Roundtable 12-8 on In the Shadow of International Law: Secrecy and Regime Change in the Postwar World.59 min read

Researching covert action is not easy.  States pursue such operations to influence events without revealing their handiwork.  Doing this successfully requires limiting the number of officials in the know, and enforcing secrecy measures to avoid leaving an incriminating paper trail. The documentary record is deliberately porous as a result, which complicates any effort to test theories about the logic of covert action.  Nonetheless, creative and enterprising scholars have produced a number of excellent studies in the last few years, proposing new arguments about the causes of covert intervention, and the effects on international politics.[1]

H-Diplo | ISSF Roundtable XII-8

issforum.org

Michael Poznansky.  In the Shadow of International Law: Secrecy and Regime Change in the Postwar World.  New York: Oxford University Press 2020.  ISBN:  9780190096595 (hardback, $49.95).

5 February 2021 | https://issforum.org/to/ir-12-8
Editor: Diane Labrosse | Commissioning Editor: Joshua Rovner | Production Editor: George Fujii

Contents

 

Introduction by Joshua Rovner, American University

Researching covert action is not easy.  States pursue such operations to influence events without revealing their handiwork.  Doing this successfully requires limiting the number of officials in the know, and enforcing secrecy measures to avoid leaving an incriminating paper trail. The documentary record is deliberately porous as a result, which complicates any effort to test theories about the logic of covert action.  Nonetheless, creative and enterprising scholars have produced a number of excellent studies in the last few years, proposing new arguments about the causes of covert intervention, and the effects on international politics.[1]

To that list we can add Michael Poznanksy’s new book, In the Shadow of International Law: Secrecy and Regime Change in the Postwar World (Oxford, 2020).  Poznanksy seeks to explain why U.S. policymakers chose covert regime change instead of military invasion.  His answer: they did so when international law could not justify going to war.  According to Poznanksy, the United States worked hard to craft a rules-based international order during the Cold War, and one of the most important rules was the prohibition on interference in other states’ domestic affairs.  Thus when U.S. leaders sought to intervene abroad, they looked for legal exemptions that would allow them to justify their actions and deflect charges of hypocrisy.  They took global opinion seriously and frame their actions within the confines of international law.  Only when this is impossible did they turn to covert action.  Paradoxically, their respect for the law caused them to break it.

The reviewers to this forum praise Poznansky’s book for his intriguing theory and detailed historical analysis.  The book is particularly impressive in its ability to weave together disparate literatures in a way that will interest intelligence historians, foreign policy analysts, legal scholars, and IR theorists.  This is no small feat, especially considering the inherent difficulty in studying covert action.  Ryan Scoville describes the book as “thoroughly researched, well-written, thoughtfully designed, and intriguing.” Austin Carson calls it “a must-read book for those who are interested in secrecy, international law, and how great powers navigate the rules of the international game.” Stephanie Carvin applauds the book for illustrating how norms about intervention and concerns about legitimacy affected even the most hardened Cold Warriors.  Jon Lindsay writes that Poznansky’s approach is “counterintuitive and inspired.”

Although the reviewers find much to like in Poznansky’s analysis, they also raise a number of empirical and theoretical questions. Two stand out.  One has to do with Poznansky’s choice to focus on a small number of U.S. interventions in Latin America during the Cold War.  Carson and Lindsay both question whether this is a sufficiently hard test of the theory, and Carvin asks whether the theory is generalizable.  To his credit, Poznansky anticipates these critiques and offers brief analyses of post-Cold War cases in Libya, Syria, and Venezuela.  In his response, he also notes that scholars have long criticized the Untied States for crude imperialist practices in Latin America.  Given this premise, it is puzzling that they would ever feel the need to hide their activities.

The second question is about the underlying drivers of covert action.  Scoville notes that leaders view international law through the filter of their own expectations, hopes, and biases.  This suggests that the law itself is secondary to their own preferences, and subject to self-serving interpretations.  Carson also suspects that “motivated reasoning, diplomatic reporting, and folk theories among policymakers explain most regime change decisions.” And Lindsay’s close reading of the case studies leads to a different conclusion.  Although states may worry about international law and seek to avoid charges of hypocrisy, their decision on whether and how to intervene ultimately depends on the stakes.  When the value of regime change is high, they intervene with force.  When the value is lower, they choose covert action.  “In short,” he writes, “covert action is what states do when they do not care enough to send the very best.”

Lindsay notes that this observation does not mean that international law is irrelevant.  Instead, he suggests that further research could highlight the conditions that make international law more or less constraining.  The other reviewers also see in Poznansky’s book the seeds of continued research on secrecy, strategy, and law.  Carvin argues that it provides a promising framework for analyzing new technologies, particularly drones and malware, that blur the line between covert and overt intervention.  And to Carson, the book begs the question about the long-term effect of policies designed to skirt international norms.  Just as historians can use Poznansky’s theory to understand the postwar history of covert action and regime change, analysts can turn to it as they wrestle with current dilemmas.

Michael Poznanksy is an assistant professor of International Affairs and Intelligence Studies in the Graduate School of Public and International Affairs at the University of Pittsburgh.  During the 2020-2021 academic year, he is also a U.S. Foreign Policy and International Security Fellow with the Dickey Center at Dartmouth College and a Non-Resident Fellow with the Modern War Institute at West Point.  His research has been published or is forthcoming in the American Journal of Political Science, European Journal of International Relations, International Studies Quarterly, Journal of Global Security Studies, Journal of Peace Research, and Journal of Strategic Studies.

Joshua Rovner is associate professor in the School of International Service at American University, and the managing editor of ISSF.

Austin Carson Assistant Professor of Political Science at the University of Chicago.  He is the author of Secret Wars: Covert Conflict in International Politics (Princeton University Press, 2018) and co-author of Secrets in Global Governance: Disclosure Dilemmas and the Challenge of International Cooperation (Cambridge University Press, 2020), with Allison Carnegie.  His research has also appeared in International Organization, American Journal of Political Science, and Security Studies.

Stephanie Carvin is an associate professor at the Norman Paterson School of International Affairs, Carleton University.  She holds a PhD from the London School of Economics and published her thesis as Prisoners of America’s Wars: From the Early Republic to Guantanamo (Columbia University Press/Hurst, 2010).  She is the author of the forthcoming: Stand on Guard: Reassessing Threats to Canada’s National Security (University of Toronto Press, 2020).  She is also the co-author of Science, Law, Liberalism and the American Way of Warfare: The Quest for Humanity in Conflict (Cambridge University Press, 2015), with Michael J. Williams.  In 2009 Carvin was a Visiting Scholar at George Washington University Law School and worked as a consultant to the U.S. Department of Defense Law of War Working Group.  From 2012-2015, she was an intelligence analyst with the Government of Canada focusing on national security issues

Jon R. Lindsay is an assistant professor at the Munk School of Global Affairs and Public Policy and in the Department of Political Science at the University of Toronto.  He is the author of Information Technology and Military Power (Cornell University Press, 2020).

Ryan Scoville is an associate professor at Marquette University Law School and a managing editor for AJIL Unbound.  He teaches and writes on U.S. foreign relations law and international law.

 

 

Review by Austin Carson, University of Chicago

Michael Poznansky’s In the Shadow of International Law is a significant achievement.  It is creative, well-written, and timely.  The book is both theoretically innovative and empirically rich.  It combines big ideas and small but keen insights.  In short, Poznanksy has written a must-read book for those who are interested in secrecy, international law, and how great powers navigate the rules of the international game.

