Introduction
With the increased exposure of intelligence activities,Footnote 1 states are now expected to use legal arguments to explain, justify or contest intelligence acts and policies. Historically, states mostly remained silent on their intelligence practices, at best uttering ‘neither confirm nor deny’. In recent years, however, processes of international legal accountabilityFootnote 2 have provided states with an opportunity to change the law informally through their legal interpretations and justifications.Footnote 3 Rather than adapting their behaviour to the demands of international law, liberal democracies respond to claims that their intelligence activities are unlawful with justifications defending their lawfulness. This article argues that states’ strategic legal justifications may undermine international law’s constraining function.
During the Cold War and in its immediate aftermath, intelligence was widely considered to be an extra-legal matter. Apart from a single case about domestic surveillance,Footnote 4 international courts had made no explicit pronouncement on the legality (or lack thereof) of intelligence activities.Footnote 5 States also abstained from using words like ‘intelligence’ or ‘espionage’ in international law-making and generally refrained from commenting on the matter.Footnote 6 As Simon Chesterman summarised it, during the Cold War, intelligence existed in a ‘legal penumbra, lying at the margins of diverse legal regimes and at the edge of international legitimacy’.Footnote 7 The national security culture of the time was one of secrecy, characterised by plausible deniability.Footnote 8
During the same timeframe (roughly 1944–2001), states adopted and ratified most of the treaties constituting the current international legal order. The legal obligations stemming from these treaties were recognised as binding on all state organs by the ratifying states. However, the secrecy surrounding intelligence activities and states’ reluctance to publicly acknowledge the applicability of international law to intelligence led to instances of non-compliance not being made public. Intelligence activities stayed mostly secret and were almost exclusively dealt with diplomatically rather than legally. Legal norms existed, but they were not enforced.
The advent of the ‘war on terror’ as a response to the attacks of 11 September 2001 (9/11), coupled with technological advances, triggered an increase in leaks and (in)voluntary disclosures. Such transparency about non-compliant behaviour created the evidence of non-compliance and the opportunity for enforcing legal norms.Footnote 9 Through processes of legal accountability, the international law applicable to intelligence activities has been clarified to include, in addition to the principles of territorial sovereigntyFootnote 10 and non-intervention,Footnote 11 the right to private and family lifeFootnote 12; the prohibition of torture and complicity thereofFootnote 13; the rights to access to information, to a fair trial, equal protection, and judicial protectionFootnote 14; the right to lifeFootnote 15; the right to security and liberty of the personFootnote 16; or the prohibition of enforced disappearance.Footnote 17 It is now established that international law applies to intelligence in the same way that it applies to all other state activities.Footnote 18 Furthermore, it does not distinguish between domestic and foreign intelligence agencies, both of which are state organs whose actions can engage state responsibility for an internationally wrongful act.Footnote 19
By focusing on legal accountability processes, civil society actors sought to improve compliance, that is, induce a change in intelligence services’ behaviour towards more respect for international law. But while these processes forced states to defend and justify their practices, they also enabled states to reshape applicable international law through strategic legal justifications. Legal justifications are claims made by competent state officials regarding the lawfulness of a given state activity or policy. Because they constitute a legitimation strategy, these legal justifications may range from a genuine (if interested) interpretation of the law to a deceptive and misleading one, depending on how controversial the practice being legitimated is.
Legal justifications are key in a national security culture of legal rationalisation, i.e., one in which ‘public authorities produce detailed legal justifications for controversial policies’.Footnote 20 Such a culture is characterised by a ‘lawyerization’ of policy-makingFootnote 21 and the use of legal rhetoric to justify and legitimate state practices. Empirically, ‘international law has become the controlling discourse in inter-state legitimation of state actions’Footnote 22 and the most socially acceptable justificatory discourse in a ‘rules-based international order’. Moreover, it is the sole discourse that – if persuasive to the relevant audience – can both legitimate states’ preferred outcomes and legally empower them to pursue their chosen policies. Importantly, strategic legal justifications may also result in a reconstruction of the law to ‘accommodate contentious practices’.Footnote 23 While International Relations (IR) scholarship has dedicated significant resources to understanding what makes a legal justification effective as a political tool,Footnote 24 it has thus far mostly ignored the effects of strategic uses of law on international law.
In this article, I analyse the effects on international law of states’ legal justifications for legitimation purposes. Because strategic legal justifications aim at making justified conduct lawful, my analysis focuses on how the discursive construction of lawfulness in legal practice affects international law and what the implications are for law’s constraining function. By analysing states’ justifications and interpretations as set out in legal processes (court cases, monitoring obligations, legal memoranda, etc.) and the legal outcomes (what is considered lawful, by whom, under which conditions), I assess the effects of strategic legal justifications on three key dimensions (obligation, precision, delegation) of legal norms. For this purpose, strategic legal justifications in intelligence matters constitute an excellent case study. Where plausible deniability previously prevailed, the expansion of intelligence accountability after 9/11 gave rise to a national security culture of legal rationalisation in liberal democracies.Footnote 25 Because the demand for compliance with international law in intelligence matters is recent, and posterior to the widespread acceptance of applicable international law by states, the effects of strategic legal justifications on this law can be readily identified and attributed to states’ legal justifications.
