By: Asaf Lubin

In a few words, can you tell us about yourself and how you found your way to the academic world? Why choose this area over all others? Did your personal or professional background lead you to it?

I am currently a Cybersecurity Postdoctoral Research Fellow at the Fletcher School of Law and Diplomacy at Tufts. I have a J.S.D. from Yale Law School and am a visiting scholar with the HUJI Cyber Security Research Center. In addition I serve as a Lecturer at Yale University teaching an undergraduate course at Yale University on “Espionage and International Law”, and am also a visiting fellow at the Information Society Project. Prior to my doctoral studies, I completed a dual degree in Law and International Relations (LL.B./B.A., magna cum laude) at Hebrew University of Jerusalem, and a Master’s Degree in Law (LL.M.) at Yale Law School. I also attended the Hague Academy of International Law, and interned for the United Nations International Criminal Tribunal for the Former Yugoslavia. I also worked for the Turkel Public Commission of Inquiry into the Maritime Incident of May 31st 2010, and served as an articled clerk for the International Law Division of the Israeli Ministry of Foreign Affairs Office of the Legal Advisor. During my doctoral studies, I completed a one year Robert L. Bernstein International Human Rights Fellowship with Privacy International, a London-based NGO that works to advance domestic and international policies aimed at strengthening effective privacy protections and data regulations while curtailing illegal surveillance. I have previously written on and taught seminars in public and private international law, human rights law, torts and insurance law, criminal procedure and counterterrorism, international humanitarian law, the laws on the use of force, and international criminal law.

During my military service I worked for one of IDF’s Intelligence Branch’s elite units for intelligence collection and analysis (Sergeant Major (Res.). This is where I got the bug for technology ethics and policy as well as national security and foreign relations law. My work always circles around these topics, which are ever-evolving and of great fascination to me.

What is the main core of your research? Can you give an example or two?

My doctoral research focused on the regulation of intelligence collection and analysis under international law, with particular emphasis on the effects that technological advancements have had on the practice of espionage and the right to privacy in an age of mass governmental surveillance. The Law on Espionage: From Unilateral Agencies to Multilateral Mechanisms Governing the International Law of Intelligence provides a first-of-its kind exploration of the legal framework that governs peacetime intelligence operations. In many respects my doctoral project is an attempt to write the missing textbook on espionage to be added to the grand library of international law. It rejects decades of academic scholarship that had considered spying an extralegal construct, existing at the edge of international legitimacy and beyond the grasp of mortal rules and regulations. My dissertation diametrically opposes this line of argumentation, maintaining instead a sober view of the important functions that intelligence plays in our public world order, further framing these functions within a larger global constitutive process. Whereas certain legal scholars have suggested that those interested in researching espionage and international law should, and I quote, “move on to other projects – with grace,” I gracefully decline their invitation.

Consider the following three examples lifted directly from recent headlines. For each of these examples ask yourself what law applies to the authorization to launch a peacetime inter-state spying operation, to the means employed in the conduct of the said spying, and to legal or physical actions taken in response to such spying once discovered. Should we just accept the positions taken, for example, by the Group of Experts in Tallinn Manual 2.0 that suggests that espionage, at all of these different stages, “is not per se regulated under international law”? Or can we instead formulate actual “rules of the road” that govern the practice: putting into words a neglected set of unexpressed but generally accepted norms and expectations in a process that tries to extrapolate the lex lata while being cognizant of its layers of lex simulata and lex imperfecta?

