Last week, Ben’s NSA Constitution Day speech emerged after a long “declassification” process. One puzzle Ben grapples with in this speech is why reasonable, educated Americans have--and will continue to have--such a high level of discomfort with what the NSA and other intelligence agencies do. The types of activities NSA is asked to do and the secrecy with which NSA must do them both contribute to that discomfort, Ben argued, but they cannot fully explain it. After all, lots of what the U.S. Government does it does not do publicly. And that activity involves some of the most trusted institutions in the government: the military and the Supreme Court, for example. The types of activities don’t fully explain the mistrust either. Yes, some of what the intelligence community does is distasteful stuff. But FBI agents threaten to put people in small cells for the rest of their lives. The Bureau of Prisons has been known to execute people.
So Ben posits a third explanation: the fact that, unlike much other U.S. law, the intelligence community does not operate under “neutral principles.” That is, most provisions of U.S. law apply to everyone equally. A Congressman is not entitled to engage in assault any more than an average citizen is. People of all races, genders, and professions must obey speed limits. And people rightly respond with outrage when power and privilege result in differential application of the law. When it comes to the intelligence community, however, the law allows those actors to do things other people cannot. As Ben points out, Gen. Hayden once cheerfully admitted, “We steal secrets; we steal other nations’ secrets.” No one else is allowed to steal. And very few heads of agencies outside of the intelligence community, in describing their agencies’ routine business, would use a word that typically connotes criminal activity. The principles regulating intelligence are not neutral.
But Ben’s hypothesis raises a question: How can we explain the fact that the U.S. military consistently ranks as the most trusted institution in government, when the military itself is not subject to neutral principles? After all, members of the U.S. military are permitted to kill or detain people during armed conflict and stand immune from criminal sanction for doing so. The very phrase “combatant immunity” suggests something other than a neutral principle.
One possible answer to this question is that while U.S. domestic law is not neutral in regulating the military, the international law that regulates the military does, in fact, contain neutral principles—principles with which the U.S. military, as a general matter, scrupulously abides. On the international plane, a state actor encounters peers who may engage in the same activity that it can, and the international law that has developed regulates that activity in a robust and detailed way. The result is that while the public can’t look at the military and say, “This institution is subject to the same rules I am,” it can look at the military and say that it is subject to a known code and the same accepted rules that regulate its counterparts.
If Ben is right--that well-established, neutral principles on the international plane can stand in for a lack of neutral principles in domestic law--that may have fascinating long-term implications for intelligence activity and in ways that dovetail with some of Ashley’s recent work. Many states and scholars believe that international law imposes few regulations on intelligence communities. So as the law currently stands, international law is not serving as a counterweight to the non-neutral domestic principles regulating NSA and the intelligence community more broadly.
This invites the idea that one way to begin to reduce the discomfort (not just of U.S. citizens but also of citizens of other countries) with intelligence activities is to craft more robust, neutral international norms. Doing so will not be easy. There are a number of reasons why states generally have not tried to develop international laws to regulate intelligence activity, including because states have disparate capabilities (that they will, of course, be loath to discuss with other states and that create variable incentives to regulate) and because enforcement will be very hard. Ashley has suggested one place to start: six procedural norms that Western democracies might develop as among each other, to cabin foreign electronic surveillance. These norms include limits on reasons to collect or query data, periodic reviews of surveillance authorizations, and the existence of neutral oversight bodies. If Ben’s theory is correct, it will never be possible to craft neutral domestic laws. But it may be possible to counter-balance that problem by creating rules that regulate intelligence communities in neutral ways on the international plane.