By intertwining doctrinal legal analysis with IR scholarship on rhetorical and justificatory approaches to international law, I show how legal justifications can affect the obligation, precision, and delegation of norms and, thereby, facilitate norm evasion, that is, ‘intentional compliance with the letter of the law but not its purpose in order to minimize inconvenient legal obligations in an arguably legal fashion’.Footnote 26 In particular, my analysis allows me to identify four theoretical mechanisms: (1) absent or selective practices of strategic legal justification can decrease a norm’s obligatory character when the conduct is not widely condemned by other states; (2) contested legal justifications can decrease the norm’s precision, facilitating norm evasion; (3) successful (accepted) legal justifications can increase the norm’s precision while also making it more permissive and facilitating norm evasion; and (4) when endorsed by courts, legal justifications can decrease delegation by proceduralising the law, facilitating both further strategic legal justification and norm evasion. On this basis, I argue that, in intelligence matters, strategic legal justifications may decrease law’s constraining power on state behaviour.
My argument and findings only apply to intelligence. While the definition of intelligenceFootnote 27 adopted in this article is purposefully broad and includes active measures such as drone strikes and assassination when performed by intelligence agencies, national security intelligence still possesses several specificities compared to other areas of international politics, among them states’ lack of fairness and altruistic considerations, their absolute prioritisation of the ‘national interest’ and the relative lack of interstate accountability.Footnote 28 Additional research exploring the effects of states’ strategic legal justifications in other areas of international politics will be needed to put forward a broader theory of the effects of strategic legal justifications on international law.
This article’s main contribution is a novel appraisal of the effects of legal practice on norms. States’ strategic uses of international law for legitimation purposes can gradually transform the meaning and function of legal norms, thereby undermining international law’s capacity to constrain state behaviour. Importantly, this informal transformation of treaty normsFootnote 29 occurs in a manner reminiscent of the evolution of customary international law,Footnote 30 without any formal change to legal texts and institutions. Despite legal texts and institutions staying identical, the very process of legitimating controversial policies by invoking legal norms, even when ultimately unsuccessful at changing these norms’ content, can decrease law’s constraining power. What states present (or abstain from presenting) as lawful matters for law’s constraining function.
Second, my findings have significant implications for intelligence governance. Strategic litigation constitutes civil society’s preferred means to improve compliance with international law by intelligence services.Footnote 31 My analysis of the processes and outcomes of such litigation warns that legal arguments should not crowd out other forms of criticism and resistance to intelligence in activists’ toolkits. While I concur with recent sociological work that draws attention to the pitfalls of strategic litigation in legitimating governments’ positions,Footnote 32 I also show that strategic litigation may lastingly decrease law’s constraining power. In addition, because the lawyerisation of intelligence decision-making has relegated considerations of propriety and effectiveness to the background, governments’ success in making their intelligence activities lawful through strategic legal justification may end up being detrimental to the effectiveness of intelligence.
Finally, since his re-election as US President, Donald Trump’s lack of engagement in the ‘dishonest profession of respect for norms’Footnote 33 that characterised previous administrations (including his own) essentially signals a refusal to play the game of international law – prefiguring a possible return to a world order where ‘might is right’.Footnote 34 As this article demonstrates, this is worrisome because a lack of legal justification where it has become expected can, if other conditions are present, effectively decrease the obligatory character of norms so much that they become optional. In parallel, liberal democracies’ legal justifications in matters of national security intelligence have made norms so easy to evade that international law can no longer serve a constraining function in this realm. As we struggle to make sense of the shift away from a US-backed international order that was characterised by legalisation and institutionalisation,Footnote 35 this article’s findings about the effects of strategic legal justifications on the existing international legal order should invite us to think creatively about alternatives to the binary between a resurgent ‘might is right’ and the dying liberal international order.
State of the art: Using international law to legitimate intelligence
Previous work on international law and intelligence has focused on how – if at all – international law constrains decision-making and action in the realm of intelligence.Footnote 36 Very little attention has been paid to how and to what effects international law may be used to justify and legitimate intelligence. IR scholarship on rhetorical and justificatory approaches to international law provides a theoretical starting point for understanding why and how states use international law in the intelligence realm.
The legalisation of an area of international politics – the codification of a norm into international law and its subjection to legal processes – implies that discourses seeking to justify and legitimate related actions will need to reference international law.Footnote 37 In other words, when an area of international politics is legalised, successful (de-)legitimation of related conduct comes to depend on the strategic use of international law.Footnote 38 The rationale behind the need for a legal justification is that, in a legalised international system, if an action is exposed, state actors will feel compelled to portray their behaviour as lawful.Footnote 39 They will do so foremost to avoid the costs of being perceived as hypocritical and untrustworthy,Footnote 40 but also to shape the interpretation of the legal norm at stake.Footnote 41 Indeed, international legal norms are, by nature, subject to contestation over their ‘correct’ interpretation.Footnote 42 Interpretative claims are necessary to give meaning to legal norms and can also be strategically employed by various actors in pursuit of policy goals.Footnote 43
With the increased exposure of intelligence activities, states are now expected to use legal arguments to explain, justify or contest intelligence acts and policies.Footnote 44 Intelligence services often prefer to act covertly as a matter of course. However, given the multiplication of leaks and disclosures, even policies that are to remain secret must be capable of (ex-post) legitimation to a wider public.Footnote 45 This tension leads to what Rebecca Sanders conceptualizes as a shift from a national security culture of secrecy to one of legal rationalisation, whereby public authorities are pressed to produce detailed legal justifications for controversial policies.Footnote 46 Without justifications, states forfeit their privileged position to legitimate their activities and shape the law.Footnote 47 Other states and non-state actors may then shape the factual and legal narrative as suits them. Furthermore, should courts get involved, the void created by a silent state or a state incapable of justifying its activities in the accepted rhetoric of international law legitimates these alternative sources.Footnote 48
Historically, justifications based on morality, religion or ideology may have been sufficient to legitimate intelligence activities to a domestic audience and foreign allies. In modern times, however, states are expected to abide by international law and appeals to other normative values will rarely suffice to legitimate their activities if these are perceived as unlawful.Footnote 49 The legalisation of international politics has induced a shift in the acceptability of non-legal legitimacy discourses, and non-legal claims will often fail to resonate with an international audience.Footnote 50 Further, other actors’ use of legal rhetoric and legal processes to criticize states’ activities limits states’ ability to choose which discourse to respond with.Footnote 51 States thus use international law to justify and legitimate (some of) their intelligence activities.
