Espionage: The Bridge to Liberalism - Transatlantic Conference on

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ESPIONAGE – THE BRIDGE TO LIBERALISM Raphael Bitton∗

INTRODUCTION ............................................................................................................................................................. 1

I. REJECTING AVAILABLE JUSTIFICATIONS .................................................................................................................... 3 A. The Realist Argument ..................................................................................................................................................... 3 B. Just Intelligence ................................................................................................................................................................ 5

II. THE IDEAL DUTY OF TRANSPARENCY ....................................................................................................................... 7 A. On Capabilities and Intentions ................................................................................................................................... 9 B. Transparency and Liberal Political Imperialism ............................................................................................. 12

III. ESPIONAGE AS A BRIDGE TO LIBERAL DEMOCRACIES ............................................................................................ 15 A. A Concept of Global Justice ..................................................................................................................................... 16 B. The Global Original Position .................................................................................................................................. 19 C. Limiting Legitimate Espionage ............................................................................................................................... 23 D. Risks other Than Surprise Aggression ................................................................................................................ 28 E. Between Emergency and Routine ....................................................................................................................... 29 F. The Utilitarian Argument .......................................................................................................................................... 30 G. The Cosmopolitan Approach to Espionage ........................................................................................................ 32 H. On Proximity in the International Cluster .......................................................................................................... 33

IV. CONCLUSIONS ....................................................................................................................................................... 34

This paper deals with the question of the proper justification for espionage. It rejects existing justifications based on Realism, Traditional Utilitarianism and Just War Theory. It argues that basic cooperation in the international community requires the recognition of a duty of basic transparency among nations. Transparency allows neighboring states to observe the deliberation strategic process in its making. A transparent state cannot surprise its neighbors with regards to its strategic intentions concerning their security, such as unleashing a surprise attack. Transparency however is argued to be a structural quality. It is a characteristic of a liberal regime. Non-liberal nations are therefore likely to reject a duty of transparency, standing in contradiction to their comprehensive political doctrine. Espionage is argued to assist in solving this otherwise irresolvable political crisis. It enables enforcing transparency on non-liberal nations yet such transparency is achieved without imposing a liberal structure on such nations. In accordance, it is argued that a rule setting a duty of basic transparency, which its enforcement is solely limited to espionage, is morally justifiable since it will be endorsed by all well-ordered nations in a global impartial and fair process of deliberation. Current international law is understood therefore as targeting the maintenance of this required range of transparency in international relations: Legalizing espionage avoids hypo-transparency of states. Legalizing counterespionage at the same time avoids hyper-transparency.

INTRODUCTION

Gathering intelligence is a human activity of the first magnitude. It consumes immense human, technological and financial resources1. It involves enormous moral loss.2 One therefore expects that

∗ Tel-Aviv University School of Law, Research Fellow and Visiting Scholar- Berkeley Institute for Jewish Law, and Israeli Law, Economy and Society, UC Berkeley School of Law. For helpful discussions and comments, I wish to thank: Kenneth Bamberger, Daphna Barak-Erez, David Caron, Alon Cohen, Chanoch Dagan, Meir Dan-Cohen, Chaim Gans, Philip Hamburger, David Enoch, Menny Mautner , Ariel Porat, David Rosenberg and John Yoo.

1 As an illustration of the size and cost of a modern intelligence community, the American community consists of 17 federal intelligence agencies employing more than 100,000 employees. Average annual total budget of the intelligence community ranges between $40 to $60 billion; In year 2010, it reached a record high budget of $80 billion. This figure represents about 12% of the entire defense budget of America. It is typically believed that intelligence budget in western countries represents around 8-12% of total defense budget (S.

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espionage be anchored to a solid moral and legal ground. Surprisingly, this costly and harmful activity lacks a clear base of legitimacy. Legal and philosophical scholarship is most interested, for example, with the legitimacy of war among nations and its legal framework.3 We even thoroughly discuss the legitimacy of the domestic governmental use of force.4 And yet, when it comes to espionage, moral discourse is almost as silent as the people who carry out the task. When we do talk about espionage, it is largely perceived as an extra-moral activity, which takes place far beyond the boundaries of ethics. Espionage is frequently associated with an obscured sphere in which the gravitation of states’ supreme interests bends the contours of the moral space. This article therefore concerns one main question: What is the proper ethical justification for espionage? Such a justification will dictate the legal framework for regulating this activity.

My account of espionage among states is based on the observation that states restrict access to various spaces that serve as access points to information and that espionage targets the intrusion of such spaces for the sake of collecting information. Espionage between states is therefore an undercover state-sponsored intrusion of the restricted space of another state or organization for the sake of collecting information.5 Access to a space can be restricted in many forms including, but not limited to, physically, visually, acoustically, digitally and legally6. Such intrusion of a restricted space can be DAGGETT, The US intelligence budget: a basic overview (DTIC Document 2004); KEN DILANIAN, Overall US intelligence budget tops $80 billion, Los Angeles Times Oct. 28 2010; D. PRIEST & W.M. ARKIN, A hidden world, growing beyond control, 19 Washington Post (2010)).

2 ROSS BELLABY, Many spheres of Harm: What is wrong with Intelligence Collection (Institute of International and European Affairs (IIEA) Conference paper 2006); JOHN P. LANGAN, Moral Damages and the Justification of Intelligence Collection from Human Sources in ED. JAN GOLDMAN, ETHICS OF SPYING A READER FOR THE INTELLIGNCE PROFESSIONAL (2006).

3 For only two prominent and pivotal sources out of the extensive writing on the justifiability if war and killing in war, see: MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS (BASIC BOOKS. 1977); J. MCMAHAN, KILLING IN WAR (OXFORD UNIVERSITY PRESS, USA. 2009).

4 Russell Hardin, Rationally Justifying Political Coercion, 15 JOURNAL OF PHILOSOPHICAL RESEARCH (1989).

5 On various approaches to defining espionage, see: M MARK LOWENTHAL, INTELLIGENCE: FROM SECRETS

TO POLICY 1-2 (2000); Martin T Bimfort, A Definition of Intelligence, 2 STUDIES IN INTELLIGENCE 75-78 (1958), p.; SHERMAN KENT, STRATEGIC INTELLIGENCE FOR AMERICAN WORLD POLICY (1966).p. vii; TF Troy, The "correct" definition of intelligence, 5 INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE (1991); VERNON A WALTERS, SILENT MISSIONS 621 (1978); MICHAEL WARNER, Wanted: A Definition of “Intelligence” (http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA525816&Location=U2&doc=GetTRDoc.pdf); SHERMAN KENT, Prospects for the national intelligence service, 36 Yale Review (1946), p. 117; ABRAM N SHULSKY & GJ SCHMITT, SILENT WARFARE: UNDERSTANDING THE WORLD OF INTELLIGENCE 171-176 (2002). See as well Sholsky’s reference to Randon, identifying secrecy as a common feature of intelligence: Ra Random, Intelligence as a Science, 2 STUDIES IN INTELLIGENCE (1958), p. 76.

6 On the legal definition of spying, in international law, see: Annex to Hague Convention IV 1907, Regulations Respecting the Laws and Customs of War on Land, Art. 29; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 46; Y SANDOZ, et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Intern. Committee of the Red Cross. 1987), p. 566. On the domestic legal perception of spying, see: Regulation of Investigatory Powers Act 2000, Sec. 26-26, 29-30 (UK); Espionage Act 18 U.S.C 792-799 (1983); Uniform Code of Military Justice 10 U.S.C 106; Penal Code (1977), Sec. 111-116 (Israel); It seems however that this legal definition of spying is being constantly expanded when reviewed by domestic criminal courts. The Quirin cases reflects a focus on clandestine activity, regardless if of collection of information is involved. (Ex prate Quirin, 317 U.S. (1942)1). The Israeli Vaanunu and Gil cases reflect an accelerated process of expansion in the legal criminal definition of spying. Vaanunu was accused of spying irrespective of not being recruited and operated by any enemy. His activity lacked clandestine character. (SCC 172/88 Vaanunu v. The State of Israel 44(3) 265). Gil’s case is an extreme example. He was sentenced to 5 years in prison for spying for the fact that as a handler, he communicated to his superiors false information he did not really receive from his agent. In contrast to the intuitive and common definition of espionage, Gil is accused of bringing information in, rather than communicating it out of the state (SCC 3166/99 Yehuda Ben-Moshe Gil v.

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achieved through all methods of espionage known to us, human or technological.7 In referring to espionage throughout my argument, I follow a basic distinction between espionage during times of emergency (such as times of war or a conflict) and between espionage during times of peace (or routine). A time of a conflict is defined as a time in which a need for a remedial action arises in order to deal with a clear, imminent and serious threat by one state to a basic interest of another state. War is a clear situation of emergency. So is a threat of war. Another example would be a case where State A understands from open sources that its neighbor, State B, plans an attack. By definition, a state of routine or peace means that State A has no indication that State B is planning any harmful and intentional action against it. It seems that emergency-type espionage is sufficiently justified based on Just war theory and the rules of self-defense. It is peacetime espionage constituting the real challenge of justifying espionage. This article offers a new theoretical approach to justifying peacetime espionage among nations. It consists of three parts. Part I deals with available and potential justifications for espionage finding them all to be inadequate. In Section I(A), I present the realist argument for espionage. In Section I(B), I present and criticize the application of just war theory in justifying espionage. In Parts II and III, I offer a new approach to justifying espionage. I first argue that in the relations among states there should be a duty of basic transparency. I then present the argument of espionage as a transparency-enforcement instrument. It is argued to be solving an otherwise irresolvable political controversy between liberal and non-liberal nations. In light of its sophisticated and essential role in international relations, it is argued that a rule that sets espionage as an instrument for enforcing a duty of basic transparency among nations is expected to be endorsed by all impartial, rational and reasonable nations.

I. REJECTING AVAILABLE JUSTIFICATIONS A. The Realist Argument In this sub-chapter I review the approach of international relations realism to espionage.8 In

summary, realists tend to offer priority to national interest over moral duties.9 It is based on a specific

The State of Israel 54(4) 193).

7 For an account of the various methods of intelligence gathering and the use of intelligence, see: JT RICHELSON & JEFFREY RICHELSON, THE US INTELLIGENCE COMMUNITY (1999); JEFFREY T RICHELSON, A CENTURY OF SPIES: INTELLIGENCE IN THE TWENTIETH CENTURY (1995); MRA SAYRE JR & US ARMY, Some Principles of HUMAN INTELLIGENCE AND THEIR APPLICATION MONOGRAPH (2004); ABRAM N SHULSKY & GJ SCHMITT, SILENT WARFARE: UNDERSTANDING THE WORLD OF INTELLIGENCE(2002); Daniel B. Silver, Intelligence and Counterintelligence, in NATIONAL SECURITY LAW 935, 965 (John Norton Moore & Robert F. Turner eds., 2d ed. 2005) (updated and revised by Frederick P. Hitz & J.E. Shreve Ariail); M.M. Aid & C. Wiebes, Introduction on The Importance of Signals Intelligence in the Cold War, 16 INTELLIGENCE AND NATIONAL SECURITY (2001); Christopher Andrew, Codebreaking and signals intelligence, 1 INTELLIGENCE AND NATIONAL SECURITY (1986); Michael Herman, Assessment machinery: British and American models, 10 INTELLIGENCE AND NATIONAL SECURITY (1995); MICHAEL HERMAN, INTELLIGENCE POWER IN PEACE AND WAR (1996); RV JONES, MOST SECRET WAR: BRITISH SCIENTIFIC INTELLIGENCE 1939-45 (1979); WALTER LAQUEUR, WORLD OF SECRETS: THE USES AND LIMITS OF INTELLIGENCE (1985); RICHARD A POSNER, PREVENTING SURPRISE ATTACKS: INTELLIGENCE REFORM IN THE WAKE OF 9/11 (2005).

8 Prior to presenting the realist argument, an academic caveat is most required at this point. Referring to realists as members of a well-defined discipline probably involves some level of over-generalization. It is doubtful whether realism could be seen as a discipline at all, let alone one with well defined borders. Taking account of this suspected over-generalization, there seem to be, nevertheless, some common denominators to realists. Realism reflects a theoretical point of view in international relations, which offers some level of priority to national interest over morality. Academic literature tends to divide realism into “classical realism” and “modern realism” or “Neorealism,” and I will follow this division throughout my discussion of realism.

9 Steve Forde, Classical Realism, in TRADITIONS OF INTERNATIONAL ETHICS (TERRY NARDIN & DAVID R. MAPEK ED.) 62 (1992) (“Forde”); On Modern Realism see Jack Donnelly, 20th Century Realism, in TRADITIONS OF INTERNATIONAL ETHICS (TERRY NARDIN & DAVID R. MAPEL ED.) 85-111 (1992) (“Donnelly”).

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depiction of an egoist nature of human beings and states, under the circumstance of anarchy in the international sphere.10 It is important to note that in this respect, realists do not argue for a moral justification for espionage, but rather argue for a state’s exemption from the need to morally justify espionage in the first place. Adhering to moral duties at the expense of national interests (represented, in this case, by the need to spy) does not make sense, according to realists. A state, giving up espionage for the sake of complying with a moral duty, risks its interests (which, based on the nature of the international sphere, might turn out to be fatal). Since other members are not expected to comply with the moral duty, and since there exists no enforcement authority, the compliance of a certain state will result in a marginal moral effect, if any at all.

In the context of intelligence, the realist argument seems exceptionally powerful. Let us suppose international community adopts a norm of a ban on espionage. For each state, giving up intelligence practically means to voluntarily accept a kind of national blindness. When it comes to a rule concerning espionage, such blindness applies even to the information on non-compliance with the rule by other states. This is expected due to the fact that other states conduct their espionage activity clandestinely. This is crucial, since the expectancy that the other members in the community will observe a norm is essential for its stability. 11 The American self-imposed cessation of collection of Signal Intelligence (Sigint) in 1929, based on the moral duty not to intrude upon other peoples’ communication, is a powerful example in support of the realist argument on espionage.12 This act harmed the United States during World War II, while the world has not been improved as a result. No other state followed in the footsteps of the United Sates. However, as powerful as the realist argument seems with regard to espionage, it is argued to be fundamentally wrong.

The realist approach in its general form has been widely criticized. Both its empirical assumptions as well as its normative conclusions attracted convincing counter arguments.13 Clearly, I need not deal in this paper with the realist argument in general. I do wish however to make one general comment on the normative conclusion of realism, which may have an intelligence-related aspect. Difficult dilemmas of security and justice do not justify suspending ethics. To the contrary, this is what ethics is all about - a normative instrument for guidance during a time of facing difficult choices. Applying ethical principles does not necessarily mean ignoring national interests, since ethics recognizes and incorporates the weight of such interests in considering any moral dilemma. This is why certain ethical approaches allow killing in self-defense and waging war in response to an attack. There is no reason why the dilemmas of espionage cannot be similarly governed by ethics. The search for a legitimate espionage must therefore start.

10 EDWARD HALLETT CARR, THE TWENTY YEARS' CRISIS, 1919-1939; AN INTRODUCTION TO THE STUDY

OF INTERNATIONAL RELATIONS (1946); HANS J. MORGENTHAU, SCIENTIFIC MAN VS POWER POLITICS, (2009); HANS J. MORGENTHAU, POLITICS AMONG NATIONS; THE STRUGGLE FOR POWER AND PEACE (2d ed. 1954); HANS J. MORGENTHAU, et al., HUMAN RIGHTS & FOREIGN POLICY § 18 (1979); REINHOLD NIEBUHR, MORAL MAN AND IMMORAL SOCIETY: A STUDY IN ETHICS AND POLITICS (2001); MICHAEL J. SMITH, REALIST THOUGHT FROM WEBER TO KISSINGER (1986).

