The business of intelligence gathering cannot be viewed through the lens of ethicality
N.C. Asthana
The real issue is not whether Pegasus was used or not; the real issue is whether it is feasible for a nation to carry out its intelligence activities strictly ethically and legally?
It has been alleged that as many as 161 people including journalists, activists, students, politicians and even a victim of alleged sexual harassment were targets or potential targets for surveillance by clients of the NSO Group of Israel through their Pegasus spy ware that was used to ‘infect’ their phones. Acting on a bunch of petitions, the Supreme Court has ordered a committee to inquire into the matter first and submit a report.
However, by mid-February, rather intriguingly, only 12 people out of this were learnt to have deposited their phones for forensic examination in spite of the panel having made repeated appeals since January 2. Perhaps, seven of these 12 phones could belong to the accused of the Elgar Parishad case.
In all fairness, in a matter like this involving perhaps one of the most complex cyber technologies in the world, the word of a laboratory in University of Toronto cannot be taken as final by the Supreme Court, which will insist on a forensic examination to its satisfaction. The reluctance to deposit phones is disconcerting as it is like someone alleging a murderous assault on him but refusing a medical examination.
Why a nation needs intelligence?
India faces both external and internal threats from a wide spectrum of interests and entities hostile to it. Few would dispute that a nation needs a highly efficient intelligence machinery to cope with security threats and that it is not enough to have well-equipped armed forces. Still, after almost any terrorist attack, the most oft-repeated allegation in the media and amongst the common people is that of ‘intelligence failure’.
What do we mean by intelligence in such contexts? While there are elaborate definitions of intelligence, people generally take it to mean that the nation or its security agencies must have prior knowledge of the nefarious designs of the forces hostile to the country, their operatives, and financial and material resources, etc., before they proceed to execute them.
Legal complexities in collecting intelligence
Those who plan to commit acts of terrorism obviously take extreme precautions to keep them secret. The security agencies cannot get any divine revelation about them.
One of the time-honoured ways of getting intelligence is intrusion into the privacy of people and their communications—call it surveillance, monitoring, phone-tapping, whatever. This is permitted by the law on the grounds of public emergency or ‘the interest of public safety’ as laid down in the case of People’s Union of Civil Liberties vs. Union of India (1997).
The question is how to determine public emergency or public safety and how to latch on to the proper targets? Most lay persons think that criminals must be targeted and not ordinary citizens. But exactly who can be called a criminal? Strictly speaking, one should have been convicted for a crime which has a bearing on and betrays his anti-national proclivities and not, say a motor vehicle accident case!
Moreover, one who is planning a terrorist strike might not have a criminal record at all—for all you know, he might be a freshly-subverted teenager! Thus, legally, he is no different from any other common citizen. At most, based on the information about his friends, the police could call him a ‘security suspect’. However, by that logic, the police can theoretically call anybody a security suspect.
In the end, it is therefore the subjective satisfaction of a police officer which decides whether someone’s privacy must be breached or not. They might be right in their assessment; they might be wrong. They might have pious intentions; they might have been motivated by political or personal considerations also. In other words, the possibility of potential abuse of powers is very much built into such a system.
How can the nation prevent any potential abuse of such powers of subjective satisfaction? Before we think of devising means of addressing this, the people of the nation must decide whether they accept this system in the first place? If they do, they must learn to live with its intrinsic limitations also. If they do not, they must suggest alternatives through their elected representatives. The choice is theirs to make. If they think that the system can indeed throw up such people, let us get on with the game. If not, let us have no unrealistic expectations from intelligence either!
How the US Intelligence community coped with criticism?
In his book, ‘The Big Snoop: Life, liberty and the Pursuit of Terrorists’, Stuart Taylor says that in the early 1970s, the USA faced its most serious political crisis, while it was reeling under humiliation in Vietnam, the Watergate scandal, and the ascendancy of the Soviet Union. Eager to find a convenient scapegoat, a slew of investigative reporting accused the intelligence community (CIA, NSA and FBI) of illegal domestic spying and ‘dirty laundry’ overseas resulting in massive abuse of power. This prompted two congressional committee investigations (namely the Church Committee and the Pike Committee) in 1975 and the Rockefeller Commission.
