Hypocrisy and Spying

Matthew Heiman

August 1, 2015

Spying, the law, and hypocrisy

Recently, German prosecutors said that they were closing their investigation of allegations that the U.S. National Security Agency had tapped Chancellor Angela Merkel’s mobile telephone. The chief prosecutor said there was insufficient evidence to prosecute. The investigation was triggered when the German magazine Der Spiegel published an article citing documents from NSA leaker Edward Snowden. At the time, Chancellor Merkel said, “Spying among friends – that is simply not done.” According to an unnamed German official, the event created the biggest strain in U.S.-German relations since the 2003 invasion of Iraq.

When the Snowden leaks began in 2013, many leaders joined Chancellor Merkel in expressing their outrage over the NSA’s collection of metadata about telephone calls. These expressions of displeasure included arguments that privacy rights had been violated, and that the NSA’s activities were illegal under international law and the domestic law of their countries. French officials described the NSA’s actions as “unacceptable” and “shocking.” During a speech at the United Nations, immediately preceding President Obama’s speech, Dilma Rousseff, president of Brazil, said, “Tampering … in the affairs of other countries is a breach of international law and is an affront of the principles that must guide the relations among them … .”

With regard to the domestic law of almost all countries, any form of spying – whether it is the NSA gathering signals intelligence or a trench-coated spy working with a foreign national to gain confidential information – is a violation of that country’s law. That is the nature of spying. If a Chinese spy living near the Pentagon cajoles an employee of the U.S. Department of Defense to provide design drawings of U.S. fighter planes, that Chinese spy is violating U.S. law. If a U.S. spy living near Tiananmen Square convinces someone from the People’s Liberation Army of China to provide war plans, the U.S. spy is violating Chinese law. So, to say that spying activities have violated a country’s domestic law is like saying seawater is salty. Both statements are true but not terribly enlightening.

When leaders like Rousseff claim that NSA activities also violate international law, skepticism is warranted. As was recently pointed out by Ashley Deeks in an article on Lawfareblog.com, these leaders are not specific when explaining what particular aspects of international law are being violated. Deeks also points out that these countries have not explained how the long-standing practice of spying squares with rules that are said to govern it. One reason for maintaining ambiguity as to what law applies and what acts are prohibited is that such specificity on these points may limit a country’s options, and it can make a country look hypocritical.

Recently, it was reported that Germany’s intelligence service has been working closely with the NSA since 2008, five years before the Snowden disclosures, to spy on allies such as Austria and France. When asked about this apparent contradiction with her 2013 statements, Merkel said that the German intelligence service “must and will cooperate internationally to protect the bodies and lives of 80 million Germans as best they can.” Similarly, France’s criticism of NSA collection did not stop its legislative bodies, from approving sweeping new surveillance authorities that are free of judicial oversight, unlike the regime that governs the NSA.

German and French actions illustrate that momentary, professed anger over NSA spying will not stop those countries from accepting help from the NSA or creating their own NSA-like surveillance authorities. This makes sense. National leaders are charged with keeping their citizens safe from war, terrorism, and other threats to their national security. When they argue that NSA surveillance violates international law, a questionable proposition, or is in some other way wrong, they are trying to stick up for and reflect the anger of their citizens. No one likes to be spied upon, but no country is going to stop spying if they think it will enhance national security.

Rather than engaging in public expressions of disgust that are later contradicted or making weak assertions of legal violations, national leaders would do well to accept that as long as there are secrets to keep, there will be spies trying to learn those secrets.

Heiman is vice president and chief Compliance and Audit officer at Tyco International.