11 JANNA THOMPSON, JUSTICE AND WORLD ORDER: A PHILOSOPHICAL INQUIRY 31 (1992); Nardin & Maple, 76.

12 Henry Stimson, As secretary of state closed the Department of States code-breaking office, the “Black Chamber”, as described in the official website of the NSA: “In his history of the Cipher Bureau, Yardley charged that Stimson had axed the organization strictly for moralistic reasons. In his own autobiography, Stimson did not deny this: he noted that although he became a heavy consumer of decrypt intelligence in wartime, certain practices that might be necessary during war were unacceptable during peace.” (http://www.nsa.gov/about/cryptologic_heritage/center_crypt_history/pearl_harbor_review/black_chamber.shtml); See as well: HENRY L. STIMSON & MCGEORGE BUNDY, ON ACTIVE SERVICE IN PEACE AND WAR (1971), P.188; L Kruh, Stimson, the black chamber, and the Gentlemen's Mail’ quote, 12 CRYPTOLOGIA (1988).

13 Walzer, 3-20.

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B. Just Intelligence The prominent argument of justifying espionage is the “Just Intelligence” argument, resting on the state’s right of self defense and the Just War Theory (“JWT”). The argument has two distinct forms. In its first form, it argues that intelligence is analogous to the use of force and therefore justified by the same justifications.14 The other format of the argument views intelligence as an extension of the use of force. It views espionage not as analogous to the use of force, but rather as an inherent element of it by being its natural extension.15 Whether directly or by way of analogy, it is argued that JWT should therefore regulate espionage and constitute its source of legitimacy. JWT determines when an act of espionage is justified, just as it tells us when an act of war is justified (“jus ad bellum”). Similarly, as with legal and illegal military acts (“jus in bello”), JWT should tell us what means are legitimate while gathering intelligence, and what means are not. I believe this seemingly attractive and powerful argument is fallacious. At best, this argument has the power to justify collection of intelligence during wartime or emergency. However, peacetime espionage and wartime espionage are fundamentally different. Justifying wartime espionage is the easy case. In times where military force can be legitimately applied, espionage seems justified on its face. A simple necessity-based or a lesser-evil type of argument will do. In contrast, justifying a harmful activity of State A against State B during peacetime, namely when A has no information on a concrete and imminent threat by B, is a totally different case than the case of regulating espionage between belligerents. In accordance, I argue that in reviewing the theoretical foundations of JWT, it becomes clear that JWT is not a suitable theoretical ground for regulating peacetime espionage.

In general, JWT is meant to govern occasions of a state’s emergency resulting from a state’s use of force. It targets the prevention of such occasions. It also aims at the shortening of such occasions and minimizing their consequent damages should they erupt after all. 16 Justifying peacetime intelligence based on this theory contradicts its basic rationale. Since peacetime espionage is a continuous activity, applying the just intelligence argument is analogous to an attempt to apply JWT in justifying the use of force indefinitely. I further argue that JWT has a very clear technique for achieving its dual-phase goal. According to JWT, it is essential that the aggressor is deterred and may be even punished.17 However, specifically deterring and punishing the aggressor is conditional upon being able to identify the aggressor. This clear identification of the aggressor is enabled by JWT, creating a routine of non-use of force. Having this background of peace and quiet, the opening of an illegitimate attack is immediately identified, as clearly as the first drop of ink falling on a white sheet of paper. However, intelligence during peacetime - as opposed to the use of force - is continuously gathered. Identifying the “aggressor” when it comes to espionage during peace is as impossible as reading white letters on the very same white sheet of paper. The “aggression” it answers is unobservable. As opposed to the threat from aggression, the sense of threat during peacetime cannot be objectively determined. Had there been an objective evidence of such threat, it would have turned, by definition, into an emergency or a state of conflict. In addition, the “war” that is fought by espionage

14 Angela Gendron, Just War, Just Intelligence: An Ethical Framework for Foreign Espionage, 18

INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE (2005); Michael Quinlan, Just intelligence: Prolegomena to an ethical theory, 22 INTELLIGENCE AND NATIONAL SECURITY (2007).

15 As Hulnick & Dw Mattausch, Ethics and Morality in United States Secret Intelligence, 12 HARVARD JOURNAL OF LAW & PUBLIC POLICY 510 (1989); John B. Chomeau And Anne C. Rudolph, Intelligence Collection and Analysis – Dilemmas and Decisions, in ETHICS OF SPYING – A READER FOR THE INTELLIGENCE PROFESSIONAL 114-125 (Editor: Jan Goldman, 2006).

16 On the two purposes of Just War Theory, see: Y. Benbaji, A Defense of the Traditional War Convention, 118 ETHICS (2008).

17 On the idea that according to JWT aggressor needs to be identified, punished by way of disarmament, incapacitation and deterrence, see: T. Hurka, Proportionality in the Morality of War, 33 PHILOSOPHY & PUBLIC AFFAIRS 41 (2005) (“Hurka”).

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during peacetime is a war, which never ends, while it is crucial, according to JWT, that wars and hostilities do end.18

An acute error of the Just Intelligence argument is related to the requirement that espionage is only conducted in response to a “true threat” parallel to the Just Cause requirement of JWT. It exposes the Just Intelligence argument to a problem of circularity. It only justifies intelligence in response to an existing threat; however, the very recognition of such threat requires, in some cases, prior intelligence.19 One could argue that states do not need intelligence in order to know where to direct their collection efforts.20 According to this counter-argument, a threat by a state is therefore a kind of information within the common knowledge of the adversary. The recognition of a threat as opposed to its details, does not apparently require prior intelligence. I disagree. Indeed, some of the states do not need to collect intelligence in order to know that an adversary represents a threat. This would be the case, for instance, when a neighboring state declares its harmful intentions. However, these are the easy cases. By definition, such declared intentions will lead the involved nations into some state of hostility. It therefore should be governed by the rules of necessity. However, peacetime espionage cannot be warranted in a previously expressed threat. To the contrary, it is driven by the fear that the unthreatening neighbor wore the skin of a ship after adopting the intentions of a wolf.21 As a result, knowing of a threat will move the regulation of espionage to the realm of the rules of necessity. Not knowing however on such threat, leads to legitimizing peacetime espionage based on some general knowledge about the adversary’s nature. This reflects another fundamental instance of the unsuitability of JWT for the task of justifying peacetime espionage. I argue that JWT is blind to general information on states, which does not amount to specific information on a concrete threat. It therefore cannot serve in discriminating states as legitimate targets for peacetime espionage based on their nature22.

JWT rightfully grants an equal right of self-defense to all states alike. However, at least intuitively, it seems that the right to employ espionage against other states (during peacetime) should be granted based on some discriminating rule. The alternative would be to allow peacetime espionage to all states. Taking account of the entailed moral harm, this approach seems unreasonable. Clearly, when it comes to certain target states, peacetime espionage seems unnecessary. But how do we tell apart the states? If the right to spy against a state is determined based on preliminary intelligence, the justifying argument will be circular. Such information is the product of espionage and hence cannot serve in its justification. On the other hand, if the classification of the just targets for espionage is based on state’s nature (which is commonly known and does not require prior intelligence), then it cannot be based on JWT, being blind to states’ political or religious doctrine. In this preliminary phase,

18 MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS

110 (1977) (“Walzer”). 19 A tougher question than why should Israel spy on Syria is for instance, why should Italy spy on Libya.

And indeed, the Libyan nuclear compound was discovered a few years ago by surprise. The nuclear Libyan threat emerged from nowhere. According to the Just Intelligence argument, it would have been illegitimate for Italy to collect intelligence on Libya, unless addressing a clear threat. And yet, the western intelligence community only became aware of the threat after spying on Libya. See as well footnote 21 below.

20 Israel for example, does not need intelligence in order to know that Syria represents a potential threat. Similarly, the US recognizes the fact that intelligence needs to be gathered on the Islamic Republic of Iran. Apparently, neither Israel nor the US needs to use the Mossad or the CIA respectively, for the very recognition of the threat. Once the threat is recognized, its details, such as when, how and where the threat might be materialized, do need intelligence that needs to be collected. If this proposition is true, the regression argument looses much of its weight.

21 Bush Official: Libya's Nuclear Program a Surprise, CNN (December 19, 2003), at http://articles.cnn.com/2003-12-19/world/libya.nuclear_1_british-inspectors-nuclear-program-libya?_s=PM:WORLD.

22 In referring to a state’s nature, I actually refer to something similar to what Rawls typical define as state’s comprehensive political or religious doctrine.

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it is sufficient in this regard to present three basic conclusions on peacetime espionage: (1). There should be some method of making a link between the right to spy and the nature of a state; (2). The just intelligence argument does not offer such method since it is morally blind to the nature of a state; (3). Had the just intelligence argument offered such distinction, it would have deviated dramatically from its just war theory root. The other two requirements of Proportionality and Last Resort (taken from JWT into the Just Intelligence argument) suffer from regression in a similar manner. A proportionate act of intelligence is conditional upon recognizing its value against its expected harm.23 At the same time, intelligence is required for conducting the very same calculation. The requirement of last resort demonstrates in turn how unsuitable JWT is for justifying peacetime espionage. It seems unreasonable to use an argument of the last resort type in justifying intelligence acts, like planting an undercover agent and building his reliability. Such a move could take years of fruitless yet harmful activity, prior to getting into its matured and potentially fruitful stage. This analysis shows that war and espionage are related but turn out to be very different. When it comes to peacetime espionage, the moral framework of war seems unsuitable. The effort for legitimizing espionage therefore continues.

II. THE IDEAL DUTY OF TRANSPARENCY

In this chapter I present my argument for a duty of basic transparency in international relations. As is the case with any moral argument concerning the international sphere, my starting point would be a basic depiction of the international community. Indeed, I believe the name “international community” already communicates the main theme of the relations between states. States are clustered in a community structure. Community requires basic cooperation, which is partly based on trust. Community also means proximity. In this stage, I restrict my definition of “proximity” between State A and State B to a range within which the offensive military technology of A or B remains effective24. Proximity of X to Y therefore by definition means that X possesses a capability to harm Y. Taking account of the communal structure of the international community, the concern over proximate states’ harmful intentions seems serious. History shows that proximate states are not only in a position to harm one another. In many cases, they also have the intention to do so. Taking into account that: (1). most of the states posses some effective military offensive capability; (2). some states tend to aggression; (3). the interests that are threatened by aggression are supreme; it follows that states are in a condition of rational and inherent risk-aversion when it comes to aggression. The international community has accordingly accepted rules that recognize aggression as a crime25. International law further recognizes rules for self-defense in response to outbreaks of aggression and for minimizing the entailed damages 26 . In addition, since no effective central government exists, each state must independently take the necessary immediate measures of defense. 27

The most dangerous type of aggression is the one that erupts by strategic surprise. History offers many examples, such as the Operation Barbarosa by Nazi Germany against Russia, the Japanese attack on Pearl Harbor, the 1973 Egyptian and Syrian attack against Israel, or the 9/11 attacks on America.28

23 On the review of the methods for calculating the contribution of a military act against its expected harm, see Hurka, p. 42-45.

24 The definition of proximity therefore is obviously relative to the specific circumstances and conditions of A and B, including their geography, military, economical and logistical condition.

25 ANTONIO. CASSESE, INTERNATIONAL CRIMINAL LAW (2003); YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE (2001).

26 The Charter of the United Nations, 1945, Article 51. 27 On the crime of aggression see Walzer, 51-62. 28 A Sella, 'Barbarossa': Surprise Attack and Communication, 13 JOURNAL OF CONTEMPORARY HISTORY

(1978); Hb Peake, A Review of: David E. Murphy: What Stalin Knew: The Enigma of Barbarossa’, 19

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What type of information if known in advance, could eventually prevent the surprise element in the strike 29? Apparently, there are two elements of any sudden attack - capabilities and intentions.30 Capabilities refer to military, economical, logistical and political powers to launch an attack. The historical review of the evolution of espionage suggests that modern warfare requires total dedication of all national resources by a belligerent state. Knowledge on offensive capabilities of a proximate state, therefore, means a prerequisite need to be fully aware of its condition in reference to a wide range of parameters. 31 Every item of information on any type of state’s condition may be relevant to assessing its offensive capabilities. Second—and probably more important to the neighboring state—are intentions. It reflects the will to practically act and to promote state interests through the offensive use of force. Aggressive intentions and military capabilities are essential elements of surprise attack. The surprise of the victim mainly concerns a few elements in the aggressor’s plans:

Assumptions pertaining to a possible attack address four questions: (1) whether the attack will actually happen, (2) its timing, (3) its location, and (4) the way in which it will be carried out. If an attack is to take its victim by surprise, it must find him wrong about at least one of these four questions, and usually more. The basic question, of course, is whether an attack is expected at al.32

The focal point of the proposed argument is with the basic element of strategic surprise, namely

whether an attack is expected, rather than how it is about to unfold. The specifics of a planned attack are obviously secondary to the preliminary decision to launch the attack. Based on simple application of the rules of necessity, once the anticipating victim is aware of a planned attack, it naturally has a right to spy against the aggressor. It can then spy and target to uncover the tactical aspects of the puzzle, such as the when, where and how the attack will occur. Since such efforts are taken within a clear permissible range of espionage, they reflect a marginal aspect of justifying espionage. 33

In an ideal world, none of the states is aggressive. In a less ideal world, where aggression cannot be eliminated, the lack of trust resulting from awareness of history and the nature of states could have been easily resolved, if states’ strategic intentions could be verified in advance. Being able to verify the INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE (2006); B WHALEY, CODEWORD BARBAROSSA (1973);H FEIS, THE ROAD TO PEARL HARBOR (1950); HB WESTERFIELD, FOREIGN POLICY AND PARTY POLITICS: PEARL HARBOR TO KOREA (1955); DR GRIFFIN, THE NEW PEARL HARBOR: DISTURBING QUESTIONS ABOUT THE BUSH ADMINISTRATION AND 9/11 (2004); EFRAIM KAM, SURPRISE ATTACK: THE VICTIM'S PERSPECTIVE (2004); A Shlaim, Failures in national intelligence estimates: the case of the Yom Kippur War, 28 WORLD POLITICS: A QUARTERLY JOURNAL OF INTERNATIONAL RELATIONS (1976); RICHARD A POSNER, PREVENTING SURPRISE ATTACKS: INTELLIGENCE REFORM IN THE WAKE OF 9/11 (2005).

29 Capable of aggression in its international form (threat on the political sovereignty or territorial integrity of a nation), I see hardly any difference between justifying collection against terrorist organization or regular states. Lacking usually the governmental and communication infrastructure of a state, the necessity to collect intelligence from human sources is even more acute. Other methods are naturally less effective in targeting collection against terrorism. As a result, while the argument presented in this paper discusses states, it counts terrorist organizations among the legitimate targets of collection. However, as opposed to peacetime espionage, which this paper deals with for the most part, espionage against terrorism should be considered as a type of wartime collection. As such, it is expected to be governed by the rules of necessity rather than the rules of peacetime transparency-enforcement, as argued in this paper when it comes to states.

30 EFRAIM KAM, SURPRISE ATTACK: THE VICTIM'S PERSPECTIVE 22-23 (2004). 31 “The First World War had indeed shown that total war needed total intelligence; foreign military power

had come to depend on factors of industrial capacity, demography and morale which fell outside the analysis of normal military and naval intelligence.” (Herman, p. 25-26).

32 Kam , 12. 33 In some cases, there are blurred borderlines between knowledge on whether the attack will occur and

knowledge on its timing and location. Such was the case of the 1973 attack on Israel. Israel had an understanding that at some point in the future, Egypt might use force to regain the Sinai desert. But this was a general expectation, which could have lasted for years. In this respect, the surprise on the very intention to attack combined with the surprise on the exact timing of the attack.