Poznansky’s central argument is that the United States shifted its approach to regime change in response to changes in international law.  He argues that the rise of a codified norm against intervention in domestic political affairs – and Washington’s critical role in that development – led the U.S. to increasingly embrace covert methods of interference abroad.  Overt methods can still be useful if legal exemptions to the prohibition on intervention apply.  Most broadly, Poznansky makes the case that the costs of hypocritically violating international law constrain how a major power approaches regime change, often leading to the embrace of backstage approaches.

Poznansky assesses the theory’s observable implications in an interesting set of case studies of intervention in Latin America during the Cold War.  The empirical work in the book allows for fascinating comparisons.  The reader can see how international law both alters how overt regime change is justified (e.g. Dominican Republic; Grenada) and in other cases rewards the use of covert methods (e.g. Cuba; Chile). The use of primary materials to assess internal deliberations makes these strong case studies.  The regional focus on Latin America provides important insight into cases that sometimes get overlooked.

The book makes two primary contributions.  First, it further establishes the study of covert and secret state behavior as a flourishing research program in international relations while also bringing a much-needed focus on international law.  Poznanksy’s In the Shadow of International Law is the third book to be published on covert activity in the last five years.[2] Past work, including my own, tends to focus on strategic and practical concerns to explain why leaders may prefer secretive policy tools.[3] Poznansky’s focus on legal issues brings two otherwise distant communities – IR scholars whose work is secrecy-related and those who study international law – into direct conversation with benefits for both.  Scholars of IR can learn how international law has more nuanced effects on state behavior.  Governments do not simply decide to reject (violate) or accept (comply) its strictures but adapt to it.[4] Legal prohibitions can channel and alter unsavory foreign policy by pushing it into the shadows.  At the same time, scholars of international law can see its effects in a surprising place – but also are reminded that assessing international law’s effect on governments will be dangerously biased if covert maneuvers are ignored.[5]

A second contribution of In the Shadow of International Law is its lessons about what makes the international order durable.  Scholars have long recognized that international institutions and rules are sticky and may provide long-term benefits to powerful states.[6] But the world changes.  Poznansky’s book shows how the rules of the game created after World War II are less sacrosanct than they appear because of hidden violations and clever use of legal exemptions.

In a world without secrecy, the United States would have attempted regime change during the Cold War in open violation of the noninterference principle.  Secrecy, in this way, might have provided breathing space for a hegemonic power to protect an order it created even as it hypocritically violated some norms and laws of that order.  While Poznansky’s book primarily focuses on international law’s effect on discrete intervention decisions, a larger finding is that regime change suggests one way in which secrecy and international order are strange bedfellows.[7]

For Poznansky, the relationship between the law and how states use secrecy is more complex than readers may initially think.  A simplistic version of the thesis would argue that American leaders should uniformly have shifted away from overt regime change after the United Nations Charter enshrined nonintervention in 1945.  Yet we know that the United States has, at times, embraced overt approaches to altering foreign governments.  To address this variation in regime change methods, In the Shadow of International Law advances a subtler claim: overt regime change remains useful if the rule doesn’t apply. Thus, exemptions to international law play a surprisingly important role in the book.  In practice, exemption applicability – rather than international law in general – is the central independent variable in Poznansky’s theory.  This means American foreign policy advisors often appear to spend as much time assessing whether a proposed policy comports with an exemption as they do fretting over the consequences of violating the law. It is worth being clear that there is an important lesson here: norms and legal rules have their effect not only in blind obedience or “unthinkability,” but also in social actors’ creative efforts to avoid explicit and overt violation.[8]

But the emphasis on legal exemptions does raise some tricky issues for Poznanksy’s theory and empirical analysis.  Poznansky notes three exemptions: states may intervene to change a regime in order to protect their citizens abroad; they may do so with an international organization’s blessing; or they may do so if invited by the host government. The basic problem is that such excuses seem all too easy to find.  The Soviet invasion of Afghanistan in 1979, which was treated in the West as a naked invasion, was technically undertaken at the invitation of Kabul’s leaders.  Forum shopping among the array of regional international organizations can exempt a regime change attempt.  States that are concerned about legal complications need only look to the Organization of Eastern Caribbean States or another obscure body.  Most problematic is the exemption for protecting citizens.  One of Poznanksy’s case studies of overt intervention – Grenada in 1983 – was justified by citing the need to protect fewer than 1,000 Americans living on the island.  Other than places like North Korea, which countries do not have sufficient numbers of diplomats and private citizens to provide legal justification for an American operation?

Poznansky recognizes the flexibility of exemptions (what he calls the issue of “clever lawyers”).  He reasonably points out that contrived excuses for overt regime change may lack credibility; this will not insulate a great power from charges of hypocrisy, which is a critical mechanism for his theory (47-49).  Yet this may simply kick the analytical can down the road.  What counts as contrived rather than legitimate?  A regime change’s legal credibility may appear to be very different in the eyes of allies, adversaries, neutral third parties, and non-state actors.[9]  Which do American leaders use as benchmarks for exemptions?  To put it concretely, why did Reagan administration officials think medical students in Grenada or their other justifications were credible, especially given the vote against the invasion in the United Nations General Assembly (195-196)?[10]

My sense is that motivated reasoning, diplomatic reporting, and folk theories among policymakers explain most regime change decisions.  In this way, law is not so important.  What ultimately matters is leaders’ expectations – imprecise, uncertain, and shot through with their own policy preferences – about the international reaction to overt versus covert regime change. Cautious policy advisors can oppose overt regime change by claiming allies and third parties will see an exemption as a pretext or believe it sets a dangerous precedent.  This reasoning appears in Poznansky’s interesting chapter on Cuba.  Hawkish advisors, however, could look at the same facts and predict sympathetic reactions.  Ambiguity about reactions to exemptions could limit what we can learn about future cases of regime change.  Suppose, for example, that Washington considers regime change in Yemen in 2022.  How does one know whether policymakers will expect a hostile or friendly reaction to a claim that intervention is legal?  How might they predict the response to claims about protecting American nationals who are in danger, or to an endorsement by the Gulf Cooperation Council?  Regardless, a promising direction for future research is reactions to legal exemptions and precedent as well as how leaders shape those reactions.

One strength of In the Shadow of International Law is careful engagement with alternative explanations.  This includes one I have developed in my own work focused on conflict escalation dynamics.[11]  Poznansky convincingly reduces the relevance of escalation concerns by focusing on a phenomenon (peacetime regime change) and a region (Latin America) where fears of a hot war and hard-to-control escalation are more distant.  I find it plausible that international legal concerns play an important role when thinking about overt and covert options in these situations.  Yet the costliness of modern war may enter even these legal debates, albeit indirectly.  There is a compelling argument that principles of nonintervention and sovereignty are a product of leaders seeking to control and avoid major power wars.  The epic scale and destructiveness of the Napoleonic Wars had a profound impact on European monarchs, leading them to embrace a partial form of nonintervention in the Concert of Europe system.[12]  World War I led to efforts to ban military aggression altogether.[13]  Bolstering nonintervention via the United Nations Charter was, in part, an attempt to raise barriers to the kind of militarized aggression that Nazi Germany and Imperial Japan waged against weaker states.[14]  The specter of wartime escalation is present even in places that have not experienced it first hand.

