Old disclosures from Snowden have resulted in the new revelations that the NSA is using cellular phone data to map and track the movements of millions of persons with the intention of tracking non-American terrorists, but with the incidental effect of tracking non-terrorists. The Washington Post writes, “The NSA does not target Americans’ location data by design, but the agency acquires a substantial amount of information on the whereabouts of domestic cellphones “incidentally,” a legal term that connotes a foreseeable but not deliberate result”. Assuming the distinction between incidental effects and intentional effects in law is rooted in the same divide as demarcated in moral theory by Aquinas’ doctrine of double effects, I want to briefly consider whether surveilling non-terrorists is an incidental effect according to DDE, and thus, whether the NSA surveillance program is morally justifiable according to DDE.
1.0 The Doctrine of Double Effect
1.1 St. Thomas Aquinas
The doctrine of double effect is a principle of normative ethical philosophy that distinguishes between the intended and incidental effects of actions to identify the conditions under which a person’s responsibility for an immoral action is mitigated. In Summa Theologiae St. Thomas Aquinas posits that what is of moral value in an act is the intention behind it. For Aquinas it is not enough that an act has a good effect, an agent must intend the good effect in order for that act to be good. Yet Aquinas notes that aside from the intentional effects of an action there may also be effects that are incidental to the intention. Positing that an effect that is incidental to the intention is not of moral concern, Aquinas comments, “the way a moral act is to be classified depends on what is intended, not on what goes beyond such an intention, since this is merely incidental thereto” (Aquinas, 78). From this it follows that if an act has two effects, one good and one bad, then the act is morally permissible so long as the good effect is intended and the bad effect is incidental to the intention.
1.2 Michael Bratman and Alison Hills
Bratman and Hills begin from the judgment that, “the intuitive concept of intention is that you chose your plan in order to bring about the intended consequences” (Hills, 260). Bratman holds that to intend an effect is to commit to that effect obtaining. As such, the necessary and sufficient conditions for an intention are that the agent reasons out a plan for how to make the effect obtain, other intentions are suppressed in order to ensure the obtaining of the effect, and the agent tracks their success at making the effect obtain (Bratman, Intentions, Plans, and Practical Reason, pages 140-143).
Hills appeals to a thought experiment using a bomber pilot to show that these are the necessary and sufficient conditions for intention. The situation is such that the bomber pilot is to destroy a factory and he is conscious of the fact that many civilians living near the factory may die in the bombing.
Hills posits that our moral intuitions tell us that if some civilians die as a consequence of the bombing it does not necessarily follow that the pilot intended their deaths; the pilot only intended to destroy the factory. So, if the conditions for intentionality formulated by Bratman are at play here then we have reason to think that they are necessary and sufficient conditions for intention. In other words, the hypothesis is that if an act is intended then it will have these three conditions. If the conditions are right then the pilot intended the destruction of the factory in that he used reason to plan how to destroy the factory, he suppressed intentions for his own safety in order to make sure the factory was destroyed and he tracked his success in making the effect obtain such that, “if you miss the target with your first attempt, you will try again” (Hills, “Intentions, Foreseen Consequences and the Doctrine of Double Effect,” page 260).
1.3 C.E. Harris
Harris writes that,
According to the principle of double effect, it is morally permissible to perform an action that has two effects, one good and the other bad, if the following criteria are met:
1. The act, considered in itself and apart from its consequences, is good, or at least morally permissible. […]
2. The bad effect cannot be avoided if the good effect is to be achieved. […]
3. The bad effect is not the means of producing the good effect but only a side effect. […]
4. The criterion of proportionality is satisfied, in that the good effect and the bad effect are more or less equally balanced in importance (C.E. Harris, “The Ethics of Natural Law”, in Conduct and Character: Readings in Moral Theory edited by Mark Timmons, page 85).
2.0 The NSA’s Tracking of Cellphone Locations and the Doctrine of Double Effect
We now have the pieces in place to inquire whether the DDE morally justifies the bad effect of surveilling non-terrorists. First, Aquinas’ advances the thesis that bad incidental effects are morally permissible if the intended effect is good. Second, Bratman and Hills provide satisfactory necessary and sufficient conditions for ‘intentional effect’. Third, Harris provides necessary and sufficient conditions for how a incidental effect can be morally justified. It is worth noting that proponents of DDE agree with Harris’ stating of DDE, so I am not using a straw-man version of DDE. (For more on this commonality on DDE check out the best philosophy encyclopedia around)
So, using Bratman’s definition of intentional effects we can see that the NSA’s surveilling the phone locations of terrorists is an intended effect. The NSA reasoned out a plan on how to track the movements of terrorists using cell phones, suppressed other intentions (such as, hopefully, the intention not to surveil non-terrorists) in order to succeed in tracking terrorists, and tracked their success of surveilling terrorists by keeping the necessary equipment and tools maintained. Surveilling terrorists is thus an intended effect, so now we must consider whether surveilling non-terrorists is a morally permissible bad incidental effect.
The first condition that Harris proposes is that the intended effect is itself good. I’m going to steer clear of this one, because I think there is likely to be disagreement in this area, so I don’t want to rest too much on it. I am also not completely certain on the moral status of spying on terrorists, strange as it may sound. I obviously lean strongly towards the notion that it is morally permissible, as terrorists aim to cause suffering, such that taking measures to prevent suffering is good. But our philosophical intuitions might be a little obscured here. It might turn out when we have our final ethical theory (meaning we finally get the right theory, which I think is logically possible) that spying is always morally wrong. It’s easier to leave this issue aside for now.
Where I want to focus is Harris’ second condition: that the bad effect cannot be avoided if the good effect is to be achieved. I think this condition for morally permissible bad incidental effects is completely legitimate, and fits with our intuitions. Imagine I’m Spiderman and I must choose between saving a bunch of kids in a Roosevelt Island Tramway car, or my love interest, Mary Jane.
Assuming I, Spiderman, can’t save both (though spoiler alert: I DO!) in saving the kids the good intended effect is saving the lives of multiple people, and the bad incidental effect is letting Mary Jane die. Now, if it was completely in my power to do both, such that I could act to realize the good intentional effect without letting the bad incidental effect obtain then it seems the bad incidental effect is not morally permissible. In other words, if I could save both the kids and Mary Jane, and I know it, but I don’t save Mary Jane, then letting her die is not a morally permissible bad incidental effect. And this seems obvious. So for a bad incidental effect to be morally permissible it must not be avoidable if the good effect is to obtain.
This is precisely the problem with the bad incidental effect of surveilling non-terrorists. The bad effect of surveilling non-terrorists can be avoided while the good effect of surveilling terrorists is achieved. Surveilling terrorists does not logically necessitate surveilling non-terrorists. If current programs have design flaws that make it the case that the bad effect must obtain then surveilling non-terrorists is still not morally permissible, as it is possible to avoid the bad effect by not surveilling terrorists until better software and programs are developed. Thus, because it is logically possible that there be software that surveils only terrorists the good effect can be obtained without the bad effect. Therefore, the doctrine of double effect does not justify surveilling non-terrorists as morally permissible. This does not mean that this program is not morally permissible, just that the distinction between intended and incidental effects does not aid the NSA in claiming that the program is morally permissible. If the legality of the program is rooted only in this moral distinction, then the legality of the program is questionable, though I am sure that other rules and theories would justify the program as legal.