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peaceful intentions of its neighbors, states could avoid the impossible condition of continuous preparedness and alert. Under a condition of awareness to actual intentions of the neighboring states, every state could maintain reasonable alert conditions. It can switch to high alert condition only in cases when it cannot verify the peaceful intentions of one of its neighbors. Such an alert condition is expected to be limited in scope and time, until either the resulting conflict is over or else that the peaceful intentions of the neighbor are reconfirmed:

Advanced warning is the vital link connecting intelligence assessment with countermeasures designed to enhance readiness. Without adequate advance warning military preparedness can never be sufficient to face the threat. In this sense surprise can be regarded as the failure to issue an advance warning to decision makers and troops that would enable them to take appropriate precautions.34 The alternative to being able to confirm neighbor’s peaceful intentions costs dearly. Such a

condition of blindness to a neighbor’s intentions forces continuous and paralyzing defensive readiness on borderlines and the use of other defense systems. Budget priorities must be reevaluated. A larger share of total resources must be allocated to finance the cost of preparedness and alert. Reserves forces are called and taken out of their vital role in local economy.35 Huge amounts of oil, food and other commodities need to be accumulated for emergency reserves. Government and public attention is focused on the efforts of defense and thus neglecting all other crucial needs of the public. In more severe cases, the rational risk aversion of a state might lead it into taking preventive anticipatory attacks. For example, states with a limited territorial depth cannot afford counting on the success of a retaliating strike. In other cases, a preventive strike can be the only way out of the impossible blind preparedness condition. Since such condition cannot last for too long, a rational state might elect to assume the cost of a short war rather than face an infinite period of alert.

Without some level of transparency about intentions among states, basic cooperation seems impossible. Neither of the basic interests in security or economy can be secured under the condition of continuous alert and preparedness. Since World War I, military technology made armies faster, larger, more easily maneuverable and far more destructive36. Failing to anticipate or cope with an arriving attack might lead to fatal results. A state that is attacked by surprise by a large and quick army, might wake too late into the understanding that its enemy conquered large portions of its territory. In more extreme cases, a surprise attack might even very quickly threaten a state’s political sovereignty and existence as an independent nation37. States as a result cannot simply count on not being attacked. They are forced to verify it. The international community cannot afford the paralyzing costs of continuous preparedness of its members. The solution is that states obtain enough information on their proximate neighbors in order to prevent the unsustainable condition of continuous preparedness. I argue that what states need to know in this regard is the strategic intentions of their proximate neighbors.

A. On Capabilities and Intentions What information if known in advance, could eventually prevent the surprise strike or else—

ease the unsustainable preparedness tension of the proximate neighboring states? In this sub-chapter I argue that this need for information by neighboring states is answered if the strategic intentions of their proximate neighbor are transparent. As mentioned, aggression requires both military offensive

34 Kam, 22. 35 “As Defense Minister Dayan explained in 1973, frequent mobilization would have disrupted the fabric of

daily life in a country dependent on a citizen army...Dayan was also concerned that a panic caused by overreaction would undermine the leadership’s credibility” (Kam, 35).

36 Herman, 1-30. 37 Three examples from modern times illustrate this risk: Kuwait, France (WWII) and some of The Golan

Heights in 1973. All three areas were very quickly conquered in a manner only possible in modern warfare.

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capabilities and simultaneous aggressive intentions. A state could therefore theoretically reduce the risks of surprise aggression if it obtains information in advance on either the neighbor’s intentions, capabilities or both. These types of relevant information are commonly divided to “intelligence on intentions” and “intelligence on capabilities”.38 I argue that intentions are the most important element of a surprise attack, since most states possess attack capabilities at any given time. Only when aggressive intentions combine with the capabilities, do we have a forming risk of concrete attack. As a result, the kind of information, which has the potential of preventing the unbearable condition of blind alert, is information on strategic intentions. 39

It is important to differentiate between information on strategic intentions and information on tactical intentions. The first deals with questions like the main concern behind the condition of alert - is the proximate neighbor planning an act of aggression. The second type of information on intentions, namely the information on tactical intentions, deals with the specifics of executing the strategic intention - such as when, where and how is the planned attack about to be executed. These are secondary questions. They may affect the way the condition of alert and preparedness of the adversary should be implemented. However, they do not affect the answer to the main strategic interest of a state - should it get into the condition of high alert in the first place. This question is answered through information on the strategic intentions of the proximate neighbor.

Information on strategic intentions is by a great amount more valuable than information on capabilities. What makes the information on capabilities far less dramatic than the information on intentions is that the military capabilities of states are practically not so secretive. Squadrons, battleships and armored divisions are not easily concealed. Private intelligence agencies provide extremely accurate and detailed information about the military capabilities of any country on the globe40. The unknowns on a state’s military capabilities are relatively marginal. It is the non-transparency of intentions that puts states in the unsustainable condition of preparedness, alertness and preventive use of force. In addition, information on the military capabilities of the neighboring state cannot really ease its alert condition. Most military systems, like combat airplanes and ships, are for dual use - both defense and offense. Knowledge on their existence does not indicate necessarily that offensive intentions exist. Such knowledge on capabilities may be of tactical importance should an armed conflict erupt after all. However, it has limited contribution, if any, to the more dramatic and strategic question of whether sudden aggression is about to be unleashed or not.41 Only this kind of

38 David Kahn, An historical theory of intelligence, 16 INTELLIGENCE AND NATIONAL SECURITY 79 81-82

(2001); Kam, 22-23. 39 Naturally, having the capabilities is not sufficient to creating the risks of aggression unless a state also

intends to aggressively use these capabilities. Indeed, sometimes information on capabilities may shed light on intentions. For instance, when information is gathered by State A suggesting that its neighbor State B combines procurement of new strategic weapon systems with intensive training which seem to be in an offensive pattern. This information may not be sufficient for concluding that State B has adopted offensive intentions. However, such information can support such hypothesis.

40 Janes, Jane’s Security Intelligence Solutions (http://www.janes.com/products/janes/security/index.aspx). 41 The hazards of linking information on capabilities to information on intentions could also be

demonstrated by the Israeli example of assessing the Egyptian intentions in 1973. The attempt to link possession of certain military capabilities with alert on intentions proved completely wrong. The wrong “conception” of the Israeli intelligence made a link between the existence of advanced anti-aircraft systems and an intention to launch an attack on Israel by Egypt. Eventually, the Egyptians decided however to launch the attack despite lacking the advanced anti-aircraft systems. When it comes to alert on surprise attack, knowledge on strategic intentions is therefore superior to knowledge on military capabilities. In many cases, knowledge on military capabilities cannot and sometimes should not serve as sufficient indication on strategic intentions. (Uri Bar-Joseph, Israel's 1973 intelligence failure, 6 ISRAEL AFFAIRS (1999); URI BAR-JOSEPH, THE WATCHMAN FELL ASLEEP: THE SURPRISE OF YOM KIPPUR AND ITS SOURCES (2005)).

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information may lead a state to reasonable routine readiness costs and allow basic international security and cooperation.42

Summarizing this analysis, the conclusion is that a condition of states’ blindness to the strategic intentions of its proximate neighbors is unsustainable. The alert condition driven by rational risk aversion of states is expected to frustrate basic security and economic cooperation among nations. But this unstable condition seems to be easily dealt with through information. Knowing in advance the strategic intentions of their neighbors, states can avoid the devastating alert costs and the international community can maintain the basic level of security and trust. The unavoidable solution is therefore in recognizing that in the relations among proximate states, there should be a duty of basic transparency on strategic intentions. A transparent state would be therefore a state, which adopts strategic decisions (such as going to war) in a process which makes these intentions reasonably clear to its proximate neighbors. In other words, a transparent state is a state, which adopts strategic intentions in a process that cannot surprise its neighbors.

Viewing the duty of transparency in this proposed manner seems troubling at first glance. States seem to be irrationally required to disclose their strategic intentions. It seems irrational to require that a state disclose its delinquent intentions, such as planning war. It would be similarly irrational to require that criminals be transparent about their intentions to commit a crime. On the other hand, it seems just as irrational to require disclosure of peaceful intentions. Such information seems unnecessary. More importantly, there is very little sense in relying on such disclosed information, since its reliability cannot be verified. As a result, it cannot really assist in preventing the unsustainable preparedness condition resulting from non-transparency and proximity. Requiring states’ transparency therefore seems irrational with regards to both harmful intentions as well as peaceful intentions. Have we reached a no-through road on our way to prevent the impossible condition of non-transparency and proximity? I believe the answer is negative. The requirement of basic transparency is not related to disclosing certain information. It therefore does not require the disclosure of neither peaceful nor harmful strategic intentions. It is a requirement to maintain a transparent structure. It is not what a state intends to do which is required to be transparent. It is rather the process through which such intentions are adopted which requires transparency. Rather than requiring that states’ leaders come out of the deliberation room and disclose the results of such deliberation, the requirement of transparency actually means that the deliberation room itself is made up of walls of glass. In the next chapter II(B), I show why the requirement of transparency is indeed a structural requirement. I follow by presenting my argument that a transparent structure includes typical liberal characteristics, such as free elections, parliamentary oversight and free press. This position also clarifies what it means to have a transparent neighbor - it means that a state knows about the intentions of a transparent neighboring state at least what a citizen in a typical liberal democratic state knows about the strategic intentions of her country. The structural character of transparency shows that a duty of basic transparency is rational after all.

42 The case of nuclear weapon shows that even knowledge on the possession by a state of the ultimate

weapon does not by itself lead to an automatic anticipation of a coming war by the neighbors. However, when nuclear arming combines with non-transparency of the relevant regime, neighbors’ reaction is far more serious. The advisory opinion f the ICJ on the matter implies that the possession of nuclear weapon by itself should not be linked to any intention to use it. The possession of some degree of nuclear military capability is attributed to at least 9 states. And yet, this information on the possession of the supreme weapon did not automatically lead the relevant neighboring states to conclude that an imminent attack is forming. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion Of July 8 1996; D. Stephens, Human Rights and Armed Conflict-The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 YALE HUM. RTS. & DEV. LJ (2001); R. Falk, Nuclear Weapons Advisory Opinion and the New Jurisprudence of Global Civil Society, 7 TRANSNAT'L L. & CONTEMP. PROBS (1997); L. Doswald-Beck, International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, 37 INTERNATIONAL REVIEW OF THE RED CROSS (1997).

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However, the fact that transparency is a structural characteristic of a liberal state leads into a whole new problem. This is the problem of liberal imperialism.

B. Transparency and Liberal Political Imperialism Reasonable states are expected to be transparent about their peaceful intentions towards their

proximate neighbors. As mentioned, there are costly consequences to non-transparency in international relations.43 A rational state is not expected to assume this cost when its intentions are indeed peaceful. As a result, the high preparedness and costly status of alert will be prevented and reasonable cooperation is again within reach. Let us take for example State A, which does not have any intentions of attacking its neighbor, State B. State A is also aware of the potential consequences of its non-transparency. State A may be economically harmed due to the lack of basic trust with B. It might even be mistakenly attacked by B due to wrong interpretation of its intentions, under conditions of uncertainty and risk aversion. It seems trivial that all State A needs to do is to communicate its true intentions to State B. State A simply needs to communicate a very clear message to B: “We are not going to attack you”. Unfortunately, such communication will not avail to discharge the tension between the states. Transparency in this regard is the result of a specific structure of a state. It is not simply the result of a specific message. State A cannot simply count on B’s message. B can theoretically declare Φ and in practice do Φ, which is the opposite of Φ. After all, as part of a strategic deception plan, this is exactly what B is expected to do. State A can only trust B’s intentions if such intentions are adopted in a process which is transparent to A. In such a case, there is no sense in saying Φ and meaning Φ, since the very structure of A’s deliberation process is transparent. As a result, meaning actually Φ will be transparent none the less. Such continuous transparency can only be the result of a specific political structure. It is a kind of structure, which creates the effect of a deliberation process conducted beyond a clear glass wall.

If basic transparency of a state is indeed the result of a specific structure, then it follows that the proposed argument practically makes a dramatic difference between typical liberal democracies and non-liberal regimes. One of the clearest signs of a democratic regime is its unique process of deliberation. Free election of leaders, parliamentary oversight and free press all create a transparent process of deliberation. Leaders of both the executive and parliamentary branches are elected by the people following a long and typically tedious campaigning that makes these leaders known to the public 44. Their opinions become clearer; their personal life exposed; their character revealed; and the powerful and influential people around them easily identified. But once elected, the process continues. Leaders make decisions knowing that these decisions need to be backed by sympathetic public opinion or else face the public's retribution in the next elections.45 Governments are subject to parliamentary oversight, and as such, they openly discuss their expected policy for which they are held accountable. In many cases, adopting strategic intentions such as going to war requires some parliamentary support,

43 On wars resulting from the misinterpretation of the intentions of the adversary, see: David A. Lake, Powerful pacifists: Democratic states and war, THE AMERICAN POLITICAL SCIENCE REVIEW 26-30 (1992); BRUCE M. RUSSETT, GRASPING THE DEMOCRATIC PEACE: PRINCIPLES FOR A POST-COLD WAR WORLD 39-40 (1995); BRUCE B. DE MESQUITA & DAVID LALMAN, WAR AND REASON: DOMESTIC AND INTERNATIONAL IMPERATIVES (1992).

44 AREND LIJPHART, PATTERNS OF DEMOCRACY: GOVERNMENT FORMS AND PERFORMANCE IN THIRTY-SIX COUNTRIES (1999). 45 On the influence of democratic leaders’ accountability on democratic states’ conduct in the international sphere, see: Bruce B. De Mesquita, et al., An institutional explanation of the democratic peace, AMERICAN POLITICAL SCIENCE REVIEW (1999) (“De Mesquita”); David A. Lake, Powerful pacifists: Democratic states and war, THE AMERICAN POLITICAL SCIENCE REVIEW (1992); JOHN M. OWEN, LIBERAL PEACE, LIBERAL WAR: AMERICAN POLITICS AND INTERNATIONAL SECURITY (2000); BRUCE M. RUSSETT, GRASPING THE DEMOCRATIC PEACE: PRINCIPLES FOR A POST-COLD WAR WORLD 3-40 (1995) (“Russett”).

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either for the very authorization to use the armed forces or for the authorizing of the special required budget46. The media also serves as an important arena of deliberation and scrutiny of these policies. In a democratic state, free press enjoys freedom of speech and the liberty of movement. These are important instruments in monitoring the reliability of state’s declarations. Operating in a free market, free press is highly incentivized to uncover contradictions between government’s declared intentions and between government’s actual intentions.47 As a result of this characteristic process of transparent deliberation, one could consider typical democratic regimes to be transparent about their strategic intentions. In such nations, launching a surprise attack is nearly impossible as a result of the transparent structure. Such a surprise attack requires the democratic government to secretly adopt the offensive plan; to refrain from preparing public opinion in advance; to avoid receiving parliamentary authorization and budget and to conduct massive military preparations under the radar of the free press. Obviously, irrespective of the fact that in democratic states rational leaders may not want to pursue this path, on the practical level they simply do not even have a practical option to do so.48 Being transparent domestically by definition means being transparent in international relations. Governing institutions of a liberal democracy have no mechanism for communicating a selective message, which is addressed only to their citizens while censoring external listeners.49 This domestic structural transparency happens to have a substantial value in maintaining relations with neighboring states.50 It should be noted however, that liberal democracies are only transparent about their strategic intentions and not necessarily about any other type of information, such as about tactical intentions. For example, U.S. Military may have managed to tactically surprise Saddam Hussein in the method of opening the war, including the exact time and place of the attacks. However, America did not even attempt to strategically surprise Saddam Hussein with regards to its very intention to use force in both recent Gulf Wars. This analysis already suggests that there are types of peacetime espionage that cannot be justified. Espionage against typical liberal democracies, which is argued to be targeting such state’s strategic intentions, seems unnecessary and hence unjustified. According to the proposed argument, such strategic intentions of a democratic liberal regime are typically transparent. I wish to clarify that I do not argue for equivalence between transparency and a liberal structure. I do not intend to offer a definition of a liberal structure and therefore cannot and need not argue for equivalence between the two notions. I do however argue for high correlation between a typical liberal structure and transparency. Put simply, I do not argue that liberal democracies are by definition sufficiently transparent. I argue that liberal democracies are typically transparent in high probability. This high correlation between transparency and liberal democracies is taken into account by the representatives of the nations in the original position that I will soon describe. It allows their reasonable assumption that a liberal nation is most likely a structurally transparent nation.

