Tuesday, July 20, 2010

About Those Russian Spies

By Mike Dorf

The almost-farcical nature of the Russian spies caught snooping on American suburbia has the potential to obscure what to me is the deeper problem posed by espionage more generally.  Some--including my favorite alarmist Israeli website trading in rumors--have suggested that the spy exchange was merely the tip of an iceberg, and that the clownish spies sent back to Mother Russia are something on the order of decoys.

Perhaps, but the deeper problem posed by espionage is, of course, that while it is illegal, just about everyone does it.  To be clear, espionage as such does not violate international law.  Indeed, a case can be made that given the ubiquity of peacetime espionage, customary international law makes it legal.  (For an abbreviated version of this argument, see the Keynote address to a 2007 symposium on intelligence gathering and international law by Jeffrey Smith, former general counsel to the CIA.  For the full symposium, go to the Michigan Journal of Int'l Law and click on the articles in Vol. 8, no. 3.)  But again, even though legal (or at least not clearly illegal) under international law, espionage is illegal as a matter of domestic law just about everywhere.  And so our decision (and the reciprocal decision of other sovereigns) to spy on other countries--even those with which we have friendly relations--is a decision to flout the laws of those other countries.

Why is that a problem?  The answer, I think, is that it tends to spread lawlessness.  Not general lawlessness, to be sure.  The fact that the U.S. has spies working in our embassies and on the streets of Moscow does not mean that the State Department is robbing banks in St. Petersburg, but it does--or at least could--contribute to the lawlessness around intelligence gathering.

This bleeding over from the flouting of local laws forbidding espionage to the flouting of international law restricting means of intelligence gathering was very much on display during the Bush Administration, and most importantly, we were so informed early on.  When VP Cheney said that the government would be working "in the shadows of the intelligence world," what exactly did we all think he meant?  Given that, from the perspective of domestic law, just about the entire intelligence world is in shadow, presumably Cheney meant something even shadowier.  What I'm suggesting here is that the routine acceptance of illegal conduct as simply part of ordinary intelligence gathering conditioned both policy makers and (to the extent that we were paying attention) the general public to think that law is not a real constraint on intelligence gathering.


Glen Salo said...

Interesting post. And while I generally agree with Prof. Dorf, as a former military intelligence officer, I offer the following observations. Most intelligence gathering is just a matter of routine and does not involve violations of law. For example, everytime there is a military airshow in the US [or in another country], a number of military specialists from other countries show up to gather information on what's there. Or people count the number of guards at the gate in a particular base. If the number of guards are increased, then something is up. This is also intelligence gathering and not illegal. Such activities are not in underlying conflict with laws.

THe matter of the Russian 'spies' it seems to me wa of this kind. The people had not really done anything illegal; at least not that I'm aware of. So consequently their activities, if any, were not per se illegal. Of course you can argue that entering the US with an assumed identity in order to conduct intelligence gathering for a foreign power [Russia in this case] may not be entirely legal--slightly illegal? I don't know the answer to this, but an inchoate 'crime' is not actionable until an act occurs that provides the spark for a crime.

When this happens, the law is effective in dealing with spies and perhaps deterring more adventuresome types from such activities. For example, Aldrich James, Robert Hansen and a number of others who spied for the Soviet Union [for money] will rot in prison. Even if you act on behalf of a friendly government you are not exonorated. Jonathan Pollard who spied for Israel--and passed classified information to same--is in prison for life, and will likely never be released.

In sum, our laws do have a deterrent effect on individuals who are considering espionage as a career or a means to increase their bank accounts. In addition, a foreign intelligence officer has to be very observant of our law (to prevent undue interest on his / her activities); this impacts the manner of intelligence gathering. Hopefully, it hinders the effectiveness of same.

Raffles said...

Shouldn't it be the embassies of foreign countries? Our (the US's) embassies are in Paris, London, etc.

Michael C. Dorf said...

Raffles: No no no. I can see the ambiguity in what I wrote but I meant we have spies working for us and spying on other countries based in our embassies in those other countries.

Glen Salo: Thanks for this comment. I did not mean to suggest that all intelligence gathering is illegal. Presumably a big part of what embassy staff do perfectly legally is to communicate back home what is going on in the host country. That's just plain old diplomacy even though it's also intelligence gathering. Note, however, that even some of the seemingly innocuous activities you describe would fit the very broad federal definition of espionage-- http://tinyurl.com/2ace3gp --if done "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." As Smith says in the Keynote I cited, there may be no penalty for such activities or only the penalty of expulsion, but even expulsion connotes a breach of some sort.

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