Benjamin Bestgen: Tertia Optio – law and espionage

Benjamin Bestgen: Tertia Optio – law and espionage

Benjamin Bestgen

Benjamin Bestgen considers the law around espionage in this week’s jurisprudential primer. See last week’s here.

James Bond is a bad spy; a pathological character who’d probably score highly on most psychopathy tests: he is glib, manipulative, self-absorbed, lacking in empathy, unnecessarily violent and displays poor impulse control. He is often reckless, acts immorally and breaks the law – international law, British laws and the laws of the countries he travels to – frequently.

Granted, a pragmatic, flexible attitude to morality, rules and regulations is helpful in spycraft, as it can sometimes be in politics, business, research, journalism, medicine, even legal practice. But being flexible and pragmatic about rules doesn’t equal disdain for them. That is a thin line to walk on. But precisely because intelligence operatives routinely work in grey areas, they need to have good judgement, especially in situations without supervision and formal guidance. A person without certain core moral principles and respect for the concept of law may be more likely to make decisions which damage a mission, endanger other people and embarrass the government or private enterprise the operative works for.

Knowledge of law also helps intelligence officers to risk-manage their work by knowing what they can lawfully accomplish, where grey areas lie or where they need to risk-accept adverse consequences if caught acting illegally.

Why “third option”?

Tertia Optio is the motto of the Special Activities Centre, a division of the CIA responsible for clandestine and paramilitary operations for which the US government wants to preserve plausible deniability. The motto refers to the use of covert methods being the third option next to official diplomacy and open military action. In business intelligence and industrial espionage, covert action is likewise a third option next to official industry relationships or openly aggressive competition.

Similarly, lawyers are conscious that next to the “legal-illegal” dichotomy, the wide area of the extra-legal exists: facts, actions and situations which can’t be or aren’t covered by law but may still influence the options available to us.

The need for counsel

“For lack of guidance, the people will fall, but in abundance of wise counsellors, there is victory.” Lawyers are often called upon to be the “wise counsellor” – and so are intelligence officers. The quoted Proverbs 11:14 is the official motto of Israel’s Mossad.

Spies require legal advice too. Mr Bond’s legal needs predominantly cover subjects like murder, theft, extortion, sexual and other types of assault, torture and extensive property damage.

Such topics are undeniably relevant for secret agents, but in the real world, other questions may be more pertinent: what are my options if I get caught with a false passport at a foreign airport or am stopped using a fake driver’s license or license plates? What is and isn’t covered by the bribery and corruption laws of countries I’m trying to recruit local agents in? Do I enjoy diplomatic immunity and what does that entail? What is my status under international law if I get arrested for espionage abroad in peace-time or in war-time? What is my status under domestic law if counter-intelligence accuses me of treason?

How do misuse of electronic equipment, privacy and civil liberties laws affect my work? What is needed to lawfully surveil a person, bug their homes, vehicles and workplaces, tap their phones or interview other people about a target? How will any evidence I collect be treated in court – can it even be used? If I lie, mislead, steal, coerce or defraud somebody as part of my mission, what legal protections do I have?

But wait – as a lawyer, I need to know my client and so a basic question should come first: is my client even a spy?

What is espionage?

Whether espionage is a desirable or necessary activity and if the world would be better off without it is a legitimate question. However, very few would disagree that having reliable intelligence is crucial for states and businesses alike and espionage is one option for obtaining it. But what exactly is “espionage” in law and who is a “spy”?

Lt. Col. Geoffrey B. Demarest notes that activities like covert action, counter-intelligence, domestic surveillance or treason may interlink with espionage but are not the same thing. Likewise, not everyone involved in intelligence gathering, even if done covertly or against the target’s wishes, is a spy: consider academics, journalists, political activists, military acting in uniform, civilian informants, diplomatic personnel or consultants of various types and specialisms. Even the people directly employed by an intelligence service are not all spies.

However, the consequences of being accused of espionage can be most severe. Demarest therefore considers that a precise, internationally acknowledged definition of who can be classed as a spy would help anyone working in fields where intelligence gathering is sometimes exercised by using “third option” methods.

Demarest observes that international law is surprisingly vague on clear definitions of espionage, so he proposes a working definition: Espionage is the

a) conscious, deceitful collection of information, which is
b) ordered by a government or organisation hostile to or suspicious of those the information concerns, and
c) is accomplished by humans unauthorised by the target to do the collecting.

Lawfulness of espionage

In war, even the earliest scholars on international law like Hugo Grotius, noted that espionage and the sending of spies is a permitted activity. However, spies have little mercy to expect if caught during wartime. Notably, the Brussels Declaration 1874 (Articles 20 and 21) states that if a spy is captured by the army of the opposing force, he shall be treated in accordance with their laws (which is likely to be deeply unpleasant). Only if a spy manages to return back to the safety of his own army and is subsequently captured can he claim the protections a prisoner of war is entitled to.

The 1907 Hague Convention confirms this and adds that spies cannot be punished without trial. However, Article 5 of the Geneva Convention (IV), 1949, limits the application of the Convention provisions in the case of spies or civilian saboteurs, leaving them in dangerous territory.

In peace time, Demarest notes, espionage goes almost without comment in international law and is largely seen as a matter for domestic regulations. This is a problem because espionage by its very nature has typically an international component and is not a purely domestic matter. It also does not restrict itself to war-times: most nations spy on their friends and foes alike, albeit the former is seen as an “unfriendly act” if discovered. Private enterprises don’t behave much differently in their intelligence gathering efforts.

But given the multitude of persons and professions which are involved in intelligence gathering activities, the vagueness of established international jurisprudence around “spying” in peace time and over-reliance on domestic laws is undesirable. Just remember the case of British academic Matthew Hedges in 2018, who was detained on espionage charges in the United Arab Emirates and held in solitary confinement for several months before his eventual release.

Greater clarity would certainly help legal counsellors when advising intelligence workers if their activities could be classed as “espionage” or something else entirely.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

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