46 W. Van Alstyne, Congress, the President, and the Power to Declare War: A Requiem for Vietnam, 121

UNIVERSITY OF PENNSYLVANIA LAW REVIEW (1972); W.M. Treanor, Fame the Founding and the Power to Declare War, 82 CORNELL L. REV. (1996); J.G. Sidak, To Declare War, 41 DUKE LAW JOURNAL (1991).

47 For different perspectives on the relations between domestic institutions of liberal democracies and their affect on the states transparency and hence on states’ conduct in the international level, see: Kurt Taylor Gaubatz, Democratic states and commitment in international relations, 50 INTERNATIONAL ORGANIZATION 121-122 (1996) (“Gaubatz”). On the structural transparency of liberal states, see as well: Kenneth A. Schultz, Domestic opposition and signaling in international crises, AMERICAN POLITICAL SCIENCE REVIEW (1998); James D. Fearon, Domestic political audiences and the escalation of international disputes, AMERICAN POLITICAL

SCIENCE REVIEW (1994). 48 Russett, 38-40; Gaubatz, 113. 49 Gaubatz, 122-123. 50 ibid, 122.

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I also differentiate between the idea of democratic transparency and the idea of democratic peace. The idea of democratic peace rests on the empiric assumption that democracies do not wage war on one another. The conclusion is naturally that democratic states are less aggressive to one another and hence less likely to attack.51 Yet, it should be noted that democratic peace is not beyond controversy.52 Irrespective of such controversy, I do not rest my conclusion on this idea. Instead, I do conclude that democratic states are less likely to surprise in attacking their adversaries.53 The reason is clear—the typical democratic structure forces a transparent process of adopting strategic intentions. As such, a typical democracy can neither surprise its citizens nor its adversaries.54 With that said, this account—the transparent process of public deliberation—only raises greater concerns about non-transparent states and demonstrates their ability to surprise adversaries and hide their true intentions, including potentially aggressive ones.

The non-democratic regime, in contrast, is not subject to a transparent process of deliberation. There would typically be a very restricted forum involved with deliberation of a strategic nature, such as instigating war. Such was the case with Iraq under Saddam Hussein, or North Korea under Kim Zong-Il, in which there is no deliberation process, other than the one functioning within the leader’s head.55 Opposition hardly exists; and the media is typically an instrument of propaganda rather than reflection of the public’s genuine debate.56 This is obviously an extreme depiction of non-democratic regimes. Most non-democratic nations are typically located somewhere on the spectrum between these extreme cases and a more transparent structure. They are all however transparent to a level which still falls short of the kind of transparency characteristic to the commonly perceived liberal democracy. However, we should assume that while a state’s transparency is a matter of degree, a state’s neighbors will eventually reach a dichotomized conclusion: are the strategic intentions of this state clear and

51 PR HENSEL, et al., The democratic peace and rivalries, 62 The Journal of Politics (2008),1173–88;

BABST, DEAN V. Elective Governments ― A Force For Peace, THE WISCONSIN SOCIOLOGIST 3 (1, 1964): 9-14; NP GLEDITSCH, Focus on: Democracy and peace, 29 Journal of Peace Research (1992), 369; EDWARD HALLETT CARR, THE TWENTY YEARS' CRISIS, 1919-1939; AN INTRODUCTION TO THE STUDY OF INTERNATIONAL RELATIONS (Macmillan & co. ltd. 1946); HANS J. MORGENTHAU, POLITICS AMONG NATIONS; THE STRUGGLE FOR POWER AND PEACE (Knopf 2d ed. 1954).

52 This stands in contrast to Rawls’s use of the idea of democratic peace as if a non-controversial concept. See LoP, p. 44-53. On the controversy behind Democratic Peace see: SMALL MELVINN AND DAVID SINGER, The War Prones of Democratic Regimes 1816-1965, 1 The Jerusalem Journal of International Relations (1976)

53 On the idea that the structural transparency of democratic states prevents them from being able to surprisingly attack their adversaries, see: Russet, p. 38-40. I should note that this idea has been challenged by Rosato. I strongly disagree with Rosato’s approach. Out of 10 counted surprise attacks unleashed in the post World War Two era, Rosato clings to only two examples. He concludes that the apparent surprise attacks of Israel against Egypt in both 1956 (in a joint operation with Britain and France) and in 1967, are clear cases that contradict the presumption against the possibility of a democratic surprise attack. It seems that Rosato is both wrong about the historical facts and might have conflated strategic surprise with tactical surprise. As to the facts, in both cases, it was Egypt that initiated the resort to the use of force. In 1956, it has caused Israel hundreds of casualties through the use of infiltrating saboteurs. It has also used naval blockade in both cases, which is a clear act of aggression. I fail to see how can an aggressor be surprised by the war he has initiated himself. The surprise that Egypt may have indeed experienced, is therefore a tactical surprise as to the when and how the attack was executed, rather than whether it is going to happen in the first place (SEBASTIAN ROSATO, The flawed logic of democratic peace theory, 97 American Political Science Review (2003), p. 585, 597-598).

54 For the sake of clarity, I should note that this does not mean however that democratic states could not surprise their adversary on the tactical level, such as attacking on a tactically surprising timing or by using a surprising attack method. Ruses of war are of course allowed and practically available to democratic states. However, the very resort of a democratic regime to the use of power is not likely to surprise neither its citizens nor its adversaries. In other words, democracies are not likely to initiate strategic surprise attack.

55 EFRAIM KARSH & INARI RAUTSI, SADDAM HUSSEIN: A POLITICAL BIOGRAPHY (Free Press (Maxwell Macmillan Canada. 1991); J BECKER, ROGUE REGIME: KIM JONG IL AND THE LOOMING THREAT OF NORTH KOREA (Oxford University Press, USA. 2007).

56 Gaubatz, p. 122.

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transparent, or are they not. 57 This threshold perception of transparency is the reason for my dichotomized approach to transparency of states, although it is in nature a gradable characteristic of a state. Since transparency is argued to be requiring a specific structure of a state’s institutions, the question if a certain state is indeed sufficiently transparent or not is reduced to the question of whether it has or has no transparent structure. 58 Since a transparent structure requires free elections, government’s accountability, freedom of speech and freedom of the press, the question of transparency could be answered in high proximity by asking if the state is a typical liberal democracy. As mentioned, I do not argue for equivalence between democracy and transparency. However, it is argued that there is high correlation between the two.

I have so far argued that the international communal structure forces proximity and a need for basic cooperation between states. Such a structure requires that there should be a duty of basic transparency on strategic intentions. However, transparency is a structural quality. Such structural quality is characteristic of liberal states. This leads into irresolvable political obstacles on the way to international cooperation. On the one hand, liberal nations cannot maintain reasonable cooperative relations with non-liberal and non-transparent neighbors. On the other hand, non-liberal nations cannot adopt the kind of structure enabling the required level of transparency. Such a structure is expected to contradict their political or religious doctrine. It forces them to adopt a characteristic liberal feature. I now move to presenting the argument suggesting espionage to be the practical solution to this otherwise irresolvable political crisis.

III. ESPIONAGE AS A BRIDGE TO LIBERAL DEMOCRACIES

In this chapter I present the argument that espionage serves as a non-structural substitute for an international duty of basic transparency. Espionage enables a non-voluntary enforcement of a duty of transparency while avoiding the need for imposing a liberal structure on non-liberal states. This suggested description of espionage is not an attempt to redefine espionage. It is rather an attempt to suggest a different view on its role and function. It is also not a strictly descriptive presentation of espionage. By proposing this view on the role of espionage, I also indirectly address the issue of its legitimacy. This proposed description of the role of espionage is the basis for its proposed justification. Accordingly, in presenting my proposed contractarian justification for espionage, I show that all well-ordered states, including non-liberal states, will hypothetically endorse a duty of basic transparency if its enforcement is limited solely to espionage.

Based on the argued contradiction between the need for basic transparency and the rejection of liberal political imperialism, I suggest a new view on the role of international espionage. I present the role of espionage as an important instrument for basic cooperation between liberal and non-liberal nations. Espionage therefore enables a practical solution to the otherwise irresolvable cooperation crisis between liberal and non-liberal nations. It is practically the bridge between the unsustainable practical condition of non-transparency (for liberal states) and between the unacceptable political condition of liberal-like duty of transparency (for non-liberal states). Espionage activity that effectively targets the clarification of the strategic intentions of a non-liberal nation, creates the effect of a transparent target nation. It offers such a state an alternative of being transparent towards its proximate neighbors. However, it enables such transparency in a very limited manner. It does not force an

57 My proposed argument does not intend to contribute to the debate over the exact definition of

democracy, be it a legal definition or one offered by political scientists. Regardless of the exact definition of democracy, I argue that its entailed practical meaning is that a democratic state is basically transparent about its strategic intentions.

58 This does not mean that there cannot be a controversy on whether a specific state is a liberal democracy or not. It will still nevertheless be a controversy about a dichotomist characteristic of a state.

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unacceptable political structure on the non-liberal nation. It also secures such nation from other formats of external intervention, as in the case of war or active political intervention.

Pursuant to this depiction of espionage, I now wish to persuade that espionage, as an instrument for enforcing transparency in international relations, is legitimate and justified. Presenting an argument pertaining to sovereignty in the global sphere (as in the case of the argued duty of transparency) requires prior adoption of a concept of global justice. Adopting a specific concept of global justice will lead to holding an account of who are the primary moral agents in the international sphere and what are the rights and duties pertaining to the relations of such agents. The proposed argument adopts a contractarian approach to justice among nations. I contend therefore that the proposed duty of basic transparency among states, which is limited to enforcement exclusively through espionage, is legitimate because it would be endorsed by hypothetical representatives of all well-ordered states, should they be placed in a condition of fairness and impartiality. In accordance, I now move to presenting the contractarian concept of global justice. I start by outlining the background to what is probably the most serious and thorough contractarian account of global justice, which is Rawls’s Law of Peoples (“LoP”)59. I then present my reservations to Rawls’s structure of the international original position and to some of his presumptions. In sub-chapter III(B) I present an account of the proposed deliberation process within the international original position, which according to the proposed argument, constitutes the basis for the legitimacy of international espionage.

A. A Concept of Global Justice This sub-chapter places the proposed contractarian approach in the general context of relevant

theories of international relations and global justice. The international sphere is where liberalism faces a fundamental dilemma, which is most relevant to justifying espionage. Applying liberalism in its democratic constitutional format to the international sphere, might lead into a dead-end. On the one hand, if we impose liberalism as constitutional democracy on non-liberal peoples, we will be ignoring tolerance to differences—a fundamental requirement of liberalism.60 On the other hand, if we accept non-liberal regimes as legal members within international community, we may be ignoring violations of human rights—also fundamental to liberalism61. Apparently, there is no escape route. A liberal concept of global justice could be either over-imperialistic or over-tolerant. Each route seems extremely costly.

For some concepts of global justice, the cost I refer to seems natural. Most cosmopolitans made a clear choice of human rights over tolerance.62 They view the citizens as the primary moral agents in

59 JOHN RAWLS, THE LAW OF PEOPLES; WITH, THE IDEA OF PUBLIC REASON REVISITED (2001) (“LoP”).

60 LoP, p. 59-61; PL, 133-168. 61 KOK-CHOR TAN, The Problem of Decent Peoples, in. REX MARTIN AND DAVID A. REIDY (ED.),

RAWLES’S LAW OF PEOPLES, A REALISTIC UTOPIA?, P. 76, 81-84; LEIF WENAR, Why Rawls is Not a Cosmopolitan Egalitarian, in. REX MARTIN AND DAVID A. REIDY (ED.), RAWLES’S LAW OF PEOPLES, A REALISTIC UTOPIA?, P. 95-114.

62 It should be noted that the term ‘Cosmopolitans’ reflects a high – maybe too high – level of generalization. The range of opinions and theories considered to be cosmopolitans is wide and diversified. I do however refer to the mainstream political and moral cosmopolitan approach, viewing citizens rather than states as the primary agents of the international sphere. They usually support some level of sovereignty, although in a thinner layer than realists. As opposed to a common mistake, cosmopolitans do not necessarily argue for the establishment of one unified world state or against loyalty to one’s state. On prominent writing on cosmopolitanism, see: CHARLES R. BEITZ, COSMOPOLITAN IDEALS AND NATIONAL SENTIMENT, 80 THE JOURNAL OF PHILOSOPHY (1983); JURGEN HABERMAS, KANT'S IDEA OF PERPETUAL PEACE, WITH THE BENEFIT OF 200 YEARS' HINDSIGHT, PERPETUAL PEACE: ESSAYS ON KANT’S COSMOPOLITAN IDEAL (1997); KOK-CHOR TAN, JUSTICE WITHOUT BORDERS: COSMOPOLITANISM, NATIONALISM, AND PATRIOTISM (CAMBRIDGE UNIV PR. 2004); MARTHA NUSSBAUM, FRONTIERS OF JUSTICE. DISABILITY, NATIONALITY, SPECIES MEMBERSHIP, (2007); PETER SINGER, ONE WORLD: THE ETHICS OF GLOBALIZATION (YALE UNIV PR. 2004); THOMAS W. POGGE, Cosmopolitanism and

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the international sphere.63 Human rights and equality need to be protected and states, if having any role at all, are to serve this goal rather than be served on its expense. There is no point in being tolerant to nations at the expense of individuals, since it should work the other way around.64 Rawls's early work gave the impression that within the wide range of theoretical approaches to international relations, his theory should be positioned near the cosmopolitan pole.65 However, the move from “A Theory of Justice” (“ToJ”) into LoP positioned Rawls’s theory neither near the cosmopolitan nor near the realist pole. 66

It seems that the most dramatic move of Rawls within LoP, is his determination that peoples and not citizens are the primary moral agents and players in the international arena.67 Rawls views the international community as a community of collectives. 68 Just like Michael Walzer’s legalist paradigm in the heart of the modern “Just War Theory,” this depiction of the international realm very much affects the eventual normative content of the theory.69 In relying on a similar depiction of the international community as a community of collectives, it is no wonder therefore, that the two philosophers, at least with regards to war, both developed very similar rules.70

sovereignty, 103 Ethics (1992); ONORA O'NEILL, BOUNDS OF JUSTICE (CAMBRIDGE UNIV PR. 2000); SAMUEL SCHEFFLER, BOUNDARIES AND ALLEGIANCES: PROBLEMS OF JUSTICE AND RESPONSIBILITY IN LIBERAL THOUGHT (OXFORD UNIVERSITY PRESS, USA. 2003).

63 Charles R BEITZ, Rawls's Law of Peoples, 110 Ethics (2000); ALLEN. BUCHANAN, Rawls's Law of Peoples: Rules for a Vanished Westphalian World, Ethics (2000); THOMAS W. POGGE, Incoherence between Rawls's Theories of Justice, The, 72 Fordham L. Rev. (2003); L. WENAR, Why Rawls is not a cosmopolitan egalitarian IN. REX MARTIN AND DAVID A. REIDY (ED.), RAWLES’S LAW OF PEOPLES, A REALISTIC UTOPIA?, P. 95-114; THOMAS W POGGE, An egalitarian law of peoples, 23 Philosophy & Public Affairs (1994), p. 193-224.

64 On the other side of the theoretical spectrum, for relativists, it is natural to suggest priority to tolerance. According to typical relativist approach, no norm is globally valid, and therefore, there is hardly any justification to globally impose any norm, for some relativists—not even a one concerning international human rights. See: CATHERINE AOUDAD, Cultural Imperialism and Democratic Peace, in. REX MARTIN AND DAVID A. REIDY (ED.), RAWLES’S LAW OF PEOPLES, A REALISTIC UTOPIA?, P. 59, 59-60; BARRY HINDESS, Neoliberal Citizenship, CITIZENSHIP STUDIES 6(2) (2002), P. 127-143.

