has always been Israel's rule, for example. As a result, religious extremists have had very little influence in the country's policies. By most criteria, Israel is a real democracy; however, the radical minorities have had, and still have today, a role that does not at all reflect national opinion. In addition to radical Arab Islamists, there are also extremist religious tyrants in Israel promoting excessive views. Deferring to the rule of the majority, as in the U.K. is in my view much more efficient way to conduct policy.