Trump’s comments raised an important question: What exactly is the process for presidents to classify and declassify information? The answer matters because classified documents can contain some of the United States’ most closely guarded secrets, including the location and identities of intelligence sources abroad. Declassification is equally important for promoting government accountability, and helping the public understand government policies and actions.

To help us understand how the presidential classification and declassification process works in practice, we have Brian Greer and Wendy Leben. For nearly a decade, Brian was an attorney in the CIA’s Office of General Counsel. And Wendy was a senior intelligence analyst in the Department of Defense for 13 years, including seven deployments to Iraq and Afghanistan.

Listen to the podcast by clicking below.

The post The Just Security Podcast: The Classification Process Declassified appeared first on Just Security.

A curated weekday guide to major national security news and developments over the past 24 hours. Here’s today’s news.

RUSSIA-UKRAINE DEVELOPMENTS

Ukraine’s military released drone footage this weekend that appeared to show the city of Bakhmut being attacked by Russian phosphorus munitions, the use of which in civilian areas is considered a war crime. It is unclear when the attack took place, but a post on Twitter by Ukraine’s defense ministry showed high-rise buildings engulfed in flames, and accused Russia of using “incendiary ammunition,” a type of ammunition containing chemicals that, upon impact with obstacles, causes blazes to ignite and rapidly spread. Other videos posted to social media showed the ground on fire and plumes of smoke. BBC analysis located the military’s footage to an area just west of Bakhmut’s city center and close to a children’s hospital. “While the analysis confirmed the attack used some kind of incendiary munitions, it could not verify the use of phosphorus,” BBC reports.

Russia carried out drone, missile, and air strikes on the Ukrainian capital of Kyiv and other cities through the night. Ukraine said its air defenses destroyed all 35 Iranian-made Shahed drones launched by Russia. Sixteen rockets hit the Kharkiv, Kherson, Mykolaiv, and Odessa regions in the last 24 hours, as well as 61 strikes and 52 rocket salvos on Ukrainian positions and populated areas. Reuters reports. 

Yevgeny Prigozhin, leader of the Russian paramilitary Wagner Group, has signaled plans to cancel his announced withdrawal from Bakhmut after receiving promises of extra ammunition. On Friday, Prigozhin announced in a post on Telegram that his group was withdrawing from the region after his men had been starved and suffered “useless and unjustified” losses as a result. However, in an audio message posted on Telegram on Sunday, Prigozhin said: “Overnight we received a combat order, for the first time in all this time. We have been promised as much ammunition and weapons as we need to continue further operations. We have been promised that everything needed to prevent the enemy from cutting us off [from supplies] will be deployed on the flank.” Reuters reports. 

On Saturday, International Atomic Energy Agency Director General Rafael Grossi voiced growing concerns about the safety of Ukraine’s Zaporizhzhia Nuclear Power Plant, now under control by Russian forces in the occupied city of Enerhodar. Grossi warned the situation was “becoming increasingly unpredictable and potentially dangerous.” Due to the war, none of the plant’s six reactors are active, but the station nonetheless needs a reliable power supply for cooling systems critical to “preventing a potentially catastrophic radiation disaster.” Grossi’s comments came a day before Ukrainian authorities “said that a 72-year-old woman was killed and three others were wounded when Russian forces fired more than 30 shells at the city of Nikopol, which is almost directly opposite the plant,” David Rising reports for AP.

Turkey has rejected a U.S. proposal to send its Russian-made S-400 defense system to Ukraine, Turkish media reported Sunday. Yahoo News reports.

DOMESTIC DEVELOPMENTS

Criminal immunity deals have been accepted by at least eight of the Republican “false electors” in Georgia alleged to have conspired with former President Donald Trump in 2020 to overturn the election result in the state, according to a court filing Friday by Kimberly Debrow, the lawyer representing the eight electors offered deals. Those familiar with the investigation said that at least one additional elector, not represented by Debrow, also has a deal in place. Debrow’s filing also revealed that two of her clients were not offered deals and so now had new representation. Danny Hakim reports for the New York Times.

On Friday, a January 6th Capitol rioter who attacked police officers with a chair and then chemical spray received the longest sentence so far in connection to the insurrection. Peter Schwartz was sentenced to 14 years and two months in prison followed by three years’ supervised release after being convicted in December of assault and other felony charges. The sentence surpassed the 10-year sentence of retired New York Police Department officer Thomas Webster in September for swinging a metal flagpole at an officer at the Capitol, although the Justice Department had sought 24 years and six months in prison for Schwartz. In a separate case on Friday, prosecutors recommended in a sentencing brief 25 years’ imprisonment for Stewart Rhodes, leader of the Oath Keepers, who was convicted in November of seditious conspiracy along with one of his lieutenants. Alan Feuer and Zach Montague report for the New York Times. 

