Deeks: Intelligence Communities and International Law: A Comparative Approach

Ashley Deeks (Univ. of Virginia - Law) has posted Intelligence Communities and International Law: A Comparative Approach (in Comparative International Law, forthcoming). Here's the abstract:

How must states’ intelligence communities (ICs) approach their international law obligations? From the perspective of international law itself, the answer is fairly clear: ICs must comply with those international obligations that their states assume. Yet intelligence activities – recruiting foreign assets, conducting electronic surveillance on foreign leaders, and undertaking covert actions to influence political and economic conditions abroad – look very different from traditional statecraft and often appear, at least at first glance, to be in tension with international law constraints. Most states neither proclaim the legality nor concede the illegality of their intelligence activities under international law, seeming to prefer the ambiguity of the status quo.

This lack of certainty about the precise status of various intelligence activities in international law fosters conditions under which states can choose – and have chosen – different paths through the thicket. This chapter compares how certain states’ ICs approach their international law obligations. The United Kingdom asserts that its IC’s activities comply with international law. The United States is far more circumspect about whether its IC uniformly complies with international law. The United States even acknowledges that its domestic law authorizes some violations of international law, but employs various compensatory techniques to minimize overt international law violations.