Yet, not all states engage in strategic legal justification. Exposure of intelligence activities triggers acknowledgement and legitimation attempts predominantly from liberal democracies.Footnote 52 This empirical observation may be explained by two interrelated factors. First, in intelligence matters, democracies will often endeavour to ‘distinguish themselves from authoritarian regimes by taking very seriously the question of legitimacy’.Footnote 53 Liberal democracies, whose reputation as such rests on a commitment to the rule of law (however superficial), cannot be perceived as acting arbitrarily and unlawfully, as being perceived as hypocritical or untrustworthy would be too costly. They thus have a clear interest in legitimising their intelligence activities through international law. Second, a key driver of the need for legitimation is an audience’s insistence that officials explain themselves.Footnote 54 Whereas authoritarian regimes may only need to justify their intelligence practices to partner intelligence communities (if at all), liberal democracies may face three audiences simultaneously: the general public (including civil society), foreign states, and partner intelligence communities. While these audiences might be more sensitive to different types of legitimation (e.g., national interest, international law, effectiveness), imperatives of argumentative consistency constrain states to use similar rhetoric to satisfy all audiences.Footnote 55 In this context, international law is the sole discourse recognised as authoritative by all three audiences.
The fact that states might have to justify their intelligence activities retrospectively forces them to evaluate options and strategies from a legal perspective, necessarily taking some options off the table because they are not publicly defensible.Footnote 56 Preparing a legal justification in case of exposure is thus pragmatically sound, even if it means renouncing activities that cannot be publicly justified. While this appears constraining, there remains a permissive effect of international law in this context. First, because law formally constrains intelligence only inasmuch as it limits states’ options to those that can be justified in legal terms.Footnote 57 Second, because there is productive power in the invocation of international law.Footnote 58 As a discursive resource, law can thus produce legitimacy even for behaviour that is prima facie restrained by law.Footnote 59
In intelligence matters, states might assess the plausibility of legal justifications in deciding whether to carry out a policy or operation, or they might scramble for a legal justification during the operation or when exposure has become unavoidable. In the first situation, legal advisers may be tasked with producing recommendations, drafting ex ante legal justifications for the executive’s preferred policy,Footnote 60 or they may have the power to veto or authorize the operation.Footnote 61 In the latter two situations, lawyers’ role is to provide post hoc justifications, ‘attempting to turn a fait accompli into a lawful action’.Footnote 62 In all these situations, legal advisers are recognised as legitimate, and often indispensable, participants in the decision-making process, evidencing what Fernando Nuñez-Mietz called the ‘lawyerization’ of decision-makingFootnote 63 in intelligence matters. Regardless of the extent of lawyerisation,Footnote 64 legal advisers are the ones exercising the administration’s normative role in a national security culture of legal rationalisation. Without their memoranda, legal seals of approval, and post hoc justifications, states would be unable to claim that their intelligence activities are lawful and, therefore, legitimate.
When confronted with the pressures to provide a legal justification for their state’s intelligence policies, government lawyers may face conflicting allegiances – to the community of legal practice and to the executive. Relevant professional guidelines highlight that legal advisers have a duty to provide ‘an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies’.Footnote 65 In most cases, advisers’ allegiance to the community of legal practice – their professional quality as legal advisers – serves as a shield against political pressures to provide interpretations of legal norms that would be clearly invalid.Footnote 66 However, beyond those cases where the criminal responsibility of legal advisers has been alleged, if not always sanctioned,Footnote 67 there are myriad instances in which legal advisers have engaged in ‘creative interpretations’ of international law to provide legal clearance to the administration’s pre-existing policy choices.Footnote 68 Hence, far from being objective interpreters of the law, legal advisers play a key role in shaping legal norms – generally by making them more permissive.Footnote 69 They rationalise the administration’s policy choices by giving intelligence activities an ‘imprimatur of lawfulness’.Footnote 70
The legal justifications drafted by legal advisers and put forward by states on the international scene aim to convince an audience that the behaviour at stake complies with international law.Footnote 71 If this audience is an international one, the justification can effectively shape international law and legally empower the state to pursue its interests. Such law-shaping effect provides legitimation not only for the situation at stake, but also for future, similar, situations. Importantly, for legal change to occur, the contestation process surrounding the initial legal justification must involve at least partial acceptance of the interpretation by other states and/or international courts.Footnote 72 Without acceptance from these actors, strategic legal justification leaves the content of the law intact.Footnote 73 In contrast, successful strategic legal justification implies that previously unregulated, borderline or unlawful behaviour is now considered lawful, which means that the legal justification changed the legal norm’s content.
Beyond the effects of successful legal justification on legal norms’ content, the very process of legal justification may also affect the constraining function of norms. The causal mechanisms through which law’s constraining power may decrease have not yet been theorised as such. Recent IR norm research has focused on how contestation may affect the robustness and validity of norms,Footnote 74 as well as their underlying values.Footnote 75 However, the impact of legal practice on various dimensions of legal norms has not been explored yet.
