Cross-national intelligence and national democracy

by Henry Farrell on June 19, 2014

Over the last year, there’s been a lot of writing about Edward Snowden (I’ve contributed a fair amount to the genre myself). Most people have discussed either the question of (a) whether domestic NSA surveillance in the US is appropriate and whether it is breaking US law, or (b) the purely political consequences of international surveillance. There’s been relatively little discussion of whether there is a problem _in principle_ with international surveillance, and most of what there has been has concerned the question of whether or not privacy is a [universal]( [human]( [right]( But the recent Der Spiegel revelations combined with some earlier material points to a narrower but very troubling set of problems for liberal democracies. Cross national cooperation between intelligence services has exploded post-September 11. This cooperation is not only outside the public space but, very often, isn’t well known to politicians either. Such cooperation in turn means that intelligence services are in practice able to evade national controls on the things that they do or do not do, directly weakening democracy.

This concern is at the heart of the Der Spiegel story, which reveals a high level of collaboration between the NSA and the German BND intelligence service.

The fact that the BND cooperates intensively with the NSA — and not just when it comes to counter-terrorism, but also in the undifferentiated mass monitoring of global communications — is demonstrated by documents from the Snowden archive. The Germans are partners and adversaries at the same time. The chancellor swore an oath to defend the German constitution. Furthermore, spying on Germany is not allowed according to the criminal code. The constitutional rights of German citizens are not bendable according to the current state of German-American relations.

There are two possible explanations for what happened. The first is that the US and German governments coordinated with one another to determine what the NSA is allowed to do in its facilities in Griesheim, Wiesbaden, Berlin, Frankfurt and Stuttgart. If that’s the case, the chancellor and her interior minister need to inform the public, because it means they share blame for the actions of the Americans — and for the Americans’ apparent use of data acquired in Germany to kill suspected terrorists. The second possibility is that the NSA is acting on German soil without the knowledge and approval of the German government. If that’s the case, their operations constitute espionage and should prompt the German government to act as it does in other, similar cases.

According to Snowden’s earlier testimony to the European Parliament:

>The result is a European bazaar, where an EU member state like Denmark may give the NSA access to a tapping center on the (unenforceable) condition that NSA doesn’t search it for Danes, and Germany may give the NSA access to another on the condition that it doesn’t search for Germans. Yet the two tapping sites may be two points on the same cable, so the NSA simply captures the communications of the German citizens as they transit Denmark, and the Danish citizens as they transit Germany, all the while considering it entirely in accordance with their agreements. Ultimately, each EU national government’s spy services are independently hawking domestic accesses to the NSA, GCHQ, FRA, and the like without having any awareness of how their individual contribution is enabling the greater patchwork of mass surveillance against ordinary citizens as a whole.

The Der Spiegel stories perhaps go further than Snowden, hinting strongly that German intelligence officials likely knew that this was the case and, as long as they had some plausible legal cover, didn’t particularly care. The problem is straightforward. Whether or not you think that there is a global right to privacy, covering all countries, most liberal democracies have strong privacy protections. In countries like Germany and Ireland, that protection is embedded in the constitution. But German intelligence officials are participating in (and very likely conniving at) arrangements that undermine the constitutionally protected privacy of German citizens. Moreover, as Snowden also notes, intelligence agencies in different countries have cooperated to try and push back against domestic laws protecting privacy and limiting surveillance.

> One of the foremost activities of the NSA’s FAD, or Foreign Affairs Division, is to pressure or incentivize EU member states to change their laws to enable mass surveillance. Lawyers from the NSA, as well as the UK’s GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorized by lawmakers. These efforts to interpret new powers out of vague laws is an intentional strategy to avoid public opposition and lawmakers’ insistence that legal limits be respected, effects the GCHQ internally described in its own documents as “damaging public debate.”

This has also led to an informal coalition of European spy agencies working together to roll back legal restrictions. This isn’t illegal – but the advice and technical help that e.g. GCHQ has given to intelligence services in Germany, Sweden and elsewhere that want to roll back legal restrictions on intelligence collection would come as an unpleasant surprise to most German and Swedish voters.

