Morality of Counterintelligence Ethical Implications and the Need for a Theoretical Framework
CI Literature Review

Deception is at the core of counterintelligence: yet, it is a problematic core because of the corruption associated with deception in ethical systems. Mattox (2002), for example, observed that the practice of deception “is subject to limitations imposed by the demands of morality” (4). Unfortunately, morality within the realm of counterintelligence is often the first casualty, as history shows (Valentine 2016). The official beginnings of counterintelligence under the leadership of James Jesus Angleton have illustrated the extent to which the art of deception can create problems within the intelligence community (Morley 2017, 69). Within this community itself there is no standard ethical framework applied (Bailey and Galich 2012, 77). In counterintelligence, there is even less emphasis on ethical cohesion; as Valentine (2016) has revealed, the history of US counterintelligence is fraught with conflicts of interest, human failings, ulterior motives, problematic relationships, and questionable tactics (33-39). Counterintelligence has often been linked with the idea of national security, yet as Nolan (1997) shows it is dangerous to think of counterintelligence as a security exercise because it is literally nothing of the sort: writing from the standpoint of private industry, Nolan (1997) states explicitly that “while security seeks to protect a firm's assets by a combination of policies, procedures and practices, counterintelligence, properly understood, aims to engage and neutralize a competitor's collection efforts through a variety of imaginative, flexible, and active measures” (53). The point of concern, here, is not only the degree to which those “imaginative, flexible, and active measures” lead to the problems both for the agency and for the field it aims to serve (Nolan 1997, 53). There is also the matter of confusing counterintelligence with security, which is precisely what has happened in the past and is currently happening under the Trump Administration with its 2020-2022 National Counterintelligence Strategy.

The strategic objectives of the 2020-2022 National Counterintelligence Strategy of the United States (2020) are: 1) to protect the nation’s critical infrastructure, 2) reduce threats to supply chains, 3) counter the exploitation of the US economy, 4) defend American democracy against foreign influence, and 5) counter foreign intelligence cyber and technical operations (4). These objectives differ from the 2018-2022 National Counterintelligence and Security Center Strategic Plan. Under Director William R. Evanina, integration of CI and security activities was a top priority and theme of the strategy, but the strategic goals were quite distinct: Goal 1 was to “Advance our Knowledge of, and our Ability to Counter Foreign and other Threats and Incidents”; Goal 2 was to “Protect US Critical Infrastructure, Technologies, Facilities, Classified Networks, Sensitive Information, and Personnel”; Goal 3 was to “Advance our Counterintelligence and Security Mission and Optimize Enterprise Capabilities through Partnerships”; Goal 4 was to “Strengthen our Effectiveness through Stakeholder Engagement, Governance, and Advocacy”; and Goal 5 was to “Achieve our Mission through Organizational Excellence” (National Counterintelligence and Security Center Strategy 2018-2020 2020, ii). Meanwhile, the official responsibility of counterintelligence is to “collect information and conduct activities to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons or their agents, or international terrorist organizations” (National Counterintelligence and Security Center Strategy 2018-2020 2020, 2). The conflated, mixed, broad, and somewhat vague strategic objectives that have been developed for the counterintelligence community in the year 2020 reflects the same conflated, mixed, broad, and somewhat vague strategic objectives that plagued the CI’s Phoenix program, which Valentine (2016) has called the “blueprint” for all current intelligence action (50). Tromblay (2017) has concurred with the assessment that the intelligence community is overstretched and overtaxed and that counterintelligence is being tasked with too many objectives that are foreign to its mission. The issues identified by Tromblay (2017) are that “the U.S. government has attempted to partner with the private sector on counterintelligence (CI) awareness and response, [but that] these efforts have been plagued by a limited concept of which industry sectors are at risk, inconsistency in programs, and redundancies across agencies” (1). Overall, there is a lack of reconciliation between vision and mission and what is being asked of CI.

To summarize the problem, the area of action for counterintelligence may be one thing in terms of a mission, but the strategic operations and integration of counterintelligence with security and other state-sanctioned actions has refueled and threatens to perpetuate the same problems that led to the Church Committee’s (1976) conclusion that the CIA had created a counterintelligence monster (172). While it is acknowledged that the CI community should work more closely with private industry to engage effectively in its official mission (Nakashima 2020), the reality of how this collaboration is to take place, ethically and practically, is a problem that remains to be addressed. The risk of not addressing it puts the CI community in danger of operating outside of its scope and engaging in the precise problematic misinterpretation of counterintelligence warned against by Nolan (1997).

The aim of this examination of the literature is to fill the wide gap that remains in counterintelligence research regarding an appropriate ethical standard that can guide and foster an ethical culture, as called for by Bellaby (2012) and Valentine (2016). The purpose of this review is to identify the lessons that have been learned and presented by researches into this topic, and to identify an appropriate theoretical framework for assessing the way forward.

The research question for this study is: How can the US counterintelligence enterprise support collaboration among the various USIC members and the private sector in an ethical and productive manner? To understand the issues and policies of counterintelligence today, it is necessary to identify and evaluate the mistakes and lessons that can be learned from the past when the counterintelligence program formally began under Angleton. The ultimate purpose of this study is to propose a standardized ethical framework for guiding the counterintelligence program as it works to collaborate with...…from a practical standpoint. As Bernardi (2013) states, “Usually, information control generates an escalation of counterintelligence measures, because information control on the part of one State invites other governments and agencies to counteract, by means of countermeasures against espionage and deception” (50). In this context, the Intelligence and National Security Alliance (2020) has identified a “need to clarify the role of CI in the era of globalization” (1). Given the use of technology today, however, clarifying that role is no easy process. Developers, technicians, production personnel, IT personnel, business development personnel, human resources personnel, and facility personnel are all potential targets of foreign actors and foreign collectors of intelligence (National Counterintelligence and Security Center n.d.). Private industry is at risk because it possesses intellectual property that foreign actors covet and business activities can be exploited. Cyber operations are also at risk, as is confidential information, which can be mishandled by employees. Counterintelligence operations could be used to deliberately leak false information to known foreign actors, but doing so runs the risk of escalating a larger conflict among nations, as Bernardi (2013) notes, and from an ethical standpoint it is difficult to determine where the line should be in terms of using deception.

The ethics of deception may have practical use from a utilitarian standpoint if the concept of the “good” is limited to a specific objective. This was the case with the Federal Bureau of Narcotics (FBN), headquartered at 90 Church in New York City. The FBN was very effective in using counterintelligence tactics to undermine and prevent drug trafficking in the US (Unkefer 2013). However, these tactics were often seen as immoral and unlawful by supervisors and the FBN was eventually closed for that reason (Valentine 2016).

Summation

Since counterintelligence came to maturity in the US in an era of conflict, it is helpful to approach the subject from the standpoint of conflict theory and the theories developed around it, all of which focus on the ways in which power is sought and used by groups in order to obtain or maintain possession of vital resources or maintain a balance of relationships that ensure stability and order in a system. This approach allows the research to explore the ways in which power drove the initiatives of counterintelligence policies during the 50s, 60s and 70s. However, the literature shows that the problem of ethics in counterintelligence has had no easy solution and that the art of deception is such that it fosters a gray zone of disinformation, conflicts of interest and corruption. The outcome of this situation was that counterintelligence suffered from a poor culture and various other issues, resulting ultimately in the dismissal of Angleton and an attempt to restart the program. As the program now tries to address the issues of the 21st century, it appears that guidance could be used to help steer the counterintelligence program away from the same errors and policies that derailed it in the past. The literature suggests that a need exists for this…