Strategic Deception in Modern Democracies: Ethical, Legal, and Policy Challenges

Brief Report by Carolyn Pumphrey

Transcripts of the following presentations are available: Wheeler, Simon, Silliman, NicholKiss, DauberDaltonFinal

On 31 October and 1 November, 2003 the Triangle Institute for Security Studies and the United States Army War College held a conference at the Friday Center in Chapel Hill, North Carolina. Its purpose was to address the ethical, legal, and policy challenges which arise when democratic governments use deception either in a recognized state of armed conflict or in a war against terrorism. The Center for the Study of Professional Military Ethics at the United States Naval Academy and Duke University’s Kenan Institute for Ethics were cosponsors. Participants and attendees included military historians, philosophers and ethicists, members of the military and intelligence communities, lawyers, businessmen, and members of the press. What follows is a brief summary of the conference. Readers will find copies of the presentations delivered at the conference by clicking on the names of speakers. (Work in progress).

The first panel provided an introduction to deception in general and strategic deception in particular. The first speaker was Joseph W. Caddell, a military historian at UNC-Chapel Hill and North Carolina State University, who provided some basic defintions and introduced key concepts. Michael Pillsbury, Office of Net Assessment, Office of the Secretary of Defense, and Everett Wheeler, an independent scholar at Duke University, put deception in comparative historical perspective, examining the eastern and western traditions. Deception is the intentional manipulation, distortion or falsification of evidence in order to mislead the enemy. It is complex and multifaceted and its different levels (strategic, operational, and tactical) are often hard to disentangle, though broadly speaking strategic deception disguises one’s real objectives, intentions, strategies, and capabilities. Though an invaluable tool of war, deception can fail and have unwanted and unintended consequences. Traditionally, western societies have used both force and deceit to win wars, often relying on deception when at a military disadvantage. Americans typically perceive themselves as a truthful people who “play” by the rules, a perception not widely shared. The Chinese assessment is that we are sophisticated in the practice of deception but underrate the importance of deep intelligence penetration at the highest levels of power.

Three legal experts then discussed laws relating to stratetic deception: Gene Nichol, Dean of the Law School, UNC-Chapel Hill, Scott L. Silliman, Director of Duke’s Center on Law, Ethics, and National Security, and Captain Jane Dalton, JACG, USN. Legal restraints on deception are few. The American Constitution does not say that the President and the Executive Branch must tell the truth, and American courts have traditionally been reluctant to interfere in what they see as “political matters,” especially in a time of war. International law prohibits only perfidy; deceptive measures which take advantage of positions of trust to attack, wound, or kill an enemy. The military rules of engagement, which fall short of law, do provide further hedges against abuse. Some analysts argue that we need more laws. Controlling political excess by electoral politics is indeed difficult and we are facing a rapidly changing threat environment. However, trying to make our political leaders behave virtuously could be dysfunctional and developing new international laws would put us at a disadvantage when dealing with enemies who are not bound by international conventions.

On the third panel Elizabeth Kiss, Director of the Kenan Institute for Ethics at Duke University and J. Carl Ficarotta, Professor of Philosophy at the United States Air Force Academy, engaged in a discussion of whether or not deception is morally justifiable. Albert C. Pierce, Director of the Center of Professional Military Ethics at the US Naval Academy served as commentator. Many ethicists note that deception can save lives and be used to protect our values. At the same time, the dangers of deception should not be underestimated. Deception may undermine the core principles of democracy and erode trust. When deceiving our enemies, we may deceive our friends and our own people. Democracy is committed to openness and public debate, yet deception demands secrecy and denies citizens their right to consent. All is not fair in war. War is governed by rules. And while much deception falls within these rules, ethical and moral standards may apply. For some, morality is grounded in enlightened self-interest. For others, it is founded on service to the “greater good.” A third school argues that morality should be based on respect for human beings and that we should show restraint even when our enemies do not. Where we stand on these matters will determine how we respond to the ethical challenges posed by terrorism.