Fox News lawyers on Friday asked Dominion Voting Systems officials to conduct an internal investigation into leaked text messages from ousted Fox host Tucker Carlson that formed the basis of evidence in the recent defamation lawsuit between Dominion and Fox. “The requests, which were made in letters released by Fox, came after multiple news outlets published racist and sexist remarks by Carlson contained in leaked internal messages and recordings,” Reuters reports.

Carlson has told those close to him that he wants to return to television somewhere soon, but he must firstly negotiate an early end to his contract expiring in January 2025. Lawyers for Carlson “have been in touch with Fox to negotiate an agreement to set the terms of his departure. And he has been the subject of unofficial courting by right-wing media outlets who’ve let it be known they would hire him if they could. Jeremy W. Peters and Benjamin Mullin report for the New York Times. 

Jack Teixeira, the Air National Guardsman recently charged with leaking classified documents, was obsessed with weapons, mass shootings, and debunked conspiracy theories, and set on “proving he was in the right, and in the know,” a review by the New York Times of over 9,500 of his messages reveal, filling in important gaps lefts by court filings. “Even as he relished the respectability and access to intelligence he gained through his military service and top secret clearance, he seethed with contempt about the government, accusing the United States of a host of secret, nefarious activities: making biological and chemical weapons in Ukrainian labs, creating the Islamic State, even orchestrating mass shootings…He seems to have seen himself, in a sense, as the author of an insider newsletter founded to educate his online friends — not a whistle-blower plotting a grand exposé of government secrets,” Aric Toler, Robin Stein, Glenn Thrush, Riley Mellen and Ishaan Jhaveri report for the New York Times. 

Mauricio Garcia, the gunman who killed at least eight people at an outlet mall in Dallas, Texas, may have had white supremacist or neo-Nazi beliefs. People familiar with the investigation said a tattoo on his chest said “RWDS,” an acronym thought to stand for Right Wing Death Squad that is popular among right wing extremists, neo-Nazis and white supremacists. “In addition to the weapons found on his body, investigators found another five guns inside his car nearby,” Jack Douglas, Marisa Iati, Brittany Shammas, Devlin Barrett, Justin Wm. Moyer, Molly Hennessy-Fiske and Perry Stein report for the Washington Post. 

A preliminary review of Garcia’s social media accounts reveals “hundreds of posts that include racially or ethnically motivated violent extremist rhetoric, including neo-Nazi material and material espousing white supremacy,” Deon J. Hampton, Jonathan Dienst, Ken Dilanian and Corky Siemaszko report for NBC News.

At least eight people were killed after a man drove into a crowd of migrants in Brownsville, Texas, on Sunday. Seven individuals died on the scene and at least 10 others were injured after a Range Rover plowed into a group standing outside a center that serves homeless people. The driver, whose name has not yet been released, was charged with reckless driving. It remains unclear whether the driver’s actions were deliberate or an accident. Edgar Sandoval and Verónica G. Cárdenas report for the New York Times. 

Georgia Gov. Brian Kemp signed a bill on Friday that would create the Prosecuting Attorneys Qualifications Commission, an eight-member commission empowered to discipline and remove district attorneys and solicitors general. The Commission, which would start accepting complaints from October, plans to focus on “willful misconduct in office” or “willful and persistent failure to carry out statutory duties,” according to an Office of Governor press release. Fulton County DA Willis “has been one of the most outspoken opponents of the legislation, suggesting she is among those being targeted by its Republican sponsors,” John Wagner and Matthew Brown report for the Washington Post. 

The Foreign Affairs Committee has threatened Sec. of State Antony Blinken with contempt of Congress if he does not comply with a March subpoena to release a classified “dissent channel” cable on the August 2021 U.S. withdrawal from Afghanistan. The letter, sent by committee chair Michael McCaul (T-RX), gave the State Department until May 11 to comply or assert a legal basis to withhold the documents. Reuters reporting.

Former President Donald Trump missed a deadline yesterday to inform the judge in the E. Jean Carroll civil battery and defamation lawsuit whether he intended to testify before the case ends. Trump’s attorney Joseph Tacopina said in a statement that the court was told on Thursday that Trump would not testify, with the trial now set to end today after closing arguments. Reuters reports. 

Trump’s 48-minute videotaped deposition in the Carroll lawsuit was released Friday. Parts of the edited deposition, recorded in October, were played for jurors earlier last week, and a transcript of the deposition was revealed in December in court filings—but the footage, requested by two journalists, had not been released publicly before Friday. Zach Schonfeld reports for The Hill.

