US spying fiasco: Will 'additional' constraints ease European fury?

President Obama may order the NSA to halt all eavesdropping on the heads of state of US allies.

Kai Pfaffenbach/Reuters
A mobile phone simulating a call to German Chancellor Angela Merkel and computer with a series of numbers is seen in this multiple exposure picture illustration taken in Frankfurt October 28, 2013.

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As news of the National Security Agency's spying on world leaders, allies, and citizens continues to leak to the public, the White House said this week that there is a need for “additional constraints” on US spying, a statement that some observers fear may do little to calm the diplomatic uproar spreading globally.

“We recognize there needs to be additional constraints on how we gather and use intelligence,” said Jay Carney, the White House spokesman.

The New York Times reports that Obama may be “poised to order the National Security Agency to stop eavesdropping on the leaders of American allies,” in response to the “deepening diplomatic crisis” with Germany over allegations the US spied on Chancellor Angela Merkel’s cell phone communications for years.

The most recent revelation came of US spying in Spain, where the US allegedly collected 60 million communications over the course of a month, ending in early January. The US ambassador to Spain met with Spanish officials on Monday, but Germany and France have come out even more aggressively against allegations of spying.

The effect of the far-reaching allegations may be more than just political. According to The Christian Science Monitor, the majority of Germans (58 percent) support breaking off a long-anticipated transatlantic trade deal between the US and European Union. As Sara Miller Llana in France explained after the news of US spying in Europe first broke this summer:

If the extent of US surveillance in the world is not surprising to some, it’s still controversial in Europe, especially in countries like Germany that place a high priority on data privacy. But the timing of the revelations, as negotiations for the Transatlantic Trade and Investment Partnership (TTIP) are set to begin July 8, has created a firestorm, says Johannes Thimm, an expert on US foreign policy at the German Institute for International and Security Affairs in Berlin.

“There are economic interests involved on both sides, and while the [TTIP] is generally in the spirit of cooperation, there are some trade-offs and really hard negotiations ahead,” Dr. Thimm says. American ability to access that communication as it is playing out, he says, gives the US “a huge strategic advantage."

The Times notes that even if the US agrees to end spying on all allies, it could very well “prompt a fierce debate on what constitutes an American ally. Prohibiting eavesdropping on Ms. Merkel’s phone is an easier judgment than, for example, collecting intelligence on the military-backed leaders in Egypt.”

The US has had an agreement with Britain, Canada, Australia, and New Zealand – collectively known as the "Five Eyes" – since the end of World War II that bans spying on each other, an arrangement the Monitor’s Howard LaFranchi writes isn’t something that will be easily replicated for other allies like France or Germany:

[D]espite how contrite the US may seem in light of spying allegations that extended to millions of Europeans’ communications and as high as the German chancellor’s cell phone, the Obama administration is unlikely to extend the terms of the post-World-War-II Five Eyes agreement to allies as close as Germany and France.

The reasons, intelligence and national security experts say, range from reluctance to set a precedent – especially as the uproar over National Security Agency (NSA) spying and information gathering continues to reach new countries – to recognition that US intelligence needs are far different from what they were in the postwar era.

“We have a responsibility to provide genuine contrition and reassurance but we cannot lose sight of the fact that we are not the enemy, and they do have enemies,” says Jonathan Laurence, an associate political science professor at Boston College specializing in US-German relations. “We should not lose sight of the fact these [European countries] are not vassal states but are, to some degree, under our protection,” he adds. “We provide a security umbrella world-wide and our interests overlap greatly with their interests.”

But doing something – anything – may send a stronger message than the response some foreign leaders have received up to this point. A post on the Foreign Policy blog “The Cable” describes outrage at the US inability to explain spying to representatives from 35 countries at an Organization of American States (OAS) meeting yesterday. “U.S. diplomats were scheduled to explain NSA practices at the hearing for the first time on the international stage,” but instead showed up empty handed, blaming the government shutdown:

"With the government closed and most of its employees furloughed, we lost the time essential for us to engage our inter-agency colleagues and prepare for this hearing," said [Deputy US Permanent Representative to the OAS ] Gumbiner. The inability to respond to any of the complaints cited about mass surveillance of individuals living outside the United States, a complaint of the hearing's petitioners, clearly frustrated Rodrigo Escobar Gil, rapporteur on the Rights of Persons Deprived of Liberty of the OAS's Inter-American Commission on Human Rights.

"The arguments of the state have been taken into account but there's no causes beyond the control of the state like an earthquake or natural disaster or something like that, that would have made it impossible to respond," Gil said. "The fact of the matter is that the domestic matters of the state are not justification for not providing a response to international bodies. This is an important opportunity."

Foreign Policy notes the importance of responding to NSA reports given that allegations of US spying on foreign leaders have been piling up, and now include the communications of upwards of “35 world leaders, as well as large-scale public surveillance directed at Brazil, France, Italy,” and Spain.

A number of intelligence directors, including NSA general director Keith Alexander, will testify in an open hearing of the House Intelligence Committee this afternoon. The hearings will touch on NSA programming as well as the Foreign Intelligence Surveillance Act, reports Reuters.

New tensions arose in Britain this week as news outlets reported “veiled threats” from Prime Minister David Cameron on further reporting on NSA leaks. The Guardian writes that, “In a statement to MPs on Monday about last week's European summit in Brussels, where [Mr. Cameron] warned of the dangers of a 'lah-di-dah, airy-fairy view' about the dangers of leaks, the prime minister said his preference was to talk to newspapers rather than resort to the courts. But he said it would be difficult to avoid acting if newspapers declined to heed government advice.”

Mr. Cameron said it could be necessary to use high court injunctions to block certain information from being published, The Guardian reports.

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