Bringing the Spies in from the Cold: Legal Cosmopolitanism, and Intelligence under the Laws of War

Peyton A. Cooke, University of Alabama - Tuscaloosa

Abstract

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term -- legal cosmopolitanism -- with reference to a wide variety of legal materials, from Cass Sunstein, the European Court of Human Rights, activist groups within the United States that have been heavily involved in War on Terror litigation, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed -- yet recent court decisions and executive regulations display very strong cosmopolitan tendencies. In its subsequent sections, this paper surveys and analyzes the above legal reforms in light of the legal cosmopolitanism framework, and finds that, although diverse in origin and detail, recent legal changes clearly display a cosmopolitan tendency. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes -- and the legal revolution they promise -- skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.