NEW YORK – The uproar in Europe over spying by the U.S. National Security Agency has led to calls for a treaty or code of conduct to limit espionage. To understand why this is naive, imagine a treaty to ban sex. It would be honored in the breach. States, too, have an overwhelming natural impulse: to spy.
Spying is (or was until Edward Snowden) largely covert; no one freely admits to doing it. It is also one of the last preserves of the absolute sovereign, unconstrained by law — think Louis XIV in a trench coat.
This is one reason why there are international laws for trade, travel and warfare, but almost none governing espionage, except the one that allows spies to be shot if captured in civilian clothes.
So an agreement to restrict “illegal surveillance,” as Germany and Brazil are proposing at the United Nations, is a non sequitur. Surveillance isn’t illegal under international law. It isn’t illegal under the laws of the state conducting the surveillance. It is likely to be illegal in the country being spied upon, but the whole point of espionage is to commit illegal acts in another country. Equally, a code of conduct such as France has proposed would be flouted, first of all by France.
Countries tread delicately around the issue of spying. There are informal rules, the most important of which is: Don’t get caught. The U.S. has clearly violated this rule and must suffer the consequences. If caught, the standard practice is for the victim to express outrage and shock, and for the victimizer to politely deny any knowledge. Then the incident is swept out of public view. This hasn’t happened with Snowden because those who control his material shape and time the releases to inflict maximum damage on the U.S.
The unremarked aspect of the Snowden episode is that it is information warfare by nonstate actors. The narrative has been carefully constructed to cast the U.S. as a nation that ignores international norms to do as it pleases. This cleverly echoes widely held beliefs about U.S. behavior in invading Iraq. The catch, of course, is that when it comes to espionage the U.S. isn’t unique: All countries spy to protect their interests and none will renounce the practice.
The risk is that silly, unenforceable agreements will detract from addressing the very real problem that Snowden has inadvertently exposed: that the global networks we depend upon are easily exploited by spies, criminals and armies. Meaningful agreement is possible if it avoids a global circus based on the Snowden mythology and focuses instead on the need for common rules for privacy and the Internet.
What’s certain is that any global agreement on espionage would be ignored. Few people remember the 1928 Kellogg-Briand Pact, in which nations solemnly agreed to renounce war as an instrument of foreign policy. The agreement is forgotten because, however noble its intentions, no one paid it the slightest attention. Brazil and Germany can forswear communications surveillance because they lack the capability. Those that do, won’t.
Another approach that has been suggested is for Germany and perhaps other U.S. allies to join the so-called Five Eyes arrangement, between the U.S., United Kingdom, Australia, Canada and New Zealand. The Five Eyes have a formal agreement not to spy on each other and to share intelligence that dates back to the dark days of World War II.
But these five Anglophone countries share powerful political, economic and cultural commonalities that make the package of agreements difficult to duplicate or expand, even though their benefits in preventing terrorist attacks and countering other threats are unmatched. There already exists strong cooperation with key allies outside of the Five Eye framework that is in everyone’s interest to continue.
Spying isn’t in a meaningful sense illegal, but nor is it always politically astute. It might have been better if the U.S. had resisted temptation to spy on German Chancellor Angela Merkel and other friendly leaders.
But espionage is a symptom of larger concerns. European countries are home to hundreds of potential jihadis, and European companies sold technology to the Iranian nuclear weapons program, to name just two. These are legitimate grounds for communications surveillance.
The U.S. learned the need for this form of espionage the hard way. It had no ability to intercept communications until World War I, when the U.S. Black Chamber was created to break codes. In 1929, Secretary of State Henry Stimson shut the program down after finding out that it had been spying on allies: “Gentlemen do not read other gentlemen’s mail,” he said. This was a cause for regret in 1939. Cost cuts to U.S. intelligence at the end of the Cold War also proved premature. One reason we have avoided more mass-casualty events after Sept. 11 is the broad system of surveillance used by the U.S. and its allies.
If there is distrust in the trans-Atlantic relationship, there are better ways to deal with it than by trying to limit espionage. The U.S. needs to recognize European sensitivities and Germany’s new importance in the world.
Germany and Europe need to recognize that the U.S. has a very different historical experience, in which espionage has been a safeguard rather than a tool of oppression. That all are democracies and market economies isn’t enough to guarantee partnership, but the clamor over Snowden shouldn’t make us forget that we face much more dangerous opponents than each other.
James Lewis is a senior fellow and expert on technology security at the Center for Strategic and International Studies. He formerly worked for the departments of State and Commerce and was seconded to U.S. Central Command during the first Persian Gulf War.
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