SUDAN DEVELOPMENTS

Amid continuing clashes in the Sudanese capital of Khartoum, the first face-to-face “pre-negotiation talks” between the Sudanese army and the paramilitary Rapid Support Forces took place on Saturday in Saudi Arabia. “Both sides have said they will discuss a humanitarian truce but not an end to the conflict. There has been no word so far about whether the meeting has taken place or who the representatives from both sides are,” BBC reports. 

Turkey will move its embassy from Sudan’s capital to Port Sudan, on the recommendation of the transitional government and Sudan army, after the Turkish ambassador’s car was hit by gunfire, Turkey’s foreign minister, Mevlut Cavusoglu, told reporters in Antalya on Saturday. “No casualties were reported and the source of the gunfire that hit Ismail Cobanoglu’s vehicle was unclear, said Turkish diplomatic sources quoted by Anadolu Agancy,” Al Jazeera reports.

IRAN DEVELOPMENTS

Iran on Saturday executed Swedish-Iranian dissident Habib Farajollah Chaab the alleged leader of the separatist group, the Arab Struggle Movement for the Liberation of Ahwaz. In the sentencing, Tehran accused Chaab of “numerous bombings and terrorist operations,” including a 2018 attack on a military parade that killed dozens. The execution has been criticized by Sweden and human rights groups. Jon Gambrell reports for AP.

Two oil tankers recently seized by Iran’s paramilitary Islamic Revolutionary Guard Corps were spotted on Saturday anchored south of Bandar Abbas near a naval base in the port city in Iran’s Hormozgan province, according to satellite photos from Planet Labs PBC analyzed by The Associated Press. The first tanker, Marshall Islands-flagged Advantage Sweet, was seized on April 27 as it traveled through the Gulf of Oman carrying Kuwaiti crude oil for American energy firm Chevron Corp. of San Ramon, California. The second ship, Panama-flagged tanker the Niovi, was seized on Wednesday leaving a dry dock in Dubai, UAE, bound for Fujairah on the UAE’s eastern coast. Jon Gambrell reports for AP.

OTHER GLOBAL DEVELOPMENTS

The United States and China acknowledged the need to stabilize Sino-U.S. relations after a series of “erroneous words and deeds” deepened tensions. China’s Foreign Minister Qin Gang Beijing met with U.S. ambassador Nicholas Burns in Beijing, where Qin reportedly “stressed in particular that the United States must correct its handling of the Taiwan issue and stop the hollowing out of the ‘one China’ principle,” Reuters reports. 

The leaders of South Korea and Japan on Sunday agreed to deepen efforts to address security challenges from North Korea and China. Japanese Prime Minister Fumio Kishida met with his South Korean counterpart, President Yoon Suk Yeol, in Seoul. The two leaders emphasized the growing nuclear and missile threat from North Korea and the deepening rivalry between the United States and China. Kishida’s two-day trip follows on the heels of Yoon’s trip to Tokyo in March. The shuttle diplomacy is a welcome sign for Washington after regular exchanges between Tokyo and Seoul ended in 2011 over historical differences. Choe Sang-Hun and Motoko Rich report for the New York Times.

Arab League member states have agreed to reinstate Syria’s membership after over twelve years of suspension. The vote was cast on Sunday in Cairo, Egypt, during an emergency meeting of Arab League foreign ministers in Cairo, Egypt. Arab League Secretary-General Ahmed Aboul Gheit said on Sunday that Syria President Bashar al-Assad was permitted to attend the Arab League summit in Saudi Arabia on May 19 “if he wishes to.” Al Jazeera reports. 

On Sunday, a criminal court in Baghdad sentenced Iraqi police officer, Ahmed Hamdawi al-Kinani to death for his alleged role in the July 2020 killing of prominent Iraqi academic and security analyst Hisham al-Hashimi, according to a statement from Iraq’s Supreme Judicial Council. After Sunday’s ruling, the case will be referred to the Court of Cassation, which is a judicial body that considers the ruling. Qassim Abdul-Zahra and Yasmine Mosimann report for the Independent. 

The post Early Edition: May 8, 2023 appeared first on Just Security.

A curated weekday guide to major national security news and developments over the weekend.