Poznansky’s goal in his book is not to explain why the nonintervention principle emerged and ended up codified.  Given that the reason a legal principle emerges might shed light on the purpose of avoiding its violation, however, it is a fair question.  Realist skeptics of the power of international law, after all, may dismiss Poznansky’s thesis and the legal twists and turns in U.S. regime change planning as epiphenomenal to geopolitical calculations.  My own hunch is that fear of opening the lid on major power war is one reason that American (and previous) leaders value nonintervention.  The value Washington seems to have found in using secrecy to avoid violating nonintervention, then, derives from the value in avoiding major war.

In the Shadow of International Law points the way to several promising directions for future research.  Given the book’s scope conditions, it remains an open question how international law shapes decisions about regime change for other kinds of states.  Washington is something of a “most likely” case for hypocrisy to matter given its clear hand in crafting the principles and institutions of the modern international order.  Yet a country like China is a rising global power with a complicated relationship to international law and nonintervention in particular.  How do its leaders think about openly violating the law?  How would they view legal exemptions?  Similar questions arise for regional powers or weaker states.[15]  Are concerns about hypocrisy regarding international law or norms relevant for, say, South Africa and changing a neighbor’s regime in Cold War Southern Africa?  Finally, Poznansky’s theory reasonably abstracts from individual leader differences.  Yet work by Keren Yarhi-Milo on reputation suggests that leaders vary in their sensitivity to factors that are similar to hypocrisy.[16]  Future work might explore how dispositional differences influence concerns about international law and the use of secrecy.[17]

Another promising direction for research would keep the focus on international law but loosen the assumption that it is fixed.  A logical alternative to using secrecy or citing existing exemptions to avoid hypocrisy is to try to change the law itself.  Why hide what you can make legal?  If a state is consistently constrained by international law, it may try to modify – through practice, argumentation, or otherwise – the very meaning of exemptions.  How might leaders who regularly consider regime change or other potentially illegal acts foster new justifications or revise existing exemptions?  Can we think of the rise of the Responsibility to Protect norm in these terms?  Moreover, does cloaking state behavior in secrecy affect its ability to shape the evolving understanding of international law?

Finally, Poznansky observes that, beyond individual cases, a broad pattern of using covertness to avoid legal violations helps protect a legal order.  This insight points to a third avenue for future research: the aggregate and even unintended effects of state and non-state uses of secrecy. Most studies to date, including much of my own work, have focused on specific leaders using secrecy for specific purposes in discrete episodes.  Far less scholarly attention has been given to how patterns and habits of concealment or revelation add up or for their unintended consequences.  In our co-authored work, for example, Allison Carnegie and I draw on sociology and psychology research about the aggregate invisibility of everyday norm and law violations to understand when one state might hide the violations of another to avoid a cascade of violations.[18] Future work might assess how repeated uses of secrecy affect the durability of balances of power, the resilience or fragility of broad trends in domestic regime type, or influence system-wide technological change like cyber warfare. Future work might also look at how the aggregate use of secrecy produces a set of covert-specific norms and conventions, as seem to be the case in terms of the way in which modern states conduct espionage.[19]

One important measure of any book’s success is its capacity to inspire new lines of inquiry.  This is another reason that In the Shadow of International Law is a success.  Its argument and evidence are fertile ground for others to move ahead, deepening the study of secrecy and legality in international politics.

 

 

Review by Stephanie Carvin, Carlton University

Cicero famously wrote that ‘in times of war the law is silent.’ Does this also apply to covert action?  The thesis of new book by Michael Poznansky, In the Shadow of International Law: Secrecy and Regime change in the Postwar World, makes it clear that international law does matter, at least in the minds of American leaders.  Indeed, the central thesis of the book is that the United States is sensitive to “the erosion of credibility and trust accompanying brazen violations of nonintervention… because of its commitment to a rule-based order” (58).  Therefore, whether the U.S. chooses to engage in covert or overt operations, international rules matter; it is only when there is no viable legal justification that political leaders turn to covert action to maintain plausible deniability – effectively an attempt to try to avoid hypocrisy costs.

For those who currently work in the policy world, the important role of international law in decision making will probably not be a surprise.  In most Western militaries, clandestine services, and foreign affairs departments, it is hard to swing your arms without finding a lawyer – a tendency that has only increased since the 1980s.  But Poznansky’s argument is unique in that it is situated in the realpolitik of the Cold War, before lawyers were truly established in the war room.  Instead, he makes it clear that figures like National Security Advisor and Secretary of State Henry Kissinger were concerned with legitimacy and the costs of violating international law, even as they sought to curtail Communism throughout the world in some very morally dubious ways.

For a field that is still very much influenced by the role of power in international politics, this is an important reminder that norms and ideas matter, even in a deeply rooted superpower rivalry.  Indeed, Poznansky argues convincingly that perceptions of U.S. legitimacy were more important than concerns about escalation with the Soviet Union or domestic factors when American leaders were deciding whether to choose covert or overt intervention.  Given that clandestine actions often lend themselves to explanations that are rooted in notions of power and/or cynicism, this is a significant finding.

That said, there are a number of areas where the author could have added more – or clarified the limitations of his argument. In the first instance “regime change” is a very high bar for thinking about covert action.  ‘Meddling’ (for lack of a better word) may very well be a more common activity.  This includes information operations, financing of select partners, strategic loans and agreements, etc.  The author should have better differentiated types of covert action, and/or explained the choice of such a high bar for his study.  Future work in this area could certainly examine less dramatic forms of covert action to see if the theory holds, or if it needs modifications.

Second, the choice to focus only on Latin America is a limiting one.  In some ways the area is important, as it is seen as being within the backyard of the United States.  But to what extent does this apply beyond areas which are not subject to the Monroe Doctrine?  To be fair, Poznansky does acknowledges this choice as the product of availability of records, and what we can reasonably expect from one book.  Additionally, he tries to show that his theory applies to cases in the post-Cold War era, including Libya, Syria, and perhaps even Venezuela.  Still, this reliance upon four case studies in one limited area of the world during a short period of global bi-polarity raises questions about the generalizability of Poznansky’s theory.

Finally, Poznansky should be clearer that this is not a book about regime change and covert action generally, but a theory of U.S. foreign policy.  Yet, he often refers to great powers and other states, which suggests that his argument applies to more than just the United States.  Late in the book he acknowledges that it may not apply to other Western counties (213).  He notes that this work may apply to the United Kingdom, but it is not clear that it travels any further.

Nevertheless, Poznansky’s book is important in that it shows how U.S. policymakers actually think about and use international law when making major foreign policy decisions. Contrary to those who may think that international law it is used as a cynical post-facto justification, or that it does not factor in at all, Poznansky clearly demonstrates that it is central in these discussions.

At the end of the book, Poznansky notes some really intriguing ideas for future research. In particular, he notes how technology (especially drones and cyber warfare) is changing the nature of covert and overt activities.  This may change the cost/benefit calculations that he traces in his book, therefore impacting future covert/overt missions in the future.  And it raises a number practical policy questions. Why does the Department of Defense conduct more-or-less overt drone strikes, for example, while the Central Intelligence Agency conducts them covertly?  Will states choose to keep their cyber operations overt, if there are no established norms for cyberspace there are reduced costs to being seen as hypocritical? Or will they operate covertly, because they do not want to undermine the development of norms that will contribute to a free and safe internet?  (215-216).  Fortunately, Poznansky has provided us with an important framework to think about these issues.