Spying and surveillance has been transformed from a national problem, in which there is an uncomfortable relationship between nation-state level democracy and intelligence agencies, into a cross national one, in which intelligence agencies collaborate actively to shape politics and share information across countries, not only often effectively evading national control, but sometimes actively reshaping and reinterpreting national controls to permit much broader forms of surveillance.

Domestic surveillance and security has gone cross-national in part because of technology (the availability both of very large datasets and new techniques to mine them), in part due to the increased interconnectedness of the advanced industrialized democracies (among whom extensive travel, economic relations, information exchange and so on have become far easier and more common), and in part due to the changed political atmosphere post September 11. Post September 11 politics have refocused attention on non-traditional threats, including terrorism in particular. This in turn has led to the creation of new cross national alliances between security-oriented actors in different countries, which have worked together to weaken national civil liberties and privacy protections that they perceive as getting in the way of security goals.

The consequence is that important aspects of domestic security (which used to be at least somewhat constrained by national legal frameworks) have been subsumed into the relatively lawless space of international security and intelligence. Obviously, intelligence agencies continue to do what they used to do, and this constitutes the bulk of their work. But their work touches more and more closely on domestic security too – given the nature of the data, it is often effectively impossible to _distinguish_ between domestic data and international data. And this information disappears into a world where (a) there is no external check on who gets access to it and who doesn’t, and (b) it is used in ways that affect, sometimes dramatically, people’s lives. In the milder cases, watchlists, based on undisclosed (and possibly inaccurate information) determine who can board planes and who cannot; who can pass through customs easily, and who is repeatedly subjected to body searches. As law enforcement and borders controls blur, officials are beginning to arbitrage the opportunities (e.g. waiting for someone to pass through customs so that they can search his laptop without having to get a warrant). As the Maher Arar case showed, unchecked collaboration between intelligence agencies has led to people being rendered to foreign countries for torture.

This implies that national security liberalism, to the extent that it ever was a credible position, isn’t any more. Liberals who embrace national security and extensive foreign intelligence gathering do so on the rationale that there is a clear distinction between national politics (where we owe obligations to our fellow citizens not to torture them or invade their privacy) and international politics (where they believe that at best a much weaker set of rights and obligations applies). But if national intelligence agencies are working across borders, creating a pool of shared information that systematically undermines national protections, then national security liberalism is at best incoherent, and at worst active apologetics on behalf of measures that not only corrode global rights, but the national level rights that they claim to care about too.



Nell 06.19.14 at 4:28 pm

“National security liberalism” was never a coherent position. Empire abroad leads to repression at home. Imperial wars come home. Always.


christian_h 06.19.14 at 4:31 pm

Thanks Henry – spot on. I had thought from the beginning of this affair that what we are witnessing is the creation of an international secret police, made possible by technological and political changes, qualitatively different from merely an increase in espionage.


Vladimir 06.19.14 at 4:40 pm

I would suggest that what we are witnessing is a form of – when applied to private sector actors like banks – regulatory arbitrage. The concern being the activities undertaken in a foreign jurisdiction will have serious negative consequences in the domestic jurisdiction e.g. insolvency and the loss of depositors cash. It is reasonable to suggest that the four junior partners of the five eyes community are – while not quite subsidiaries – entities in which the NSA has a large equity stake and a presence on the board. The institutional incentives of intelligence agencies – maximizing security – when focused on counter- terrorism magnify the risks of regulatory arbitrage and infringements on civil liberties. I see no reason to believe that national regulators of intelligence agencies will be any better prepared to constrain the behaviour of those agencies than financial regulators have shown themselves to be in regard to banks. The logical policy it seems to me , for anyone who cares about civil liberty, is to reduce the role of intelligence agencies – at least those in the foreign intelligence business – in counter-terrorism thus leaving them less reason to share information and to find ways of circumventing legal controls. Richard Aldrich wrote a fine article on intelligence cooperation some years ago


SamChevre 06.19.14 at 5:25 pm

This in turn has led to the creation of new cross national alliances between… actors in different countries, which have worked together to weaken national…protections that they perceive as getting in the way of…goals.

Isn’t this a widespread phenomenon of the interaction between the liberal democracies? With the elisions I’ve put in above, the discussion could be climate change and appropriate responses, the legal status of homosexuality, regulation of financial institutions, regulation of individual’s interaction with financial institutions (opposition to bank account secrecy), tobacco regulation, and I’m sure I’m missing others. The groups in each state (portions of the non-elected government, possibly losing factions in the elected government as well) work together across states to maximize the chances of achieving their goals despite opposition by the elected government.


