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Strife Feature – Spying on Friends

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By Anastasia Beck

In the aftermath of the allegations of the US National Security Agency (NSA) spying on allied states such as Germany, and accusations from the White House concerning alleged spying by Britain’s GCHQ on Donald Trump during his presidential campaign, moral questions have arisen regarding spying on one’s allies. The gravity of these incidents was further underlined by the moral outrage around such aspects by politicians in these countries. However, are such reactions disproportionate and should countries expect this sort of behaviour due to the tumultuous nature of the international stage?

This article will discern whether it is possible to legitimise the action of spying on one’s allies by first looking at the debate through a theoretical lens, using the Just Intelligence Theory. In the corresponding sections, I investigate the nature of ‘alliances’ and follow it up with an assessment of previous examples of friendly spying that underscores how spying on one’s allies is imperative in the current international system.

As part of the Snowden leaks, a presentation slide was released depicting NSA signals intelligence operations around the world which collect data from many countries, even allies.

The Just Intelligence Theory

From a theoretical perspective, states should not spy on each other.  This view stems from the application of the Just Intelligence Theory to friendly espionage.  ‘By using the Just War tradition as a base it is possible to establish a set of just intelligence principles that can limit the harm intelligence collection causes while outlining what circumstances would be required to justify the harm caused.’[1]  The just intelligence principles include: having a just cause, a legitimate authority to sanction the activity, be conducted for the intended purpose, be proportionate, be used as a last resort, and discriminate between legitimate and illegitimate targets.[2]

The first principle, having a just cause to conduct intelligence, would require there to be a substantial threat to justify any harm caused through the collection of intelligence. As it is the security services’ duty to preserve and maintain national interests, a high-level threat would provide sufficient cause to conduct intelligence activities. For example, during the Cuban Missile Crisis in 1962, Britain’s secret intelligence service MI6 and USA’s Central Intelligence Agency (CIA) utilised a Soviet spy – Oleg Penkovsky – to relay vital information back to the West regarding Soviet intentions and capabilities. The near possibility of total war occurring between the two super powers justified the use of spying against the Soviet Union. However, when one examines intelligence collection on friendly states, it is hard to justify a similar action. Spying on your allies entails that there is no immediate threat, and is instead being conducted because of a general understanding of the targeted state’s nature and not because of an overt provocation.  However, the just intelligence theory, much like the just war theory, ‘is blind to general information about states and information that does not amount to identifying a concrete threat’ can therefore not be used as a justification for intelligence collection against them.[3]  To be clear, general information would surmount to a state’s religion and political position, so for example, if one were at odds with an allied state’s political system that alone does not justify spying on it.  Thus, from a theoretical perspective, spying on one’s allies does not have a just cause, thereby making the whole activity unjust.

Another principle requires sticking to the stated purposes, and not diverge for political, economic or social objectives.  And yet, spying on your allies often does not meet this condition. Once again, a government’s role is to safeguard the interests of the nation, and this would require knowledge around fiscal, foreign or defence policies of allied states. For example, one could argue that, due to rising tensions within the European Union on spending towards Greece, it would seem appropriate for Germany to keep abreast of any changes in Greek fiscal policy – which the Greeks may not wish to openly disclose.[4]

However, this theory is not a legal doctrine and few states would give up vital information on fellow states to follow such stringent rules.  Furthermore, the international system is extremely competitive and anarchic, with state’s wishing to pursue strategies in consonance with their national interests.

What needs to be therefore examined is what it means to be an ally in the international system and whether the true nature of alliances justifies the use of spying on one another.  Alliances and friendly relationships are merely ‘mutual-defence pacts’ between states that often share and adhere to particular norms and practices.[5]  But states are in competition with one another, with allies pursuing their own national interests above that of others.[6]  As a result, trust among states in the international system is fragile due to the uncertainty surrounding the possibility of opposing views of leaders of governments which may affect their positions abroad.[7] It is this uncertainty surrounding intentions, and the possibility of its translation into policy, that may motivate a state to conduct surveillance on the inner debates and workings of partner countries.  It would be foolish to blindly trust their partners. As history has illustrated, allies often diverge and defect from previously agreed upon policies.

