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I. INTRODUCTION
A recurring question regarding operational law is whether surreptitious spying in another nation's territory is "illegal." The cases raising this question involved no sabotage or other destructive acts, but simply the collection of information through various surreptitious, intrusive means inside a foreign nation's territory without that nation's knowledge or consent. Several highly classified legal reviews of such intelligence collection operations, performed at the highest levels in the Department of Defense, stated essentially that the operations were illegal and were undertaken at the risk of the personnel or units involved.1 This nonsupportive, almost hand-washing kind of approach fails to state exactly what law such spying violates. While possible answers include United States domestic law, international law, or the law of the target nation, a close analysis does not support any of these.
United States domestic law does not prohibit nondestructive, surreptitious intelligence collection and, in fact, affirmatively supports it.2 The United States is not a party to any treaty or agreement that prohibits surreptitious, nondestructive intelligence collection. Such intelligence collection also does not violate customary international law. In fact, customary international law has evolved such that spying has become the long-standing practice of nations. Indeed, while the surreptitious penetration of another nation's territory to collect intelligence in peacetime potentially conflicts with the customary principle of territorial integrity, international law does not specifically prohibit espionage.
Conversely, surreptitious intelligence collection in another nation's territory probably violates the target nation's domestic law just as espionage against the United States violates United States domestic law.3 However, the fact spying on other countries violates their law is far different from the assertion that the activity itself is illegal, as if some skulking shame of criminality were attached to the enterprise. Our spies are patriots. They take the risk of target country detection and punishment for espionage as a basic tenet of their trade, but the United States is under no legal obligation, domestic or international, to refrain from engaging in espionage. High levels of security classification for information relating to espionage operations are appropriate to help ensure the success of the operations, but not because we need to cloak illegal activity in code words while we wink and nod in furtive staffing conspiracies.
No international convention has ever...