Towards a theory on the effects of strategic legal justification on international law
To analyse the effects of strategic legal justification on international law itself, I use the dimensions of obligation, precision and delegation as a reflection (however imperfect)Footnote 76 of the constraining function of legal norms. Obligation refers to the legally binding character of a norm; precision to the lack of ambiguity regarding its content; and delegation to the authority of third parties (e.g., courts or monitoring bodies) to implement, interpret and apply the norm.Footnote 77 In the following subsections, I examine how strategic legal justifications (absent/selective, present) and various reactions by the international community (no reaction, rejection, contestation, acceptance, endorsement by courts) in the realm of national security intelligence affect these three dimensions.
When strategic legal justification is absent or selective: Effects on obligation
In a legalised international system, the absence of a compliance claim for a controversial act can be perceived as an admission that the state does not consider the act to align with international law. In this context, the absence of legal justification might be motivated by three overlapping factors: (1) the state does not feel bound by international law and, therefore, not compelled to justify its conduct in international law; (2) the conduct is too egregious to be framed as lawful, even under a questionable legal interpretation; and (3) the state does not wish its conduct to shape or influence the development of the legal norm at stake. Particularly when motivated by (1) and (2), legal silence by the sponsoring state tends to raise doubts about the obligatory character of applicable norms. This is especially so as liberal democracies now frequently provide legal justifications to legitimate their intelligence activities. Hence, when these same states abstain from providing legal justifications for other exposed activities, instead relying on extra-legal arguments or abstaining from any attempt at legitimation, their silence is meaningful. In this context, states’ lack of legal justification is telling not only regarding how they assess the legality of their own activities but also regarding their perception of the obligatory character of applicable norms.Footnote 78
The US’ 2022 strike on Ayman Al-Zawahiri, which killed him while he was standing on his balcony in Kabul, constitutes a recent example of an act for which the justificatory process did not involve any reference to international law.Footnote 79 In contrast with other contemporary strikes for which the US has articulated a legal justification,Footnote 80 there was no claim that the killing of Al-Zawahiri was lawful in President Biden’s remarks acknowledging and justifying it.Footnote 81 A state’s refusal to offer a legal justification for its exposed intelligence activities, as in this instance, can call into question whether the state really feels bound by applicable norms or only complies when doing so is convenient, thus undermining the norms’ obligatory character.
Importantly, this effect is compounded by the lack of condemnation from other states.Footnote 82 In this case, apart from the Taliban government of Afghanistan denouncing the strike as a ‘clear violation of international principles and the Doha Agreement’,Footnote 83 other states have either praised the killing or remained silent.Footnote 84 A state’s ambiguity about the legality of its intelligence activities may facilitate political tolerance by the international community. Even in situations of ‘implausible deniability’,Footnote 85 non-acknowledgement by the sponsoring state entertains uncertainty about its identity and generally tends to decrease the risk of escalation and retaliation.Footnote 86 The lack of legal justification also prevents other states from contesting the legal argument or its factual basis. This is particularly relevant regarding drone strikes, as their legality hinges on the recognition that an armed conflict exists or defensive force is permitted, and that the victim is a legitimate target under the laws of war.Footnote 87 In the case of Al-Zawahiri, both claims would be extremely difficult to sustain.Footnote 88 By abstaining from articulating a legal justification for killing Al-Zawahiri, the US thus shields itself from contestation regarding its highly contentious interpretation of applicable legal standards in similar cases.Footnote 89 Furthermore, the US’ lack of legal justification and other states’ absence of clear statements regarding the strike’s (il)legality continue to destabilize the norms.Footnote 90
A lack of condemnation by the international community also increases the risk that other actors will be incentivised to use similar practices, as it shows that the political costs of non-compliance are low,Footnote 91 further undermining the norm’s obligatory character. Israel’s practice of assassinating Hamas and Hezbollah leaders in foreign states is a case in point.Footnote 92 Tolerance or ambiguity by the international community might even legitimate the practice, effectively rendering the norm optional.Footnote 93 Barring clear condemnations of the conduct as a violation of international law by other states, only a judicial or quasi-judicial process of accountability would be able to redress and rehabilitate the breached norm. In this sense, state accountability might mitigate the negative effects of unacknowledged or unjustified intelligence activities on the norm’s obligatory character.
By refusing to engage in legal justification for an exposed intelligence activity, the sponsoring state renounces its role in shaping international law, ceding this power to other states and non-state actors. The principle of sovereignty in cyberspace provides a contemporaneous example of a norm that is explicitly not being shaped by the states whose cyber operations are exposed. States are usually wary of framing their claims regarding specific incidents in cyberspace in legal terms. No state has ever claimed credit, openly or privately, for a cyber-espionage operationFootnote 94 and other states also tend to refer to (voluntary) ‘norms of responsible behaviour in cyberspace’ to complain about foreign states’ malicious cyber operations.Footnote 95 Current law-making initiatives concerning cyberspace further exemplify starkly divided positions concerning the degree of obligation to be achieved through negotiation efforts.Footnote 96 Nevertheless, the same states that favour voluntary norms, and thus a low level of obligation, sometimes claim that the principle of sovereignty has been breached by cyber operations.Footnote 97 States have also started issuing general statements about the applicability of international law in cyberspace,Footnote 98 thus providing a framework against which to issue statements about specific incidents. Altogether, this process is slowly clarifying and/or changing the scope and content of the principle of sovereignty, but without the participation as such of the states whose cyber operations have been exposed. While non-acknowledgement estops states from relying on their own or others’ conduct as evidence that defines or shapes the law, it also allows them to continue discussions regarding the degree of obligation attached to the norm unencumbered by considerations of hypocrisy.
