The intelligence community as a normative actor under international law

How do international law and the intelligence community influence one another? This chapter demonstrates that the relationship between them is bidirectional and mutually constitutive. International law first constitutes a strong permissive tool for the intelligence community. The intelligence community invokes international law to explain, justify, and legitimate its activities, while international law provides legitimation to the intelligence community for many of its activities. Equally, international law constrains the intelligence community through the risk of accountability. In turn, the intelligence community shapes international law when it uses it for political legitimation. Whereas, in the past, the intelligence community remained silent on its practices, at best uttering ‘neither confirm nor deny’, the situation has changed. Forced exposure has triggered a matching need to legitimise intelligence activities through law. The intelligence community is now openly engaging with and interpreting international law, putting forward interpretations that will legitimise its preferred outcomes and empower it to pursue its choices of policies. In doing so, the intelligence community changes the meaning ascribed to international norms. Moreover, when the intelligence community refuses to abide by the rules of the legalism game by not providing a legal justification for its activities, it undermines the status of international legal norms, which may be perceived as less binding by the rest of the international community. For these reasons, the intelligence community acts as a norm-shaper, if not yet a norm-setter.