RUSSIA-UKRAINE DEVELOPMENTS 

In its second major airstrike in three days, Russia fired missiles at targets across Ukraine, hitting a railway hub in eastern Ukraine. The Russian strikes set a huge blaze in a southeastern district, Pavlohrad, a railway hub behind the southern and eastern fronts, where officials reported on Monday that 34 people were wounded, including children, and dozens of homes damaged. Ukraine officials said that 15 of 18 Russian cruise missiles were shot down, shielding the capital, Kyiv, and other major cities. The strikes follow 23 civilian deaths three days ago, where a Russian missile hit a high-rise apartment building in Uman, central Ukraine. “Ukrainian officials also released images of a scorched wasteland, and said an industrial enterprise was hit, which they did not identify. Mykola Lukashuk, head of the Dnipropetrovsk region council, said the attack had damaged 19 apartment blocks, 25 houses, three schools, three kindergartens and several shops,” Reuters reports.

A Crimean oil depot erupted in fire after it was hit by two Ukrainian drones. Mikhail Razvozhayev, the Kremlin-installed governor of the Crimean port city Sevastopol, posted footage of the blaze on his Telegram channel. He said the fire caused no casualties and would not reduce the supply of fuel for Sevastopol. Ukraine did not openly claim responsibility, but emphasized its right to strike any target in response to aggression by Russia, which has controlled Crimea since its 2014 invasion of Ukraine. David Rising reports for AP. 

As Russia toughens penalties for men avoiding military service, more than 1,000 face criminal charges for offenses such as abandoning their units, and more than 1,100 have been convicted of evading military service. Penalties are harsh, such as 3 to 10 years for refusing an order to participate in combat, or sentences of years in a penal colony for trying to escape conscription. Neil MacFarquhar reports for the New York Times.

Pope Francis met with European leaders during a three-day visit to Budapest as part of a “mission” to end the war between Russia and Ukraine. Francis said he discussed the situation with Hungarian Prime Minister Viktor Orban, who has been on the outs with European Union leaders in Brussels and opposed military aid to Ukraine, and with Metropolitan Hilarion, a representative of the Russian Orthodox Church in Budapest. Before his trip, the Pope met with Ukrainian Prime Minister Denys Shmyhal to discuss a “peace formula.” Jason Horowitz reports for the New York Times. 

DOMESTIC DEVELOPMENTS 

JPMorgan Chase & Co is set to buy “the substantial majority of assets” of First Republic Bank and assume all of the lender’s deposits, insured and uninsured, in a deal arranged by the U.S. Federal Deposit Insurance Corporation, the independent government agency that insures deposits for bank customers. “The banking giant will take $173 billion of loans and about $30 billion of securities of First Republic Bank including $92 billion of deposits, JPMorgan said in a statement. It is not assuming the bank’s corporate debt or preferred stock,” Reuters reports. 

Former President Trump has asked the judge in the E. Jean Carroll defamation and battery case to declare a mistrial, arguing in a letter filed early this morning that the judge, Judge Lewis Kaplan, had made “pervasive unfair and prejudicial rulings” against Trump. Alternatively, said Trump attorney Joe Tacopina, lawyers would ask Judge Kaplan to “correct the record for each and every instance in which the Court has mischaracterized the facts of this case to the jury” or offer Tacopina greater leeway in cross examining Carroll. “Here, despite the fact trial testimony has been underway for only two days, the proceedings are already replete with numerous explanations of Defendant’s unfair treatment by the Court, most of which has been witnessed by the Jury,” the letter read. “Among the issues raised by Tacopina are the judge’s ruling restricting Tacopina from asking Carroll additional questions about any efforts Carroll made to try to obtain security camera footage from the department store, ‘expressing a corroborative view’ that there was no one on the sixth floor of the department store at the time of the alleged assault, and calling certain lines of the defense attorney’s questioning ‘argumentative’ in front of the jury,” Kara Scannell reports for CNN. 

Local and federal authorities were using tracking dogs and cell phone signals in a widening manhunt for Francisco Oropeza, who allegedly fatally shot five people in Cleveland, Texas. Officers found his cell phone abandoned and believe Oropeza is no longer in the area. Before the shooting, neighbors had asked Oropeza to stop firing a rifle in his yard because a baby was trying to sleep. Raja Razek, Andy Rose, and Ray Sanchez report for CNN. 

The FBI issued a statement Sunday night saying Oropeza was considered armed and dangerous and should not be approached by members of the public. Authorities were widening their search to as far as 20 miles from the location of the shooting. Andrea Blanco reports for The Independent, via Yahoo News.

The U.S. Army released the names of three soldiers killed in a mid-air collision between two military helicopters over Alaska. “The battalion is devastated and mourning the loss of three of our best,” said Lt. Col. Matthew C. Carlsen, commander of Alaska-based 1st Attack Battalion, 25th Aviation. The cause of the collision is under investigation by a team from the Alabama-based U.S. Army Combat Readiness Center. Dennis Romero reports for NBC. 

