Shades of Legal Nuance: A Functional Analysis of Intelligence Doubletalk

Abstract

Observers often opine that “[n]othing brings out hypocrisy like espionage.” Indeed, intelligence work is steeped in moral contradictions, ambivalence, and relativism, where legal and ethical boundaries routinely blur. No spectacle is greater than when these covert operations are inevitably exposed. Upon discovery, a well-rehearsed theatrical performance unfolds. Those who were spied upon, dressed in righteous indignation, step into the spotlight with a familiar choreography—crocodile tears streaming as they denounce the betrayal. “Friends spying on friends. It’s not done,” they lament. All the while, the irony of their own clandestine dealings hangs thick in the air, unspoken yet palpable. After all, “[e]veryone spies on everyone else; everyone knows it; [and] everyone pretends otherwise.” On the other side of the stage, clinging to their plausible deniability, are intelligence agencies deflecting accusations even as contradictory evidence mounts all around them. If the truth ever becomes too glaring to ignore, they fall on their sword, offering a reluctant admission. Yet, not before uttering the two-word Latin refrain: tu quoque, suggesting: “yes, but you do it too.”

Many formalist international law scholars have long criticized this “wilderness of mirrors,” describing its labyrinth of charades and façades as violative of justice and the rule of law. But what if a deeper truth lies beneath the performance? In this paper, I argue that the intricate dance of condemnation and denial serves far more than mere rhetoric—it fulfills critical political and legal objectives for both spy and spied. Politically, the victim of espionage leverages the public outcry to rally domestic support, while simultaneously sending subtle signals to their adversary. This coded dialogue, a form of steganography, gives rise to espionage diplomacy. Through tacit understandings and veiled backchannel handshakes, rival parties work to deescalate tensions and manage the potential fallout.

But intelligence doubletalk also serves important legal functions, embodying what Judge Simma once referred to as “the concept of toleration” in international law. Comparing States’ public statements with their private stances reveals the subtle “shades of nuance” that define espionage law. Such an analysis also exposes the network of primary and secondary international law rules and institutions that together form a “self-contained regime” for intelligence regulation. This more fluid lex specialis accommodates the essential function of intelligence in world order, preserving its inherent secrecy and ambiguity, while ensuring effective safeguards against overreach and abuse. It is a tailored framework, where rules are bent but never fully broken and where ritualistic exchanges quietly sustain spycraft’s delicate balance.

Keywords: espionage, intelligence, surveillance, hypocrisy, double standards, law, national security, secrecy, customary law, Diplomatic Practice, Customary International Law, Legal Performance, Performance, Steganography, Steganographic Diplomacy, Intelligence Doubletalk, Toleration, Lex Specialis, International Legal Discourse, State Practice, Political Performance, Queer, Queer Critique, Non-binary