65 BRIAN BARRY, THEORIES OF JUSTICE § 1 (Univ of California Pr on Demand. 1991); CHARLES BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS (Princeton Univ Pr. 1999), Part III; THOMAS .W.M. POGGE, REALIZING RAWLS (Cornell Univ Pr. 1989), Part 3.

66 JOHN RAWLS, A THEORY OF JUSTICE (Belknap Press of Harvard University Press. 1971). By shaping his theory of global justice as a realist utopia, Rawls managed to satisfy none of the two parties. As realist, his theory is based upon human nature and the world as it is. Rawls does not base his theory on a potential change in the current nature of humans or peoples. However, under such constraints of reality, his theory aims at proposing the best order and the basic structure that can be desired. This is the utopian part.

67 I should mention that Rawls refers to peoples rather than states, mainly due to his view of peoples, as opposed to states, as not necessarily deserving sovereignty. In this paper, for the sake of clarity and simplicity, I refer to states and peoples as one (“LoP” 23-30).

68 This approach also matches Rawls’ position on the unsustainable idea of the international realm being consolidated into one global state. This structural cosmopolitan idea could have eliminated the gap between the liberal domestic concept of justice—as represented by a constitutional democratic regime—and that of LoP. Rawls (following a similar argument by Kant) justifiably rejects this idea as unstable: “The first step is uncontroversial. Almost every theorist joins Rawls in accepting Kant’s Thesis that a global government would be either perpetually unstable or intolerably oppressive.” Such a unified state, due to the high level of pluralism in the international realm, will be characterized by constant controversies by separatist forces from within. (Wenar, P. 108). See as well Kant’s own expressed objection to the cosmopolitan idea: IMMANUEL KANT, THE METAPHYSICS OF MORALS (Cambridge University Press. 1991), §53-54. It is worth mentioning that according to my interpretation, The LoP should not be interpreted as totally rejecting the feasibility of the very idea of the unified global state if reached voluntarily, after a long period of a successful realist utopia has increased confidence and trust and reduced controversies. Developing this point is however far beyond the scope of this paper.

69 On the Legalist Paradigm see Walzer, P. 58-63. 70 It is important to clarify that by using the phrase “community”, I only refer to a normatively-neutral

definition of a cluster of individuals or groups in proximity. I do not refer to the social concept of a community

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I contend that ignorant representatives of nations in the international original position will accept the proposed rule for espionage as the sole instrument of enforcing the duty of basic transparency. In this respect, I follow Rawls’s approach of viewing the states, rather than their citizens, as the primary agents in international ethics. One of the results of this structure is Rawls’s tolerant approach to decent yet non-liberal peoples, which is unacceptable to cosmopolitans. 71 I need not attempt to resolve this dispute (if resolvable at all), since in the next sub-chapter III(F) I show that the proposed rule is expected to be endorsed also from a certain cosmopolitan perspective of structuring the global social contract.72

Once Rawls elects that people shape international order, rather than citizens, the rest of the philosophical argument is based (with essential amendments) upon the contractarian approach of A Theory of Justice (“ToJ”) and concepts of justice as fairness, also further developed within Rawls's “Political Liberalism” (“PL”).73 World order and its basic structure are therefore determined in two main phases: the international original position is structured very much the same as in ToJ, only now the representatives represent liberal peoples or “decent peoples”, which are well-ordered non-liberal peoples. Rawls therefore conducts two separate original positions - both taking place among representatives of nations and not representatives of world’s citizens. It is in this phase that the representatives of the peoples, under a similar veil of ignorance known from ToJ, are likely to endorse the eight basic principles of LoP.74 These eight principles are drafted in a manner that allows both groups to agree to them separately—liberal peoples and then decent peoples. These principles allow the important phase of accepting the decent peoples into the Law of Peoples.75 In the next sub-chapter III(B), I present my criticism on the Rawlsian structure of the international original position. I mainly oppose the separate original position to liberal and to non-liberal peoples. It inherently contradicts the principles of freedom and equality to all peoples, which are so fundamental to Rawlsian justice. In this stage of presenting my argument, it is sufficient to say that I contend that both the Rawlsian original

which Rawls rejects (See PL, p. 40-43); On similarity to Walzer’s theoretical approach see: Rex Martin and DAVID A. REIDY, Introduction to REX MARTIN AND DAVID A. REIDY (ED.), RAWLES’S LAW OF PEOPLES, A REALISTIC UTOPIA?, P. 12-14; for Rawls’s focused discussion about Just War see LoP, p. 89-113.

71 CHARLES BEITZ AND ALLEN BUCHANAN, Symposium on John Ralws’s The Law of Peoples, ETHICS 110 (4) (2000); THOMAS W. POGGE, Incoherence between Rawls's Theories of Justice, The, 72 Fordham L. Rev. (2003); Wenar, P. 95-114; THOMAS W POGGE, An egalitarian law of peoples, 23 Philosophy & Public Affairs (1994), p. 193-224.

72 LOP, p. 7. It seems that some of the reasons for which Rawls’s LoP has been strongly objected by some critics are related to what I find to be an understatement of Rawls's predefined goals for his global theory. The main goal is to prevent the great evils of humanity, such as unjust wars, mass murder, starvation, and extreme poverty. These are mainly, in Rawls's mind, consequences of political injustice that result from either the collapse of the basic structure at the domestic level or of international disorder. This is what Rawls intended to fix with his theory, namely the extreme ends of political injustice. It seems to me that some of those who are disappointed with the LoP, are referring to expectations far beyond Rawls's. These goals of the LoP may suggest a first intuitive link to espionage, since the use of espionage based on the proposed argument, targets indeed the prevention of some of the very same large-scale evils.

73 JOHN RAWLS, A THEORY OF JUSTICE (Belknap Press of Harvard University Press. 1971) (“ToJ”); JOHN RAWLS, POLITICAL LIBERALISM (1993) (“PL”).

74 LOP, P. 37 75 The eight basic principles, which are, according to Rawls, derived directly from the international two-

phase original position, are as follows: 1. Peoples are free and independent and their freedom and independence are to be respected by other peoples; 2. Peoples are to observe treaties and undertakings; 3. Peoples are equal and are parties to the agreements that bind them; 4. Peoples are to observe the duty of nonintervention (except to address grave violation of human rights); 5. Peoples have a right of self-defense, but no right to instigate war for reasons other than self-defense; 6. Peoples are to honor human rights; 7. Peoples are to observe certain specified restrictions in the conduct of war; 8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. (LoP, p. 3-5, 63-65.)

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position and the one unified original position, which I propose, will lead to similar consequences in reference to the proposed rule.

One of the presumptions of the global contractarian analysis is that nations, just as citizens in the domestic domain, are considered to be reasonably realistic. They are therefore willing to cooperate for the sake of peaceful coexistence and prosperity even at the expense of their interests. However, they will make this reasonable cooperative concession provided they assume all other participating peoples do the same:

It is, therefore, part of a people’s being reasonable and rational that they are ready to offer other peoples fair terms of political and social cooperation. These fair terms are those that a people sincerely believes other equal peoples might accept also; and should they do so, a people will honor the terms it has proposed even in those cases where that people might profit by violating them.76

Such globally acceptable norm should be both legitimate and stable. Due to the pluralistic nature

of the inter-societies community, it is impossible to endorse a norm that is globally legitimate and stable, while based on the moral, religious, or political doctrine of any of the peoples. It therefore needs to be a norm that is expected to be endorsed by any free and equal people irrespective of such people’s comprehensive doctrine. I now move to presenting the global original position. It is the exact process through which representatives of states are deliberating and endorsing the basic rules of the international society. The basic rules for society include inter alia the general boundaries of sovereignty. Throughout this phase of the original position, the representatives are hypothetically deliberating on whether to set an international duty of basic transparency on strategic intentions, which its enforcement is limited solely to espionage.

B. The Global Original Position In this sub-chapter, I present the deliberation process within the global original position, which

stands at the heart of the proposed contractarian moral justification to peacetime espionage. I argue that a rule of an international duty of basic transparency, which is limited solely to enforcement through espionage, is legitimate and morally justifiable, since all well-ordered peoples under terms of impartiality and fairness are expected to endorse it. It is derived from a general rule, according to which impartial, rational and reasonable nations would accept reasonable limitation on their sovereignty, provided such limitation is expected to promote peace and stability and provided such limitation is expected to be observed by all other states. I argue, however, that the proposed rule could theoretically be derived directly from the international original position of all nations. Representing a momentous choice of an exchange between limitations on states’ sovereignty on the one hand and promoting the world’s peace and stability on the other hand, one can consider the proposed rule to be general and abstract enough in order to be derived directly from the original position. It should be clarified that as opposed to the domestic level, the global original position produces basic rules, rather than basic institutions for the international society.77 A similar approach led Rawls to suggest the main

76 LOP, P. 35. Freedom and equality of peoples and the requirement of respecting all peoples as free and

equal, lead to two major principles governing any basic international norm: reciprocity and respect. In a manner similar to human beings, Rawls ascribes a collective psychological capacity to peoples, suggesting that they have a sense of dignity. Peoples, according to Rawls, have the capacity to be respected as a people—as well as give respect to other peoples. Peoples will adopt norms that are expected to be equally applicable to all peoples while reflecting respect to all peoples as free and equal members of the international community.

77 Beitz, Rawls's law of peoples, p. 675.

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principles of a just war and the right of self-defense as part of the basic principles of the Law of Peoples, which are endorsed through the global original position.78

In the international original position all nations are represented by impartial representatives. The representatives are ignorant of all types of information on the represented nation, which might affect the impartiality of the choice. In accordance, the representatives do not know if they represent a liberal or a non-liberal state, with a small or large territory, rich or poor, militarily powerful or exceptionally weak. It should be noted, that as opposed to Rawls, I find a separate original position to liberal and non-liberal peoples as extremely problematic.79 I also reject the coherence of the outcome, according to which decent and non-liberal peoples are expected to agree to the Law of Peoples separately. These rules are apparently offered to non-liberal nations on the basis of respect and reciprocity, while such respect and reciprocity does not include having them heard within the deliberation process. Rawls finds liberal and non-liberal peoples as if lacking a common political culture to a degree of frustrating a minimal ability for any joint deliberation process. The language of public reason is presented as if foreign to the representatives of non-liberal states.80 This approach apparently contradicts the fact that the whole idea behind the original position is to allow deliberation in a pluralistic environment. This contradiction did not pass unnoticed by the readers of Rawls. It seems that Beitz, for instance, just like myself, is not fully confident that the lack of mutual political culture is the whole story behind excluding the non-liberal decent peoples from a joint original position with the liberal peoples.81 There are therefore, according to Beitz, two reasons for splitting the international original position into two sessions - liberal and non-liberal. First, is based on the argument that liberal and non-liberal peoples lack a common political culture for a joint deliberation process. Second, is the argument that the Law of Peoples is a liberal concept of global justice. It is written so it is justifiable to liberal states through the use of liberal notions and terminology. Non-liberal nations agree to it not because they reached an agreement with the liberal nations but rather since liberal nations wrote the LoP in a manner to which decent non-liberal nations can agree to. I strongly disagree.

One way of criticizing Rawls’s approach would be to show that a mutual and fair language of deliberation between representatives of liberal and non-liberal nations is after all possible. Another path would be to show that this is in essence what Rawls actually took into account when he drafted the basic principles of the LoP. Rawls’s two-fold international original position is presented as if conducted in two separate phases. In essence, it seems that Rawls conducted each phase as if reflecting general deliberation between members of both groups. It is otherwise difficult to explain the minimal results of the original position of liberal representatives. The eight basic principles of the Law of Peoples seem to be reflecting a “deal” with the apparently absent representatives of the non-liberal

78 LoP, p. 3-5, 63-65. I would go as far as arguing that the rule for espionage is so fundamental, that it is

essential for enabling any basic cooperation between liberal and non-liberal states in the first place. It enables the basic trust which is essential to agreeing and implementing all other terms and conditions of the social contract. It is therefore not only deriving justifiability from the global social contract, but rather a precondition for its very stability in non-ideal conditions. The SALT Agreements are a good example. These treaties were negotiated under a “Rawlsian-like” condition (since both superpowers had a reciprocal position). Both powers had a problem of monitoring performance. They both chose not to interfere with “monitoring mechanisms”. This is a rare demonstration of espionage as an instrument that enables minimal trust in maintaining stable treaties Michael Herman, Ethics and intelligence after September 2001, 19 INTELLIGENCE AND NATIONAL SECURITY (2004)).

79 LoP, p. 30-35. 80 Beitz raises similar question marks in CHARLES .R. BEITZ, Rawls's law of peoples, 110 Ethics

(2000), p. 675). 81 (ibid, p. 675-676).

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nations82. The Rawlsian principles come across as if reflecting previous discussion and understanding by both liberal and non-liberal nations. The LoP does not show signs as if drafted solely by liberal nations in a format to which non-liberal nations simply gave their consent. Its results reflect the process of one general original position, a one that the very feasibility of which is denied by Rawls. Nevertheless, I allow myself to be very economical in presenting my objection to the separatist approach of Rawls, mainly because I believe the proposed argument is expected to be endorsed when the original position is structured both according to the Rawlsian approach and according to the unified original position I propose83.

Under the blindness of the unified and global original position, when representatives of states are electing the basic rules of international community, they are also setting the boundaries between sovereignty and transparency. Based on the rational maximin approach under these conditions, I argue that representatives of all states are expected to endorse the rule that sets a duty of basic transparency on strategic intentions to all states, which is limited to enforcement solely through espionage. According to such a rule, states’ process of adopting strategic choices concerning the security of their proximate neighbors should be clear and observable. Its results cannot be merely disclosed in order for the deliberation process to be considered transparent. It needs to be seen in the making or else its results can surprise other states. In case of a violation of this duty, other proximate states are expected to limit the cure to espionage activity. This legitimate espionage activity is strictly limited to clarifying the non-transparent strategic intentions. Due to the momentous choice during the original position and due to its irreversibility, and taking account of the weightiness of the interests, which are balanced (sovereignty versus peace and stability), risk aversion is rational. It is indeed rational for representatives of such nations to seek first to secure their nations’ fundamental interests prior to setting a general target of maximizing the average general utility.84 In this case, the basic interests of nations are the territorial integrity and political sovereignty, and the preservation of their way of life and political doctrine.85

In the international original position, representatives of nations are faced with either of the two choices: endorsing a duty of basic transparency, which is limited to enforcement exclusively through espionage, or the rejection of the rule. In the case of rejection, states are neither required to be transparent nor do their neighbors have the right to spy against them as a means of enforcement. The representatives are expected to maximize among the minimum results of their choice. Accordingly, if the rule is rejected, the worse off are the liberal nations. Non-liberal nations are more comfortable with rejecting the duty of transparency. This is in contrast to the liberal nations that are inherently transparent irrespective of such rule. Non-liberal nations are not threatened by their transparent liberal

82 MARTA SONIEWICKA, The problem of global distributive justice in Rawlsís The Law of Peoples, 17

Diametros (2008), p. 50. 83 It is Rawls’s opinion that the separation of the original position to two different positions is required as a

result of the lack of common political perception or language. Rawls finds liberal and non-liberal peoples very much as if lacking a common political language to a degree of frustrating a minimal ability for any joint deliberation process. I strongly disagree. This approach might lead into extreme undesired conclusions. It might lead into rejecting humanity as a common political denominator by itself. I believe that Rawls’s 8 basic principles of the LoP may support my criticism. It is obvious that these principles reflect mutual awareness of each group to both the interests and the political doctrine of the members of the other group. In other words, it seems as if the result of the Rawlsian two-fold international original position reflects a mutual deliberation process while technically presented as if separated.

84 In the next chapter IV(E), I address the utilitarians’ objection to the maximin decision rule and to Rawls’s position on the superiority of the maximin principle over the decision rule of average utility.

85 I do not ignore the Rawlsian position that liberal states do not really have a comprehensive doctrine. I refer to the political or religious doctrine of a non-liberal state (decent state in Rawls’s terms) and to the liberal political system as if identical. They both represent a structure the preservation of which is considered to be a supreme interest of all nations.

