介绍： How to do better: The solace of the law
A blueprint for the intelligence services
From The Economist 20161112

From SR 20161112 special report: espionage

Audio:

0:00




IN THE SPY MUSEUM in Washington, DC, a floor is given over to James Bond. Pay attention to the villains, says Vince Houghton, the museum...

介绍： How to do better: The solace of the law
A blueprint for the intelligence services
From The Economist 20161112

From SR 20161112 special report: espionage

Audio:

0:00




IN THE SPY MUSEUM in Washington, DC, a floor is given over to James Bond. Pay attention to the villains, says Vince Houghton, the museum’s historian: each tells you what the West was scared of when that particular film was made. Bond is sandwiched between the paraphernalia of real-life spying, including bugs, silk maps and cipher pads. But his wayward independence looms over the whole business. The thing about spies, says Kelley Ragland, who publishes modern spy novelists, including Olen Steinhauer, is that they are lone wolves who survive without help. “They are underdogs,” she says. “We root for them.”

The intelligence officers featured in this special report break some rules, too. All nations make espionage against them a criminal offence. They consider foreign citizens fair game, on the ground that their duty is to maximise the well-being of their own people. But at home, too, they can intrude into lives, playing on people’s fears or vanities, issuing threats or offering money. The question is how an open, democratic society should govern their behaviour. Too much power and secrecy, and they will go astray. Too little, and they will fail.

Sir David Omand, a former head of Britain’s GCHQ, says that lawful spying should be governed by ethics in the same way that a just war is. And David Anderson, in his review of the Investigatory Powers bill, which by the end of this year will for the first time put British intelligence on a unified statutory footing, offers a blueprint for what this might look like.

Five principles

In principle, the state needs to be able to bug bedrooms, read diaries and listen to privileged conversations
Because of the need for security, he argues for minimal no-go areas. The state needs to be able in principle to bug bedrooms, read diaries and, if necessary, listen in to conversations between lawyers and clients or journalists and sources. “The issue is when it should be lawful to exercise such powers,” he says, “not whether they should exist at all”. Drawing on international human-rights law, he sets out five principles for their use:

• The law must be accessible—easy to obtain and understand; and it must operate in a foreseeable way.

• Spying must be necessary, which means more than useful. On September 12th 2001 necessity was different from what it had been on September 10th.

• Measures must be proportionate. Squeezing privacy brings diminishing returns.

• There must be effective monitoring and oversight.


• There must be redress by an independent tribunal for those who have been mistreated.

This legal footing serves as a foundation. But the intelligence services also need to command public trust, says John Parachini of RAND. If you are seen to deviate from expectations, you run risks. Unless they explain why capabilities are needed, says Cortney Weinbaum, also of RAND, agencies cannot justify their budgets or programmes to voters and taxpayers. As director of the NSA, Michael Hayden used to map out what the agency did as a Venn diagram with three circles, labelled technologically feasible, operationally relevant and legal. After he became director of the CIA a few years later, he added a fourth: politically sustainable.

The essential ingredient is transparency—or, rather, what Michael Leiter, head of the National Counterterrorism Centre under George W. Bush, has called “translucence”. The public needs to know the broad outline of what the security service is doing, but not the details.

Reporting to Barack Obama, the presidential advisory group invoked what it termed the “front-page rule”: that the agencies should forsake any programme which could not command the consent of ordinary people if leaked to a newspaper. General Hayden thinks the intelligence services should be more willing to let retired officers write books and speak to journalists. “Too much is protected,” he says. “We need less secrecy. We need to be the teller of our story, not the keeper of secrets.”

An effort to restrict classification is overdue, especially in America, where nearly 1.5m people have top-secret clearance. In 2012 the presidential libraries contained 5bn pages waiting to be reviewed for declassifying. Mr Parachini believes that a small amount of secret intelligence must be guarded with extreme care. Insights can come from publicly available sources at a small fraction of the cost and be widely shared to prevent terrorist attacks or prepare for political and military surprises.

In terms of public relations, the West’s intelligence services have endured a difficult decade and a half. In terms of their operations, however, the years since 9/11 have seen extraordinary shifts in focus and capabilities. Increasingly, society is asking them for protection from criminals and paedophiles as well as terrorists and foreign powers. It is a vast agenda.

The rules governing their actions have not always kept pace with the public mood. However, in fits and starts, the intelligence services have adapted. It is right that they should be held to high standards. But their critics should also remember that the world is dangerous and hostile, and that the intelligence services are often the best protection ordinary people can hope for.



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