 

 

Review by Jon R. Lindsay, University of Toronto

Michael Poznansky’s book is a welcome contribution to the burgeoning study of secret statecraft in international relations (IR).  It should be read together with recent outstanding books by Austin Carson[20] and Lindsey O’Rourke.[21]  All of them make original arguments about understudied phenomena using newly available archival material.  Yet while Carson’s work explores the ambiguous signaling dynamics of covert action, and O’Rourke explains why covert action so often fails in practice, neither fully explain the peculiar relationship between democracy and covert action.  This relationship is important because the world’s most famous democracy, the United States, has often interfered in foreign politics in disturbingly nondemocratic ways.  It would be easy to conclude that the United States is simply behaving hypocritically, as any cynical realist might expect, but Poznansky argues that the truth is more complicated.  Democracy may be precisely what makes covert action attractive in the first place.

Poznansky brings a clear argument, backed up with rich evidence, to a problem of growing importance in global politics.  Indeed, his decision to put front and center the relationship between covert action and international law is both counterintuitive and inspired.  It is counterintuitive because subversion and sabotage seem like the antithesis of legitimate behavior.  It is inspired because it locates illegitimate behavior at the heart of enduring debates in IR.

To make a gross generalization, classical liberalism in IR is preoccupied with peace through law while realism focuses on conflict outside the law.  Yet intelligence and covert action occur in the ‘gray zone’ between peace and war, with an ambiguous relationship to shared norms of conduct.  One implication is that any understanding of secret statecraft must combine insights from both paradigms.  Liberals expect states to be constrained by international law while realists expect them to ignore it in the pursuit of power.  It stands to reason that phenomena in the gray zone should also have an ambiguous relationship to international law.  Poznansky’s key insight here is that covert action simultaneously violates international law, as realists would expect, while also being constrained by it, as liberals would expect.  Even if one does not agree with all Poznansky’s arguments in detail, and I raise a few questions below, his book does shine needed light on the essential, indeed constitutive, relationship between overt norms and covert action.

Substantively, the book focuses on a subset of secret statecraft, “the use of covert action to overthrow foreign regimes” (2), even as its insights are more general.  More specifically, Poznansky focuses only on the decision to act covertly, leaving aside questions of its effectiveness.  His model assumes that states decide on regime change first and then decide how to effect that change—covertly or openly—depending on the availability of legal exemptions to the international norm against foreign intervention.  He then argues that states are reticent to openly violate this norm because they worry about their reputations for credibility or hypocrisy with international audiences.  This assumption is plausible, insofar as the justification for having shared norms in the first place falls apart without it.  Poznansky considers but rejects other motivations for covertness, including escalation control, democratic audience costs, and nationalist backlash.  He then tests these alternatives in four cases of U.S. intervention in Latin America during the Cold War—two covert and two overt.

The competing theories and the evidence for and against them are nicely summarized in tables on pages 76 and 205.  Detailed process tracing offers nuanced evidence for his mechanisms, for example by showing how some aspects of overt intervention (in the Dominican Republic and Grenada) were conducted discretely if not covertly whenever they were not fully covered by an ostensible legal justification—regime change was often a tacit objective aside the avowed mission to protect American nationals.  Poznansky’s tidy research design is a model of clarity, making it easy both to follow the argument, and to identify a few points of disagreement.  This is a good thing.  The cases are also packed with enough detail to enable the reader to consider a few additional explanations.  This is also a good thing.  It is only on the basis of a clear theoretical framework and detailed empirical evidence that I am able to note three minor quibbles and raise one more substantive question.

First, Poznansky limits his scope to Latin America based on an assumption that the United States enjoyed more freedom of action in its backyard, and thus would have less reason to be covert.  It is not obvious, however, that this is really a hard test.  When actors have to live in the same neighborhood, clear expectations of behavior and norms of good conduct are very helpful for keeping the peace, even when there are huge power differentials.  Although the United States did intervene in the region frequently in the nineteenth and early twentieth century, this was during a period of hegemonic consolidation.  Once the region had been incorporated into an informal American imperium, it is plausible that adherence to democratic norms within it might be even more, not less, desirable not less.  This criticism does not harm Poznansky’s overall argument, however, and, if anything, makes the overt interventions more exceptional than the covert ones.

Second, although the sequencing of decision is useful for analytical clarity, it is not easy to distinguish the decision to intervene and the decision to intervene covertly in every case.  On the contrary, states might be more willing to contemplate regime change precisely because they have a viable covert option available.  This possibility looms large in Poznansky’s case study of Operation Zapata, the plan to oust Cuba’s Fidel Castro that resulted in the Bay of Pigs fiasco.  Poznansky notes that “Decision makers discovered that secrecy works based on earlier efforts at covert regime change throughout the 1950s such as the operations against [Mohammad] Mossadegh in Iran in 1953 and [Jacobo] Arbenz in Guatemala in 1954” (109).  He might also have added the completion of the Berlin tunnel in 1955, the first operational flights of the U-2 spy plane in 1956, the first Corona satellite in 1960, and several other CIA milestones.  Put simply, the CIA under Allan Dulles was on a roll.  The agency’s successful track record up to that point made covert action especially tantalizing.  This same bias encouraged policymakers to discount the risks involved.  Any decision to buy depends on both the buyer’s valuation of the good and the sale price.  If American policymakers were indeed not willing to remove Castro at any price (as discussed below), then the decision to intervene required the availability of an option that seemed affordable (ignoring hidden costs).

Third, and related, it is not obvious that leaders are simply choosing different modes of doing the same thing when they opt to intervene overtly or covertly.  It is striking that both of Poznansky’s overt cases—Operation Power Pack in the Dominican Republic and Operation Urgent Fury in Grenada—were responses to sudden crises.  Intervention in the former occurred within less than a month and in the latter within days.  The covert cases by contrast—Cuba and the overthrow of Allende in Chile—were more drawn out affairs. Castro and Allende were years-long term problems for the U.S. government, in the Cuban cases spanning two different presidential administrations.  The first two reacted to a sudden change in the regional status quo, while the last two aimed to change the status quo (or revise it to prior state).  These involved different decision-making processes: the first two were cases of crisis planning while the last two were cases of deliberate planning.  Again, this difference does not necessarily undermine Poznansky’s general argument and may actually support it, insofar as there are more likely to be legal exemptions available in crisis scenarios (where the intervention will re-establish the rule of law) than in discrete subversion (where the intervention will violate it).

If covert and overt intervention are not strict substitutes, then we should not assume that an overt effort would be more effective than a covert one.  Big overt interventions can fail—as Vietnam, Iraq, and Afghanistan make painfully clear—and small covert nudges can succeed, especially if they aim merely to throw an election or support a coup rather than conquer a country.  There is, nevertheless, good empirical evidence that overt regime change efforts are more likely to be successful than covert intervention.[22] It is puzzling that any state would choose an option that is more likely to fail.  Poznansky seeks to solve this puzzle through an appeal to international law, and he marshals persuasive evidence that decisionmakers do indeed take the law—and the reputational consequences of openly flouting it—seriously.  However, if crises force states to act quickly or for different reasons, then this explanation is incomplete.

