Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence Under the Laws of War
affiliation not provided to SSRN
November 25, 2009
University of San Francisco Law Review, Forthcoming
Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term - legal cosmopolitanism - with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos. Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes - and the legal revolution they promise - skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.
Number of Pages in PDF File: 57
Keywords: intelligence, spies, espionage, law of war, humanitarian law, human rights, demos, role of courts
Date posted: November 27, 2009 ; Last revised: May 4, 2010