Friday, January 10, 2014

007 and the NSA

James Bond, the protagonist of Ian Fleming's popular series of novels and the movies based on them, was number 007 in the British secret service. As was explained in the first book, the 00 number meant that he was licensed to kill. So far as I can remember—I read the books a long time ago—it was never explained exactly what were the limits of the license or under what legal theory it was granted.

I do not think it was ever suggested that he was only allowed to kill in self-defense since that, after all, requires no special number. He clearly did not have the hangman's job of executing people who had been convicted of a capital offense. He was not a soldier in a declared war. Off hand, those are the only contexts I can think of in which deliberately killing another human being is legal under the Anglo-American legal system. Which suggests that what Bond had was a license to break the law.

Defenders of the NSA argue that everything it does, with the exception of occasional mistakes, is legal under their interpretation of the relevant law. None of them, so far as I know, have argued that the NSA is entitled to break the law. On the other hand, I have seen no arguments claiming that the Patriot act entitled government officials to lie to Congress under oath, as the Director of National Intelligence has admitted doing. Yet the only calls I have seen for indicting him for perjury have been from people already critical of the NSA. From which I conclude that the defenders of the NSA, from Obama on down, really do believe that government security agents are entitled to break the law without the usual consequences, however unwilling they may be to say so.

As it happens, the same issue comes up in my novel Salamander, although not in our world. The speaker is Prince Kieron, brother and heir of the king and royal official in charge of dealing with magery:
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The King is not above the law. Nonetheless, I will not promise never to violate bounds or law myself, nor will I promise to instruct my servants never to do so. Law-breaking is a bad thing, whether by the King's servants or anyone else, but there are worse things, some of which it is my responsibility to deal with. I will promise not to violate bounds or law save in the most extreme circumstances, and to do my best to see that my servants will not, so that incidents such as the two you have described do not occur again. If my people are charged, as Fieras was, I will do my best to see that they get an honest trial. 
The claim that the end does not justify the means cannot be true in general—with enough at stake, all of us are willing to do things we would normally disapprove of. Kieron is not a villain. He is an intelligent, well intentioned, and reasonably honest man trying to deal with what he correctly sees as a terrible threat. Insofar as he is making a mistake, it is not bad moral reasoning. It is being too confident that his judgement is correct, hence that he is entitled, if necessary, to overrule by force or fraud the opinions of other intelligent and well intentioned people who disagree with him. 

Similarly in our world. It is easy enough to come up with hypothetical situations in which an NSA agent is morally justified in tapping a phone without a warrant or a high up intelligence official in lying to Congress. It is much harder to come up with a plausible reason to believe that the willingness of agents or officials to break the law whenever they think doing so is in the national interest is, on net, a good thing.

13 Comments:

At 2:32 PM, January 10, 2014, Anonymous TJIC said...

I recall reading (years ago) and argument against Dershowitz-style torture warrants

http://www.alandershowitz.com/publications/docs/torturewarrants.html

that went: "we want government agents to torture if it can save a large number of lives, yet we want a very very large disincentive to torture. Thus, we should NOT codify the concept of warrants; we should leave it as extra-legal...and yet know that it will happen...but it will only happen under circumstances where government employees think that it is worth their own possible punishment via jail".

It's a good logical argument, but it leaves aside the point that government already routinely tortures, and our culture and incentives are such that (effectively) no one cares, and only very rarely do government agents get punished for it.

 
At 3:47 PM, January 10, 2014, Anonymous Daublin said...

James Bond used to be portrayed as a fairly sleazy guy. We all liked him, but we felt dirty about it. You're not really supposed to sleep with the enemy and kill and cheat with abandon, but we couldn't tear our eyes away.

More recent movies have much less of that feel. They show him as a plain old gun-toting hero with lots of cool gadgets.

 
At 4:05 PM, January 10, 2014, Anonymous Anonymous said...