This brings me to my broader concern with the argument.  The book gives insufficient attention to the relative political stakes of any given intervention.  Some threats and outcomes will be more important to policymakers than others.  One reason that overt intervention may be more successful is that states are more likely to intervene openly when they really care about the outcome.  If they are less resolved on a particular outcome, then they can afford to gamble on covert action.  Covert action often comes with hidden costs that only become apparent later (coordination failure, principal agency problems, blowback, etc.), but these are not necessarily relevant to the decision to intervene.  It is not surprising that exemptions should be available in international law for situations in which a state’s vital interests are engaged, including the violation of its territorial integrity or the physical safety of its citizens.  A true hard test for the theory would involve vital interests without legal exemptions.  Yet it is hard to think of a high-stakes historical case in which a state opted for covert action over a more effective overt option.  Instead, the attractiveness of covert action may vary inversely with the stakes.

Poznansky’s covert cases actually offer support for this interpretation.  In the Chile case, policymakers observed that “balance of power would not be considerably altered by an Allende government,” and even Soviet leverage of Chile “would not constitute a mortal threat to the United States” (116).  Kissinger’s top Latin Americanist argued that “the impact of a Marxist state in the rest of Latin America is containable” (117).  Because the stakes were relatively low, “the Nixon administration worked assiduously but quietly to remove Allende” (118).  Covert action seemed like a reasonable gamble, even if it failed to produce results.

The Cuba case also suggests that the importance of the stakes determined the preference for covert versus overt intervention.  Policymakers reserved the overt option for cases in which U.S. lives were at risk.  Poznansky observes, “A common thread running through deliberations about Castro was a willingness to use overt force to protect American lives and the U.S. naval base at Guantanamo Bay” (96).  In a meeting in the Eisenhower White House, one official asked “whether OAS [Organization for American States] support will only be forthcoming if the Cubans actually attack Americans on the island,” to which another replied “that the OAS might be brought to act prior to such an attack on the basis of Castro being tied up with international communism” (98-99). Poznansky uses this evidence to make the case that legal exemptions were not available for intervention, thus making covert options more politically attractive despite their operational drawbacks.  Yet the same evidence suggests that had the United States been more resolved to act, it would have been able to make a stronger legal case.  As Poznansky argues, “the United States wanted Castro gone,” but until Castro became a more pressing threat, there were limits to what it was winning to do (102).  On a related note, for the same reason, there is an unexplored wrinkle in the escalation-control mechanism, which Poznansky discounts in this case regarding the Soviet audience.  But what did Castro understand?  Did he recognize that there was an implicit threshold, such as the loss of American lives, that might have prompted a more overt American intervention?

In short, covert action is what states do when they do not care enough to send the very best.  This does not mean that covert action is unimportant; on the contrary, it is increasingly important in an era of incessant cyber influence and espionage campaigns.  Yet despite all the bluster about the eroding liberal order, the prevalence of covert action over overt aggression suggests that states are by and large willing to work within the system.  They may be unsatisfied enough to make some marginal gambles on covert action in the shadows, but not so unsatisfied as to flip the table.  This criticism does not seriously undermine Poznansky’s general insights about the constraining role of international law.  Yet the theory could be further improved by recognizing that normative constraints are likely to systematically vary along with everything else in the gray zone between peace and war.  Law constrains best where there is nothing to fight about, while law constrains least when everything is on the line.  Covert action, and there are many different forms of covert action, always falls somewhere in between.

This explains why traditional IR has ignored secret statecraft (in its focus on high stakes conflict) and why it can be ignored no longer (because low stakes conflict has become pervasive).  Poznansky’s book has much to offer in this endeavor.  There is indeed a vital relationship between overt norms and covert action.  By overt norms I mean not only international law, the focus of the present book, but also other kinds of shared norms and common technical protocols that regulate collective behavior in global politics.  Covert action thus acts “in the shadow of international law” in a dual sense—the means of trust both enable and constrain the abuse of trust.  One important question that the book does not address is whether we should be enthusiastic or dismayed by this development.  Does covert action represent a subversion of liberal order, or on the contrary, is it a mechanism for its preservation?

 

 

Review by Ryan Scoville, Marquette University

Historians and political scientists have developed a provocative set of backhanded compliments to the international law of war in recent years.  These accounts align with traditional legal scholarship in suggesting that law is capable of influencing state behavior, but they also evoke a vaguely realist skepticism toward law by drawing attention to the unintended consequences of regulation. For example, Samuel Moyn has hypothesized that international humanitarian law’s success at sanitizing conflict unwittingly contributes to the phenomenon of endless war.[23] Similarly, Tanisha Fazal has argued that the increasingly voluminous and progressive nature of this law leads states simply to avoid formal acknowledgment of their involvement in armed conflict, rather than to refine their tactics on the battlefield.[24] By implication, these accounts raise the possibility of a hydraulic system of international violence—a global regime in which, far from ending war, the law often channels it into new modalities and circumstances. For legal architects, this is not how things were supposed to work.

I view Michael Poznansky’s In the Shadow of International Law as a thoroughly researched, well-written, thoughtfully designed, and intriguing contribution to this literature.  Drawing upon a substantial collection of historical sources, Poznansky uses case studies on Cuba, Chile, the Dominican Republic, and Grenada to argue that U.S. officials account for international law in choosing the means by which the United States pursues foreign regime change. When officials believe that intervention will be at least arguably consistent with the UN Charter, the United States tends to act overtly. But when officials suspect that foreign observers will view an intervention as clearly unlawful under the Charter, the United States generally opts for covert action to protect global trust in the credibility of U.S. legal commitments and moral authority. By this account, covert action is not a result of state efforts to manage domestic politics, escalation risks, or foreign nationalism. Instead, it is seemingly an inadvertent side effect of an otherwise effective jus ad bellum.

Poznansky’s argument and the growing literature on unintended consequences raise numerous questions for scholars and those who design and implement international law: Do unintended consequences arise from any other aspect of the law of war?  Do they also manifest in domains such as human rights and the law of the sea? Does the identification of these consequences ever warrant reconsideration of pertinent norms, or are the norms justified on deontological grounds that survive mixed or even unfavorable practical assessments? Is there anything that lawyers and diplomats can do to better anticipate and account for unintended consequences in developing international law? Many of these questions would benefit from collaboration between legal scholars and political scientists.

Yet the value of empirical research in this area relies heavily on the resolution of an age-old question: what does the law entail?  To measure legal influence, one must first identify the law’s contours. This, however, can be a vexing task. Rules and doctrines do not necessarily speak for themselves. Lawyers have developed methods of interpretation, but both the legitimacy of those methods and their implications for specific cases are often disputed.

To frame the issue in terms of Poznansky’s study, what comprises the principle of non-intervention?  At what point does a legal argument in support of an overt attempt at regime change become so tenuous as to demonstrate the irrelevance—rather than the influence—of international law? At one extreme, an open intervention that plainly entails the use of force in self-defense or relies on explicit authorization from the UN Security Council would likely fall safely within the limits of the Charter. Here it is plausible that legal doctrine will have contributed to the state’s choice to act in the open, as long as the state’s leaders correctly perceived or at least assumed that others generally shared their view of the law. At the other extreme, an overt intervention that clearly violates Article 2(4) and does not invoke a recognized exception to the prohibition on the use of force would contravene the Charter. Here it is unlikely that international law will have contributed to the choice to act in the open.