Examining transatlantic alliances

“A friend today can become an enemy tomorrow” is a phrase which can be applied quite successfully towards past and present-day alliances. Due to the competitive nature of the international system at large, allies’ interests may diverge, therefore an understanding of such change is required.  A good example of this would be the alliance between Germany and the US.  Many would agree that these two states – both NATO members – have a warm relationship.  Spying on the Germans has had positive outcomes. In the 1970s, at the time of the Cold War, West Germany, a US ally, had discovered that the East Germans had planted a communist spy in West German Chancellor Willy Brandt’s inner circle.[8]  When the infiltration was revealed, the damage was NATO-wide, with Brandt having to resign after it was found that his letters to President Nixon had been compromised.[9] However, in modern times, Germany has diverged and disagreed with certain US policies, thus undermining US interests.  In 2011, Obama expressed his desire to intervene militarily in Libya but faced opposition from German Chancellor Angela Merkel.  Had the US intervened in Libya, Merkel could have used her influence to reduce NATO’s participation in the conflict.[10]  Additionally, ‘Washington and Berlin have clashed over how to manage the eurozone crisis, the resolution of which have far-reaching implications for the German and US economies’.[11]   The NSA wiretapping Merkel’s mobile phone may seem personal and invasive, but with the power that Germany has today and its ability to undermine its allies’ interests, it would seem logical to maintain a close eye on any developments within.

Close allies for many years, Germany and the US are arguably facing a particularly frosty relationship after allegations of NSA wiretapping of the Chancellor’s personal mobile.

Another close ally of the US who has expressed outrage of being targeted by NSA spying is France, but once again this European ally has also had a tendency to diverge from US policies. Under Charles de Gaulle, France continually turned its back on the US. De Gaulle announced a ‘national independence policy’ that contained a nuclear plan pertaining to ‘a strategy of defence in all directions’ – which also seemed to suggest that the US may one day become an enemy of France.[12]  Also, the French vetoed Britain’s entry into the European Economic Community – that would later advance to become the European Union – thereby weakening its trans-Atlantic ties. ‘De Gaulle even tried to persuade the leader of Western Germany to loosen his ties with NATO, which would have undermined the US-led coalition and damaged the course of the Cold War.’[13]  Thus, as a result of such history of divergence, it would appear logical for the US to spy on its French ally due to France’s history of divergence.

The US and Britain have long been considered the closest of allies, but even these two friends have been known to spy and conduct espionage against each other.  In 1917, the British government wanted the US to join the fight during the First World War, and on Britain’s side.  ‘The British used a whole range of overt and clandestine methods to gather intelligence and run influence operations’ including one example of ‘the surveillance of a US transatlantic cable’ in which Britain’s foreign intelligence service learned of a dubious German plot to win Mexico’s allegiance by promising the country a chunk of US territory.[14]  Masking the source of the information, British foreign intelligence relayed this intelligence to Washington, thus influencing the US to join the war.  During the Cold War, America’s Venona Project ‘revealed that sensitive documents were being sent to Moscow from the British Embassy in Washington.’[15]  By spying on its closest ally, the US were able to discover that there were two British double agents, Donald MacLean and Guy Burgess, working for the Soviets and had just defected.  These agents were compromising American national security, of which its ally had not been able to detect.  Another example of friendly spying was the Suez crisis in 1956.  Former US President Eisenhower, having been left out of the strategic planning of the Anglo-French-Israeli invasion of Egypt, decided that it was imperative to know what his allies were up to.[16]  He utilised his imagery intelligence capabilities through the use of U-2 planes which were sent over British, French and Israeli military sites in the eastern-Mediterranean and the Middle East, and the reconnaisance through the U-2s gave Eisenhower important clues about his allies’ military operations for, and execution of, their invasion of Egypt.[17] From these examples, it is clear that even the closest of allies feel the need to spy on each other for the sake of preserving their own national interests.  Maybe it isn’t so inconceivable that GCHQ wiretapped Trump Tower in the run-up to the presidential elections, considering that he would become the leader of one-half of the “special relationship”.