Henry 06.19.14 at 5:54 pm

SamChevre – yep. For the political sciencey versions see here and here


Straightwood 06.19.14 at 8:39 pm

Cutting the Gordian knot of all the combinations of nation-state connivance to undermine privacy will be accomplished by a universal charter of privacy rights. Berners-Lee and Snowden have already recommended such a global initiative.

The persistent focus on local political action to adapt to the global Internet is a puzzle to me. The Internet is a radically novel phenomenon that renders geographical legal jurisdiction moot. Early Marxists had no difficulty envisioning a global movement; why do we now have so much difficulty accepting the notion of global norms for electronic privacy?


Collin Street 06.19.14 at 9:39 pm

Strategically, most intelligence work is in-principle redundant because strategic factors are pretty much by-definition widely known: if you know the parameters someone’s acting under, then you know the answer they’ll come to. Only if you can’t work it out for yourself does intelligence data help.

Different people value intelligence data differently because different people have different aptitudes and this drives different solution-finding strategies, some of which rely on intelligence data and some of which do not. I think a failure to see this drives a lot of the heat in the intelligence debate.


Collin Street 06.19.14 at 9:42 pm

[and that there’s an obvious tendency for people working in intelligence to be people for whom intelligence is part of their understanding-other-people approach: seriously, has anyone read Spycatcher?]


Thornton Hall 06.19.14 at 9:56 pm

This seems like the pinnicle of backasswards analysis. Why on earth would we start a discussion on international cooperation in espionage with the dubious premise that such cooperation is a new phenomenon? Maybe that’s true, maybe not, but it’s important only from a formalistic/legalistic perspective that seeks answers among precedent and universal rights.

I guess that’s a way to go about the process of finding the optimum level of spying, cooperation, democracy and terrorism. But wouldn’t a better way be to ask: “What is the optimum balance of spying, cooperation, democracy and terrorism?”?

Phrased that way we can have an empirical discussion that can include international actors who aren’t as rights obsessed as the Anglosphere and perhaps make some serious headway in the challenging task of confronting a world where many threats–including extra-national espionage operations, but also extra-national action by multi-national corporations–create problems that are not solvable by any particular nation-state acting on its own.


mud man 06.19.14 at 10:15 pm

actively reshaping and reinterpreting national controls

… short step from there to actively reshaping and reinterpreting national policy …


Consumatopia 06.20.14 at 12:36 am

“Why on earth would we start a discussion on international cooperation in espionage with the dubious premise that such cooperation is a new phenomenon?”

No one is saying the phenomenon is new. The claim is that some political factions haven’t taken it into account, and if they did they might reach different conclusions.

For example, you mention a trade off between spying/counterterrorism and national democracy. But what U.S. politician has ever made the argument that fighting terrorism requires us to surrender some degree of our national autonomy?

Furthermore, it’s ironic that you dismiss universal rights, because if liberal democracies are expected to submit to international surveillance in the long run, they require some sort of universal protections against abuse by those networks. Multi-national corporations have a long history of mutually beneficial cooperation with intelligence agencies around the world, so blindly handing more power to spies would tend to make plutocrats stronger.


JML 06.20.14 at 2:10 am

The pendulum will surely swing back. Every contrivance by the FBI to infiltrate political orgaizations, once exposed, has led to countervailing political action. I believe something similar will happen at the international level. Knowledge is power, and someone, somewhere, always tries to abuse that power. Eventually, in a free society, some of those instances are exposed, and the backlash begins. I’m hopeful.


Nell 06.20.14 at 6:17 am

@JML – 12: Betty Medsger’s The Burglary is highly recommended reading in any case, but particularly educational for hopeful people with a vague sense that there’ll be some kind of automatic reaction to FBI abuses.

Medsger conveys accurately just how feeble were the reforms in the wake of the public exposure of FBI infiltration, spying, and thuggery (plus CIA assassinations, human experimentation, media manipulation, and domestic spying) via news reports and then Church committee hearings. And how quickly they were dismantled — in the early 1980s, not after September 11. [About the only one of the “reforms” that lasted was a secret court (!), the rubber-stamp FISC.]