• An unmanned aerial Iranian surveillance drone enters Israel’s territorial airspace. In retaliation, Israel shoots down the drone with an Apache attack helicopter. Israeli forces proceed to attack 12 targets in Syria, including the drone’s command center and launching pad and three aerial defense batteries. Prime Minister Netanyahu was quick to conclude that “Iran brazenly violated Israel’s sovereignty.” At the same time, however, Israeli surveillance drones, reconnaissance aircrafts, and intelligence satellites have for decades been operating both in and above Syrian and Lebanese airspace.
• China offers a gift to Africa in the form of a new headquarters for the African Union. According to an investigation published by Le Monde, China, which also paid and built the computer network at the headquarters, allegedly inserted a backdoor that allowed it to transfer confidential data from the networks to its own databases. The hack wasn’t detected until five years after the headquarters had opened its doors. In January 2017 technicians noticed that between midnight and 2 am every night, there was a peak in data usage even though the building was empty. After investigating, it was found that the organization’s secret information was being copied on to servers in Shanghai.
• In July 2011 the Guardian concluded an investigation which found that “The CIA organised a fake vaccination programme in the town where it believed Osama bin Laden was hiding in an elaborate attempt to obtain DNA from the fugitive al-Qaida leader's family.” As part of the plot the CIA recruited a senior Pakistani doctor, Dr. Shakil Afridi, to assist in administering hepatitis B vaccination which requires an injection. The CIA ruse triggered backlash against vaccinators across the lawless tribal areas in the Afghan border. They were considered potential spies, and their vaccination program was tainted as a western plot. It led the CIA to issue a public statement whereby it committed itself not to engage in any non-official covers in the future that involved similar vaccination programs.

How did you arrive at this research

Over the summer following my high school graduation, I completed a prestigious intelligence training course. At the same time a large portion of my high school graduating class were placed in combat units and were undergoing boot camp. When we met up over the weekend, they would share stories about how their training involved ethical conversations pertaining to the meaning of taking a life and the use of firearms as it relates to various military rules of engagement. I found it strange that while my friends were engaging in those types of moral and philosophical conversations, in my intelligence course no one was discussing with us the ethics of spying, what it means to interfere with the right to privacy, or what rules and regulations apply to us under either primary or secondary legislation. It has been argued that: “service in the intelligence profession [...] involves doing things that in other times and places most would agree would be horribly immoral.” In all my years of service, not once have I felt like I’ve done anything immoral or illegal – quite the opposite. Entering the profession at the age of 18, I accepted as inherent the “cloak and dagger” nature of the trade and rarely challenged my superiors. I saw each of my assignments as a Rubik’s Cube or a 1000-piece puzzle that I was entrusted with cracking. Once fully immersed in the work, I rarely troubled myself with questions of law or morality. Instead, I focused all of my energies on finishing the task at hand. At times, it felt like occupational therapy. Nor was there much desire to discuss these things, either among the rank-and-file or my commanders. It was only on entering law school that I began to develop the physical stamina and mental capacity necessary to delve into a retrospective review of my service. That was also when I learned how little public international law and international legal philosophy have to say on this subject. It is in this context that my doctoral research has truly been more than ten years in the making, offering me a unique opportunity both to revisit one chapter of my life and to close another.

How has your topic been complicated by cyber

The object of this examination is to understand the arrangements organically devised by the international community for resolving possible conflicts of interest between the spy and the spied, and to highlight the shortcomings of such a system of laws in today’s data-driven world. Cyber-espionage has completely revised the way we conceptualize the practice of intelligence collection, making obsolete the capacity limitations of old, and introducing additional challenges to the regulatory status quo. As the UN High Commissioner for Human Rights had noted: “Declining costs of technology and data storage have eradicated financial or practical disincentives to conducting surveillance. The State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before. In other words, the technological platforms upon which global political, economic and social life are increasingly reliant are not only vulnerable to mass surveillance, they may actually facilitate it.” The idea is therefore that an unregulated system, one in which “states may spy on each other – and on each other’s nationals – without restriction,” justifying their behavior through the argumentum ad hominem of “tu quoque” – is becoming more and more unsustainable because of cyber capacities. 

What is the solution you propose

The framework proposed is a diagnosis of intelligence operations at three distinct temporal stages – before (Jus Ad), during (Jus In), and after (Jus Post) following the traditional structures of international law and Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model is an appropriate choice given the unique symbiosis that exists between espionage and traditional U.N. Charter principles, including the prohibition on the use of force and state monopoly over violence. 

