International Law

The German Intelligence Agencies Are Coming to Town

By Ashley Deeks
Monday, October 28, 2013, 7:00 AM

Back in early September, I discussed Germany’s deep concern about allegations that the United States had been conducting surveillance on foreign leaders’ email and phone conversations.  At the time, German officials suggested that the United States had agreed to discuss a bilateral “no spy” agreement, though the latter never publicly confirmed its willingness to do so. It’s possible that the United States thought the issue would fade away.

Avoiding the issue obviously is no longer possible. The State Department reports that German intelligence officials will travel to the United States “in the coming weeks” to discuss allegations about NSA surveillance in Germany, including the charge that the NSA monitored German Chancellor Angela Merkel’s cell phone. Merkel expressed an interest in achieving “an agreement” but left open the details of what such an agreement would contain.

My September post discussed some of the most potent downsides for the United States if it were to enter into a legally (or even only a politically) binding agreement on the issue.  These downsides included (1) setting a precedent that would prompt other states to seek similar arrangements; (2) the sheer loss of intelligence information; (3) the chance that a future German government might prove unfriendly to the United States (thus complicating things for future U.S. executive branches that faced more threatening circumstances); and (4) the fact that the U.S. capacity for surveillance was likely higher than Germany’s, such that a concession not to spy unilaterally in (or on) the other state might mean the United States was giving up more than Germany would be.

Given the current situation, I think these downsides still stand (and in some cases are even more potent), but the costs of not entering some form of commitment are higher. What’s not clear is how much higher those costs are.

Let’s assume that the U.S. government’s preference would be to not conclude any type of new formalized arrangement with the Germans (or with any other country beyond the “Five Eyes”).  General guidelines apparently exist already between the United States and Germany regarding intelligence cooperation. Expanded guidelines might require greater coordination with German intelligence services before the United States collected or used information it had gathered on German citizens, and/or might establish commitments not to collect against senior government officials or intelligence services. Presumably the United States would prefer not alter or tighten the rules of the road. (I could be wrong here: The language coming out of the White House in the past few days has been more forward-leaning---“just because we can collect certain intelligence doesn’t mean we should”---which might suggest that the United States is willing to forego certain activities that it currently undertakes. Executive agencies may differ about how much to appease foreign governments and whether to assume new restrictions that could impede intelligence collection.)

Another variable is how serious the Germans are about seeking some public deliverable, rather than having quiet (but potentially more productive) discussions that don’t produce a publicly consumable outcome.

How, then, is the United States likely to assess the costs and benefits of demurring on a new arrangement at this point in time?

One question the United States must ask itself is whether the Germans in particular (and the EU in general) are serious when they suggest that the lack of trust between the two sets of actors “could prejudice the necessary co-operation in the field of intelligence-gathering.” That seems like a not-so-veiled threat to provide less intelligence to the United States, including on issues related to terrorism. This is a hard question to answer, but there has been little public evidence that past (and even more deeply unpopular) U.S. policies such as renditions and the maintenance of secret sites have seriously undercut intelligence cooperation between the United States and other intelligence services.  So the United States might conclude that this is a false threat, based on past experience and the fact that reduced intelligence cooperation would hurt Germany as much as it hurts the United States. On the other hand, if intelligence (and political) relationships require a certain level of trust, a U.S. willingness to agree to additional restrictions is one way to start to restore that trust. That’s an important benefit to the United States, and a reason to make some concessions at this stage.

A second question relates to precedent; here the calculus must have changed somewhat since September. Germany (and France) are not the only states seeking revised intelligence relationships. To some extent, the whole EU is now in the act. Some EU states seem interested in a holistic “resolution” of these surveillance questions and may not be content for Germany and France to resolve the questions bilaterally with the United States. For instance, the Belgian Prime Minister stated that “the EU needed to take concrete action” and that “[w]e cannot accept this systematic spying. . . . I can't imagine measures at the national level. We need to take European measures.”

Of course, the United States has much closer intelligence relationships with some EU states than others. And nothing requires the United States to enter into identical bilateral arrangements with all states. In any case, it is hard to imagine that the United States would be willing to hold multilateral discussions on this issue with the EU. So perhaps if Germany and France are satisfied, the issue will fade from the headlines in the European press. But it may not fade from the headlines in states such as Brazil and Mexico, which might want to discuss new intelligence cooperation guidelines too.

A third question might arise if the United States commits to far more extensive cooperation with German intelligence when it conducts surveillance. Presumably this would create additional legal limits on that coordinated action. International law doesn’t really try regulate espionage, or, if it does, it does so weakly. Committing to close cooperation with a host state’s intelligence services creates a situation in which domestic law---which binds the host state’s officials---would effectively regulate a foreign state’s surveillance activities via an international arrangement (albeit an arrangement that likely stops short of constituting international law).

One final point: The challenges the United States faces are now intertwined with activity in the UN General Assembly to promote a right to Internet privacy and to call on states to review their practices of “extra-territorial surveillance of private communications.” Even if the United States emerges from its discussions with Germany (and France) with new but potentially modest changes to its intelligence cooperation arrangements, the surveillance issue will hardly fade from the international spotlight. I hope to say more about the UN-ization of intelligence activities in a future post.