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neighbors.86 On the other hand, by not being subjected to a duty of basic transparency, they manage to avoid unacceptable liberal elements. In contrast, liberal and transparent peoples are left under such choice with the paralyzing cost of existence in proximity to non-transparent states.

The second alternative to be weighed is to accept the rule setting a duty of basic transparency, which limits its enforcement strictly to espionage. Under conditions of blindness and uncertainty of the international original position, each representative is aware of potentially representing either a liberal or a non-liberal nation. She is expected to view a non-liberal nation, which is forced to accept the proposed rule, as worse off compared to a liberal nation. Under such a rule, being inherently transparent and being able to spy on its non-transparent neighbors, is obviously an advantageous position for a liberal nation, compared to a non-liberal nation.

A rational representative is now left with two minimum alternatives, from which she is expected to maximize her choice. First is the condition of potentially representing a liberal nation in a world where there is no duty of transparency and hence no right of enforcing such right through espionage. Second, is the condition of potentially representing a non-liberal nation in a world where a duty of basic transparency exists, although its enforcement is restricted to espionage. I argue that the latter represents the more advantageous of the two minimum outcomes of the original position. A liberal nation living in a world without a duty of transparency or an ability to spy as a substitute, may not be able to protect its highest interests. Its security is at continuous risk. Coping with this risk will consume enormous defense costs and in some cases, even a rational preventive use of force. In contrast, under the second alternative, a non-liberal nation living in a world where there exists a duty of basic transparency, which is limited to enforcement solely through espionage, succeeds in preserving its fundamental and highest interests. Its security is not jeopardized. More importantly, it manages to preserve its political structure and the dominance of its religious or political doctrine. It manages to join the society of nations. It avoids the obstacle on the way to basic cooperation with liberal peoples, which results from its inherent non-transparency. The legitimate espionage of its liberal neighbors enables the non-liberal nation to become basically transparent without being forced to accept a liberal-oriented transparency. It avoids unacceptable political concessions that stand in contrast to its political or religious doctrine. Most importantly, the transparency which espionage enables allows the non-liberal nation to be secured from political intervention and political imperialism of liberalism.

The result of the international original position, as I have described, is that rational, reasonable and impartial representatives of nations, when choosing under the conditions of blindness and uncertainty of the global original position, will all endorse a rule setting an international duty of basic transparency, enforcement of which is limited exclusively to espionage87. It is the alternative that maximizes the results, which secure the fundamental interests of all impartial well-ordered nations.

The advantages of espionage as a bridging instrument between liberal and non-liberal peoples seem very clear once presented. This leads to a constructivist question. If the “bargain” between liberal and non-liberal nations seems so rational and reasonable, why can’t these nations agree on this rule of “espionage in return for non-intervention” both ex-ante and ex-post in reference to the original

86 An important issue refers to the threat non-liberal sense from the non-transparency of other non-liberal

nations. Does that put them in a less comfortable position in rejecting an international duty of transparency? I believe the answer is negative. If the desired transparency of their neighbors is achieved through the cost of being transparent themselves, they will reject the “deal”. The transparency of their non-liberal neighbors is important for their security, yet it is not as important as their interest in preserving their political doctrine. As argued, such non-liberal doctrine cannot be preserved when adopting structural transparency. In addition, they cannot - under the terms of the original position - offer other non-liberal states terms, which they cannot accept themselves and cannot expect the other non-liberal states to accept.

87 Enforcement limited exclusively to enforcement through espionage is meaning forcing basic transparency through spying rather than enforcing basic transparency through other means such as through political or military intervention.

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position. In such a case, the process of the international original position seems unnecessary. This constructivist question relies on the assumption that espionage reflects a consensus between liberal and non-liberal nations, which is apparently independent of the awareness of their representatives to the actual nature of the represented state.88 If this is indeed true, then obviously the whole contractarian structure is redundant. In contrast, I wish to show that the impartial approach is required nonetheless.

Some non-liberal nations may not agree to the proposed rule ex-post, while their ignorant representatives are expected in contrast to accept the rule ex-ante. Non-liberal states possessing supreme military power, such as today’s China or the former USSR, may not accept the “deal” of “espionage for non-intervention” for the simple reason that their military strength secures them from such intervention without the need to make any political concessions in return. The representative of China, therefore, has no reason to accept the proposed rule for espionage ex-post to the original position. As a result of its ultimate military and economical power, no state can seriously attempt to impose an undesired political structure on China through external intervention. On the other hand, when the representatives are ignorant about the exact nature, size and capabilities of the states they represent, they are expected to accept the rule ex-ante. A Rawlsian process of hypothetical impartial deliberation is essential, therefore, for legitimizing peacetime espionage. 89

C. Limiting Legitimate Espionage I now address another parameter in the deliberation process within the international original

position, which concerns the limitations on legitimate espionage. The whole reason behind the allowance of peacetime espionage is transparency enforcement for the sake of increasing trust and stability in the international community and enabling basic cooperation. Having these targets in mind, it is obvious that the means employed in conducting espionage cannot jeopardize these very same ends. Extreme means of espionage, such as disrespect of agents’ life and security or the use of coercive recruitment, might prove counterproductive in this sense. The rules adopted through the global original position are expected, therefore, to include certain limitations on espionage activity, in a similar decision process to what Rawls describes in relation to the rules of war:

The aim of war is a just peace, and therefore the means employed must not destroy the possibility of peace or encourage a contempt for human life that puts the safety of ourselves and of mankind in jeopardy. The conduct of war is to be constrained and adjusted to this end. The representatives of states would recognize that their national interest, as seen from the original position, is best served by acknowledging these limits on the means of war. 90 Accordingly, I address the issue of the potential counter-productivity of espionage, which has at

least three different angles. First is the issue of the harmful means of espionage. Second is the boundaries of the legitimate scope of espionage. Third, the proposed argument needs to address a potential paradox, since espionage is expected to enforce transparency in international relations and yet it reflects a massive clandestine and inherently non-transparent activity. The entire discussion on the entailed limitation on espionage deserves a thorough review and presentation in a scope much broader

88 In other words, this question reflects an argument, according to which even if we convene reasonable real (rather than hypothetical) representatives of states without any ignorance concerning their represented state, they are expected to agree to the proposed rule that sets a duty of basic transparency and limits its enforcement solely to espionage.

89 In this respect, my approach supplements John Yoo’s approach on international regulation of espionage. While Yoo’s approach is that such regulation, for instance through a dedicated convention, is counter-productive, I simply argue that such convention is most likely not even realistic. The political controversy on transparency between liberal and non-liberal nations is expected to frustrate any such attempt to reach consensus on the matter with the exception of an impartial and fair process (JOHN C. YOO & GLENN SULMASY, Counterintuitive: Intelligence Operations and International Law, 28 Michigan Journal of International Law (2007)).

90 ToJ, p. 379.

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than what this paper allows. I will however outline briefly some of the main relevant points of limiting espionage, as derived from the main argument and the global original position.

The prevention of the potential counter-productivity of espionage is incorporated into the proposed argument at four different levels. First, the proposed argument only allows peacetime espionage against non-transparent regimes. Typical liberal democracies are therefore not a legitimate target of peacetime espionage. Espionage is allowed during peacetime exclusively against non-transparent regimes and only to an extent of continuously clarifying the adversary’s strategic intentions. Therefore, if the proposed rule is followed, it will lead into a dramatic decrease in espionage activity. This argument also stands in sheer contradiction to the realist approach that allows spying for all states and against all states based on a pure self-interest criteria.

The second level of addressing the potential counter-productivity of espionage concerns the limitations on the means that are employed while legitimate espionage is conducted. There is a need to finalize a list of defenses for agents, which every representative is likely to endorse in order to avoid the counter-productivity of espionage. These limitations should be drafted in a manner which allows each representative to reasonably expect any other representative to agree to the very same. I argue that such a list already exists. All nations’ representatives are deemed to have endorsed a list of limitations on states’ interaction with individuals. This is the list of international basic human rights.

During peacetime (as opposed to times of emergency), basic international human rights reflect the limits of sovereignty and the limits of non-intervention.91 The freedom of states in their interaction with individuals ends exactly at the line, which marks the boundaries of international basic human rights. These are the rights that no peaceful arrangement between all well-ordered societies is worth respecting, if it allows their violation. They include fundamental rights such as the right to life and the right not to be subjected to enslavement or torture.92 Any international basic rule that allows or even ignores these rights, will be paradoxical. It will be an international arrangement, which aims at eliminating the greatest evils of human society while at the same time allowing states to participate in creating such evils. 93 Although, as mentioned, a thorough review of the subjection of peacetime espionage to the duty to respect basic international human rights is a project of its own, I do wish to outline briefly some initial thoughts about the boundaries of peacetime espionage in reference to risking the life of agents, coercive handling and the use of manipulation and deception.

States and intelligence organizations are expected to make a clear distinction between inherent risks of espionage and risks, which are only made possible due to the nature of this practice, but are not inherent to it. For example, the risk of being caught, despite due preparation and execution of a Humint operation, is inherent to this activity. In contrast, having the agent exposed and killed as a punishment or as a means of guaranteeing his silence is a risk made possible by the nature of this activity, and yet definitely not a necessary one for verifying the intentions of the target state. These are risks that a reasonable representative in the global original position cannot expect other representatives to endorse, since they involve risks unnecessary for meeting the main goal of

91 In times of emergency HR are subject to a general rule of necessity, as in the case of torture during a

condition of a ticking bomb. This is typically not controversial, except for extreme absolutist deontological approaches.

92 UNG ASSEMBLY, Universal declaration of human rights § 10 (1948), Art. 3-5. 93 LoP, p. 80. For the general review of international human rights, see: JACK DONNELLY, International

human rights (Westview Pr. 1998); T BUERGENTAL, INTERNATIONAL HUMAN RIGHTS (Oxford University Press. 1995); JES FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (Oxford University Press, USA. 1987); BG RAMCHARAN, THE RIGHT TO LIFE IN INTERNATIONAL LAW (Martinus Nijhoff Publishers. 1985); YORAM DINSTEIN, The right to life, physical integrity, and liberty, The International Bill of Rights, Columbia University Press, New York (1981)

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enforcing basic transparency.94 When understood in this manner, the right to life leads us to conclude that Exposing an agent for the mere reason of his cessation of the relations is similarly illegitimate. It is an unjustified practice, because it puts the agent at a risk of death for a reason other than enforcing basic transparency. The unjustified risk to life may indeed extend duration or effectiveness of handling, and may, therefore, indeed assist in meeting the justified goal of enforcing basic transparency. However, human rights serve as a limiting instrument exactly for this very reason. They serve as a line beyond which promoting agents’ performance just cannot be productive and justified.95

The same line of argument is relevant to coercive recruitment and handling. As opposed to a victim of a robbery, the coerced agent is under continuous influence of coercion. The services delivered under such coercion are simply a form of servitude. Servitude is obviously morally wrong. Articles 4 and 5 of the Universal Declaration of Human are violated by coercive handling: “No one shall be held in Slavery or servitude…” and “No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”96 Clearly, coercive handling stands in violation to such basic human rights. While such forced handling could indeed enforce transparency, it does so through means considered always as counter-productive by the representatives, namely through the violation of international basic human rights.

The case of applying manipulation and deception is far more complicated. For the sake of simplifying the discussion, I am willing to accept the argument that people have a moral right not to be lied to, a right derived from the general duty not to lie.97 In such a case, people may have a legitimate moral claim that the state will not lie to them. I am even willing to accept the argument that individuals are the legitimate claimants of such a right in a similar manner, both toward their own state and toward any other state, including the handling state. But even assuming all these arguments are true (which I am not sure is the case), I argue that there is still no hindrance from using manipulation during espionage. Such argument is based on the assumption that even if the right not to be lied to is determined to be so widely recognized, it is nonetheless not a basic international human right. As such, it cannot limit states in the international arena. As a result, lying to an agent during recruitment or handling may violate the agent’s rights. However, it may still not violate any of the agent’s international basic human rights.

At this point, I need to clarify the difference between coercion and manipulation in order to remove a risk of inconsistency. First, like Arnold and Rudinow and as opposed to Haring, I reject the argument according to which manipulation is a form of coercion.98 These are two different practices

94 It is argued to be acceptable to recruit and handle an agent for the sake of reducing dangerous non-

transparency. However, the very fact that the clandestine nature of this practice opens a window of opportunities for extending the risks, does not make such extended risks acceptable. Handling an agent in the Soviet Union was justified when conducted by a proximate democracy. However, one could not have taken advantage of the inferior position of the agent once recruited and of the clandestine nature of the relations, in order - for example - to blackmail the agent or punish him. In other words, the representatives of the nations in the global original position are expected to agree to this practice with its entailed risks however not with unnecessary risks added to it by the handling party.

95 It is worth clarifying that this does not exclude the possibility of undermining such rights in times of emergency and under the guidelines of necessity. One should remember though that such justification could only be valid for a relatively short period of time due to the requirement of imminence under the rules of necessity.

96 UNG ASSEMBLY, Universal declaration of human rights § 10 (1948), Articles 4-5. 97 JE MAHON, Kant and the perfect duty to others not to lie, 14 British Journal for the History of

Philosophy (2006); S BOK, Lying: Moral choice in public and private life (Vintage. 1999). 98 BERNARD HARING, ETHICS OF MANIPULATION (Seabury. 1975); Rudinow, p. 339; See also in support of

the distinction between manipulation and coercion: JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW (Oxford University Press. 1984), p. 396-397. On the opinions finding manipulation as a form of coercion, see: JEFFRIE G MURPHY, Consent, Coercion, and Hard Choices, 67 Virginia Law Review 79(1981).

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with different moral consequences.99 Manipulation is not coercive, but rather sophisticated and gentle. While manipulation is based on deception, coercion is crudely transparent. The whole concept and practical plan of the manipulator and the coercer are different.100 These distinctions are also reflected by our different moral reaction to coercion and manipulation.101 Part of the reason we attribute lesser moral and legal severity to manipulation in comparison to coercion is related, in my opinion, to coercion’s relative rarity. We all manipulate people. For instance, in trying to lead my wife into staying at home on the day of a basketball match; in leading our children to prefer better food; or in encouraging a friend through painting an over-optimistic picture of the future. In contrast, coercing other people and using compulsion is far more rare.102 The fact that manipulation and deception, as opposed to coercion, is argued not to be illegitimate in the international arena, does not by itself mean that this is a recommended or a justified practice. It does, however, mean that it is easier to justify occasions of manipulation based on other prevailing reasons. The very depiction of coercion as a violation of basic human rights means that we are not even allowed to perform this weighting process, unless during an emergency.103 Espionage, therefore, should be allowed during peacetime exclusively against non-transparent regimes and only to the extent that their strategic intentions, which affect the security of the proximate neighbors, are cleared. In conducting such legitimate espionage, states must respect basic international human rights.104 But even when espionage activity is conducted without violation of international basic human rights, it seems reasonable that it needs to have a limit. The idea that State A will be allowed to collect all possible information on State B as a result of B’s non-transparency, seems wrong. After all, the proposed argument presents espionage as an enforcement instrument of a duty of basic transparency, namely of transparency duty which by definition should have a limited scope. It follows from the international original position that justified espionage for the sake of transparency enforcement is limited by a rule of minimal intrusion. Such rule limits the scope of espionage to the minimal level which creates the effect of a basically transparent adversary, namely

99 “Manipulation differs from coercion in at least two respects. First, in cases of manipulation the manipulator need not retain a coercive will...the coercer must have an effective desire to compel his or her victim to act in a manner that makes efficacious the coercer’s other-regarding desire...in cases of manipulation, ...this desire need not be coupled with an effective desire to compel his or her victim to act in a manner that makes efficacious the coercer’s other-regarding desire…” (Arnold, p. 60).

100 It is important for the manipulator that his victim will voluntarily adopt the will she (the manipulator) desires him to desire. This is why manipulation is deemed less severe, preferring sophistication over force, engineering of the will rather than compulsion: “Manipulation seems delicate, sophisticated, even artful in comparison with the hammer-and-tongs crudity of coercion…” (ibid, p. 339).

