Ashley S. Deeks

Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain physical locations are. These predictive algorithms have spawned controversies because their operations are often opaque and some algorithms use biased data. Yet these same types of predictive algorithms inevitably will migrate into the national security sphere as the military tries to predict who and where its enemies are. Because military operations face fewer legal strictures and more limited oversight than criminal justice processes do, the military might expect—and hope—that its use of predictive algorithms will remain both unfettered and unseen.

This Article shows why that is a flawed approach, descriptively and normatively. First, in the post-September 11 era, any military operations associated with detention or targeting will draw intense scrutiny. Anticipating that scrutiny, the military should learn from the legal and policy challenges that criminal justice actors have faced in managing the transparency, reliability, and lawful use of predictive algorithms. Second, the military should clearly identify the laws and policies that govern its use of predictive algorithms. Doing so would avoid exacerbating the “double black box” problem of conducting operations that are already difficult to legally oversee and contest, using algorithms whose predictions are often difficult to explain. Instead, being transparent about how, when, why, and on what legal basis the military is using predictive algorithms will improve the quality of military decision-making and enhance public support for a new generation of national security tools.

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.