Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis

This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the “ticking time-bomb” hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their “extra-legal measures.” On the other hand, others argue that the embrace of “extra-legal measures” misconceives the rule of law, underestimates the capacity of a constitutional order to deal with crises, and overestimates the ability and willingness of skittish publics to reign in officials. These two positions have recently become identified with the works of Oren Gross and David Dyzenhaus, respectively, although the debate is, of course, far older than these agonists of post-September 11 constitutionalism. As Dyzenhaus acknowledges, the question of whether the response of the executive in emergencies is constrained by law was an argument that Victorian jurist A.V. Dicey had with himself a century ago; Gross traces the essence of his own argument back two centuries further to John Locke’s theory of prerogative power.