The Justice Department is investigating whether former President Donald Trump and his allies raised more than $250 million to press his allegations of election fraud in 2020 that they knew to be false. “The Justice Department, with its ability to bring criminal charges, has been able to prompt more extensive cooperation from a number of witnesses. And prosecutors have developed more information than the House committee did.” Maggie Haberman, Alan Feuer, and Jonathan Swan report for the New York Times.

Historic snowmelts in California are raising flooding risks. As temperatures warm after record snowfall in the Sierra Nevada, parts of California’s Central Valley – which includes Sacramanto and Fresno – face the risk of damaging floods. More than 500 inches of snow fell in some areas during a historic winter season. Evan Bush, Jiachuan Wu, and Kathryn Prociv report for NBC News. 

Regulators on the California Air Resources Board approved a ban on the sale of new big rigs and buses running on diesel by 2036, and new carbon dioxide-emitting trucks by 2045. “This rule provides manufacturers, truck owners and fueling providers the assurance that there will be a market and the demand for zero-emissions vehicles, while providing a flexible path to making the transition toward clean air,” said Liane Randolph, chair of the board. California now awaits a waiver from the Environmental Protection Agency to legally enforce the rule. Neelam Bohra and Coral Davenport report for the New York Times. 

U.S. RELATIONS

The United States has facilitated the departure of almost 1,000 American citizens from Sudan, as a second convoy from Khartoum arrived at Port Sudan.  The convoy of eight buses on Sunday followed another the previous day of 18 buses carrying several hundred American evacuees. “The death toll from the crisis in Sudan has climbed over 500, according to the World Health Organization, with thousands more wounded.” CBS News reports 

President Joe Biden meets with President Ferdinand Marcos Jr. of the Philippines at the White House on Monday. The talks are scheduled amid growing concerns over China’s increasingly aggressive actions in the South China Sea, including harassing Philippine navy and coast guard patrols. Biden and Marcos also are due to discuss new economic, education, and climate initiatives during the four-day visit, the first in more than a decade by a president of the Philippines. Aamer Madhani and Jim Gomez report for AP. 

The U.N. working group on arbitrary detention has called for the immediate release of Guantánamo “forever prisoner” Abu Zubaydah, saying his detention has no basis in law. The U.N. body’s decision, the first issued against the United States regarding Zubaydah’s detention, urged the U.S. government to close the facility and expressed “grave concern about the pattern that all” cases at Guantánamo follow and recalled that, “under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law may constitute crimes against humanity.” The opinion marks the first international decision against multiple states for their distinct contributions and “joint responsibility.” “Thailand, Poland, Morocco, Lithuania, Afghanistan and the United Kingdom played a role in the extraordinary rendition programme, whether through directly detaining persons subjected to it, or through knowingly assisting the implementation of the programme through transport access and the provision of locations for unregistered detention sites. These States are all jointly responsible for the arrest, rendition and arbitrary detention of Mr. Zubaydah,” the decision stated. Julian Borger reports for The Guardian. 

Newly released government photographs reveal key moments inside the White House during the 2011 raid on Osama bin Laden’s compound. Through Freedom of Information Act and Presidential Records Act requests, the Washington Post obtained more than 900 photos of the event, including images of former President Barack Obama watching the video feed of the raid and shaking hands with top officials. Nate Jones reports for the Washington Post. 

North Korea has criticized the recent U.S.-South Korea agreement to strengthen Seoul’s defenses and regularly deploy U.S. strategic assets to the region, warning  it would escalate tension to the “brink of a nuclear war.” State media KCNA reported on Monday that a summit held last week between President Joe Biden and South Korean President Yoon Suk Yeol, during which Biden promised to furnish Seoul with more insight into American nuclear planning over any conflict with North Korea, had put the peninsula in a “quagmire of instability.” A U.S. Navy nuclear-armed ballistic missile submarine will also visit South Korea for the first time since the 1980s. “KCNA said the agreement stipulated the allies’ willingness to take ‘the most hostile and aggressive action’ against North Korea, citing Choe Ju Hyon, whom it described as an international security analyst,” Reuters reports.

GLOBAL DEVELOPMENTS

Islamic State (IS) leader Abu Hussein al-Qurashi was killed in Syria by Turkish forces this weekend, Turkish President Tayyip Erdogan said Sunday. IS selected al-Qurashi as its leader in November after its previous leader was killed in an operation in southern Syria. “Syrian local and security sources said the raid took place in the northern Syrian town of Jandaris, which is controlled by Turkey-backed rebel groups…One resident said clashes started on the edge of Jandaris overnight from Saturday into Sunday, lasting for about an hour before residents heard a large explosion,” Reuters reports. 