In this case, the absence of legal justification seems motivated by a wish not to see specific conduct as shaping or influencing the (still uncertain) development of the norm. These instances of state silence exemplify a discrepancy between states’ normative desires and their cyber practices. In such situations, the absence of legal justification only minimally affects the norm’s obligatory character. Indeed, through their positions and statements in other contexts, states have clearly expressed their belief that the principle of sovereignty is applicable to cyber operations, even if its precise content in cyberspace and the level of obligation it entails are still contested. In contrast, an overt, acknowledged violation could have destructive effects on the legal development and obligatory character of the norm.Footnote 99 Hence, unlike when silence is motivated by either the impossibility of making a credible legal claim or a perception and/or posture that the conduct at stake is not regulated by international law, silence motivated by a wish for one’s conduct not to shape the law may be less damaging for norms’ obligatory character.
Still, liberal democracies’ absent or selective legal justifications create a pattern of behaviour readily adopted by authoritarian regimes that (justifiably) see it as a relaxation of the obligation attached to norms.Footnote 100 Furthermore, as the second Trump administration does not seem to engage much in legal justification, whether domestically or internationally, findings concerning obligation bear particular relevance to the shift that our current international order is undergoing. The ‘withdrawal of the justificatory ideology of American power’Footnote 101 will likely have extensive effects on the obligatory character of the norms at the core of the international order.
When strategic legal justifications trigger contestation: Effects on precision
In all domains of international law, states’ efforts to develop, assert, and persuade others of their interpretation of a legal norm can effectively (re-)shape the law.Footnote 102 This change usually takes place through an ongoing process of claims and counter-claims regarding the international legality of specific conduct.Footnote 103 When intelligence activities are exposed and justified, the sponsoring state’s legal justification might be accepted, decisively rejected, or contested only partially or by some actors. Accepted justifications change the content of the legal norm being invoked as justification, while rejected justifications usually have no direct effect on its content.Footnote 104 Justifications that are not decisively rejected or accepted in this initial contestation process do not (instantaneously) change the law’s content. However, these contested justifications may affect the legal norm’s precision. A contested justification temporarily erodes the norm’s precision by creating doubt about the boundaries of permissible conduct. It thereby creates a precedent, providing a justification for future action, whereby the contestation process may resolve in either acceptance or rejection of the claim.Footnote 105 Should a protracted contestation process remain unresolved, however, the norm’s precision will be lastingly eroded.
In the aftermath of Edward Snowden’s 2013 revelations about bulk data collection (also known as electronic mass surveillance),Footnote 106 the right to privacy was the subject of a heightened contestation process.Footnote 107 Starting immediately after Edward Snowden exposed widespread practices of bulk data collection, states have made claims concerning the compatibility (or lack thereof) of the practices with the right to privacy in the UN General Assembly,Footnote 108 through diplomatic channels,Footnote 109 and before human rights courts and tribunals.Footnote 110 States’ repeated justificatory claims led to the progressive normalisation and legitimation of bulk data collection and retention, eventually confirmed even by human rights courts.Footnote 111 A decade on, the contestation process surrounding the precise scope and meaning of the right to privacy has broadly settled in favour of states’ permissive legal interpretations. Whereas during the contestation process, the scope and content of the legal norms guaranteeing the right to privacy were blurred, states’ progressive agreement and courts’ increasing acceptance of states’ legal justifications curbed these claims’ effects on precision – albeit to the detriment of meaningful privacy protections.Footnote 112
In contrast, the contestation process surrounding the US’ legal justifications concerning its drone strikes during the so-called war on terror remains largely unsettled. CIA strikes remained unacknowledged for several years until, in 2013, US President Barack Obama claimed that ‘America’s actions are legal. … Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. … [T]his is a just war – a war waged proportionally, in last resort, and in self-defense’.Footnote 113 Obama’s claim that the US’ strikes are internationally lawful rests on a 2010 memorandum drafted by David Barron.Footnote 114 As pertains to international law, various claims can be identified in the memorandum, most of them a simple reiteration of the US’ legal stance in its global war on terror. For ease of reading, in Table 1, I reformulate and classify these legal claims under three headings: self-defence; international humanitarian law (IHL) and international human rights law (IHRL).
Table 1. The United States’ legal claims regarding CIA drone strikes
These various claims have fared differently since their first invocation. Those alleging IHRL’s lack of applicability (during armed conflicts and extra-territorially) have been rejected by a large majority of statesFootnote 115 and international courts and tribunals.Footnote 116 Consequently, they hold very little legitimating power today and have had no impact on the legal norms’ precision. In contrast, claims under Article 51 UN Charter (self-defence) and under IHL have not been subjected to the same level of scrutiny by (quasi-)judicial bodies. It bears noting that, as there are fewer opportunities for such review than for IHRL, states possess more leeway in their interpretations of jus ad bellum and jus in bello. Further, some of the US’ claims have been positively endorsed by other states.Footnote 117 As a result, these claims have expanded the range of defensible interpretations, thereby expanding the range of arguably permissible conduct under relevant legal norms. Because these contestation processes blur the boundaries of authorised versus proscribed conduct, they affect the norms’ precision. As long as the contestation processes surrounding these claims remain unsettled, they will continue to erode the precision of the norms invoked.
Precision might also be affected as a result of secret legal justifications, for intelligence activities that might not (yet) be exposed. The lack of a public claim and open contestation process makes secret justifications difficult to rebuke while allowing them to spread insidiously within the issuing state, coalescing into an internal jurisprudence.Footnote 118 Beyond the infamous Bybee-Yoo memoranda authorising the use of ‘enhanced interrogation techniques’ amounting to torture,Footnote 119 many other secret legal memoranda were drafted to justify the US’ intelligence activities in its war on terror.Footnote 120 These memoranda invoked norms less robust than the prohibition on torture,Footnote 121 and for which the US’ legal justifications were, when eventually made public, less contested. The memoranda’s authors have pursued their reasoning and arguments in their other professional positions, as scholars,Footnote 122 professorsFootnote 123 and judges.Footnote 124 In this way, even if the activities had remained secret and unacknowledged (as many were meant to stay), the secret legal justifications developed for them would still have influenced the state’s interpretation of international law through domestic courts, university teaching and scholarly literature. Given the heightened lawyerisation of intelligence decision-making and the dominance of national security cultures of legal rationalisation in liberal democracies,Footnote 125 one may reasonably surmise that many more legal memoranda are having a similar jurisprudence-shaping effect in various states.
