Intelligence activity is—or, more accurately, was—the last bastion of foreign relations unconstrained by international law. States could steal diplomatic secrets, covertly assess rivals’ military capabilities, and disseminate propaganda inside other states without fear of international legal sanction. This absence of regulation made sense as long as a state’s intelligence activities were primarily directed at foreign states and their officials. However, intelligence activity now implicates private actors as never before, as states engage in bulk data collection, steal secrets from corporations, and expand their focus on non-state actors such as terrorist groups. As a result, some states and advocates are now pressing for a formalist approach to international law, claiming that states should interpret various bodies of existing international law as applicable to state intelligence activities. Others contend that intelligence activities will and should remain untouched by international legal constraint. Both approaches are flawed: The realpolitik view of the (nonexistent) relationship between intelligence and international legal constraints is unsustainable and creates troubling legal black holes. The formalist view fails to acknowledge important reasons why state-on-state intelligence activities are distinct from diplomatic and military actions that states view as constrained by international law.
This Article identifies a better way to mediate the relationship between intelligence and international law. Rather than rejecting international law altogether or, alternatively, imposing a rigid legal framework on intelligence activity, it argues that states should differentiate between international laws that protect individuals against tangible harm (such as international humanitarian law and human rights treaties) and those that protect states against harms that are often dignitary (such as respect for sovereignty and territorial integrity). The Article proposes a sliding interpretive scale whereby states engaged in intelligence activity have less freedom to interpret and apply individually-focused international rules and more freedom to interpret state-protective rules. It also illustrates how several states have begun to pursue this approach in practice. Ultimately, this Article argues that states and human rights advocates both must adapt—in different ways—their expectations about the proper role of international law in the world of intelligence operations.