The Legitimacy of Spying Among Nations

I. INTRODUCTIONEspionage among nations is an exceptionally old and extensive human endeavor. In times of war and peace, a generous slice of states' resources are allocated to intelligence organizations.1 Foreign espionage also involves considerable moral harm.2 One would then expect to find that espionage is anchored in solid moral and legal underpinnings. Surprisingly, this costly and harmful activity lacks a clear justification. Legal and philosophical scholarship seeks to understand the legitimacy of war among nations, and the proper legal framework for regulating war.3 Scholars also rigorously debate the legitimacy of the domestic use of governmental force.4 Yet when it comes to espionage, moral theorists are as soundless as spies. If espionage is discussed, it is generally perceived as an extra-moral activity, one that goes beyond the boundaries of ethics.5 Espionage is frequently associated with a murky sphere in which the gravitational pull of states' supreme interests bends the standard contours of moral space. This article aims to answer one primary question: what is the appropriate ethical justification for espionage? This justification should underpin the body of law that regulates espionage.The article's account of international espionage begins from the observation that states restrict access to various spaces that serve as points of access to information and that espionage seeks to penetrate such spaces to collect information. Espionage between states is therefore an undercover state-sponsored intrusion into the restricted space of another state or organization for the sake of collecting information.6 Access to a given space can be restricted in many ways, including-but not limited to-physically, visually, acoustically, digitally, and legally.7 An intrusion into a restricted space can be achieved through any known method of espionage, whether human or technological.8Throughout the argument, the article distinguishes between espionage during states of emergency, such as war or conflict, and espionage during peacetime or ordinary circumstances. An "emergency" refers a time that calls for remedial action to address a clear, imminent, and serious threat posed by one state against a basic interest of another.9 War is a classic state of emergency.10 An explicit threat of war creates an emergency as well. Another more indirect example of an emergency is where State A learns from open sources that its neighbor, State B, plans to attack it. By definition, in "peacetime," State A has no indication that State B is planning any harmful action against it.11 Espionage that is undertaken in response to emergencies can be sufficiently justified by reference to Just War Theory ("JWT") and the rules of necessity and self-defense. Peacetime espionage poses the real justificatory challenge.This article offers a new theoretical justification for peacetime espionage among nations. It consists of three parts. Part II analyzes current justifications for espionage, including the realist argument and an application of JWT, and finds them inadequate. In Parts III and IV, this article offers a new approach to justifying espionage. First, it argues that states should be subject to a duty of basic transparency in their relations with other states. Second, espionage serves as a transparency-enforcing device, one that resolves an otherwise irresolvable political conflict between liberal and nonliberal nations. In light of espionage's sophisticated and essential role in international relations, this article argues that a rule that permits espionage as an instrument for enforcing a duty of basic transparency among nations would be endorsed by all impartial, rational, and reasonable nations.II. THE INADEQUACY OF AVAILABLE ARGUMENTSA. THE REALIST ARGUMENTThis section reviews the position of international relations realism on espionage.12 Broadly speaking, realists tend to prioritize national interests over moral duties. …