Incrementally, secret legal justifications shape a state’s legal positions as well as, when exposure becomes unavoidable, its overt policies.Footnote 126 At this stage, the state may publicly put forward a highly consolidated legal justification, which had thus far been shielded from external feedback and contestation. Because it serves as justification for a range of past controversial practices, the sponsoring state will usually refuse to adapt its legal justification when finally faced with contestation. As the United States’ jus ad bellum and jus in bello claims regarding its targeted strikes in the war on terror illustrate, due to this inflexibility and the lack of an open contestation from the beginning, the disclosure of long-standing secret legal justifications usually leads to unresolved contestation processes, carrying detrimental effects for legal norms’ precision.
Through their strategic legal justifications, states reshape international law to fit their immediate policy preferences, but with effects beyond national security intelligence.Footnote 127 If, as has been the case for bulk data collection under the right to privacy, states’ justifications are eventually accepted as valid by the international community, the law and its interpretation will be strengthened in their precision.Footnote 128 The changes triggered by states’ legal justifications may be considered desirable, as a legal norm can adapt to ensure its relevance to evolving contexts. These changes may also be considered regrettable when states distort the law so much that it loses its meaning or boundaries. Article 51 UN Charter on the right to self-defence is an unfortunate example of such an effect.Footnote 129 In the absence of consensus about whether a terrorist attack by a non-state actor could constitute an ‘armed attack’ capable of triggering the right to self-defence under Article 51 and what the minimum threshold of gravity should be in such cases, the US nevertheless invoked Article 51 to justify self-defence against non-state actors, in a sometimes anticipatory manner, on foreign states’ territory.Footnote 130 The highly controversial nature of the policies being justified prevented the consensus needed for legal change. Instead, these repeated invocations to legitimate the US’ war on terror undermined international law constraints on the use of force, with effects well beyond the initial response to 9/11.Footnote 131 Hence, rather than ensuring the norm’s continued relevance to a context whereby non-state armed groups constitute a heightened threat to states’ security, states’ strategic legal justifications invoking Article 51 triggered decades-long, still unresolved, contestation processes that have lastingly eroded the precision of the legal norm.Footnote 132 Importantly, as demonstrated by Pedro Martinez Esponda regarding self-defence against non-state actors, this ‘norm-destabilization’ effect was only possible because other states and bodies did not seek to unambiguously clarify legal expectations.Footnote 133
Whether successful or contested, strategic legal justifications facilitate norm evasion, i.e., ‘the intentional compliance with the letter of the law but not its purpose in order to minimize inconvenient legal obligations in an arguably legal fashion’.Footnote 134 Actors who possess sufficient legal resources to create, identify and exploit this letter-purpose gap will frame their conduct as lawful through a discursive construction of what legality entails, so as to avoid accountability without having to adjust their behaviour. By making the law more precise, but also more permissive, successful legal justifications often create a letter-purpose gap that can be exploited by norm evaders, as in the case of bulk data collection and the right to privacy.Footnote 135 But protracted contestation over a legal norm, as in the case of Article 51 UN Charter, also enables norm evasion. Indeed, less precise legal norms provide the requisite flexibility to manipulate legal discourseFootnote 136 and exploit loopholes, creating the conditions for evasion. Under the cover of legal compliance, states can violate the law’s purpose either because the law is too imprecise to effectively govern conduct, or because it is so precise as to become formulaic, procedural or simply ineffective in constraining behaviour.Footnote 137 In his original conceptualisation of norm evasion, Zoltán Búzás noted that ‘when interpretation and implementation are delegated to purposivist courts, evaders could be held legally accountable’.Footnote 138 It is, therefore, worrisome that courts sometimes succumb to states’ strategic legal justifications, decreasing delegation.
When courts succumb to states’ strategic legal justifications: Effects on delegation
States’ strategic legal justifications are interpretations of legal norms that serve their policy preferences. These interpretations are open to contestation by other states and/or civil society. Through their treaty ratifications, states may also have conferred upon international courts and bodies a specific competence and authority to evaluate and adjudicate their legal claims. Such delegation to implement, interpret and apply international law usually constitutes a protective factor against the undermining effects of strategic legal justifications on law’s constraining function, as courts can authoritatively reiterate legal expectations.
Whereas interstate legal disputes regarding intelligence are rare, human rights courts and bodies are increasingly used by civil society to contest states’ intelligence activities.Footnote 139 However, when human rights courts deal with intelligence, the contextual factors surrounding national security consistently elicit deference to governments.Footnote 140 Such deference reinforces the impression that interpreting, monitoring and implementing the international law of national security intelligence constitutes the exclusive purview of states, thereby reversing back to states the original delegation to judicial and monitoring bodies.