In the time since then, the powers of the FBI have grown immeasurably, fused with militarized, taser-wielding local cops and mini-SWAT armies, multiplied by many more federal forces with fearsome weaponry, powerful surveillance tools, and impunity. If they want to kill you, you’re dead; 150 FBI agents have killed people and faced no penalties whatsoever.

The period of Peak Clarity for the U.S. public in the mid-1970s passed without making all that much of a difference. Don’t hold your breath waiting for that pendulum…


Chris Bertram 06.20.14 at 7:06 am


Eimear Ní Mhéalóid 06.20.14 at 9:09 am

It’ll be interesting to see how this goes before the ECJ.
(Facebook data protection case)


Henry 06.20.14 at 10:20 am

Eimear – I’ve been thinking of writing a post on it – it’s a very interesting judgment. Hogan is clearly trying to take down Safe Harbor, and given the recent data retention decision has a fair chance of succeeding. I may be overinterpreting, but I suspect that the reference to Germany’s Basic Law is a class of an implied suggestion that if the ECJ doesn’t rule the right way, it’s going to find itself pulled into a fight with Karlsruhe.


Henry 06.20.14 at 10:24 am

Chris – Julian Sanchez gave a good talk on this broad theme a few months ago, that I’ve been wanting to see him write up. Roughly the argument is that US intelligence law draws a strict distinction between domestic and foreign communication that is impossible to maintain with Internet communications data, providing intelligence services with the opportunity to do all sorts of stuff that they shouldn’t (and, even if they for some reason wanted to be purer than the driven snow, making it impossible for them to do this). The statement you link to suggests that the UKG is taking full advantage of the opportunities.


SamChevre 06.20.14 at 12:24 pm

Henry @ 5

Thanks for the links. I was able to access the second and found it an interesting discussion.

I’m extending the argument you are making in those papers, though I don’t think my extension is in any way novel. You are focusing on interactions between institutions, with those institutions having varying degrees of ability to co-operate across national boundaries, and noting that the ability to co-operate internationally is a major advantage. (This works very well for bank regulation and for CIA vs courts discussions.)

I’m extending this to note that the groups with the least ability to co-ordinate internationally are voters and directly-elected officials. No matter who “wins” an international argument among courts and regulators, the power of the electorate and the elected portion of the government is diminished by the phenomenon.


SamChevre 06.20.14 at 12:24 pm

Grr–I was able to access both, I read the second and skimmed the first.


Thornton Hall 06.20.14 at 3:42 pm

@11 Well, “exploded” is metaphorical, so maybe I am misreading it, but I’m pretty from the context that it means “at a level way beyond what has happened in the past.

Henry wrote:
Cross national cooperation between intelligence services has exploded post-September 11. This cooperation is not only outside the public space but, very often, isn’t well known to politicians either. Such cooperation in turn means that intelligence services are in practice able to evade national controls on the things that they do or do not do, directly weakening democracy.


roy belmont 06.20.14 at 7:16 pm

the relatively lawless space of international security and intelligence.

The relatively lawless space of international banking and finance.
The relatively lawless space of international geo-political machination.

That those seemingly disparate realms might be somewhat overlapping.

The metabolizing of human energies that’s resulted in the stunning acquisition of wealth in the upper percentile. The construction of a prosthetic God’s Eye to enable the enforcement of incomplete and delusional moral conviction, by people charged with purpose, and contempt for the mass, who are, in Emerson’s timeless phrase “…animal, in state of pupilage, and nearer the chimpanzee.”
Yes that Emerson.

That that powerful contemptuous minority would want tools and weapons of self-protection, and protection for their envisioned better world, as the little folks wake up to how thoroughly they and their children have been screwed.

All that’s needed is a delusional sense of superiority, and you get to “transcend” the impediments of law and ethic and morality.
We create reality, you just talk about what we’re doing.
At best you simply want in on it.

Very few of the inside players in the surveillance and wealth communities think of themselves as bad people, as nor do the operators behind such things as the coming Mission Accomplished All Over Again.
They have mandates and they have knowledge and they have reason and purpose.
Calling after them as they run off with our collective future is like yelling at a mugger, “You’ll be sorry!”
Got to get in front of em, and whup some ass.


anon 06.20.14 at 7:55 pm

‘In 1929 … New Secretary of State Henry L. Stimson made this decision, and years later
in his memoirs made the oft-quoted comment: “Gentlemen do not read each other’s
mail.” Stimson’s ethical reservations about cryptanalysis focused on the targeting of
diplomats from America’s close allies, not on spying in general.’

