Spying on Allies

Last week, a delegation of European Union parliamentarians was in Washington to discuss the proposed Transatlantic Trade and Investment Partnership. The delegation’s trade mission was all but usurped as a result of the exposé by the U.S. National Security Agency’s former contract employee, Edward Snowden, of the NSA’s massive data collection. The NSA’s global sweep of individual connections to internet sites (Twitter, Facebook, Google) outraged large numbers of Europeans. Their anger was not assuaged by assurances that content was not viewed by the agency or its sister or subordinate intelligence agencies absent court concurrence. Only the fact, not the content, of the connection was vacuumed up, explained the White House, and that in an attempt to find patterns among users suspected, now or later, of having connections with terrorists. But the broad-sweep mapping was compounded by allegations that the United States also bugged the embassies of its European allies as well as other countries.

President Obama’s attempted justification in his July 1 Tanzanian press conference only compounded the problem. First, he noted that all countries and all intelligence agencies, including those in Europe, spy on all other countries. “They are going to be trying to understand the world better…seeking additional insight beyond what’s available through open sources,” he said. “And if that weren’t the case, then there would be no use for an intelligence service. That’s how intelligence services operate.” Naturally every head of state wants to understand his counterparts. But Obama’s “explanation” (really just a bald statement about how intelligence services operate when given the mandate) was rendered more puzzling when he noted a moment later that if he wanted to know what Prime Minister Cameron or Chancellor Merkel or President Holland were thinking, he would just call them and ask. Well, then why the need to bug their embassies? Indeed the comment all but affirmed that the U.S. was indeed bugging them. Second, in order apparently to assuage domestic concerns, he assured Americans that the content, not just the fact, of their conversations, messages, and searches was protected by U.S. courts, particularly the Foreign Intelligence Surveillance (FISA) Court. U.S. courts have always required probable cause before Americans’ phones or emails could be tapped. But clearly that protection did not extend to the citizens of other countries. The Europeans picked up quickly on that lawyerly distinction. They had no judicial protection. The NSA was free of judicial constraints to monitor their messages at will, as the parliamentarians noted.

In meetings with Congress, with the Executive Branch, and with private groups around Washington, the EU parliamentarians sought to explain their concerns and seek real explanations if not concrete and verifiable assurances that these practices would end. First they noted their disappointment (more even than anger) at what they thought was a breach of trust among close allies. Second, if they were to begin to repair the breach, they needed clear, convincing explanations to share with the publics that had elected them and before which they would be required to stand again in the next election. And going forward, they would need more transparency and clearer, more acceptable rules. If not, the breach in trust would not be repaired and would not be forgotten.

Moreover, they noted the differences between the two continents on their respective orientations toward their own and other intelligence agencies and to a lesser extent even their own courts. Americans and Europeans think differently about their security services. Europeans, especially in Germany and Central Europe, have had very negative experiences with their security services. Those services were used by the authoritarian state to spy on individuals in order to prosecute them for behavior which should never have been criminalized anyway. Their courts did not intervene. If anything, their courts and judiciaries were complicit. The security state is foreign to the United States whose citizens look to their security services and their courts for protection. Americans worry about the possibility for abuse more than actual misuse. Europeans have seen malfeasance up close and very personal and quite recently. So they are much less likely to afford to them the benefit of the doubt.

Conversely, Americans suffered the casualties of September 11, 2001, their neighbors jumping from skyscrapers. For Americans, the threat of terrorism is real, very personal, and quite recent. Moreover, one of the prime questions after the 2001 attacks was why the intelligence services had not detected the threat. Why, to use the parlance of the day, had they not connected the dots? Why were they so “stove-piped”? Why didn’t they communicate better with one another? So the intelligence services were under the microscope for, implicitly, not doing their job. They were directed to integrate, get the information, and connect the dots, hence the new Department for Homeland Security. They clearly felt responsible for examining more haystacks and finding more needles, which is what they have been doing.

So what issues are now on the table and how can they be resolved or at least productively discussed? First, security and civil liberties, in this case privacy, are in constant tension. The balance between them is ever-changing, informed in part by technology and by basic orientations and experiences. Prior to 2001, Americans in general drew that line more toward the protection of civil liberties. After 2001, Americans, tacitly if not formally, were willing to concede more of their civil liberties in exchange for greater safety. Europeans balance the two differently, also in part because of their experience, this time with uncontrolled security services or, worse, with security services at the service of a totalitarian state, a kind of state with which Americans have absolutely no historical experience. The EU parliamentarians noted that if American companies did not voluntarily afford greater privacy protection to their customers, protections different perhaps than in the United States, they may well suffer legal and market consequences in Europe. In short, the United States, whether its companies or its government cannot assume that American sensibilities and balances are global, especially when those sensibilities are in constant flux. Even non-content data collection, acceptable to New Yorkers, may be unacceptable to Westphalians.

Second, is the alleged bugging of European embassies. Everyone may be doing it or trying, but should they? More important, should the United States? In particular, leaving aside any ethical issues, are the costs worth the benefits? Which costs and which benefits? These are the embassies of our closest allies, our NATO partners. Under Article 5, an armed attack against any of our allies will be treated as an attack against us. In theory, we will go to war for them, die for them. If the allegations are grounded, is the cost of spying on Germany, England, or France really worth the benefit? To use President Obama’s reductio ad absurdum is it worth knowing whether the Chancellor prefers scrambled eggs or fried, strawberry jelly as against orange marmalade? Why not just call and ask, not about breakfast but about terrorists? If MI5 is not mapping phone calls, twits, or Google searches, the U.S. cannot get the information by bugging the British embassy anyway, irrespective of costs. Of course, any decision about spying calls for difficult lines to be drawn. If the cost of spying on France is too high relative to the benefits, what about spying on Japan? Or, if not, maybe Brazil? The U.S. has military bases in nearly 40 countries. Should they all be treated alike? Afghanistan like Holland? Pakistan like South Korea? Oman like Australia? Who should make those distinctions and how?

This entire episode calls for a deep and serious, not cursory, review of just these kinds of policies and judgments, not just a brushing aside. The lines should not be drawn by the intelligence agencies, which should be part of the review and the judgments but should be executing orders not taking these decisions. It is not the NSA which should propose the lines or distinctions (and certainly not unilaterally) but the National Security Council, which needs to consider all the complexities, all the equities, and all the consequences. The resulting recommendations should be weighed and considered by the President and by the Congress through at least the House and Senate Select Committees on Intelligence. Judging by their complaints, they are not fully informed either.

In my view, the costs far outweigh the benefits of regular spying on our closest allies, but I do not know what is gleaned from the spying, if it occurs. The costs are clear however: feelings of betrayal, loss of trust, reticence or unwillingness to cooperate, some degradation in the core of the alliance. If the benefits are not more than commensurate, the bargain is a bad one.

Gerald Hyman is a Senior Adviser and President of Hills Program on Governance at the Center for Strategic and International Studies in Washington, D.C.

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