The best example of this process is that of electronic mass surveillance. Since Edward Snowden’s 2013 revelations about the NSA’s bulk data collection programmes, a paradoxical legitimation of mass surveillance by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) has occurred.Footnote 141 In matters related to national security before these courts, Western European states consistently advocate for a state-centric vision of the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFREU) based on subsidiarity, a low level of human rights commitments and the minimalisation of protection of vulnerable people.Footnote 142 Whether as respondent states or third-party interveners, these states repeatedly demand an increased level of deference and subsidiarity from European courts.Footnote 143 Faced with Western states’ repeated claims concerning the lawfulness of their bulk data collection and retention practices and the need for increased deference in national security matters, European courts gradually moved towards a ‘balance’ more deferential to states’ national security arguments and claimed need for mass surveillance. In short, regarding mass surveillance, both the ECtHR and the CJEU have succumbed to states’ strategic legal justifications and delegated a significant part of their role as authoritative interpreters back to states.
In its 2021 Grand Chamber judgments in Big Brother Watch (BBW) and Centrum för rättvisa (CFR),Footnote 144 the ECtHR considered that operating a bulk interception regime is not, in principle, unlawful and/or disproportionate. Notwithstanding the lack of public evidence concerning their actual performance,Footnote 145 the Court found that the British and Swedish bulk interception regimes were ‘valuable’Footnote 146 and of ‘vital importance’Footnote 147 to the security of Member States. On this basis, the Court held that national authorities enjoy a ‘wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security’.Footnote 148 To assess the compatibility of bulk surveillance regimes with Article 8 ECHR, the Court established a new eight-part test.Footnote 149 This test focuses on the regulatory framework and procedural safeguards rather than on actual practice. It assesses exclusively the ‘in accordance with law’ prong of the broader permissibility assessment and assumes satisfaction of the ‘legitimate aim’, ‘necessity’ and ‘proportionality’ prongs. This ‘turn to proceduralism’ in proportionality assessmentsFootnote 150 effectively creates a letter-purpose gap in the law, enabling norm evasion (compliance with the letter of the law while violating its purpose).Footnote 151
When it comes to privacy, provided states’ regulatory frameworks for bulk data collection respect the eight-part procedural test established by the Grand Chamber, the regime will be deemed ‘in accordance with law’.Footnote 152 If a regime satisfies this test, states only need to declare it necessary and proportionate to ensure lawfulness. These efforts are made particularly easy by the Court’s blind trust in liberal democracies’ assessments, and its minimal scrutiny of their claims. Hence, a threat to national security need not be imminent, nor does it need to be identified. It may well be potential and cumulative, and described abstractly (‘national security threats’).Footnote 153 The means chosen by the state are also readily presumed as effective for achieving the declared aim of fighting terrorism, without any demonstration or justification required.Footnote 154 The proceduralisation of the law thereby facilitates both norm evasion and further strategic legal justifications.
The CJEU, originally more protective of privacy rights in its caselaw on bulk data collection and retention,Footnote 155 recently began aligning its caselaw to the ECtHR’s. In the 2020 cases of Privacy International Footnote 156 and La Quadrature du Net and Others Footnote 157 (LQDN), the CJEU was faced with claims by nine EU governments arguing the lack of applicability of EU law to national security in accordance with Article 4(2) of the Treaty on the European Union (TEU).Footnote 158 While rejecting the claim that EU law would be inapplicable in Privacy International, the CJEU partially succumbed to Member States’ calls for a reversal of the original delegation in LQDN. In LQDN, the CJEU considered that the CFREU allows for general, indiscriminate preventive data retention when Member States are confronted with a ‘serious threat […] to national security which is shown to be genuine and present or foreseeable’.Footnote 159 States’ repeated legal justifications have thus pressured the CJEU to recognize a wide national security exemption, justifying highly intrusive bulk interception and retention regimes that the CJEU previously deemed impermissible.
However, states’ demands for an increased level of deference and subsidiarity did not stop with the recognition of a national security exemption. Before the French Conseil d’État, the French government argued against the applicability of LQDN,Footnote 160 putting forward a distorted interpretation of the national identity clause of Article 4(2) TEUFootnote 161 by linking, for the first time, national constitutional identity to the protection of national security rather than fundamental rights.Footnote 162 The Conseil d’État’s resulting decision translates LQDN into the French legal order in a way that simultaneously minimizes inconvenient legal obligations for the government while avoiding a direct clash with the CJEUFootnote 163 – an implacable demonstration of how proceduralisation facilitates norm evasion. Further, faced with continued resistance from states, the CJEU confirmed and exacerbated its proceduralisation of the rights to privacy and data protection in several recent decisions.Footnote 164
In sum, through their caselaw, European courts have created a wide letter-purpose gap that permits norm evasion under the cover of technical compliance with the ECHR and CFREU. Compliance has been redefined as consisting of a procedural tick-box exercise, with any substantive legal assessment of necessity and proportionality delegated back to states. Further, since the ECtHR and the CJEU do not control the suitability, necessity, or proportionality of the measures taken by states under the declared aim of protecting national security, this ‘legitimate aim’ has become very vague and extremely potent. Both courts have signalled to states that, as long as they comply with procedural requirements, they enjoy the freedom and authority to determine how best to protect national security under the rights to privacy and to the protection of personal data. Through their repeated legal justifications in a context of heightened attention to national security matters, states have obtained near-absolute deference from European courts. As these courts made electronic mass surveillance lawful through the proceduralisation of the rights to privacy and data protection, the substantive values protected by the legal norms lost most of their legal protection. In other words, even as the rights to privacy and to the protection of personal data remain formally legalised and institutionalised in the same manner, the law has been emptied of its substance.
Theoretical insights on the effects of strategic legal justifications on international law
This analysis of the effects of strategic legal justifications on international law in intelligence matters allows me to identify four possible mechanisms of change in how law constrains behaviour, depicted in Figure 1. By decreasing a norm’s obligatory character, absent or selective legal justifications can effectively render the norm optional. In all cases where strategic legal justifications are not decisively rejected, they can facilitate norm evasion. In other words, it may become lawful to violate the law’s purpose.
