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.