Milton Regan

This volume examines the ethical issues that arise as a result of national security intelligence collection and analysis. Powerful new technologies enable the collection, communication, and analysis of national security data on an unprecedented scale. Data collection now plays a central role in intelligence practice, yet this development raises a host of ethical and national security problems, such as: privacy; autonomy; threats to national security and democracy by foreign states; and accountability for liberal democracies. This volume provides a comprehensive set of in-depth ethical analyses of these problems by combining contributions from both ethics scholars and intelligence practitioners. It provides the reader with a practical understanding of relevant operations, the issues that they raise, and analysis of how responses to these issues can be informed by a commitment to liberal democratic values. This combination of perspectives is crucial in providing an informed appreciation of ethical challenges that is also grounded in the realities of the practice of intelligence. This book will be of great interest to all students of intelligence studies, ethics, security studies, foreign policy, and International Relations.

Professor Mitt Regan takes up Brad Wendel's suggestion that we have to distinguish the ethics of advocates from those which guide other forms of legal work, and proposes that the distinction be taken further. Legal advising can itself implicate different ethical positions. Regan concentrates on tax advisers, and argues that their work can, at times, legitimately require a partisan advocate's stance in the giving of tax advice or an impartial trustee's stance in ensuring that the spirit, as well as the letter, of tax law is honoured. Especially in the US, there are strong systemic justifications for treating the tax adviser as an advocate: the wide latitude that tax law gives the citizen when calculating tax liability, the hazards of accurate interpretation of the tax code, and the need for predictability in client arrangements suggesting that it is preferable to concentrate strictly on the letter of the law. So too, the tax adviser as trustee is informed by the importance of tax collection for ordinary government services, and by 'tax morale' and the community's confidence in the tax system generally. The bifurcation of ethical stances in tax advising is, as a consequence, a function of the 'conflicted regulation' of citizen taxpayers

It is common to think of warfare as a setting in which emotion can lead combatants to engage in unethical behavior. On this view, it is natural to conceptualize the aim of military ethics training as quelling the influence of emotion in combat in order to reduce the risk that military personnel are vulnerable to its influence. Recent research, however, indicates that what is called “emotion processing” is connected in important ways with moral judgment and behavior. In this view, acting ethically is not simply a matter of subordinating emotion to reason, but of responding with appropriate rather than inappropriate emotion. In this respect, such research challenges the powerful “rationalist” account of moral judgment and behavior. More fundamentally, it calls into question the distinction between reason and emotion as a way to understand our moral sensibilities. This article describes this research and discusses work on naturalistic decision-making and neuroscience that provide support for its insights. It then suggests ways in which such research is consistent with Aristotelian notions of character and virtue. Finally, it identifies ways in which some military training implicitly draws on lessons from this body of research, and suggests how it might do so more deliberately.

The trend toward the “humanization” of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed conflict. This essay argues, however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare.

In the current geopolitical environment, liberal democracies vie for influence and prosperity with autocratic governments, such as those of China and Russia. While the great powers do not shy away from using aggressive force, much of their rivalry today takes place below the threshold of armed conflict, in a conceptual and practical 'grey zone' between war and peace. Autocratic states operate in this grey zone to target the vulnerabilities of liberal democracies, creating hybrid threats that rely on instruments ranging from economic, diplomatic, legal, and informational pressure all the way to military coercion. Law plays a critical role in this context. In the ethically and legally ambiguous grey zone, international law serves as a normative, yet malleable, framework within which geopolitical rivals compete. State and non-State actors invoke the law as the source of authority, while simultaneously hoping to shape the international legal order in their own strategic interests. Hybrid Threats and Grey Zone Conflict offers the first in-depth assessment of the legal and ethical aspects of hybrid threats and grey zone conflict. It explores the responses available to democratic nations for countering hybrid and grey zone threats whilst adhering to liberal democratic values and the rule of law. Bringing together diverse scholarly and practitioner perspectives, the volume introduces readers to the conceptual and practical difficulties arising in this area, the rich debates the topic has generated, and the challenges that countering hybrid threats and grey zone conflict poses for liberal democracies.