Figure 1. The effects of strategic legal justifications on international law.
As the scope conditions for these mechanisms exemplify, due to the international order’s horizontal nature, the effects of strategic legal justifications depend on the reactions of other members of the international community. Strong reactions by other states and/or courts constitute protective factors against the undermining effects of strategic legal justifications on international law. While not analysed in this article, other forms of contestation – including concerted push-back by non-state actors such as NGOs, journalists, or academics – may sometimes have similar effects.Footnote 165 These findings also highlight that some efforts at strategic legal justification, because they are uncontroversial or are decisively rejected by relevant actors, do not produce visible effects on law’s constraining power. Future research could examine a wider range of pathways and test whether these findings extend beyond the realm of national security intelligence.
Conclusion: Normative, legal and political implications
In the early years of the ‘war on terror’, civil society mobilised actively in favour of intelligence accountability, primarily through strategic litigation. Indeed, under the guise of fighting terrorism, the actions undertaken by liberal democracies’ intelligence services constituted blatant violations of some of the core norms of the liberal international order: the prohibition on the use of force; the prohibitions of torture and enforced disappearances; the rights to life, to liberty and security of the person and to privacy; and the principles of distinction, proportionality, and precaution in armed conflicts. Decisions issued by human rights courts and treaty-bodies provided formal recognition that intelligence activities are subject to international law.Footnote 166 Transparency increased as a result, and intelligence services were forced to reckon with expectations of compliance with international law from domestic and international audiences.Footnote 167 Unfortunately, these remain the sole positive effects of processes of intelligence accountability.
Before the international legalisation of intelligence was recognised through these accountability processes, intelligence had already undergone processes of domestic legalisation in many liberal democracies. Starting in the US in 1975 with the investigations and recommendations of the Church Committee,Footnote 168 the subjection of intelligence to domestic law and legal processes was slowly adopted as a standard by other liberal regimes facing intelligence scandals.Footnote 169 In other words, the subjection of intelligence to domestic law has always been conceived of as a response to a legitimacy crisis resulting from agencies’ unchecked abuses of their powers.Footnote 170 Analysing these processes, Felix Tréguer convincingly argues that ‘rather than a victory of the rule of law, intelligence law and oversight structures inherited from past surveillance scandals actually work to shield intelligence against its critiques’.Footnote 171 The domestic legalisation of intelligence in liberal democracies only produces limited constraining effects while providing a veneer of legitimacy to intelligence services and activities.Footnote 172
As had happened with domestic law, international law quickly became a legitimating device for liberal democracies.Footnote 173 In the aftermath of the war on terror and Snowden’s revelations, while facing a transnational legitimacy crisis, liberal democracies seized the opportunity created by widespread exposure and litigation to shape the law applicable to their intelligence activities.Footnote 174 Put simply, as states lacked the desire to change their intelligence policies, attempts to hold them to account for these policies led states to the only possible alternative: strategic legal justifications.
The first consequence of these strategic uses of law can be seen in the widening scope of intelligence activities considered lawful. Practices more intrusive and violent than those that originally forced states to provide strategic legal justifications are now lawful. From states’ perspective, their engagement with legal processes has been extremely successful. Crucially, the legitimation of increasingly intrusive and violent intelligence activities is a consequence of them being made lawful through legal practice, without formal texts and institutions changing. This analysis also underscores the limits of law as a regulatory tool. By showing how states’ strategic legal justifications can affect three dimensions of legal norms, this article contributes new insights to debates on the limits of legalisation as a regulatory strategy. In the case of intelligence, greater engagement with legal processes resulted in a decrease in law’s constraining power.
Finally, the widening scope of (arguably) lawful intelligence activities facilitates the political legitimation of these activities. The lawyerisation of intelligence decision-making has elevated legality as the supreme consideration, relegating morality, propriety and effectiveness to the background.Footnote 175 The legal seals of approval issued by legal advisers and courts have depoliticised intelligence policies.Footnote 176 Governments’ legal claims crowd out other discourses and shape disputes about the propriety of intelligence in a purely legal way. This forces critics of intelligence to accept some (otherwise contestable) factual premises as a preliminary step to intervene in the dispute and restricts the range of arguments available to them.Footnote 177 As my analysis of litigation over bulk data collection and retention demonstrated, legal processes of accountability entail a risk for activists using them. Instead of accountability, these processes may well provide legal credence to states’ legal justifications, and legitimacy to their policies. In turn, the increased lawfulness of intelligence makes it harder to use other discourses (e.g., adequacy, effectiveness, morality) for questioning intelligence practices and policies. In the realm of intelligence, too, law exerts a disciplining effect over political contestation.Footnote 178 This situation creates a paradoxical dilemma for government and intelligence practitioners. Their successful avoidance of accountability through strategic legal justifications allows them to pursue their chosen policies lawfully, but the conceptual merging of legality and appropriateness means that effectiveness will often suffer. Hence, despite their success in legitimating their policies through law, government and intelligence practitioners would also benefit from a revalorisation of political and moral considerations in intelligence decision-making.
Acknowledgements
I am grateful to Andrea Liese, Carla Ferstman, Jessica Lawrence, Kyle Reed, Megan Price, Geoff Gilbert and audiences at workshops hosted by ESIL IG Social Sciences and International Law, EISA-PEC, BISA, King’s College London’s War Crimes research group, and Glasgow Law School for helpful comments and feedback on various versions of this paper. My thanks also extend to the two anonymous reviewers for their thoughtful and constructive engagement with this article.
Competing interests
The author declares none.
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