29 Oct The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal
I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR. But unlike Peter, I think it will get nowhere. Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws. Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)
In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends. Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia). A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.
With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider. I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars. Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France? Better to at least commit the French to a deal.
From a foreign relations law perspective, “no spy” agreements are curious. They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties. The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.
Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements. Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements. He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc). He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well. I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.
In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”. I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.