The relationship between Britain and America has long been considered a close one, but even these two allies have been known to spy on each other.

Spying among friends

If one is caught spying on allies, it is of course damaging. The revelations that the NSA were spying on allied leaders complicated efforts to negotiate a transatlantic trade and investment agreement and gave ‘ammunition to people who are worried about the globalization of information and who would like governments do more to protect privacy and limit governmental data-collection.’[18]  And yet, one must note that when leaders such as the French President François Hollande and Merkel come out in anger against alleged spying, they are often doing so to appease their outraged publics.[19]. The above examples show how volatile and fluctuating alliances can be, thereby justifying why spying on each other is a necessity.

Allies spy on each other so as to know of other’s intentions and changes in policy.  Whilst it may be immoral to conduct espionage on our friends, it would seem damaging not to do so.  If spying has positive outcomes and the interests of a nation, then it is reasonable for a state to pursue such measures.  In light of the above question, one can look to recent developments between Britain and Spain over the long-contested territory of Gibraltar following Britain’s decision to leave the EU.  Spain’s illegal incursion into Gibraltar’s waters is yet another sign that alliances are fragile, with high chances of states undermining another’s sovereign interests, leading to the conclusion that spying can indeed take place amongst friends.

Anastasia Beck is a postgraduate student studying Intelligence and International Security in the Department of War Studies at King’s College London (KCL).  Anastasia’s research areas include counter-radicalization, the role of intelligence in both peace and conflict, and open-source intelligence.

Notes:

[1] Walt, S. ‘News Flash: States Spy on Each Other’, Foreign Policy, Date accessed: 1st April 2017 http://foreignpolicy.com/2013/07/01/news-flash-states-spy-on-each-other/

[2] Ibid.

[3] Fisher, Max. ‘Why America spies on its allies’, http://www.wikiwand.com/en/Global_surveillance_disclosures_(2013–present)

[4] Ibid.

[5] Ibid.

[6] Sims, J. ‘I Spy…’, available here at https://www.foreignaffairs.com/articles/2013-11-06/i-spy

[7] Bucknam, M. ‘The Eisenhower Administration and the Suez Crisis: Spying on Allies and Friends’ National War College (2000) pg. 3

[8] Ibid pg. 5

[9] Bellaby, R. ‘What’s the Harm: The Ethics of Intelligence Collections’ Intelligence and National Security 27:1 (2012) pg. 108

[10] Ibid pg. 109

[11] Bitton, R. ‘The Legitimacy of Spying Among Nations’ American University International Law Review 29:5 (2014) pg. 1020

[12] Stout, M. ‘Can Spying on Allies Be Right?’ War on the Rocks Date accessed 1st April 2017 https://warontherocks.com/2013/11/can-spying-on-allies-be-right/

[13] Colby, E. ‘Why We Must Spy on Our Allies’ The National Interest Date accessed: 29th March 2017 http://nationalinterest.org/commentary/why-we-must-spy-our-allies-9493

[14] Ibid.

[15] Easley, L. ‘Spying on Allies’ Survival 56:4 (2014) pg. 143 DOI: 10.1080/00396338.2014.941545

[16] Fisher, M. ‘Why America spies on its allies (and probably should)’ The Washington Post Date accessed: 1st April 2017 https://www.washingtonpost.com/news/worldviews/wp/2013/10/29/why-america-spies-on-its-allies-and-probably-should/?utm_term=.90f50ccedacc

[17] Ibid.

[18] Sims, J. ‘I Spy…Why Allies Watch Each Other’ Foreign Affairs Date accessed: 20th March 2017 https://www.foreignaffairs.com/articles/2013-11-06/i-spy

[19] Ibid.