• First I introduce the Jus Ad Explorationem (JAE): a sovereign’s prerogative to engage in peacetime espionage. In this section I assert the existence of a derivative liberty right to spy (in Hohfeldian terms) by analyzing a plethora of international legal sources, all of which explicitly or implicitly require the gathering of intelligence as a necessary prerequisite for the functioning of the broader legal system. Acknowledging the existence of the JAE is important, as it allows us to begin sketching the justifications for spying and thereby draw the very limits of the practice – those cases in which the right to spy may be abused by serving illegitimate purposes. Finally, the last portion of this section moves the discussion to the complicated and often-ignored issue of the delegation of the right to spy, examining the legitimacy of both upward delegation (to international organizations) and downward delegation (the privatization of espionage).
• I then shift the focus to the Jus In Exploratione (JIE): the law governing the choice of means and choice of targets employed in the conduct of spying. If the initial analysis cast the spotlight on the propriety of the operation’s objectives, the consecutive inquiry turns to the propriety of the operation’s tactical core, the adoption of particular measures and methods throughout the mission’s life cycle. To make determinations as to the legality of the JIE, prudent international lawyers will be guided by a collection of basic principles which form the substratum of our international legal order: Rule of Law, Good Faith, Proportionality, Effectiveness, Fairness, and Comity. Together these six principles introduce a set of constraints on a State’s margin of appreciation in selecting specific surveillance techniques and reconnaissance marks. The section concludes by applying these standards to an array of controversial contemporary and future-oriented intelligence gathering and intelligence sharing and cooperation practices, including in the areas of human intelligence collection (HUMINT), signal intelligence collection (SIGING), visual intelligence collection (VISINT), and open-source intelligence collection (OSINT).
• Finally, I discuss the Jus Post Explorationem (JPE): the law triggered after the intelligence operation has come to an end. The JPE is comprised of two separate but intrinsically connected components of the International Law of Intelligence (or ILI): its prescription process and accountability mechanisms. The section begins by identifying the existing constraints on two primary rudiments of prescription and accountability: transparency and access to justice. I show the way in which these rudimentary restrictions directly impinge on the evolution of the JPE. For the prescriptive process, the section illustrates how incidents of international espionage, when exposed, become fertile ground for constitutive elucidation, especially where formal codification proves unlikely. This unique regulatory reality forces traditional rule appliers and rule agitators (courts, academia, and civil society) to take a more profound role as rule prescribers. Moving to ILI’s accountability mechanisms, the section examines the role played by both informal mechanisms (surveillance diplomacy, internal and external oversight, and the shadow of courts) and formal mechanisms (state responsibility and individual criminal liability) in managing ILI’s quality control.

What is the next step in your professional/personal life:

I have recently started a two-year postdoctoral cybersecurity research position at the Fletcher School of Law and Diplomacy at Tufts University. At the end of this program I plan on going in the academic job market in the hopes of beginning my professional academic career.

A Final Statement

Cicero once said that “when the cannons roar, the muses are silent,” suggesting that war can never be the subject of manmade regulations. Yet the drafters of the Geneva Conventions and Additional Protocols proved Cicero wrong. They erected a set of laws, not perfect by no stretch of the imagination, but articulable nonetheless. I am constantly baffled and amazed by this human endeavor, which attempts to regulate what was once presumed to be unregulatable, establishing rules and norms in the chaos of war and logic and order in the madness of conflict. This bewilderment is also the source of my academic curiosity and passion,, and stands at the heart of my scholarly research to date. I respond to those who argue that cyberwar and espionage could never be regulated, in the same way that the Geneva Conventions drafters responded to Cicero. I am reminded by the eternal words of Lord Alfred Tennyson in his poem “Locksley Hall” (1835):

For I dipt into the future, far as human eye could see,

Saw the Vision of the world, and all the wonder that would be;
 

Saw the heavens fill with commerce, argosies of magic sails,

Pilots of the purple twilight dropping down with costly bales;
 

Heard the heavens fill with shouting, and there rain’d a ghastly dew

From the nations’ airy navies grappling in the central blue;
 

Far along the world-wide whisper of the south-wind rushing warm,

With the standards of the peoples plunging thro’ the thunder-storm;
 

Till the war-drum throbb’d no longer, and the battle-flags were furl’d

In the Parliament of man, the Federation of the world.
 

There the common sense of most shall hold a fretful realm in awe,

And the kindly earth shall slumber, lapt in universal law.