The costs of covertness (international law edition)

As regular JS readers know, I’ve published several posts here on the costs–to the public, and to the government–of one prominent aspect of the U.S.’s use of so-called “covert action,” namely, the practice of not officially acknowledging, or discussing, the U.S.’s use of force overseas.  (Here’s one such post.)  Rachel Stohl has written a recent post to similar effect, focusing on the ways in which covertness distorts public debate about U.S. drone policies.

Today, the Columbia Journal of Transnational Law has published a very important academic contribution to the (still rather limited) literature on covertness:  Black Holes and Open Secrets: The Impact of Covert Action on International Law, by Alexandra Perina (an attorney in the Legal Adviser’s Office at State).  As the title suggests, Alexandra’s piece examines the relationship between covert action and the development and understanding of customary international law–especially the law of armed conflict.  It’s a terrific piece that ought to prompt greater critical reflection, and public discussion, regarding covert action.  As Alexandra acknowledges, however, identifying the serious costs of covertness is only the beginning of that discussion; the really hard question is how to contend with, and ideally diminish, the legal and diplomatic constraints that the government considers to be the principal drivers of the practice of nonacknowledgement.  (I discuss some of these difficulties here, and I hope to soon post some speculations about possible legal constraints.)

Here’s the first part of the introduction to the Perina article; but, as the saying goes, you really ought to read the whole thing: 

 

Consider the following scenario: An individual with ties to a terrorist group is killed in a targeted strike in East Africa. Media reporting of the incident trickles out gradually; some reports speculate that the operation was conducted by the United States, but U.S. officials offer “no comment” when asked about the matter.  Other sources suggest that the attack was perpetrated by local rivals acting as proxies for another foreign government. The strike is never authoritatively attributed, nor any justification offered. Though the reported facts are sparse and murky, it is widely denounced by human rights groups and academic commentators as unlawful and unethical. How should states assess whether it reflects a lawful use of force or a violation of the U.N. Charter to which they should object? Should they be concerned that it portends unilateral action within their own borders by a state relying on undisclosed legal theories? And should the responsible state be concerned that others will cite it as precedent for future bad acts?

While governments maintain secrecy over a broad range of activities, the benefits and risks of secrecy in international affairs are greatest in the context of the use of force. With advances in technology, states can employ force far from home with increasing stealth and ease. They can conduct precision strikes remotely with unmanned aircraft, and inflict damage using cyber tools that victim states may not recognize for years, or ever be able to attribute accurately.

The political implications of secrecy in matters of national security—such as the potential for eroding public confidence and diplomatic relationships—are widely discussed. But there has been scant attention to the consequences for international law of the lack of public acknowledgement and accounting of state uses of force. To be sure, secrecy has been generally viewed as undermining the rule of law by casting doubt on whether governments comply with their legal obligations. But the issue of how secrecy affects international law itself—potentially shaping the substantive content of legal rules and in extremis undermining the vitality of the international legal framework—has been unexamined in legal scholarship. . . .

This Article explores how secrecy influences international law by considering how international law-making processes are altered when a state acts “covertly” . . . and that covert conduct comes—partially or fully, accurately or inaccurately—into public light.  It takes as a starting point that states sometimes conduct lawful conduct secretly and will continue legitimately to conduct operations outside of the public eye. However, future policy decisions about whether and how much to reveal about such activities should be made with an understanding of the consequences of covertness and secrecy for the international legal order.

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).