Counterintuitive: Intelligence Operations and International Law

The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such “sharing” does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or the international system to permit regulation of their intelligence-gathering activities. This Article will explore both the historical and current views of intelligence gathering, U.S. domestic issues related to regulation of intelligence operations, and the benefits of refraining from regulating such operations through an international entity or via international law.