Eight tons of medical aid from the International Committee of the Red Cross landed in Sudan on Sunday. While many foreign nationals have been evacuated and thousands of local families fled for the city of Shendi, those remaining in Khartoum face shortages of food, water, medicine, and electricity. Mitchell McCluskey, Eyad Kourdi, Heather Chen and journalists in Sudan report for CNN. 

Sudan’s health care system is facing the risk of total collapse. Health care services continue to deteriorate in the capital Khartoum, as fighting enters its third week. The Sudan Doctors’ Trade Union warned that the system could completely collapse within days. Lynsey Chutel reports for the New York Times. 

Russia vowed retaliation after Polish authorities seized the Russian Embassy School in Warsaw, asking employees to leave the campus premises. Russia’s Foreign Ministry described the action as “controversial, illegal and provocative,” while Polish Foreign Ministry spokesperson Lukasz Jasina said the property “belongs to the Polish state and was taken by Russia illegally.” The school will continue operating from a different part of the Russian embassy. Xiaofei Xu and Darya Tarasova report for CNN.

The post Early Edition: May 1, 2023 appeared first on Just Security.

There is considerable debate about whether the spy balloon (and the U.S. shootdown of it) violated international law. But the incident also raises deeper questions about the legality and morality of espionage more broadly – questions policymakers must address as States rely on more subtle and pervasive forms of spying through artificial intelligence, mass surveillance, and cyber operations.

Legal Considerations

International law treats spying that occurs during wartime and peacetime differently. The rules on wartime spying focus on whether the information gathering is carried out through false pretenses. In peacetime, the analysis centers on whether the methods of spying violate a State’s sovereignty.

Espionage During an International Armed Conflict

Under customary international law and international humanitarian law (IHL) (codified in Additional Protocol (I) to the Geneva Conventions, Art. 46) espionage that occurs during an international armed conflict is carefully defined, though the precise methods of information gathering are not identified or prohibited. As the International Committee of the Red Cross notes, “espionage” is the “gathering or attempting to gather information in territory controlled by an adverse party through an act undertaken on false pretenses or deliberately in a clandestine manner.”

During an armed conflict, an individual who engages in espionage is considered a spy and loses her right to prisoner of war status, including the protections around accommodation and access to food, clothing, hygiene and medical care. By contrast, members of the armed forces who wear their own uniforms (as opposed to those who wear civilian attire or the uniform of the adversary) may gather information in the territory of the adverse party without losing prisoner of war status. Similarly, a spy who rejoins her armed forces but who is then captured must be treated as a prisoner of war and incurs no responsibility for previous acts of espionage. If captured, a spy may not face summary execution and is guaranteed the right to a fair trial.

Espionage During Peacetime

Outside of IHL, many international lawyers take the view that there is no general prohibition against espionage. In the Lotus case, for example, the International Court of Justice observed that international law leaves States “a wide measure of discretion which is only limited in certain cases by prohibitive rules” and that in the absence of those rules “every State remains free to adopt the principles which it regards as best and most suitable.” As Ashley Deeks observes:

Several government officials and scholars believe that the Lotus approach provides the best way to think about spying in international law. For them, the idea is simply that nothing in international law forbids states from spying on each other; states therefore may spy on each other – and each other’s nationals – without restriction.

Other scholars disagree, and argue that international law contains an affirmative “right to spy,” (see, for example, this article by Asaf Lubin and his Just Security podcast episode). Many in this camp take the view that spying is necessary for self-defense because States need to gather military and diplomatic intelligence, implying that a rule prohibiting spying would restrict the right to self-defense.

Still other lawyers take a middle approach and argue that some methods of espionage may be illegal because they inherently violate a State’s sovereignty.

The Sovereignty Test

The view that the principle of sovereignty limits espionage begins with international law’s prohibition on States from violating the territorial sovereignty of other States. Sovereignty extends also to territorial seas, via the U.N. Convention on the Law of the Sea (UNCLOS), and to national airspace, via the Convention on International Civil Aviation (Chicago Convention, for a deeper discussion of whether the spy balloon is an “aircraft” under the Chicago Convention see this article by Batuhan Betin). Recently, the non-binding Tallinn Manual 2.0 has tried to define sovereignty as encompassing cyber infrastructure, though disagreements persist as to whether physical damage, or another standard, should determine if a cyber attack infringes upon State sovereignty.