Image credits:

Image 3: https://www.pritzkermilitary.org/explore/museum/past-exhibits/american-icons-great-war/side-side-britannia/

Image 2 and Feature: http://www.dailymail.co.uk/news/article-4325158/Trump-deflects-wiretap-questions-Merkel-news-conference.htm

Image 1: http://www.wikiwand.com/en/Global_surveillance_disclosures_(2013–present)

Interview – Sir David Omand on Iraq, the terrorist threat, and surveillance

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Interview by Lee Watkins:

Professor Sir David Omand GCB, talking at Chatham House in September 2013. Photo: Chatham House (CC)
Professor Sir David Omand GCB, talking at Chatham House in September 2013. Photo: Chatham House (CC)

Sir David Omand, former Director of GCHQ, on the current security climate and the recent IPT rulings on GCHQ’s information gathering.

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Besides your role as Director of GCHQ from 1996-1997, what are other highlights from your career?

I was Principal Private Secretary to the Defence Secretary during the Falklands War. That was a very intense experience, seeing things at close quarters. The other defining experience was the Bosnian War. I was Deputy Undersecretary of State Policy and in charge of the MoD’s policy, which eventually led to the NATO intervention and brought the conflict to a close. That was both extremely hard but also rewarding. A lot of people lost their lives.

I supported NATO’s intervention. This was a period of extreme tension between the US Congress and most of the parliaments in Europe. And so getting something everyone could agree on – that’s the kind of policy work that’s really rewarding. The UN, when it works well, is extremely good. But if you haven’t got full consensus from the Security Council, then it’s very difficult. Getting it under control by reconciling Europe and the United States and then getting NATO to take the lead transformed the situation.

Additionally, you contributed to the 2010 Chilcott Inquiry into the UK’s role in the Iraq War. What was your role during that war?

I wasn’t involved in the Iraq decisions myself, but I was a member of the Joint Intelligence Committee at the time of the Iraq War. I was security and intelligence coordinator in the Cabinet Office. At the time I was deeply involved in constructing the UK’s domestic counterterrorism strategy.

How would you respond to criticism that the Iraq War may have been counterproductive by creating more militant jihadists than it has deterred?

Islamic extremism predated the invasion of Iraq and the War on Terror; for instance the 1998 US Embassy bombings in East Africa carried out by Al-Qaeda or the attack on the USS Cole. You can’t draw a cause and effect conclusion, nor can you say that there’s a direct relationship. Denmark was just attacked just over a month ago and no one would accuse Danish foreign policy of being aggressive.

But there is no doubt that passions were aroused by the invasion of Iraq and I expressed that at the Chilcott Inquiry. The British intelligence committee’s assessment was that as a result of our actions in Iraq the threat level would go up. This didn’t necessarily mean they should not go ahead, but they had an awareness of this assessment. They judged that that was manageable.

What about statements by Al-Qaeda and other groups that their attacks are in response to Western foreign policy, for instance that 9/11 was retaliation for US troops stationed in Saudi Arabia?

They’re going to say that anyway. I think that the Far Enemy thesis applies. If someone like Zawahiri [the current leader of al-Qaeda] believes that the West will prevent the creation of an Islamic state in Egypt or Algeria, then they will try to strike back at the power of the United States. They see the United States, the West, Israel, as implacably hostile to the creation of a Caliphate, of an Islamic State – which we are, because we are so diametrically opposed. It is a clash of values. Which is not to say that these values are intrinsic to Islam – very few Muslim communities in the US or the UK would see eye-to-eye with them.

Public anxiety has been mounting for several years, not only about terrorist attacks but also about government surveillance. Are these fears well-founded?

Some of this is inevitable because the more you know about the threat, the more anxious you are liable to be. If you’re in a happy state of ignorance, your anxiety is less – until something happens. The UK’s terrorist threat level [recently raised to “Severe”] is a way to condition the public to the existing level of risk. That way you don’t have a gross overreaction – shouts of “This must never be allowed to happen again!” and legislating away our human liberties. We make it clear that it’s not possible to stop all attacks, and that isn’t the objective.

