National security intelligence activity: The principles of discrimination, necessity, and proportionality

This chapter looks more closely at intelligence practices that fit the jus in intelligentia (i.e. what methods can legitimately be used to gather intelligence). As before, the argument is that while the general principles offered in jus in bello are useful starting points, they do not apply in a straightforward way to intelligence. The point of departure is that intelligence practices are mainly epistemic in character and justified by reference to the institutional purposes of intelligence to aid in national security decision-making, and so they differ quite significantly from the jus in bello criteria. Accordingly, while some constitutive principles of just war theory (JWT) are applicable to national security intelligence activity, notwithstanding the essentially epistemic character of intelligence activity, these principles need to be significantly revised if they are to be applicable. Specifically, analyses are offered in this chapter of the key principles of discrimination, necessity, and proportionality. It is argued that the principle of military necessity applicable to kinetic activity in a theatre of war differs from the principle of necessity applicable to national security intelligence activity. Likewise, the principles of discrimination and proportionality applicable to kinetic activity in theatres of war need to be revised when applied to intelligence activity.