It would be great to add a scene when Bond runs over a crowd of pedestrians and makes a comment like "lucky I have a license to kill", which would expose the absurdity of the concept and force the writers to clarify it.

 
At 5:20 PM, January 10, 2014, Blogger Nancy Lebovitz said...

I'm reminded of the Destroyer novels-- part of the premise was that the only way to save the Constitution was to have a very small branch of the government secretly breaking the Constitution.

 
At 5:50 PM, January 10, 2014, Blogger Shaddox said...

James Bond's license to kill is simply legal permission to kill anyone in pursuit of his mission. I'm not sure if there is a more detailed legal framework that describes who (perhaps the courts) could judge after the fact whether a particular kill was indeed "in pursuit of his mission."

 
At 7:07 PM, January 10, 2014, Anonymous Chris Hibbert said...

I believe in a slightly stronger version of the argument quoted by TJIC. The quote seems to limit the punishment to jail, while I would say that the person committing the act shouldn't believe that they are authorized to commit the act, but if they feel they have to do it anyway, they should be prepared to suffer whatever the statutory punishment is.

 
At 10:28 PM, January 10, 2014, Blogger wtanksley said...

Wikipedia seems to think it's a real thing.

https://en.wikipedia.org/wiki/Licence_to_kill_%28concept%29

I love Wikipedia.

 
At 7:20 AM, January 11, 2014, Blogger dWj said...

I believe Jack Goldsmith argued something related to the TJIC argument; if I'm remembering correctly, he claims to have argued, while in the administration, that if they wanted to do something unconstitutional because of extreme circumstances, that that was fine provided they were extremely open and candid about it, leaving themselves on the mercy of the rest of the political ecology to agree (or not) that it was warranted.

 
At 9:01 AM, January 11, 2014, Blogger jimbino said...

It seems that Joseph Fletcher long ago established, in Situation Ethics, that the end always justifies the means and that nothing else can.

If one states the end as "national defense is of paramount importance," then goes on to say, "but of course you can't kill people," the real end has been modified to, "national defense is of paramount importance as long as you don't kill people." Any means that satisfies the new end is then justified.

 
At 12:39 PM, January 11, 2014, Blogger Power Child said...

A point on torture:

I was on one of the flights from London that got grounded while they removed a passenger carrying liquid explosives. That passenger may have been taken away and tortured.

If so, the torturing was done by some guy I've never met. He was doing the torturing on what can effectively be considered the behalf of me and several hundred other people.

Society's reaction to this is different than what their reaction might have been if I, or one of the other people I sat on the tarmac with, had been invited to go torture the passenger ourselves.

 
At 5:20 AM, January 12, 2014, Anonymous Handle said...

It's not a license to break the law if the law does allow for the deliberate killing of human beings by certain people under certain circumstances, but the law itself is classified.

Many National Security laws, Executive Orders, have classified annexes. Presidential Directives are usually classified, and when not usually also have classified annexes.

So does the Army interrogation manual, which is pretty convenient sometimes. See, a public figure can say with complete honesty that now, no one in the U.S. government is ever permitted to exceed the bounds of the manual. A member of the public looks up the manual, reads it, finds nothing particularly disturbing (or outside the bounds of normal law enforcement practice), and says, "Oh, ok, then."

But there's a classified annex they don't know about with techniques (used by every nation state, as it happens) that might raise some additional concerns, if you were allowed to know about them.

 
At 10:04 AM, January 12, 2014, Blogger Patrick Sullivan said...

Depends on your definition of 'declared war'. In Casino Royale, it's clearly war, by the KGB against the West, and they are portrayed as being as ruthless as...they probably were in fact.

It's actually a well written novel, and you'll learn how to play Baccarat into the bargain.

 
At 11:20 AM, January 12, 2014, Blogger David Friedman said...

Patrick:

I'm pretty sure that if a KGB agent was caught murdering someone in the U.S., he would have been treated as a murderer, not a prisoner of war. So while there was a cold war going on it wasn't treated, for legal purposes, like a declared war.

 

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