But what about cases that fall in between?  For instance, what if U.S. officials intervene openly on the basis of a legal justification that they regard as relatively lacking in global support, but that is nevertheless possible, strictly speaking, to reconcile with the semantic meaning of the Charter’s text? Or what if they invoke a justification that they perceive to enjoy considerable global support, but that is difficult, in their view, to harmonize with a good-faith interpretation of positive law? Would intervention in such cases affirm or undermine the argument that international law explains state approaches to the publicity of regime change?

The question looms particularly large in Poznansky’s case studies on the Dominican Republic and Grenada.  In both, he argues that U.S. officials overcame the Charter’s principle of non-intervention by invoking alleged legal exemptions grounded in (1) the protection of American citizens abroad and (2) the approval of a relevant regional organization, such as the Organization of American States (OAS). But whatever one might think of those exemptions today, they were hardly uncontroversial at the time of the interventions themselves. In the decades immediately following the adoption of the UN Charter, influential commentators such as Philip Jessup and Ian Brownlie argued that the use of force to protect nationals abroad is inconsistent with Article 2(4) and unavailable under Article 51.[25] Writing in 1977, Michael Akehurst concurred, finding that “[v]irtually every example of the use of force for this purpose since 1945 has provoked protests from other States that such use of force is illegal.”[26] Similarly, the idea that a regional organization such as OAS can independently authorize military intervention encountered immediate difficulty under Article 53(1) of the Charter, which provides that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Much like the present, leading commentators in the 1950s and 1960s generally interpreted this language to require Security Council authorization for any use of force—other than self-defense—under the auspices of a regional organization in the territory of another state. From this perspective, it was unsurprising that the UN General Assembly overwhelmingly condemned the U.S. intervention in Grenada not simply as a violation of international law, but as a “flagrant” violation.

Poznansky depicts the interventions in the Dominican Republic and Grenada as evidence of the influence, rather than the ineffectiveness, of international law.  He does so by employing a strictly subjective test for legality: a decision to intervene overtly shows respect for international law as long as senior officials are able to devise a legal justification that is, in their assessment, sufficiently persuasive abroad to avoid damage to the credibility and moral standing of the United States. Under this test, the overt nature of the U.S. intervention in the Dominican Republic is said to demonstrate the influence of international law not only because the State Department’s Legal Adviser articulated a legal rationale grounded in the protection of U.S. nationals and the involvement of OAS, but also because officials subsequently acted in accordance with that rationale and believed others would find it adequately persuasive. Similarly, the U.S. intervention in Grenada is said to show the influence of international law because bureaucrats in the Reagan administration expressed and honored a legal argument based on the protection of American medical students and the receipt of an invitation for intervention from the Organization of Eastern Caribbean States, and because those officials suspected that their argument would resonate abroad.

I am sympathetic to Poznansky’s approach.  Given that the law’s precise contours are frequently contested, it would have been difficult to operationalize an objective concept of international law.  An approach that purported to authoritatively delimit the nonintervention principle and definitively pronounce its effect in any given case would have been vulnerable to counterarguments grounded in textual uncertainties and precedential indeterminacies.

At the same time, a unique difficulty arises under a test that leaves the boundaries of international law to the perceptions of senior officials in a national government.  The difficulty is one of perceptual bias: A sizable body of experimental research in social psychology shows that individuals are generally not adept at perceiving norms, even in relatively confined social environments, and even when trying to be objective. In many cases, the problem manifests in the form of a “false-consensus effect,” whereby people over-estimate the normativity of self-associated behaviors and perspectives within a reference population.[27] I am not aware of research on this phenomenon specifically in relation to perceptions of international law, but it is easy to imagine that distortion might also occur in this context. That is, it seems quite plausible that perceptions of international legal norms among U.S. officials are, in at least some cases, materially skewed by a common human tendency for egocentricity. These individuals might sense that intervention is legally available or unavailable and act accordingly in any given case, but that sense will be unreliable.

There are several conceivable reasons for this.  Distinctive features of American political and legal culture might socialize leaders to perceive international law in ways that are idiosyncratic from a global perspective. Lacking the time necessary to undertake extensive global inquiries, officials may have no practical alternative to the projection of American views onto foreign observers. And political or professional dynamics might subconsciously incentivize over-estimates of an argument’s likely global resonance.

Whatever its underlying explanation, the risk of bias seems significant in light of the evidence that Poznansky relies upon in his case studies. That evidence is substantial in volume and impressive in its specificity to international law, but it doesn’t give us any particular reason to trust the perceptions of U.S. officials. For instance, we don’t see leaders surveying state practice as a check against their own instincts. Nor do we see examinations of foreign views on the merits of any given legal argument in context. Instead, we simply see claims, based on textual or other considerations, that strike the advocates as normative.  In one case (Grenada), those claims plainly failed to anticipate the dominant global perspective.

The possibility of bias seems to matter for one simple reason: it mitigates the significance of findings premised on subjective tests of legality.  If we accept that international law depends on the perceptions of senior officials in a national government even though perceptions might skew in ways that vary cross-nationally, we enable findings of legal influence without a guarantee of global legal coherence. Such findings strike me as a bit of a hollow victory—a validation of law’s causal significance without any necessary implications for the international order that law aims to produce.

 

 

Response by Michael Poznansky, University of Pittsburgh

My sincere thanks to Josh Rovner for organizing this H-Diplo/ISSF roundtable, and especially to the four reviewers for taking the time to engage with my book in a productive and constructive way.  I am heartened that all of them see value in the enterprise and, perhaps most importantly, that they collectively point to a number of areas for future research at the intersection of secrecy and international law. I am also particularly grateful that they agreed to take on this task in the midst of a global pandemic. The reviewers all raise a number of excellent questions pertaining to the argument and evidence contained in my book. What follows are reactions to many of them.

How easy is it to locate legal exemptions?

First, Austin Carson wonders about the ease with which states can locate legal exemptions to the nonintervention principle.  One of the central arguments I make in the book is that credible legal exemptions are in fact fairly hard to come by. This imposes non-trivial constraints on decision-makers who are interested in pursuing regime change abroad.  Carson is not as convinced.  In particular, he asks whether enterprising leaders can engage in forum shopping to eventually locate an international organization that will bless an intervention, or simply point to the presence of American nationals in the target country for legal cover.

Carson’s hunch that policymakers can simply “look to the Organization of Eastern Caribbean States or another obscure body” certainly makes sense in theory.  In practice, however, there are a finite number of international organizations that are capable of authorizing interventions.  As I mention in the book, the Reagan administration effectively had two options in Grenada: The Organization of American States (OAS) and the Organization of Eastern Caribbean States (OECS) (47).[28] Because the UN Security Council and OAS were disinclined to authorize intervention, policymakers would have been out of options had the OECS not signed off.  In short, while Carson is right to point out that the existence of multiple international organizations creates some capacity for forum shopping, the options are limited.

Carson views the legal exemption for protecting citizens as even more problematic.  He argues that with the exception of places like North Korea, there are usually more than enough Americans around the world to justify intervention in almost any country. As I note in the book, however, the mere presence of one’s citizens abroad is unlikely to be sufficient on its own as cover for intervention.  Rather, there must be some kind of “clear and present danger to the intervener’s citizens” to reasonably justify the deployment of military forces (47).  Indeed, in the Bay of Pigs case, policymakers’ willingness to use force in the event that Fidel Castro, the revolutionary leader of Cuba, started targeting Americans suggests that they did not view their presence on the island alone as sufficient.