101 “Coercion alone among the three provides one with an excuse. If one does something prima facie wrong, merely to say “I was persuaded to do it” or “I was manipulated” is never enough to excuse; but if one has been coerced, one is excused” (Rudinow, p. 339).

102 Another way to coherently treat coercion and manipulation differently would be not to reject the idea that they are both methods of coercion, but rather to view coercion as a gradable instrument. Accordingly, some scholars view both manipulation and deception as a form of coercion, but then they usually view coercion as gradable. Manipulation, according to such views, is a lighter version of coercion. Others, on the other hand, like Arnold, find coercion, duress and manipulation as distinct (and then view coercion as non-gradable). M GUNDERSON, Threats and Coercion, Canadian Journal of Philosophy 247(1979); M GORR, Toward a Theory of Coercion, Canadian Journal of Philosophy (1986), p. 385-386; R NOZICK, COERCION, SOCRATIC PUZZLES (1969) and see Arnold’s reference to this issue and these sources at: DENIS G ARNOLD, Coercion and moral responsibility, 38 American Philosophical Quarterly 53(2001), P. 57, 56-61. (“Arnold”); ROBERT NOGGLE, Manipulative actions: a conceptual and moral analysis, 33 American Philosophical Quarterly 43(1996).

103 A good example would be the issue of physical pressure in interrogations. While we could balance the evil of manipulation as a means of extracting information in interrogations during peacetimes, we commonly refuse to even debate the advantages of torture. We normally refuse to consider the legitimacy of torture unless in times of supreme emergency, such as in the case of a ticking bomb.

104 Such list will include rights similar to the ones included in Article 3 to the Universal Declaration of Human Rights. See also LoP, p. 80.

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of an adversary state which cannot strategically surprise its neighbors. Since a typical liberal democracy is considered to be having a transparent structure, the proposed rule offers an indication to the level of required transparency. This level also serves as the limit of legitimate espionage. It is the level of transparency on strategic decisions, to which a citizen of a typical liberal democracy is exposed from open sources in his own state. The rule of minimal intrusion further limits the employed means in carrying out legitimate espionage missions even within the permissible range. It follows from the rule that there is a clear duty to apply first the less-intrusive means that are still effective in pursuing the task of transparency enforcement. This rule for example means that there is a duty to give higher priority to Sigint over Humint, due to Sigint commonly perceived as less intrusive. 105

Hypothetical representatives are therefore expected to agree to non-ideal adaptions to the proposed rule, in order to prevent over-collection. Hyper-transparency might be similarly detrimental to peace and stability as hypo-transparency. Basic cooperation and peace might be impossible in a world where every single state knows everything about its neighbors. Such regime of international relations would be as unsustainable as an apartment building in which nothing is private and all the tenants know everything about all the other neighbors. Legalizing domestic counter-intelligence is argued to be a balancing instrument. It avoids over-collection and leads to self-imposed effective restraints in international spying. It sets a cost for spying, which is expected to lead to states spying only when necessary and only to a cost-effective extent. While spying is argued to be targeting hypo-transparency, counter-intelligence targets hyper-transparency. Combined together, legalizing both activities is expected to maintain an optimal range of transparency of states towards their proximate neighbors. This new perception on the relations of espionage and the domestic counter-espionage may offer a solution to the current puzzle in customary international law, according to which espionage seems both legal and illegal at the same time. 106 These are not logically incoherent activities but rather a coherent dual-head mechanism for states maintaining the desired minimum and maximum levels of states’ transparency.

The fourth point in addressing the potential counter-productivity of espionage concerns the secrecy of espionage. It seems irrational to address hypo-transparency by applying a clandestine and a non-transparent activity. This concern is, however, wrong. In the case of non-transparent regimes, hypo-transparency already exists, and espionage could only serve to increase the level of

105 For the same reason, Demarest excludes Sigint from the definition of espionage. Baker follows this

exclusion, clinging to the fact that Sigint is typically “rarely as territorially intrusive.” (CHRISTOPHER D BAKER, Tolerance of International Espionage: A Functional Approach, 19 Am. U. Int'l L. Rev. (2003), p. 1093-1094) and see as well: GEOFFREY B DEMAREST, Espionage in International Law, 24 Denv. J. Int'l L. & Pol'y (1995). A caveat is most necessary however in this point. Sigint as well as all other methods of non-human intelligence, might be under certain circumstances a similarly dangerous activity, as the case of Garry F. Powers demonstrates. On the Power case, see: NC SMITH, THE U-2 INCIDENT, 8 Military History Journal; GW PEDLOW & DE WELZENBACH, THE CIA AND THE U-2 PROGRAM 1954-1974 (Diane Pub Co. 1998); RS HOPKINS, An expanded understanding of Eisenhower, American policy and overflights, 11 Intelligence and national security (1996); OJ LISSITZYN, Some legal implications of the U-2 and RB-47 incidents, 56 American Journal of International Law (1962).

106 Some scholars find international espionage to be legal: GEOFFREY B DEMAREST, Espionage in International Law, 24 Denv. J. Int'l L. & Pol'y (1995); RD SCOTT, Territorially Intrusive Intelligence Collection and International Law, 46 AFL Rev. (1999). Other scholars find espionage to be illegal: INGRID DELUPIS, Foreign Warships and Immunity for Espionage, 78 American Journal of International Law (1984); MR GARC A-MORA, Treason, Sedition and Espionage as Political Offenses Under the Law of Extradition, 26 U. Pitt. L. Rev. (1964). For those who in contrast find espionage to be neither legal nor illegal, see: A JOHN RADSAN, Unresolved Equation of Espionage and International Law, The, 28 Mich. J. Int'l L. (2006); CHRISTOPHER D BAKER, Tolerance of International Espionage: A Functional Approach, 19 Am. U. Int'l L. Rev. (2003) and DANIEL B. SILVER, Intelligence and Counterintelligence, in National Security Law 935, 965 (John Norton Moore & Robert F. Turner eds., 2d ed. 2005) (updated and revised by Frederick P. Hitz & J.E. Shreve Ariail).

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transparency. In other words, espionage only becomes relevant in circumstances in which the secrecy it aims to clear constitutes a greater risk than the one related to its very performance.

Secrecy of the type that is related to conducting espionage, so I conclude, is less likely to affect peace and stability than the secrecy it targets within the hypo-transparent state. This argument rests on the known distinction between deep secrecy and shallow secrecy.107 In order to understand the two types of secrecy, let us assume two parties in proximity—A and B—and let us assume B keeps a secret from A. Deep secrecy is defined as a secret, the content of which A does not know; in addition, A is not even aware of the fact that such a secret exists. A, therefore, is unaware that she does not know the content of the secret. In contrast, B holds a shallow secret when A does not know the content of this secret, yet A is aware of the existence of this secret. In such a case, A knows that she does not know the content of the secret.108 The concealed intentions of aggression of a hypo-transparent state are, in this regard, a deep secret. The adversary does not know that such a secret exists, let alone its content. Clandestine espionage that is conducted in accordance with the proposed rule of collection is a shallow secret. A hypo-transparent state knows that collection exists, and knows what it targets. The only secret is the details of collection.109 The level of uncertainty is dramatically lower, compared to uncertainty concerning the strategic intentions of a non-transparent state. This argument on the lower damage of the secrecy of intelligence (which is a shallow type of secrecy), as opposed to the secrecy of the strategic intentions it is intended to uncover (which is deep secrecy in essence), accords with Pozen’s argument, according to which shallow secrecy is far less harmful than deep secrecy.110

D. Risks other Than Surprise Aggression The proposed argument sets only one legitimate target for peacetime espionage, which is

enforcing the duty of basic transparency on a hypo-transparent and proximate state. Hypo-transparency is presented as the only legitimate concern entailed in proximity among states, which justifies espionage during peacetime. It is important, therefore, to review other potential concerns resulting from states’ proximity and show why other than hypo-transparency, none are a legitimate ground for peacetime collection. Such concerns may include inter alia the risks of environmental, or economical harm. A clear distinction must be made between two types of harm: intentional and unintentional harm. On the one hand, if any harm by a proximate state is known and intentional, as in the case of a known intentional armed attack, then it is nevertheless an obvious form of aggression, and thus, I have already concluded that a necessity-based rule allows espionage111. Such espionage obviously cannot considered to be peacetime espionage. On the other hand, if the potential harm by the proximate state is unintentional, as in the case of unintentional emission of radiation, there is little sense in espionage targeting a potential action of which the adversary itself is not even aware. In either of these cases, it seems neither necessary nor rational to offer any justification to peacetimes

107 DAVID POZEN, Deep Secrecy, 62 Stanford Law Review 257(2010), P. 257 (“Pozen”) 108 AMY GUTMANN & DENNIS F. THOMPSON, DEMOCRACY AND DISAGREEMENT (Belknap Press.

1996); H KITROSSER, Secrecy and Separated Powers: Executive Privilege Revisited, 92 Iowa L. Rev. (2006); ADAM M SAMAHA, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. Rev. (2005).

109 For example, the non-transparent state is aware of the fact that its liberal neighbor spies against it in order to clear its inherent non-transparency. What remains a secret, is the details of this collection activity, such as who collects, what is being collected, how and when.

110 Pozen, p. 275-322. 111 B.B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION, THE SEARCH FOR WORLD PEACE: A

DOCUMENTARY HISTORY AND ANALYSIS (Oceana Publications, Dobbs Ferry, NY. 1975); B.B. FERENCZ, Defining Aggression: Where It Stands and Where It's Going, 66 The American Journal of International Law (1972); D.W. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW (The Lawbook Exchange, Ltd. 2009).

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collection targeting these risks.112 The only problem left, which is still a relevant source for legitimized peacetime espionage, is the condition of an unknown intentional harm. This is the condition of State X having on one hand no information on an intentional harm planned against it by Y and at the same time having no information to prove such intention of Y does not exist. This is the typical non-transparency condition during peacetime.

Another type of risk that states may have an interest in monitoring through collection is not a direct risk to their own state, but rather a risk to human values in general, such as large-scale violations of human rights in a neighboring state. By definition, a state that conducts large-scale human rights violations is an outlawed state, as Rawls names it. In fact, according to Kant and Rawls, such a state may not even constitute a state (according to Kant) or a people (according to Rawls).113 Naturally, mass violation of basic human rights should be classified as a state of emergency. As such, espionage against such states should not be deemed peacetime espionage but rather as espionage in times of emergency.

E. Between Emergency and Routine

Throughout this paper, I frequently make a distinction between a state of emergency and a time of routine. Such a distinction is important, since each mode dictates a different regime of justification for espionage activity. I contend that during peacetime, the justification for espionage rests on a rule of collection that draws its legitimacy from the global social contract of nations. On the other hand, during times of emergency, I argue that the justification for espionage rests on the rules of necessity. This sub-chapter aims to clarify this distinction. First, I wish to present a practical row concept of emergency in order to further clarify the frequently used notions of “emergency” and “peacetime.” Secondly, I wish to illuminate some moral distinctions related to the differences between the two sources of justification for espionage: the global social contract and necessity.

Offering a complete definition of a national state of emergency is a difficult task. Emergency at the national level can carry many potential forms. War or a declaration of war, are clear examples of such a state of emergency. So is a threat of an armed attack. A direct threat on a group of citizens, as from a terrorist attack, is also a clear example of such an emergency. One way of understanding the meaning of such an emergency is its characteristic association with remedial rights or remedial justifications. While we view states as having primary rights to political sovereignty and territorial integrity, during emergency such rights are at risk, and therefore a need to act for remedy against the violator of these rights arises.114 We can understand, therefore, the direct link between emergency and necessity. For the sake of our discussion, an emergency is a type of situation creating an urgent need for remedial action. Such remedial action is costly by itself, but not as costly as the outcome of refraining from action.

The source of necessity, as either a justification or an excuse for what is otherwise an illegitimate action, relies on the theoretical foundations of criminal law.115 However, there is no

112 What may start as an unplanned harm, may turn into an intentional act when combined with non-

transparency. Espionage in response may then be legitimate due to the necessity-based rule for espionage in states of emergency. A good example is the accident that occurred in the Soviet reactor in Chernobyl. What began as an unplanned harmful act became similar to an intentional harm due to Soviet hypo-transparency. Emergency-based collection became justified as a result.

113 IMMANUEL KANT, THE METAPHYSICS OF MORALS (Cambridge University Press. 1991), §43; LoP, p. 80-81.

114 On the difference between remedial justification and primary rights see CHAIM GANS, A JUST ZIONISM: ON THE MORALITY OF THE JEWISH STATE (Oxford University Press. 2008), 45 (“Gans”).

115 On the theory of necessity in criminal law see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW (Little, Brown. 1978), 759-876.

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hindrance to the use of necessity as a justification for acts of nations.116 Necessity will usually serve as a justification for an otherwise unacceptable act, when the harm that is prevented by such an act exceeds by far the harm from its very performance. It will, however, serve as merely an excuse from liability for such a problematic act, if ethically there is hardly a difference between performing such act or not (in reference to the prevented harm). However, in light of the state of emergency, the problematic excused act is understandable (although not desirable). Whether serving as a justification or merely as an excuse, the defense of necessity is usually conditional upon the additional requirements of last resort and imminence.117 These requirements reflect the inadequacy of the rules of necessity in governing espionage collection during peacetime. A long-term continuous activity cannot be justified by a justification shaped for immediate isolated events. One cannot cling to a remedy of a “last resort” type, while justifying an ongoing and long-term practice. 118

These two different conditions (namely emergency and routine) dictate very different sources of legitimacy rules. During days of routine, the interaction among nations is not governed by the urgent need for remedy, but rather by a social contract aiming at regulating days of routine. One example of the importance of the differences in the source of legitimacy for espionage (necessity versus the social contract) is the issue of the right to resist a legitimate action. If the right to spy is derived from the rules of necessity, it is then exposed to the debate about the legitimacy of resisting a justified act. Necessity as grounds for the legitimacy of espionage may affect, therefore, the legitimacy of the application of counterintelligence by the target state. If the spying of A against B is legitimate based on the rules of necessity, B’s counterintelligence against the legitimate spying of A might be illegitimate. According to Fletcher, resisting an act that is justified based on necessity as a justification is morally wrong. In contrast, Fletcher argues that when necessity serves merely as an excuse to an act, then resisting this act may be permissible. Dressler raises an objection to this restriction.119 One of the implications of the justification for espionage during peacetime, as proposed in this paper, is that by not relying on necessity, Fletcher’s opinion does not reflect an obstacle. If the source of legitimacy of the rule is the global social contract, there is no hindrance to such a rule allowing both justified espionage and permissible counterintelligence.

F. The Utilitarian Argument While this paper obviously rejects the traditional utilitarian approach to justifying espionage, I

have deliberately refrained from including the utilitarian argument while rejecting current justifications. On the one hand, Rawls is right in arguing that rational representatives will be

116 For a collective application of the rules of necessity within a moral argument, see the application of necessity for the justification for Zionism by Gans (Gans, 37-51).

117 N. CRAWFORD, THE JUSTICE OF PREEMPTION AND PREVENTIVE WAR DOCTRINES, JUST WAR THEORY: A REAPPRAISAL (2005); J. VON ELBE, The Evolution of the Concept of the Just War in International Law, 33 The American Journal of International Law (1939); C. GREENWOOD, International law and the NATO intervention in Kosovo, 49 International and Comparative Law Quarterly (2000); G.B. ROBERTS, New Rules of Waging War: The Case against Ratification of Additional Protocol I, The, 26 Va. J. Int'l L. (1985); B.M. CARNAHAN, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, American Journal of International Law (1998); J.B. ELSHTAIN, Just war and humanitarian intervention, 17 Am. U. Int'l L. Rev. (2001).