Shutting down intelligence services didn’t seem to help much. About 10 years later didn’t something rather bad happen? I’ll let you geniuses here at Crooked Timber determine if what did happen was worse than listening in.

“We taught them a lesson in 1918 and they’ve hardly bothered us since then.”
– T Lehrer


shah8 06.21.14 at 2:32 am

Figure this is relevant, somehow, just read it…

It’s a bit utopian, though, but it incorporates the sensibility that nation-states aren’t manageable anymore as a practical matter…

As for violations of state norms through regulatory arbitrage, much of it consumes itself because policy-making starts getting harder and harder as more factions have subterranean agendas. Sooner or later, state ideology and state barriers are reinforced. For a good example, think about the Xi anti-corruption push, especially centered around “naked officials”, who have assets and family outside of China. Those who still do are being forced to resign public positions. I think that in the very near future, with max outer bound being around 7-10 years, we will start to see an intense deglobalization effort from first world countries. The Euro cannot hold, and as much fun as Republicans have in preventing the US government from functioning, sooner or later the US gotta take that dump. In both places transitions within national governments are almost certainly going to be about shutting down para-political pathways–like how foreign government use Congress/mil departments to flank Executive decisions. Black budget projects as well. That Utah datacenter has to be one of the more wasteful dollar sinks around, and is probably more useful as a dagger to national politicians than any terrorist.

I think this is inevitable because the process has already started in the sense. The collapse of European banks has basically forced submerged politics to work hand in hand with overt politics if insiders want to keep getting money and power–forced transparency of such banks makes them a bit harder to use as secret piggy banks gushing lucre at officials who needed to be influenced. That overtization of the subvert politics, of course, requires that you spend political legitimacy in order for it to work. Legitimacy is legitimacy, there isn’t a way around it. Either your propaganda alienates the public from needed coordinated effort through lots of effort at teaching learned helplessness, or your propaganda winds up roiling people’s anger at the general situation which eventually spills past the designated scapegoats.


J Thomas 06.21.14 at 4:55 am


Shutting down intelligence services didn’t seem to help much. About 10 years later didn’t something rather bad happen?

Ten years later we had excellent cryptoanalysis which regularly read secrets from both Germany and Japan.

Our intelligence work found out about the attack on Pearl Harbor, but for unknown reasons their report was delayed and copies of the translated unencrypted orders were on various desks by the morning of December 8.

The Japanese had a plan to deliver something like a declaration of war before the attack, but a series of unexplained accidents kept them from doing it, making the attack into a “sneak attack” that was illegal by the customs of war at that time. US intelligence sources had already received and translated the document but for unknown reasons that document was also delayed.

Luckily, the important aircraft carriers stationed at Pearl Harbor were gone for the attack, but eight useless battleships were there.

Later in the war it often happened that special intelligence was found that could make a big difference, but it was not sent to the people who could use it, because if the enemy thought that their codes were compromised they would change the codes to something that would be hard for us to unravel, and then the advantage would be lost.

Did Stimson’s decision actually stand? Or perhaps it was a ploy, a claim that we had stopped spying on our friends when we had not….


Straightwood 06.21.14 at 9:04 pm

The failure to silence Snowden will be viewed as an historic turning point. Technology no longer favors capital and concentrated power. The 1% can’t turn off the Internet and mass access to digital technology without cutting off their own sources of wealth. We will witness increasingly desperate efforts to make lies prevail over the truth, but at some point the whole wretched mass of interlocking corruption will be swept away by revulsion and revolt. We will then have a chance to build a more honest, pragmatic, and survivable world, a world built on open information and validated trust.


Consumatopia 06.21.14 at 9:40 pm

@20, ” exploding” is different from “new”, in that “new” implies that that it was previously non-existent, while “exploding” simply means a change in scale. And that change in scale is relevant to the debate for reasons discussed all over this page.