Determining the legality of an intervention

A second critique turns on the challenge of determining whether a given legal exemption will be viewed as credible or contrived in a given case. According to Carson, this is especially tricky because different audiences—allies, adversaries, non-aligned countries—may react differently.  And the fact that policymakers can always miscalculate only adds to the challenge.  In short, Carson’s suspicion is that the law has much less influence relative to the expectations of leaders, which are likely informed by their own idiosyncratic traits and policy preferences.

This issue directly relates to Ryan Scoville’s argument that I effectively use “a strictly subjective test for legality.” Although he is sympathetic to the approach taken in the book, policymaker biases that skew their perceptions of what constitutes a legal intervention is potentially problematic.  These biases, he argues, could come from any number of sources, including the unique characteristics of “American political and legal culture.”

On one level, I largely accept that leaders rely on their beliefs about legality when making decisions about how to pursue intervention.  Indeed, as I state in the book, “the perceived availability of a legal exemption is, in practice, the main independent variable” (49-50).  But we do not agree about the implications.  For Carson and Scoville, the influence of leaders’ expectations and beliefs, rather than an objective standard or international consensus, is evidence that the law is not doing all that much work.  To the contrary, I find evidence that leaders take the nonintervention principle seriously in their deliberations.  The fact that they choose covert action when they believe they do not have a credible legal exemption is powerful evidence that international law matters.  If it didn’t, they would have no qualms about acting overtly. Moreover, the fact that decision-makers in each of the overt cases examined in the book consciously sought to avoid saying or doing things that would undermine their stated legal rationale for intervention provides strong support for the argument that international legal considerations shaped their actions.

All this being said, I still expect leaders’ beliefs about what will constitute a credible legal exemption to be rooted in reasonable interpretations of existing rules given the facts on the ground (50). This does not mean that leaders will not seek to appeal to the most expansive interpretations possible which, as Scoville suggests, may be what happened in the Dominican Republic and Grenada.  But this is where the comparison to the covert cases is most revealing.  In those episodes, policymakers had neither regional authorization nor a credible claim that Americans were endangered and opted to conceal the U.S. role as a result.  In short, while my argument allows for some wiggle room in interpretation, there are clear limits.

Perhaps Scoville is right that “[d]istinctive features of American political and legal culture might socialize leaders to perceive international law in ways that are idiosyncratic from a global perspective.” Rory Cormac’s masterful treatment of British covert action in the postwar period, however, leads me to believe this is not strictly a U.S. story.[29] But even if it were, uncovering how international legal considerations shaped a superpower’s intervention decisions is worthwhile.

Other kinds of evidence would be more problematic for my theory.  What if, as Carson suggests, dovish advisers who oppose intervention simply claim that legal exemptions will be viewed as pretexts while hawkish advisers who support intervention argue the opposite?  If true, this would imply that traits such as hawkishness or dovishness rather than legal considerations determine intervention decisions, and that they refer to international law instrumentally at best.

Fortunately, the findings from the cases cast doubt on this interpretation.  Across the empirical chapters, decision-makers with differing worldviews spoke and acted similarly when it came to the constraints imposed by the nonintervention principle.  It is true, as Carson notes, that cautious policymakers—like Undersecretary of State Chester Bowles—worried about the international reactions to any regime change operation in Cuba that threatened to expose the United States and appealed to America’s legal obligations in the process (92).  But it is also the case that more hawkish officials, including Admiral Arleigh Burke, expressed similar sentiments (86-87).  In Chile, National Security Adviser Henry Kissinger, a famous practitioner of Realpolitik, explicitly pointed to the nonintervention principle as a constraint on U.S. action in a memo to President Richard Nixon (125).

The Political stakes of interventions

A third critique, raised by Jon Lindsay, has to do with the role of the political stakes of a given intervention.  This argument is that while policymakers might pursue covert action when there is no legal exemption and political stakes are low, increasing the stakes makes them more willing to entertain overt options.  For Lindsay, the two covert case studies illustrate this.

In the Chile case, Lindsay notes that policymakers acknowledged that the victory of Salvador Allende would not change the balance of power.  While some officials cast doubt on the strategic significance of losing Chile, others—notably Kissinger—saw the stakes as being high.  As he wrote to Nixon on November 5, 1970: “The election of Allende as President of Chile poses for us one of the most serious challenges ever faced in this hemisphere.  Your decision as to what to do about it may be the most historic and difficult foreign affairs decision you will have to make this year, for what happens in Chile over the next six to twelve months will have ramifications that will go far beyond just US-Chilean relations” (117).  Given Kissinger’s unique role in the administration, his views are especially informative.

In the Cuba case, Lindsay views policymakers’ seeming willingness to overtly intervene in response to attacks against Americans or the U.S. naval base at Guantanamo Bay as evidence that it was less the absence of a legal exemption that pushed them into the covert sphere and more the low political stakes.  While it is indeed the case that leaders appeared ready to invade Cuba if either of these circumstances arose, the fact that they openly discussed staging an attack on the naval base suggests that they were not necessarily waiting for the political stakes to grow significantly but rather seeking a fig leaf they could use as cover.

Finally, if political stakes were the driving force behind the decision to intervene openly in a given case, we might conclude that the Dominican Republic and Grenada—the two overt interventions in the book—were more important than Cuba or Chile in the Cold War. While comparing the relative stakes across these four cases is difficult, it seems unlikely that policymakers were more concerned about the New Jewel Movement in Grenada or the return of Juan Bosch in the Dominican Republic than the threat that Castro posed given his charismatic appeal and Cuba’s proximity to the continental United States, or the perceived threat from Salvador Allende, a self-avowed Marxist who came to power through the ballot box.

To be fair, Lindsay hints at a more prosaic reason why the U.S. intervened openly in the Dominican Republic and Grenada.  Both interventions were preceded by crises that warranted a quick response, leaving overt action as the only viable alternative.  This is similar to Lindsey O’Rourke’s argument for why the U.S. acted overtly in these cases.[30] But there are several issues with this explanation. First, the 1970 presidential election in Chile should have imposed significant time constraints on policymakers, at least initially.  That they stuck with covert action, which they knew had a limited chance of working, is revealing (138).  Moreover, while U.S. intervention in Grenada followed soon after a coup in that country, policymakers had been interested in ousting the New Jewel Movement since it came to power in 1979.  As such, we would need some explanation as to why they did not act sooner (200).  My argument, which is focused on legal exemptions, offers a new interpretation: the coup of October 1983 was useful precisely because it provided various legal justifications for policymakers to act.

Scope conditions

Stephanie Carvin raises another set of issues in her review.  One has to do with the book’s exclusive emphasis on regime change which, as Carvin rightly points out, is an extreme form of covert action and excludes things like information operations and financing particular actors or groups. Part of the rationale for prioritizing foreign-imposed regime change stems from the focus on the nonintervention principle.  These types of interventions clearly have an impact on the political independence of another state, which is explicitly prohibited in Article 2(4) of the UN Charter.  As such, they provide a crucial test for a theory about international law.  Less extreme forms of covert action, including things like propaganda or other kinds of partnerships, may not conflict with the nonintervention principle as clearly and therefore may be guided by a different logic.