Panel IV considered strategic deception from the point of view of national policy making. Speakers were Jennifer Sims, former Deputy Assistant Secretary of State for Intelligence Coordination and Departmnet of State Coordinator for Intelligence Resources and Planning; James Monnier Simon, President of Intelligence Enterprises and former Assistant Director of Central Intelligence; and Andrew Garfield, Director of the International Centre for Security Analysis, Kings’ College London. Ambassador Immo Stabreit, former German Ambassador to the United States, South Africa, and France, was the discussant. Policy constraints on strategic deception exist even in the absence of legal and ethical constraints. Democracies must consider whether their actions are politically wise. Strategic deception is carried out at the highest levels of government and inevitably has political consequences. A deception campaign can only be justified if it is carried out in the service of an important mission and if it is feasible. Democracies may or may not be very good at deception. The United States does not currently meet many of the requirements needed for success. Among other things, it is hampered by cumbersome bureaucratic and legal processes; a State Department averse to deception; and an inability to keep secrets. We must also give thought to the high cost we must pay when deception fails and even sometimes when it works: potential embarrassment of our leaders, alienation of our friends and allies, and disillusionment of our people.

Major General John “Jack” Leide (USA, Ret., Former Director of the National Military Intelligence Center and Director of Intelligence, J-2, US Army Special Forces, First Gulf War and Admiral William Oliver Studeman, Former Director of the National Security Agency and Acting Director of Central Intelligence brought their impressive experience to bear on the quesiton of the actual/potential value of strategic deception to military and intelligence operations. Daniel T. Kuehl, Director of the Information Strategies Concentration Program at the National Defense University focused on discussing legal and ethical issues relating to cyberspace. In wartime deception is a vital tool, especially for the weak. It helps military commanders accomplish their mission and protect the lives of their troops. In the First Gulf War the media became involved in a military deception. Their coverage of “mock” preparations for landings on the East coast helped convince the Iraqis that this was where the Coalition Forces would attack. Though the media felt duped, from a military perspective the benefits clearly outweighed the cost. The intelligence mission is to penetrate the enemy at the highest level and help deceive him. If we know our enemy and can prevent him from knowing us, we have gained a military advantage. In the twenty-first century, we will have to adapt our doctrine and methods of deception to deal with non-state actors. Cyberspace, moreover, now offers new opportunities to manipulate data. We need to understand the legal and ethical implications of deception in this environment.

 

A very different view of the problem was given on Panel VI by Robert Zelnick, former ABC News Pentagon correspondent, and Dana Priest, Intelligence Correspondent for the Washington Post. Cori Dauber, an Associate Professor of Communication Studies at UNC-Chapel Hill and owner of a blog-site, followed Dan Kuel in providing insights into some of the dilemmas which have appeared in the new information environment. From a media perspective, strategic deception is highly problematic. Journalists accept the need for some kinds of tactical and operational deception. However, they dislike being lied to. They think that America should focus, not on deception, but on presenting the truth in a more convincing way. They feel a fundamental obligation to expose deception. As a result, those who plan deception should not expect complicity on the part of the press. A new concern is the advent of “blogging.” Anyone can now post his or her ideas on the web and will not be held to any set standards. The public, moreover, tends to be uncritical in its acceptance of information found online. Thus the “bloggosphere” is a field ripe for manipulation.

 

The conference concluded with some brief reflections offered by Doug Lovelace, Director of the Strategic Studies Institute: William Arkin, correspondent for the Los Angeles Times and Military analyst for NBC-TV, and Peter Feaver, a political scientist at Duke University (also Director of the Triangle Institute for Security Studies.) The conference raised more issues than it resolved. The practice of deception is controversial. While some think we should use it only in times of national emergency, others think it is a valuable, even indispensable policy tool. Determining what is or is not permissible is difficult. There are few legal constraints and no easy ethical answers. Deception is not easy to carry out in an open society. It is politically dangerous and can have a corrosive effect on democratic processes and international relations. We must, however, be prepared to use it. We must refine our understanding so that we can guard ourselves against deception. We must do more to educate our leaders about deception so that they can judge when to use this tool. Clearly, we need to develop a theory of deception which will tell us when and under what conditions deception is likely to succeed.