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53 Colum. J. Transnat'l L. 507 (2014-2015)
Black Holes and Open Secrets: The Impact of Covert Action on International Law

handle is hein.journals/cjtl53 and id is 518 raw text is: Black Holes and Open Secrets: The Impact of Covert Action on International Law ALEXANDRA H. PERINA* Governments maintain secrecy over a range of conduct in order to protect national security, but in no area is secrecy more likely to impact foreign relations and destabilize the international political order than in the use of force. Although the political costs of secrecy are widely discussed, there has been virtually no attention in scholarship to how secrecy influences the law itself This Article considers how secrecy and covert conduct shape the development of international law. Focusing on the area of the use of force, it examines how international law-making processes are affected when a state acts covertly-that is, when a state does not publicly acknowledge its conduct-and that covert conduct comes-partially or fully, accurately or inaccurately-to public light. Despite widespread public perception that covert conduct necessarily violates international law, states act covertly for a range of legitimate political, diplomatic, and strategic reasons. Covert behavior may be-though certainly is not always-consistent with international law. I consider how covert actors' non-engagement in public discourse distorts the landscape of evidence that informs other actors' legal judgments. Where states view their conduct as lawful, acting covertly diminishes their ability to reinforce or develop the law, ceding that ground to third parties. I *Attorney Adviser, U.S. Department of State; 2013-2014 International Affairs Fellow, Council on Foreign Relations. The views presented here are my own and do not necessarily reflect the views of the U.S. Department of State or the U.S. Government. I wish to thank John B. Bellinger, Ashley Deeks, Steven Fabry, Monica Hakimi, Rebecca Ingber, Harold Hongju Koh, Marty Lederman, Amnon Lev, Mira Rapp-Hooper, David Pozen, Philip Spector, and Chuck Sturtevant for their time, comments, and insights at various stages of this project.