A second issue pertaining to scope conditions has to do with the focus on Latin America and whether the theory can explain cases elsewhere.  As Carvin notes, the final chapter does offer some evidence that international legal considerations help explain why the Obama administration opted for overt intervention in Libya in 2011 but acted covertly in Syria soon afterwards.  Nevertheless, it is a fair question, and similar to Lindsay’s concern that U.S. hegemony in Latin American makes the region an easy test of my theory.

I view Latin America as a hard test partly because of how other scholars have characterized the region.  John Ikenberry, for example, argues that U.S. behavior in Latin America “has often been crudely imperial.”[31] David Lake argues that America’s authority to “discipline” subordinate states attempting to exit from hierarchy by pursuing regime change occurred frequently in this region.[32] From this perspective, it seems puzzling that policymakers felt the need to hide interventions at all.  My theory provides an answer.

On generalizability, the relevance of nonintervention to the two Arab Spring cases gives me confidence that international law does indeed influence interventions beyond Latin America and the Cold War.  Even so, assessing more fully whether the argument applies to other regions and time periods—or even to other great powers as well as regional and weaker powers, something both Carvin and Carson raise as a fruitful area for future research—is important and an obvious next step.

In closing, I am grateful that the reviewers all found merit in the book’s efforts to uncover the international legal underpinnings of covert regime change.  The fact that these reviews are written by experts on international law, technology, security, and secrecy is all the more gratifying, particularly since part of my goal in this book was to continuing building bridges across these communities. While space considerations precluded me from addressing every comment in detail, my hope is that this roundtable will serve as a springboard for continued dialogue on these important issues.

 

Notes

[1] Lindsey A. O’Rourke, Covert Regime Change: America’s Secret Cold War (Ithaca: Cornell University Press, 2018); Austin Carson, Secret Wars: Covert Conflict in International Politics (Princeton: Princeton University Press, 2018); and Rory Cormac, Disrupt and Deny: Spies, Special Forces, and the Secret Pursuit of British Foreign Policy (New York: Oxford University Press, 2018).

[2] Austin Carson, Secret Wars: Covert Conflict in International Politics (Princeton: Princeton University Press, 2020); and Lindsey A. O’Rourke, Covert Regime Change: America’s Secret Cold War (Ithaca: Cornell University Press, 2018).  For a review of work in the area, see Allison Carnegie, “Secrecy in International Relations and Foreign Policy,” Annual Review of Political Science, forthcoming.

[3] For example, secrecy can address fear of escalation (Carson, Secret Wars) but invite logistical problems that cripple its effectiveness (O’Rourke, Covert Regime Change).  Secrecy may also be used to address leaders’ parochial domestic political concerns, as in Jonathan N. Brown and Anthony S. Marcum, “Avoiding Audience Costs: Domestic Political Accountability and Concessions in Crisis Diplomacy,” Security Studies 20:2 (2011): 141-170.

[4] Zoltán I. Búzás, “Evading International Law: How Agents Comply with the Letter of the Law but Violate its Purpose,” European Journal of International Relations 23:4 (2017): 857-883.  See also Ian Hurd, How to Do Things with International Law (Princeton: Princeton University Press, 2017).

[5] See also Alexandra H. Perina, “Black Holes and Open Secrets: The Impact of Covert Action on International Law,” Columbia Journal of Transnational Law 53:3 (2015): 507-583.

[6] Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984); and G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars, new ed. (Princeton: Princeton University Press, 2001).

[7] See also Martha Finnemore, “Legitimacy, Hypocrisy, and the Social Structure of Unipolarity,” World Politics 61:1 (2009): 58-85; and Henry Farrell and Finnemore, “The End of Hypocrisy: American Foreign Policy in the Age of Leaks,” Foreign Affairs 92:6 (2013): 22.

[8] See also sources in footnote 3.

[9] On different audiences and the need for public justifications or legitimation more broadly, see Stacie E. Goddard and Ronald R. Krebs, “Rhetoric, Legitimation, and Grand Strategy,” Security Studies 24:1 (2015): 5-36 and Goddard, When Right Makes Might: Rising Powers and World Order (Ithaca: Cornell University Press, 2018).

[10] See Poznansky’s discussion of this and the importance of adding endorsement by the Organization of Eastern Caribbean States (184-191).

[11] Carson, Secret Wars; and Carson, “Facing Off and Saving Face: Covert Intervention and Escalation Management in the Korean War,” International Organization 70:1 (2016): 103-131.

[12] Robert Jervis, “From Balance to Concert: A Study of International Security Cooperation,” World Politics 38:1 (1985): 58-79.

[13] Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon and Schuster, 2017).

[14] On the role of escalation and destructive world war (i.e. World War I) in stimulating the development of covert methods of military intervention, see Carson, Secret Wars, Chapter 3.

[15] States excluded from the order may find positive value in violating its principles.  See Rebecca Adler-Nissen, “Stigma Management in International Relations: Transgressive Identities, Norms, and Order in International Society” International Organization 68:1 (2014): 143-176.

[16] Keren Yarhi-Milo, Who Fights for Reputation?  The Psychology of Leaders in International Conflict (Princeton: Princeton University Press, 2018).

[17] See also A. Burcu Bayram, “Due Deference: Cosmopolitan Social Identity and the Psychology of Legal Obligation in International Politics,” International Organization 71 (2017).

[18] Carnegie and Carson, “The Spotlight’s Harsh Glare: Rethinking Publicity and International Order.” International Organization 72:3 (2018): 627-657.

[19] Michael R. Shebelskie, “The Major Nicholson Incident and the Norms of Peacetime Espionage,” Yale Journal of International Law 11:2 (1985): 521-544.

[20] Austin Carson, Secret Wars: Covert Conflict in International Politics (Princeton University Press, 2018).

[21] Lindsey A. O’Rourke, Covert Regime Change: America’s Secret Cold War (Ithaca, NY: Cornell University Press, 2018).

[22] O’Rourke, 73–96.

[23] Samuel Moyn, “Civil Liberties and Endless War,” Dissent (Fall 2015); https://www.dissentmagazine.org/article/civil-liberties-and-endless-war.

[24] Tanisha M. Fazal, Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Ithaca: Cornell University Press, 2018).

[25] Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963): 289-301; and Philip Jessup, A Modern Law of Nations (New York: Macmillan, 1946): 169.

[26] Michael Akehurst, “The Use of Force to Protect Nationals Abroad,” International Relations 5:5 (April 1977): 16.

[27] See, for example, Glenn S. Sanders and Brian Mullen, “Accuracy in Perceptions of Consensus: Differential Tendencies of People with Majority and Minority Positions,” European Journal of Social Psychology 13:1 (January-March 1983): 57-70, at 57 and 65.

[28] The Soviet veto effectively foreclosed the UN Security Council.

[29] Rory Cormac, Disrupt and Deny: Spies, Special Forces, and the Secret Pursuit of British Foreign Policy (Oxford: Oxford University Press, 2018).

[30] Lindsey A. O’Rourke, Covert Regime Change: America’s Secret Cold War (Ithaca: Cornell University Press, 2018).

[31] G. John Ikenberry, Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order (Princeton University Press, 2011), 27.

[32] David A. Lake, Hierarchy in International Relations (Ithaca: Cornell University Press, 2009), 116.