By Dr Ian Davis, NATO Watch Director
22 November 2013
Disclosure of US intelligence surveillance activities in Germany and other allied countries
has aroused angry political and public reaction in those countries. The whistleblower Edward Snowden has revealed close technical cooperation
and a loose alliance between British, German, French, Spanish and Swedish spy agencies. The German Government in particular has expressed disbelief and fury at the revelations that the US National Security Agency (NSA) monitored Angela Merkel's mobile phone calls. Even the Secretary General of the UN
is regarded as fair game by the NSA.
But questions concerning the integrity and professionalism of UK and US intelligence services are nothing new. In March 2003, GCHQ
‘whistleblower’ Katharine Gun revealed in a leaked email that the NSA was eavesdropping on UN Security Council diplomats belonging to the group of ‘swing nations’ that were undecided on the question of war against Iraq. The NSA requested the help of its British counterparts at GCHQ to collect information on those diplomats.
Espionage involving electronic surveillance or ‘bugging’ of conversations is not a new occurrence in world politics more generally. During the Second World War, Stalin had Roosevelt bugged so that he could properly prepare against any arguments that the western allies would present regarding the future division of Europe. During the Cold War, embassies in Moscow had networks of listening devices hidden in the walls. Western intelligence even dug tunnels under the Berlin wall in order to tap on Soviet military communications networks. As any card-player would testify, you can never underestimate the value of knowing your opponent’s hand. But the same player would also say that there are rules for the game, and that cheating can be a hazardous affair.
The difference today is the scope of the technologies available to the US and some allied intelligence agencies. The Snowden papers have shed some light on these technological capabilities but much still remains unknown. What is certain is that surveillance equipment has grown increasingly sophisticated over the years—the NSA alone has over 35,000 personnel and an annual budget of $10.8 billion—and is now capable of intercepting huge amounts of data. As the New York Times
rather poetically put it, the NSA:
sucks the contents from fiber-optic cables, sits on telephone switches and Internet hubs, digitally burglarizes laptops and plants bugs on smartphones around the globe.
The 1961 Vienna Convention
, which regulates diplomatic issues and status among nations and international organizations, prohibitssurveillance operations targeted at diplomatic missions and political leaders. One of the fundamental rules in the convention is that the host of the mission shall permit and protect free communication on the part of the mission for all official purposes. Generally, this has been interpreted as an obligation not to electronically wiretap diplomatic missions. Eavesdropping on a diplomatic mission, let alone the Head of State, is therefore a serious infringement of international law.
The counter-argument today is that espionage has become a legitimate form of statecraft in an uncertain world. While this may be true in some limited circumstances, such as to infiltrate terrorist networks, it is surely wrong to do this to friends and allies, and as a general principle all nations ought to be moving away from this reliance on espionage. Greater use of open information would help, as well as improved parliamentary oversight of intelligence agencies.
So, what more could be done to protect the sanctity of communications within and between allies? This is largely a question of political will, although updating the Vienna Convention to close loopholes and to reflect changes in surveillance technologies in the past 40 years would also help. Illegitimate surveillance activities cannot be permitted if the international community wants to foster an environment where treaties and agreements are concluded in good faith. In particular, the long term costs of routine spying on friends, allies and international organisations are surely too high. For these reasons, the NATO Secretary General could propose the establishment of a ‘No Spy Zone in NATO’, in which certain types of intelligence collection would be renounced and prohibited.
The proposal would seek to extend to all NATO allies the so-called 'Five Eyes
' agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other (although new evidence
suggests that the NSA is also spying on the citizens of Five Eyes nations). More limited US cooperation already occurs with many more countries, including formal arrangements called Nine Eyes and 14 Eyes and NACSI (NATO Advisory Committee on Signal Intelligence), a shadowy alliance of the agencies of NATO countries.
In addition to new Alliance-wide 'rules of the road' for intelligence agencies that brings them under the rule of law, improved transparency and accountability for these secret framework agreements is a crucial pre-requisite. In addition to strengthening national parliamentary intelligence and security committees, which as currently constituted have proved to be ineffective, a separate independent multilateral watchdog to oversee the proposed intra-Alliance no spying agreement would also be required, perhaps drawn from members of the NATO Parliamentary Assembly.
Steven Aftergood, who writes about government secrecy
for the Federation of American Scientists, has suggested that a rarely-noted statute could make it difficult for any US administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself. But again, this boils down to a matter of political will and a drawing-in of notions of US exceptionalism in favour of mutually beneficial multilateralism. Aftergood also explains that the notion of creating and incrementally expanding 'no spy' zones has some history, with former US Ambassador Robert E. White proposing nearly two decades
ago that the US explore the possibility on a trial basis.
A NATO pact of reciprocal restraint by which allies agree not to spy on or engage in covert action against each other would be a good place to start.