Secretary Clinton Ordered Spying on U.N. Officials: Did Harold Koh Approve?

Peter’s posts on how Wikileaks actually makes the US and its diplomatic service look fairly good are spot on.  The Foreign Service looks a lot more interesting now that I know I get to spy for the U.S., too!  But as this article from Slate notes, Secretary Hillary Clinton made it official State Department policy (“The “National Human Intelligence Directive on the United Nations“) to secretly gather “biometric” and other information on foreign and U.N. diplomats.  This is very cool and I am glad to hear that she ordered this, but it is…umm… almost certainly a violation of U.S. obligations under international law. As the Guardian quotes a U.N. spokesman,

Within hours of the release of America’s “National Human Intelligence Directive on the United Nations“, Farhan Haq, the UN secretary general’s acting deputy spokesman, issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution’s inviolability.

“The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation,” he said. “The UN relies on the adherence by member states to these various undertakings.”

He noted a clause in the 1946 convention which states: “The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.”

Interestingly, the Headquarters Agreement was also adopted by joint resolution of congress, so it is binding law.  The argument from the U.S. side, if any litigation ever ensued domestically, would have to be that the Agreement is non-self-executing because it calls for arbitration in the event of any disputes between the U.S. and U.N.  But I would be curious to see if there was a legal memo somewhere justifying the legality of the Clinton directive here. And I would love to know how my old lawprof Harold Koh, now the State Department’s Legal Advisor, finessed this issue.  Or perhaps it is better to avoid giving these actions the taint of legality?