The intelligence community’s objective isn’t to stop all attacks?

The formal objective of the UK counterterrorism strategy is to reduce risk so that people can freely go about their normal lives with confidence. You want to stop every goal from being scored by the opposing team – but you know that that’s actually impossible. No team ever succeeds in keeping out all the goals, but at any one moment you’re desperately trying to stop them from scoring. In no way does that imply that you’re taking a relaxed or casual approach. It is the reality that actually, your team is not going to win every game. If you try to give an absolute guarantee, you get driven into actions that are counterproductive.

What is your response to the recent Investigatory Powers Tribunal (IPT) court ruling that the intelligence-sharing relationship between the NSA and GCHQ was illegal?

The IPT’s first ruling determined that British intelligence was in conformity with the European Convention on Human Rights (ECHR) and the British Human Rights Act. The second again upheld the way the intelligence mission was being conducted. They determined that this was not mass surveillance, but targeted surveillance. However, under ECHR, the UK has the obligation to keep the public informed of how the law applies to them [the intelligence-gathering authorities].

Specifically there were two GCHQ guidelines not in the public domain. These safeguards applied to information collection by the US about people in the UK. In essence, an analyst was required to have the same level of authority [the Secretary of State’s authority] to access this information as if it had been the UK who collected it. But the difficulty came in where the UK was physically not in a position to get the access but the US was. The safeguard meant that the legal equivalent of a warrant, a secretary of state’s authorization, enabled the analyst to go to the US and say, “Have you got anything on this guy?” So it’s essentially a safeguard.

The court determined that two paragraphs in the government’s evidence should be public. They are now public. One of them is entirely theoretical. Technically the government had been in breach of its obligations for the preceding seven years because it hadn’t made these conditions clear. It has now made them clear, so it is now in the right. They should have done this when they first had access to the US material. So I think that’s a good decision, because it reminds the government of their obligation to explain to the public how it all works, and it’s also an excellent decision from the government’s point of view because it reaffirms that the court believes that what is currently going on is lawful, and is consistent with ECHR and it’s not mass surveillance.

I’m slightly confused by your positive response to the ruling because my impression was that GCHQ’s protocol was deemed a human rights violation.

Interception law, which requires warrants and authorities – all of that was being complied with. You’ve got various safeguards for external communication, but because of the way packages switch networks you pick up a domestic communication instead. GCHQ explained that in those circumstances you still require the same level of authority to access the material. But what they hadn’t done was make themselves understandable to the public, under ECHR regulation. And if you look at the 2008 statement, it doesn’t cover this at all. A lawyer would say it does, but if you were a layperson and you read the act, would you understand it? And the answer is no, you wouldn’t.

The government should have done more to explain. And what they’re not explaining is safeguards, which is slightly paradoxical. But the public has a right to know what those safeguards are. Immediately when the judgment came out, all the civil liberties groups jumped on it – but simultaneously GCHQ said they were delighted with the judgment, that what they were doing was legal.

Yes, in part my surprise at your reaction comes from statements by groups like Privacy International, which has launched a campaign titled “Did GCHQ spy on you?” that has gathered 6,000 signatures. Is it not your impression that people feel their privacy is being invaded?

This is simply mischief-making. This is what lobby groups do – try to create this impression. Their privacy was not being invaded, but their right to have the law explained to them was not being upheld. Would they be entitled to any compensation? I hope not.

Do you feel that there has been an escalation of public fear of being spied on? A case of increasing paranoia, if you like.

Yet the polls show that two-thirds of the British public think that more powers should be given to intelligence agencies because of the threat of terrorism. This is a very vocal campaign run on behalf of a minority. Now, they need to be taken seriously – they should be taken seriously – but I don’t think you should run away with the idea that there is huge British public unease. On the contrary, the majority of the British public want the agencies to go on trying to stop attacks.

