Perina: Black Holes and Open Secrets: The Impact of Covert Action on International Law

Alexandra H. Perina (Office of the Legal Adviser, U.S. Department of State) has posted Black Holes and Open Secrets: The Impact of Covert Action on International Law (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:

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.