Senator Frank Church and his allies argued that an assertive legislative role in oversight of the intelligence community would bring the US ‘back to the genius of the Founding Fathers.’ However, as Stephen Knott of the Miller Center of Public Affairs, University of Virginia and the author of ‘Secret and Sanctioned: Covert Operations and the American Presidency’ points out, Church did not seem to know that American presidents from 1789 to 1974 had always been given powers to conduct clandestine operations ‘they believed were in the national interest’. The system of Secret Service Funds had started with President Washington himself at his request and he was not required to report how he spent that money. Thomas Jefferson, James Madison, Andrew Jackson, and Abraham Lincoln et al had all authorised clandestine operations out of this fund, and never reported the details to Congress. The system continues unchanged to this date though the amounts could be astronomical now.
Against such a hostile atmosphere, the then DCI (Director of Central Intelligence) William Colby walked on the razor’s edge and as Martin Edwin Andersen, former Senior Adviser for Policy Planning at the Criminal Division of the US Department of Justice (DoJ) says, he saved the CIA from destruction. He managed to keep CIA officials out of the line of fire, preserving ‘sources’ and legitimate methods. Church could only lament that no American would have any privacy left and there would be no place to hide. But Colby protected the CIA’s image of its capabilities ‘cloaked in mystery and held in awe’.
All that President Gerald Ford relented as a result of the investigations was to issue an Executive Order 11905, which banned political assassinations! The order was intended to curb assassination attempts against Cuba’s then dictator Fidel Castro and other foreign political leaders. The CIA has continued its mission relentlessly, nevertheless. The USA went on to assassinate Iranian General Qassem Soleimani last year!
If anything, the Church Committee has come in for criticism after the September 11 attacks, for leading to legislation reducing the ability of the CIA to gather human intelligence and excessive reliance on technical intelligence. In fact, as Taylor says, there is now an upsurge in political and public support for aggressive surveillance of potential terrorists, and a muting of the concerns that had arisen in the 1970s.
Merely enacting more laws would not help
Discussing the American experience at length was necessary because in some quarters in India there is a misconception that the same or similar issues could be addressed by legislation. A Times of India editorial (January 30) also recommended ‘a national security law, a set of rules that will govern surveillance.’ They are mistaken. We already have the substantive law in the Indian Telegraph Act and the procedural law in the Indian Telegraph (Amendment) Rules, 2007 made in compliance of the orders of the Supreme Court.
Moreover, we must not forget that the USA has had the National Security Act and the Central Intelligence Agency Act since 1947 and 1949 respectively and yet there is hardly any illegal or immoral act in the world, which the CIA has not committed!
If you have to have intelligence, you have to trust the integrity and discretion of the intelligence community or forget it. As William Colby wrote in his memoirs, ‘The agency’s survival could only come from understanding, not hostility, built on knowledge, not faith.’ In 1978, he was asked by a magazine, ‘If you are our protector, who is going to protect us from you?’ Colby famously answered, ‘The separate constitutional structure, the separation of powers. That’s what’s going to protect you from me… and the press.’
If there is anything in the business of intelligence, howsoever slight, that cannot, for good reasons of national security, be subjected to judicial or parliamentary scrutiny; it will theoretically provide a loophole through which human failings could pour out. We have to live with that. The business of intelligence is a brutal game with elements of unethicality inherently built into it.
In the end, the government can always argue that divulging the means of gathering intelligence cannot be discussed in Parliament or court because that would alert the enemies of our technical and human capabilities and they would find means to counter it. To paraphrase Aristotle a bit, there can never be any intelligence without a tincture of the unethical! Let us accept the reality.
(The writer is a retired IPS officer and a nuclear physicist by training. He is author of several books, which include Intelligence and Security Management)