Ed Herdman 06.22.14 at 2:20 am

As of 2010, NSA properties in Maryland alone took up 1.3 times as much square footage as the Pentagon. “Over 10 employers in one location.” It’s a shame that the Washington Post’s Top Secret America series is long defunct (my quotes are from this photo series).

Like the argument that the Singularity ‘happened…in 1914,’ I think the massive funding just secured the performance of long-standing tendencies within the government. The CIA always wins a debate, because they keep everything and forget nothing; the FBI has had a leadership focused on analysis and instant access of minutiae since its first Director.

I am confused why Thornton disagreed with the analysis in Henry’s post if he thought (reading his second post) it was about an increase in the level of surveillance, which is plainly evident.

Re-reading the first post at #9, I have a more fundamental problem: One of Thornton’s claims is that you get an empirical analysis by looking at an “optimum” balance of spying. Well, that should be the last step in your analysis, after the evidence is in – and evidence on this matter will be extremely hard to interpret; and most of the principles involved will be matters of morals or principles.

The original post, and what I’ve read of the papers, do a fine job in the first step necessary for establishing empirical evidence. Rather than trying to do a survey when there is really only one data point available enough for consideration (the Snowden revelations about the existing system), and with no obvious point in speculating about what might be, Henry and Abraham Newman do a fine job setting up their argument (which nevertheless is immediately restricted to asking for a rethink of how the issue is studied, in true PoliSci tradition; but the evidence is still suggestive).

Thornton’s method is fine inasmuch as it represents the philosophical method, but having this analysis of international betrayals (in the Prisoner’s Game sense) available should be welcomed by philosophers, who can use that evidence to guide their own arguments past claims of no impacts or irrelevance. You can still do a wholly theoretical survey to try and lay down logical limits within certain moral frameworks (for example) – sure – but I don’t see the point in heckling this paper for putting the descriptive question first.


Thornton Hall 06.24.14 at 3:59 am

@27 my thinking here hasn’t been particularly clear. Re-reading a fair amount, I see that I got caught up on an early sentence:

“There’s been relatively little discussion of whether there is a problem in principle with international surveillance, and most of what there has been has concerned the question of whether or not privacy is a universal human right.”

Also tripping me up was the term “national security liberalism” which is perfectly sensible but struck me first as useless abstraction.

I’m not sure if I was totally wrongheaded or if there is something defensible there. Either way, I totally endorse starting with the empirical data, whatever confused thing I may have said to the contrary. But what I think that data will ultimately show is what other commenters have suggested: the money spent in Utah, Maryland, etc is totally wasteful. I think the most powerful argument against international spying is likely to be: you are spending tons of money and not saving any lives. Stop.

It seems similar to debates about mass incarceration or the death penalty: in both cases it’s the money argument that moves the needle, no matter how passionate I feel about the moral argument.


Ed Herdman 06.24.14 at 4:27 am

Yeah, I agree that the first approximation is going to be “we’re way in beyond declining returns here, this isn’t helping.”

Things being what they are, I’m sure it’ll be great fun trying to politick out the cut-off point for how big that national security apparatus should be. I’m comfortable with some domestic and foreign surveillance, but it should not be so large that it is soaking up a ton of money for very little reason.

Actually, this just highlights my ignorance on one issue – knowing the WaPo stuff points out the huge scale of this, but in terms of the size of government, how much is it? I pretty much rebuff the “crowding out” argument against government spending in many areas, though am more receptive to arguments about allocation of tax dollars.

In short, I’d look harder at the big budget-groups, and see if some of that money can’t be better spent more locally.


roy belmont 06.24.14 at 4:35 am

The 1% can’t turn off the Internet and mass access to digital technology without cutting off their own sources of wealth

That’s one of the cooler things I’ve read of yours.
It echoes this, Nafeez Ahmed interviewing Robert David Steele, in the Guardian.

“We are at the end of centuries of what Lionel Tiger calls ‘The Manufacture of Evil,’ in which merchant banks led by the City of London have conspired with captive governments to concentrate wealth and commoditise everything, including humans. What revolution means in practical terms is that balance has been lost and the status quo ante is unsustainable. There are two ‘stops’ on greed to the nth degree: the first is the carrying capacity of Earth, and the second is human sensibility. We are now at a point where both stops are activating.”

Maybe you’ve already seen it.
If not:

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