118 In a similar approach, Harel & Sharon oppose the regulation of torture in legislation. It would be like treating emergency as routine and conflating the exceptional with the regular. The strength of the suggested justification for espionage during peacetime is that the transparency-enforcement rule is derived from the global social contract, which can govern both times of routine and times of emergency. It is meant by definition to best govern routine, namely to minimize occasions of emergency. (ALON HAREL & ASSAF SHARON, What is Really Wrong with Torture?, 6 Journal of International Criminal Justice (2008), 241-259).

119 The reference to Dressler is credited to Gans. See Gans, 49 and his reference to JOSHUA DRESSLER, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 UCLA L. Rev. (1984), 61-69.

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irrational gamblers, should they endorse the maximizing of average utility as a basic principle in the original position. Taking the risk that they will happen to represent the unfortunate minority, which unknowingly sacrifices its basic interests for the sake of maximizing general utility, would be extremely irrational. On the other hand, many utilitarians argue that Rawls is in error. Some, like Harsanyi, argue that the presumption for a maximin approach is wrong. According to Harsanyi, ignorant representatives are likely to endorse, in the original position, a decision rule of maximizing average utility.120 Others argue that Rawls’s maximin principle of choice is nothing but a utilitarian concept of choice making.121 The requirement that basic interests are secured prior to maximizing general utility is, according to such a view, not affecting the classification of such an approach as utilitarian, but rather affects the utility function it offers.

Naturally, dealing with this controversy is far beyond the scope of this paper. It should also be taken into account that even the primary utilitarian opponents of the maximin rule of decision find it to be mostly producing results similar to the rule of maximizing average utility. Both Arrow and, to a lesser degree, Harsanyi, argue that in reality, the maximin principle and the utilitarian principle of average utility would have “...very similar practical consequences.”122 Obviously, this does not imply that the theoretical dispute over the superiority of either the maximin concept or the rule for average utility is not of great importance. It only implies that in dealing with the specific issue of justifying espionage, this dispute may have only a limited practical meaning, if any. It seems relatively easy to empirically argue that peacetime espionage that is based on the proposed rule also maximizes average utility.123 According to such a view, espionage, though harmful, is morally justified, since it is beneficial to the entirety of mankind in aggregate calculation. Intelligence is presented as a mechanism that allows states to: avoid unnecessary wars caused by uncertainty and risk-aversion; optimize global defense costs; deter attempts to unleash surprise attacks; and increase international cooperation.124 Espionage allows secret communication between adversaries, in cases in which conventional diplomacy fails. Intelligence is also argued to be an enforcement mechanism of international treaties, by providing information on treaty violations. 125 By that, espionage promotes international cooperation by giving practical meaning to international treaties. Therefore, in the international original position, both representatives acting according to Rawls’s maximin rule, and representatives acting according to the rule of average utility, are expected to endorse the

120 K. BINMORE, Social Contract I: Harsanyi and Rawls, 99 The Economic Journal (1989); JOHN .C.

HARSANYI, Can the maximin principle serve as a basis for morality? A critique of John Rawls's theory § 69 (JSTOR 1975).

121 J. RAWLS & E. KELLY, Justice as fairness: A restatement (Belknap Press. 2001), p. 107-110. 122 JOHN .C. HARSANYI, Can the maximin principle serve as a basis for morality? A critique of John Rawls's

theory, 69 American Political Science Review (1975), p. 605-606; KENNETH J. ARROW, Some ordinalist-utilitarian notes on Rawls's theory of justice, 70 The Journal of Philosophy (1973), p. 255.

123 DAVID KAHN, An historical theory of intelligence, 16 Intelligence and national security 79(2001). 124 Kahn, p. 84-85; D KAHN, Clausewitz and intelligence, 9 Journal of Strategic Studies (1986); Other

opinions on espionage indicate the inefficiency of privacy. Taking account of espionage as an anti-privacy action, one could argue that the arguments on the inefficiency of privacy are in essence supporting the efficiency of espionage. This is obviously not trivial. It needs to show that the analogy between person’s privacy and states’ secrecy is valid. See in this regard: RICHARD A. POSNER, Economic analysis of law (Aspen Law & Business 5th ed. 1998), p. 46; RICHARD A. POSNER, The economics of justice (Harvard University Press. 1981), p. 271; DANIEL J. SOLOVE, I've Got Nothing to Hide and Other Misunderstandings of Privacy, 44 San Diego L. Rev. (2007), p. 745.

125 L.E. CLINE, Operational Intelligence in Peace Enforcement and Stability Operations, 15 International Journal of Intelligence and CounterIntelligence (2002); A. GENDRON, Ethical issues: the use of intelligence in peace support operations (2003); B. RUNIONS, American and British Doctrine for Intelligence in Peace Operations, 24 Peacekeeping and International Relations (1995); H. KARMEL, Intelligence for peace: the role of intelligence in times of peace § 5 (Frank Cass. 1999); Joint Intelligence in Support of Peace Operations (1996).

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proposed rule for espionage. They will endorse a similar rule; however, they will adopt it as a result of different reasoning. I also believe neither cosmopolitans nor Ralwsian contractarian approaches to global justice should be intimidated by the argument that their proposed deliberation process represents a utilitarian principle. The suggested choice-making process leads to a legitimate and justifiable rule for conducting peacetime espionage. If utilitarians accept both the reasoning and the outcome, as Rawls responded, it is only for the better.

G. The Cosmopolitan Approach to Espionage As described in the previous sub-chapters, in the moral discourse on global justice a major

controversy persists between the Rawlsian approach as represented by Rawls’s Law of Peoples and the cosmopolitan approach. I argue that the proposed rule is not necessarily dependent upon the outcomes of such controversy, since it can theoretically be accepted and justified also by applying a certain cosmopolitan approach to global justice.126 More specifically, I argue that the proposed rule for espionage is expected to be endorsed also by impartial and fair representatives of the citizens of all nations. A similar global concept of applying Rawls’s original position has been offered by Pogge and Buchanan.127 Brandt has similarly structured such a cosmopolitan original position in order to argue for the legitimacy of the rules of just war128.

In the cosmopolitan original position the representatives of citizens are applying the same rationale of “lexically” securing the more important interests first. A representative being aware of potentially representing a citizen of either a liberal or a non-liberal nation, is even more likely to endorse the proposed rule (when compared to a representative of a state). I presume that among the citizens of non-liberal nations, some citizens do oppose its “ruling” doctrine and prefer a liberal structure. As opposed to representatives of nations, representatives of citizens are less concerned about preserving the non-liberal doctrine in case they happen to represent citizens of a non-liberal nation. They are even in a better position therefore to accept the rule of espionage as a transparency-enforcing instrument in the international community. 129

A unique concern of a representative of a citizen, which needs to be addressed, is the concern of potentially representing a recruited intelligence agent. Once again, such a representative will seek to maximize among all her choices that secure her basic interests. Such a choice will be to accept the rule allowing transparency-enforcing espionage, while subjecting such peacetime espionage to the general duty to respect international basic human rights. This choice secures the citizen’s interests in world peace and stability. A reasonable representative must assume that unless minimal peace and security are maintained in the international sphere, no domestic right is considered to be guaranteed.130 The

126 It should be noted that the word “cosmopolitan” might be a little misleading. It is the global original

position which takes a cosmopolitan format. It does not necessarily reflect a cosmopolitan perception. For example, it does not mean that the representatives are endorsing certain cosmopolitan concepts, such as against the role of nations or even against any status of states as international moral agents.

127 THOMAS .W.M. POGGE, REALIZING RAWLS (Cornell Univ Pr. 1989); THOMAS POGGE, Do rawlsís two theories of justice fit together, RAWLS’S LAW OF PEOPLES (2006); THOMAS W POGGE, An egalitarian law of peoples, 23 Philosophy & Public Affairs (1994); ALLEN BUCHANAN, Taking the Human out of Human Rights, (2006); ALLEN. BUCHANAN, Rawls's Law of Peoples: Rules for a Vanished Westphalian World, Ethics (2000).

128 R.B. BRANDT, Utilitarianism and the Rules of War, 1 Philosophy and Public Affairs (1972). 129 I should note that even under this cosmopolitan version of the international original position, the basic

presumption remains that the representatives elect basic rules to the international community rather than basic institutions. This eliminates the alternative of the representatives choosing world institutions that will lead to imposing constitutional liberal democracy on the entire international community. Regardless of the cosmopolitan approach, the idea remains that the representatives are choosing rules for the international community as it is rather than as it should be.

130 Kant, The metaphysics of morals, §44.

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same choice also secures that such benefits of international peace and stability among nations do not expose the citizen to irrational risks should he happen to be an agent himself. This concern is addressed by subjecting the states’ right to spy to the duty of respect for basic international human rights. It should be noted that the exact list of international human rights is in dispute. Rawls’s LoP secured a much shorter list than the typical cosmopolitan list.131 This controversy does not necessarily affect the proposed rule, since the human rights that are relevant to espionage are the most fundamental, such as the right to life. These rights are secured by all reasonable lists, and thus not necessarily affected by the controversy on the matter132.

H. On Proximity in the International Cluster Proximity is obviously a constitutive element of the proposed argument. It is the combination of

proximity and non-transparency that ignites the whole process of unsustainable preparedness and of transparency through espionage as its answer. However, if the offered justification relies on proximity, it apparently follows that only states within a short geographical distance are allowed to collect intelligence against their non-transparent neighbor. This interpretation of proximity as an element within the offered justification for espionage is obviously wrong. Proximity is a practical concept and needs to be interpreted as such. The definition of proximity rests on many practical parameters, such as geography, military technology, economy and logistics. State A is proximate to State B, for the sake of the proposed justification, if the aggregate consideration of these practical parameters leads to the conclusion that state A possesses the capability to inflict intentional harm on the vital interests of state B. In addition, the meaning of these parameters is continuously subject to changes in time and circumstance. For example, State S1 may find State S2 as proximate even if 1,000 km of ocean keep them apart. For instance, if S1, is an island and S2 is a significant naval power. The definition is also technology-oriented. S1 may only become proximate to S2 from the moment it acquires an extended ground-to-ground missile capability or has adopted aerial refueling capabilities to enable a new and extended airstrike range.133

The proposed argument further offers a view into the predicted future of espionage. In general, airstrike and missile capabilities continue to advance and so advances the range within which states are considered to be geographically proximate.134 Thus, more and more nations are drawn into a new status—neighbors—in terms of models of peace and stability. Putting more and more nations in proximity one to another should indicate a growing future interest in intelligence collection by more and more states. In other words, military technology should lead us to predict that more and more states will identify other nations as proximate and therefore as new targets for collection. This is expected unless a faster counter process of democratization occurs.

These two processes are parallel—proliferation of long-range military capabilities and democratization. The first process extends the range of proximity and therefore increases the number

131 ALLEN BUCHANAN, Taking the Human out of Human Rights, Rawls’s Law of Peoples, A Realistic

Utopia. 132 While the question of justifying espionage may not be affected by the controversy on the exact list of

human rights, this controversy might affect the legitimacy of some of the means that are employed in conducting espionage.

133 J NEWHOUSE, Missile Defense Debate, The, 80 Foreign Aff. (2001); SA HILDRETH & C EK, Long-Range Ballistic Missile Defense in Europe (LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE 2008).

134 Taking the ongoing Iranian nuclear crisis with the west and the superpowers, it is obvious that since Iran achieved launching capabilities of missiles with a range long enough to hit some European capitals, effectively changed Iran’s status from those countries’ perspective. Iran is no longer considered by them to be a distant country in another part of the world. New achieved missile technology turned Iran at once into the status of a “neighbor”, the non-transparency of which is now considered a great concern.

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of potential collectors and targets of intelligence. The second process of democratization neutralizes the affect of the first process, since states are not expected to collect intelligence against a transparent regime irrespective of this regime acquiring extended-range military capabilities. Since it is reasonable to assume that the process of proliferation of military technologies develops faster than the process of democratization, the conclusion is therefore that espionage is simply expected to become more and more ubiquitous in the international arena. This prediction emphasizes the importance of shaping a sound justification for intelligence collection in general and for Humint in particular. The rapid development of transportation, communication and military technology obviously reshapes the world. Ironically, reshaped it is perceived to be smaller. According to the proposed argument, the smaller it gets, the more transparent it has to be.

IV. CONCLUSIONS The proposed argument joins vast literature on different angles to the value of information135. In

the case of espionage, the information concerns the strategic intentions of proximate states. This information is essential for maintaining basic peace and stability among proximate states. It is this essentiality of the information on strategic intentions, which serves as the ground to a duty of basic transparency. The proposed argument is unique however in linking this essential duty of transparency with the form of government of a state on the one hand and with peacetime espionage on the other hand. Typical democratic liberal states are argued to be sufficiently transparent. Their democratic institutions conform with the structural requirement of transparency. Since conforming with a duty of basic transparency seems to involve a requirement to adopt certain elements of liberal democracy, non-liberal nations are expected to reject such an international duty. Espionage is argued to be the instrument of international community for enforcing the required duty of basic transparency. However, it allows such transparency without imposing the liberal structure on non-liberal nations.

If the proposed argument is correct, we are expected to see empiric evidence in today’s reality to support it. For instance, this perception of espionage is expected to influence the structure of intelligence communities. Non-transparent regimes will construct their intelligence community in a different manner than their democratic counterparts. If, as argued, democratic states are transparent about deliberation and intentions, their adversaries will allocate fewer resources to defensive intelligence and intelligence analysis.136 Since democratic nations tend not to attack their neighbors by surprise, Kahn indeed confirms that intelligence communities in democracies tend to invest more in foreign intelligence collection and analysis while autocracies tend to neglect it.137 Differences in

135 N AHITUV, Assessing the value of information (Association for Computing Machinery NY 1989); J

BRACKEN & RE DARILEK, Information superiority and game theory: The value of information in four games, 31 PHALANX (1998); MP CARTER, The valuing of management information: Part I: The Bayesian approach, 10 Journal of Information Science (1985); H CLEVELAND, Information As a Resource, 16 Futurist (1982); VP CRAWFORD, Lying for strategic advantage: Rational and boundedly rational misrepresentation of intentions, 93 American Economic Review (2003); GA FELTHAM, The value of information, 43 Accounting Review (1968); RW HILTON, The determinants of information value: Synthesizing some general results, 27 Management Science (1981); SJ HO, Extracting the information: espionage with double crossing, 93 Journal of Economics (2008); MI KAMIEN, et al., On the value of information in a strategic conflict, 2 Games and Economic Behavior (1990); KB LEVITAN, Information resources as ‘goods’ in the life cycle of information production, 33 Journal of the American Society for Information Science (2007); TJ MOCK, Concepts of information value and accounting, 46 Accounting Review (1971); AJ REPO, The value of information: Approaches in economics, accounting, and management science, 40 Journal of the American Society for Information Science (2007); ME WHITNEY & JD GAISFORD, An Inquiry Into the Rationale for Economic Espionage, 13 International Economic Journal (1999).

136 DAVID KAHN, An historical theory of intelligence, 16 Intelligence and national security 79(2001), p. 84-86 (“Kahn”); BARRY R POSEN, THE SOURCES OF MILITARY DOCTRINE: FRANCE, BRITAIN, AND GERMANY BETWEEN THE WORLD WARS (1984).

137 Kahn, p. 86.

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transparency and in the process of deliberation are indeed reflected in the structure of intelligence communities. Typically, organizations for central intelligence research and analysis in democratic states are larger and more powerful than their counterparts within non-democratic regimes. Their tasks are far more complicated and consequences of analysis failure are far more serious.138

The proposed argument tells us a new story on contemporary espionage. As mentioned, it may assist in giving an idea on the future of espionage. The future of espionage among nations has been presented as torn between two contradicting processes of democratization and the proliferation of long-range weapon systems. As democracy spreads, espionage will diminish. In such a case, less nations will be the targets of espionage. As a result, fewer persons will be involved in spying. In this respect spying is a strange profession. Its ethics will be in its best when this profession is abolished. Until such day arrives, most states are expected to watch their non-transparent neighbors with their ears and eyes wide open. Hopefully, with the help of growing attention to the moral discourse on spying, the involved individuals will conduct such spying with their hearts similarly open.

138 Herman, 100-112.

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