In treaty law, the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR) effectively prohibit receiving States from conducting espionage against the diplomatic and consular missions of sending States. First, diplomatic and consular premises (the buildings or parts of buildings and ancillary land used for the purposes of the diplomatic mission) are inviolable and can only be entered with the consent of the head of mission, except in special circumstances such as natural disasters. Second, diplomatic and consular archives and documents (broadly defined by VCCR Art. 1(1)(k) as “all the papers, documents correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping”) are similarly inviolable. And finally, “official correspondence” belonging to diplomatic and consular missions is inviolable, a provision intended to guarantee secrecy between diplomatic and consular missions and their sending State.

While spying that violates the sovereignty of another State may violate international law, other forms of espionage are officially condoned. For example, international law permits the taking of satellite imagery of another State, based partly on the principle that the “use” of outer space is the “province of mankind.”

Domestic Law

Although international law allows for at least some forms of spying in diplomatic relations, individual States often create stricter domestic legislation to protect their national interests. For example, many countries punish corporate espionage such as the stealing of trade secrets or information gathering through cyber hacking.

U.S. federal law criminalizes leaks of classified government information in the Espionage Act, and authorizes the government to collect surveillance information against foreign State adversaries and their agents (see this Just Security series on the Foreign Intelligence Surveillance Act). For instance, Yanjun Xu, a Chinese intelligence officer was given a 20-year sentence for economic espionage and theft of U.S. trade secrets and a National Security Agency employee was indicted for attempting to transmit classified information to a foreign government.

Moral Considerations

Regardless of whether spying is legal, separate questions arise as to whether it is morally justified and strategically wise. In the case of the spy balloon, U.S. officials repeatedly referred to China’s actions as both illegal and “unacceptable,” alluding to deeper concerns with espionage itself.

While spying is often viewed as an inherently immoral, if commonplace, practice, different normative frameworks may be invoked. According to the “dirty-hands” approach, spying is a necessary evil – government agents must engage in deceit, bribery, and other morally dubious acts to protect national security. Contractarian approaches to espionage, by contrast, suggest that governments have tactically consented to engage in espionage because it is a mutually beneficial practice that allows states to protect their citizens from harm. On this view, spies follow an unwritten moral code – similar to a code of conduct for soldiers – where certain immoral acts, such as lying, become morally acceptable in the context of espionage.

More commonly, the ethics of espionage can be analyzed through the lens of just war theory. The jus ad bellum and jus in bello principles that apply to the use of force may also apply to espionage. An act of spying, for example, may be morally justified if it is conducted at the behest of a legitimate authority, in pursuit of a just cause, and according to the principles of necessity, discrimination, and proportionality.

But just war theory has limited utility for the majority of espionage cases, including the spy balloon incident. The United States and China, for example, are not at war – at least not in the traditional sense of the term – and it is unclear whether and how just war theory should be applied outside of conflict. (Indeed, there are sound reasons to avoid applying just war theory here, as the moral standards governing conduct in war are typically thought to be more permissive than those governing times of peace.)

A better way to conceive of the ethics of espionage is to adopt a rights-based approach, along the lines that Cécile Fabre has proposed. Fabre argues that states have a moral permission, and at times even a duty, to spy based on the imperative of protecting individual rights. This permission is subject to certain conditions: the act of espionage must be necessary to protect against the violation of fundamental rights, and there must be indications from publicly available sources that such violations are imminent. Intelligence operations are morally justified only insofar as they thwart anticipated rights violations and, even then, spies must not cause more harm than the good they seek to achieve.

What does this mean in practical terms? States will always spy, but they should seek to do so in a way that protects, rather than violates, the fundamental rights of all people everywhere. In an era of artificial intelligence and big data, this is no easy task. But adopting a formal, normative approach to espionage is a moral and strategic imperative. Espionage, like other aspects of foreign policy, must be “values-based” if it is to succeed in countering threats to individual rights and the rule of law.

Image: Abstract representation of spying (via Getty Images). 

The post A Right to Spy? The Legality and Morality of Espionage appeared first on Just Security.

For an expert view of how the U.S. has responded to the conflict and what comes next, Just Security and the Reiss Center on Law and Security at NYU Law have re-assembled a stellar panel. These legal and diplomatic all-stars first put their heads together a year ago during an NYU panel that happened to fall on the day of the invasion. Dan Baer is the Acting Director of the Carnegie Endowment for International Peace’s Europe Program and the former U.S. Ambassador to the Organization for Security and Cooperation in Europe. Tess Bridgeman is Just Security’s Co-Editor-in-Chief, a Senior Fellow & Visiting Scholar at the Reiss Center on Law and Security, and a former Deputy Legal Advisor at the National Security Council. And Rose Gottemoeller is a Lecturer at Stanford University and the former Deputy Secretary General of NATO.

