Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis

Abstract

Is it possible for law to regulate activities that, by definition, must take place covertly? This question has bedeviled domestic constraints on intelligence gathering and is even more challenging to the prospect of an international regime on intelligence activities. International law has traditionally had little to say directly about intelligence, with state practice (widespread espionage, wiretapping, etc) contradicting ostensible opinio juris (routine denunciation of foreign intelligence activities).

This article will consider the prospects for a rule of law-based approach to intelligence activities more generally, focusing on the question of covertness. In particular, it will examine the debate over how law should deal with crisis, epitomized by the ticking time-bomb hypothetical. On the one hand, some call for pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after the fact ratification of their extra-legal measures; against this, others argue that the embrace of extra-legal measures misconceives the rule of law, underestimates the capacity of constitutional orders to deal with crisis, and overestimates the ability and willingness of skittish publics to reign in officials.

The article draws on three cases in extra-legal measures have been adopted by the United States: the use of aggressive interrogation techniques that push the limits of torture, secret detention and extraordinary rendition of suspects, and warrantless electronic surveillance. The third section presents an alternative lens through which to view assertions - whether publicly debated or not - that illegal conduct was justified: not as calls for ex post ratification of the conduct but for mitigation in the imposition of penalties. The conclusion points to further challenges for the rule of law given apparent incentives in extreme situations not merely to circumvent the law but to remain silent about it.

Keywords: intelligence, rule of law, covert operations, warrantless surveillance, wiretapping, United States