So you feel that the fears of a terrorist attack are higher than the fears of privacy intrusion? Both of these public concerns put pressure on the intelligence community.

A lot of unease is down to a simple conceptual error in confusing mass surveillance with bulk access. This problem has bedevilled the whole argument. The IPT judgment discusses bulk access. GCHQ has the ability to capture quite a lot of external communication – it’s still a tiny part of the internet – and then a filtering is applied by computers, looking for the specific indicators of the targets they’re allowed to access. What is allowed to be seen by an analyst is tiny. If analysts are seeking, say, Syrian jihadists, then they are only allowed to view what is permitted to them on the relevant certificate. That’s why the IPT concluded that this was highly targeted and not mass surveillance. But it does involve computers looking at the major bearers of information in order to find useful material.

When you think about it, there’d be no other way to find the IP address of a computer being used by a terrorist. How would you find the communication? There are arguments over whether you should feel that your privacy has been intruded upon, even if it’s just the computer whizzing through and throwing your stuff away, because it’s not what they’re looking for. And that argument will go on, but it wasn’t accepted by the IPT.

The key for me is, it’s not about the tools being used by the agency. They are essential. They’re needed to catch paedophiles and criminals and terrorists. Law enforcement is all about digital intelligence these days. Worry about the oversight. Who gets to sign the authority? Who checks they’re actually complying with the regulations?

So you feel it’s a question of human integrity rather than technology?

Yes. This is where the IPT comes in. The report by Rt. Hon Sir Anthony May, Interception of Communications Commissioner, again concluded there’s no mass surveillance going on. He has free access to all the analysts’ stuff at GCHQ and he was previously an appeal court judge, so he’s quite a formidable character.

In the UK, I personally think that we have the model for the rest of Europe to follow. We’ve got parliamentary oversight, judicial oversight, got a specialist court for all of this. The bit that hasn’t been right has been the transparency vis-a-vis the public. The more transparent the government is, the more the public supports it. What Snowden has done is unleash a kind of worry – “What are they doing? How can I trust them?” – and in fact the more that comes out, for example through the IPT, the more people should be reassured that it’s a very organised system, it’s got checks and balances.

We’ve discussed concerns over too much information – what about worries over too little? In many cases, including the recent Charlie Hebdo attack, preceding a terrorist attack there is a trail of tweets, of blog posts, of other online clues that an attack will occur. Is there perhaps not enough access to information?

If you can get private correspondence, rather than public blogging, that will give you a better clue as to where they are – and do they have something big in mind? They may tip someone else off and say, “We’re going to do it on Saturday.” You can’t conclude one way or another about the Charlie Hebdo attack. It’s very important that people understand: intelligence work is a jigsaw puzzle. It’s putting together several jigsaw puzzles simultaneously. The pieces are all muddled up and you haven’t got the lid of the box. You can’t pick up one piece and say, “Without this, the attack wouldn’t have happened.”

It’s kind of a crazy question: “How many terrorist attacks has digital intelligence stopped?” Well, how long is a piece of string? If you’ve got reasonably good coverage of the people who mean you harm, you will stop most of them. The director of the security service indicated recently that the last dozen attempts in the UK have been stopped. Will the next one be stopped? Who knows. At least the score rate is good. And one would not want it the other way around.

Thank you.

Sir David Omand GCB is a visiting Professor in the Department of War Studies at King’s College London. He was the first UK Security and Intelligence Coordinator, responsible to the Prime Minister for the professional health of the intelligence community, national counter-terrorism strategy and “homeland security”. For seven years he served on the Joint Intelligence Committee. He was Permanent Secretary of the Home Office from 1997 to 2000, and before that Director of GCHQ. During the Falklands conflict he was Principal Private Secretary to the Defence Secretary, and he served for three years in NATO Brussels as the UK Defence Counsellor. He has previously written on some of these issues for Strife. You can find his article here. 
Lee Watkins is an MA student in the Terrorism, Security and Society programme in the Department of War Studies at King’s College London.