Co-hosting this special episode are Just Security Fellow Paras Shah and Senior Washington Editor Viola Gienger.

Listen to the podcast (transcript available as well) by clicking below.

The post Just Security Podcast: A Year in Russia’s War Against Ukraine: Forging a US Response appeared first on Just Security.

But even after the Committee’s report, there is unfinished business that remains, like how to continue holding those responsible for the attack accountable, and how to address the threat from paramilitary groups like those that attacked the Capitol that day. To discuss the paths forward we have Mary McCord and Andrew Weissmann.

Mary is Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor at Georgetown University Law Center. She previously held senior national security roles at the Justice Department and is a member of Just Security’s Editorial Board. Andrew is also a former federal prosecutor with decades of Justice Department and FBI experience, including a senior role on the team for Special Counsel Robert Mueller.

Listen to the podcast (transcript available as well) by clicking below.

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The Senate passed the bill hours before Ukrainian President Volodymyr Zelenskyy addressed a joint session of Congress. Russia’s illegal invasion of Ukraine has resulted in thousands of potential war crimes by Russian troops against Ukrainian civilians, including attacks on schools and hospitals and extrajudicial killings, torture, and gender-based violence. The House passed the bill the following day.

The bipartisan Justice for Victims of War Crimes Act – which Senate Judiciary Committee chairman Dick Durbin (D-Ill.) and ranking member Chuck Grassley (R-Iowa) introduced in May – would expand the scope of existing laws that Congress passed in the mid-1990s. The legislation’s key provision should bolster efforts to hold alleged war criminals accountable in U.S. courts (see Just Security’s coverage of the Senate Judiciary Committee’s Sept. 28 public hearing on the bill here, and previous analysis by former State Department Legal Adviser Michael Matheson here).

The current War Crimes Act (18 U.S.C. § 2441) permits the prosecution of people who commit war crimes in the United States or abroad, but only if the victim or perpetrator is a U.S. national or service member. However, those who commit war crimes against non-U.S. nationals or service members – including Russian troops in Ukraine – evade prosecution, even if they enter the United States. The draft legislation would close this loophole by allowing prosecutors to try alleged war criminals no matter the nationality of the perpetrator or the victim.

The legislation also removes any statute of limitations and includes a requirement that the Attorney General (or a designee) provide a written certification that prosecution by the United States “is in the public interest and necessary to secure substantial justice.” The Justice Department, State Department, Defense Department, and White House all supported the legislation, which heads to President Biden’s desk for signature.

IMAGE: Balanced weight scale, digital Illustration. (Via Getty Images)

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To unpack the Committee’s final hearing, and the criminal referrals, we have Ryan Goodman, Barbara McQuade, and Asha Rangappa. Ryan is Just Security’s Co-Editor-in-Chief, Barbara is a Professor at the University of Michigan Law School, and she previously served as United States Attorney for the Eastern District of Michigan. Asha is a Senior Lecturer at Yale’s Jackson Institute for Global Affairs and she’s also a former FBI Special Agent. Barbara and Asha are both members of Just Security’s Editorial Board.

The post The Just Security Podcast: The Conclusion of the January 6th Committee appeared first on Just Security.

To discuss what the NDAA says about war powers and civilian protection, and where the legislation is silent, we have Brian Finucane, Heather Brandon-Smith, and Annie Shiel. Brian is a Senior Advisor at Crisis Group and a member of the Just Security editorial board. For a decade, he was a lawyer with the State Department where he advised the federal government on counterterrorism and use of force. Heather is a Legislative Director at the Friends Committee on National Legislation, a nonpartisan organization that lobbies to advance peace, justice, and protecting the environment. Annie is a Senior Advisor at the Center for Civilians in Conflict, CIVIC, which works to develop and implement solutions to prevent, mitigate, and respond to civilian harm.

The post The Just Security Podcast: Civilian Protection and War Powers in the 2023 National Defense Bill appeared first on Just Security.

On Dec. 9, Arizona Senator Kyrsten Sinema announced that she will register as a political Independent, but that is unlikely to impact the power balance in the next Senate. The Democratic majority already includes two Independents who caucus with them — Senators Bernie Sanders of Vermont and Angus King of Maine.

To unpack the many implications of the new Senate majority, we had Andy Wright, a member of Just Security’s Editorial Board and partner at the law firm K&L Gates in Washington, D.C. Andy is an expert on Congressional oversight and previously served in senior legal roles at the White House and on Congressional committees.

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