53 Columbia Journal of Transnational Law No. 3, p. 507 (2015). Available on SSRN.
The status of covert activities by a government in international law is an under-discussed topic in legal scholarship, even as it is simultaneously a topic exciting great passions among many, on the one hand, and yet a core part of national security operations for the US government (and other governments), on the other. This is so not only with regards to covert uses of force, such as officially unacknowledged armed drone strikes (whether carried out by the CIA, the military, or in combination), but extends to the collection of telecommunications and many other forms of data, by the US government or by others, and many other activities of surveillance, intelligence-gathering in which the hand of government is not acknowledged.
Here at Lawfare, Ashley has been most active recently in addressing these questions, along with Bobby, Jack, and sometimes Ben or me with regards to the Obama administration’s speeches on national security law. But the topic remains under-discussed. To date the US government has not offered a robust statement of its views on the international law aspects of covert activities. The closest it has come was an April 12, 2012 speech by then-CIA General Counsel Stephen Preston at Harvard Law School, before he became DOD General Counsel. It was very good on the topics that it addressed, and particularly to the point that the CIA’s activities are legitimate and robustly governed by domestic law, rather than being justified by extra-legal appeal to “necessity” or a state of exception. The CIA’s covert activities, in other words, are not legitimated by reason of necessity, whether that of Thucydides, Hobbes, or Carl Schmitt, or even The Bourne Supremacy; they are not somehow “without” or “beyond” the “law.” But the speech was light (almost certainly deliberately so) on the international law issues. It’s one thing, after all, to say that a government’s covert programs and operations are law-governed, and another to say (even at the level of policy and principle, not specific operations) how the government regards this lawfulness (even in an explicitly evolving way) within the contours of international law. (The text of Preston’s speech can be found in Ben and my new book, Speaking the Law, at pp. 439-449 - Ed.)
So I am pleased to welcome a new and outstanding entry to the scholarship on this question (recently posted to SSRN and appearing in Columbia Journal of Transnational Law) by Alexandra H. Perina, currently an attorney Adviser at DOS, and in 2013-14 an International Affairs Fellow at the Council on Foreign Relations. “Black Holes and Open Secrets: The Impact of Covert Action on International Law” is a serious, sophisticated, close-grained and exceedingly well-researched examination of covert activities in relation to international law — precisely the areas in which the US government needs to be heard in its own international law defense. It bears close reading by scholars as well as practicing national security lawyers, especially in the Intelligence Community, and, I hope, will find its way into the offices of general counsel to national security agencies.
Governments maintain secrecy over a range of conduct in order to protect national security, but in no area is secrecy more likely to impact foreign relations and destabilize the international political order than in the use of force. Although the political costs of secrecy are widely discussed, there has been virtually no attention in scholarship to how secrecy influences the law itself. This Article considers how secrecy and covert conduct shape the development of international law. Focusing on the area of the use of force, it examines how international law-making processes are affected when a state acts covertly — that is, when a state does not publicly acknowledge its conduct — and that covert conduct comes — partially or fully, accurately or inaccurately — to public light.
Despite widespread public perception that covert conduct necessarily violates international law, states act covertly for a range of legitimate political, diplomatic, and strategic reasons. Covert behavior may be — though certainly is not always — consistent with international law. I consider how covert actors’ non-engagement in public discourse distorts the landscape of evidence that informs other actors’ legal judgments. Where states view their conduct as lawful, acting covertly diminishes their ability to reinforce or develop the law, ceding that ground to third parties. I address whether secret and covert practice can count as evidence of customary law, and suggest that violating the law covertly may be less damaging to legal rules than overt violation, by denying the act precedential value. I also argue that unacknowledged conduct has an inherently corrosive effect on the law by casting doubt on whether the operative legal rules have obligatory effect, potentially contributing to the rules’ desuetude. Although one might assume that covert conduct is simply negligible to the evolution of the law, this Article shows how secrecy and covertness in fact shape law-making processes, and their substantive outcomes.
States will continue, often legitimately, to act covertly and maintain secrecy over aspects of their conduct. It is crucial for governments to understand the legal consequences and costs of secrecy and covertness, in order to manage their programs more strategically and potentially mitigate some of the pernicious effects on the law.