ABSTRACT
Michael Walzer’s ‘due care’ criterion asserts that the public has an overriding right not to be put at risk, so that the government always has better reasons to pursue unhindered intelligence gathering than to ensure individual liberty (Walzer 1977 and 2006, p. 156). Civilians have, simply, a right to see that ‘due care’ is taken. Contemporary legal arguments use Walzer’s due care doctrine to contend that there are no actual deontic constraints on the consequential interests of the state in using extraordinary measures to procure intelligence of high national security value (Horowitz 2008). In a post-9/11 shift away from deterrentist ideals towards jurisprudence that favours proactive, preventative measures (Dershowitz 2008), scholars have scrambled to provide a legal or moral check on unlimited governmental powers in the gathering of intelligence. Currently, intelligence work for US agencies is guided independently, 1 and there are no guidelines that govern intelligence gathering on the part of such agencies. 2 In the absence of a thoroughgoing code of ethics that can delineate professional, ethical behaviour in the intelligence community, most theoretical justification for these limits comes through appeals to a prisoner’s right to privacy and/or individual freedom. The difficulty with appeals to privacy and individual freedom is epistemic: how can we know when (if ever) the intelligence community’s obligation to protect its citizens oversteps the individual’s rights to privacy and individual freedom?
