United States Stops Spying on Western Europe—for Now

The CIA has paused its espionage activities against “friendly governments in Western Europe,” according to a report by the Associated Press and ABC News that broke on Sept. 20. If true, the report raises the interesting question of whether Germany has achieved indirectly the “no-spy” agreement that it has sought since disclosures by Edward Snowden revealed last fall that the United States had tapped German Chancellor Angela Merkel’s phone. The spying pause also creates a challenge for the United States: how can it compensate for the loss of the intelligence it usually gains by spying on Western European governments?

As a brief recap, the relationship between the U.S. and Germany over intelligence issues has taken a number of twists and turns in the last year. The news of U.S. tapping of Merkel’s phone broke in late Oct. 2013, and prompted Chancellor Merkel to issue a harsh rebuke to President Obama and to demand a “no-spy” agreement with the U.S. The U.S repeatedly rejected the idea of a “no-spy agreement,” with President Obama himself stating in a May 2014 press conference with Chancellor Merkel, “[W]e do not have a blanket no-spy agreement with any country, with any of our closest partners.”

According to the AP, the current U.S. espionage pause began roughly two months ago, apparently triggered by investigations of two German officials for spying for the U.S. Reports indicate that, in an attempt to stave off the expulsion of the CIA station chief in Berlin, the U.S. on July 9 offered Germany an intelligence partnership similar to what the U.S. has with the “Five Eyes” (the U.S., the United Kingdom, Canada, Australia, and New Zealand): intelligence sharing and an understanding to limit spying. Germany declined the offer, and on July 10 expelled the station chief.

The spying pause is intended to “give CIA officers time to examine whether they were being careful enough and to evaluate whether spying on allies is worth running the risk of discovery,” writes the AP. The wire service explains: “CIA officers are still allowed to meet with their counterparts in the host country’s intelligence service and conduct joint operations with host country services. Recently, unilateral operations targeting third country nationals — Russians in France, for example — were restarted. But meetings with independent sources in the host country remain on hold, as do new recruitments.”

The unilateral pause instituted by the U.S. may have given the Germans something closer to the no-spy agreement they sought than the limited spying agreement they apparently declined in early July—and all without requiring a corresponding no-spy promise from Germany. But it is not clear how long the pause will continue. Because the cessation was a unilateral action by the U.S., there is no apparent bar to the U.S. restarting its espionage activities at any time. On the other hand, according to the AP report, the pause is partly to provide time to conduct a cost-benefit analysis of spying on allies. If the costs (which in the German case have certainly been high) are adjudged to exceed the benefits, then perhaps the U.S. will make the cessation (in some form) permanent.

If the U.S. does decide to ratchet down intelligence activities against European allies, what might the next steps look like?

It seems highly unlikely that restrictions would be unilateral or total, as the pause appears to be. It makes little sense for the U.S. to engage in unilateral intelligence disarmament when it could bargain for mutual intelligence restrictions and increased intelligence sharing. Moreover, given the lack of precedent for a total no-spy agreement, the Obama Administration is unlikely to relinquish the right to spy, even on allies, in particular circumstances. A more likely outcome would be a series of Five-Eyes style intelligence partnership agreements that ensure mutual benefit from intelligence-sharing and some limits, but not a total ban, on spying on the agreement party or parties. Although Germany apparently rejected a similar offer in July, the espionage pause may provide room for diplomacy and scope for negotiation that were not possible in the midst of the spying scandal over the summer.

Another question is which countries might get the Five Eyes-style deal. Although I’ve focused on the recent history with Germany and events in Germany reportedly triggered the pause, the AP report indicates that the pause reaches beyond Germany to “friendly governments in Western Europe.” (It does not specify which governments or indicate whether it means all friendly Western European governments.) But from the perspective of other friendly governments, why stop with Western Europe? Countries, including Germany and France, whose publics have been incensed by reports of U.S. spying on their citizens have incentives to publicize any agreement that limits U.S. collection activities vis-à-vis their citizens. The disclosure of any new agreements with particular countries could create diplomatic strife for the U.S. with other countries that want, but have not been offered, the same deal.

When the no-spy agreement issue arose last fall, Stewart Baker proposed in congressional testimony substantive and procedural criteria for entering spying agreements, and in December, the President’s Review Group on Intelligence and Communications Technologies proposed other substantive criteria (Pages 174-176). Even if the U.S. were to deploy neutral, substantively reasonable criteria for vetting potential agreement partners, it could still find itself with a new set of diplomatic difficulties with countries that want into intelligence sharing and out of the scope of U.S. espionage.

  

About the Author(s)

Kristen Eichensehr

Assistant Professor at UCLA School of Law, Affiliate Scholar at Stanford Law School's Center for Internet and Society, Former Special Assistant to the Legal Adviser of the U.S. Department of State Follow her on Twitter (@K_Eichensehr).