In his daily press briefing yesterday, White House press secretary Sean Spicer repeated a claim that President Barack Obama had used British spies to surveil President Trump. After laying out a number of different media sources which Spicer suggested supported Trump’s contention that he was wiretapped, he concluded:
Last, on Fox News on March 14th, Judge Andrew Napolitano made the following statement — quote — Three intelligence sources have informed Fox News that President Obama went outside the chain of command. He didn’t use the NSA, he didn’t use the CIA, he didn’t use the FBI, and he didn’t use the Department of Justice. He used GCHQ. What is that? It’s the initials for the British intelligence spying agency. So simply by having two people saying to them the president needs transcripts of conversations involving candidate Trump’s conversations, involving President-elect Trump, he’s able to get it and there’s no American fingerprints on this. Putting the published accounts and common sense together, this leads to a lot.
This is an explosive accusation. It has already led to fury in Britain, and reports in British media that Spicer and US National Security Adviser Lt. Gen. H.R. McMaster have been forced to quietly apologize. A spokesperson for Britain’s Prime Minister, Theresa May, has said that “we’ve received assurances from the White House that these allegations would not be repeated.”
GCHQ — Government Communications Headquarters — is Britain’s equivalent of the National Security Agency. Like the NSA, it engages in extensive international surveillance. It also has a close relationship with the United States. Britain is one of the “Five Eyes,” a group of five English-speaking countries, including the United States, which engage in close and intensive collaboration and intelligence sharing. Even within that context the United States and Britain have an unusually tight relationship. In the words of Stephen Lander, a former head of Britain’s MI5, relations are so close that intelligence “consumers in both capitals seldom know which country generated either the access or the product itself.”
Close collaboration can lead to temptation
Some people writing on intelligence and surveillance note that close working relations such as this can allow intelligence agencies to evade domestic controls. Jennifer Granick, in her new Cambridge University Press book, American Spies: Modern Surveillance, Why You Should Care, and What To Do About It, notes that Five Eyes countries aren’t supposed to spy on one another’s citizens. However, she says that the NSA has prepared policies that would allow it to spy on Five Eyes citizens without permission. She furthermore suggests that:
The Five Eyes collaboration appears to extend the NSA’s surveillance capabilities, giving the agency a way to spy on Americans without technically breaking US laws that would otherwise prohibit such spying. Edward Snowden described the Five Eyes as a “supra-national intelligence organization that doesn’t answer to the laws of its own countries.” In other words, if US law doesn’t protect the privacy rights of British citizens, and British laws don’t protect the rights of Americans, then they can just spy on us, we’ll spy on them, and our intelligence agencies will just swap information. This evasion of domestic privacy laws would enable essentially unlimited spying unaffected by either collection or usage rules.
Granick notes that if there are rules that would protect Americans from Five Eyes spying, or about the ways that the NSA, FBI or CIA could use information from foreign partners, we haven’t seen them.
But don’t jump to conclusions
Granick’s arguments point to some important potential problems in close spying relationships. If there are rules to prevent the abuses that she fears, we don’t know what they are. However, her concerns are with surveillance of ordinary citizens. It is wildly unlikely that U.S. and British intelligence agencies would secretly collaborate to monitor a U.S. presidential candidate. The political risks to both sides would be quite enormous. Although critics such as Granick and Snowden worry that intelligence agencies have too much unchecked power, they happily acknowledge that most members of the intelligence community are motivated by a sincere concern for American well-being. If the United States was really using foreign intelligence as a cutout to spy illegally on the Republican candidate for president, all it would take would be one sincere objector or one worried conservative to create a scandal that would dwarf Watergate. Nor would British intelligence have any obvious motivation to collaborate in such an arrangement. The British government knows that it will have to deal with Democratic and Republican administrations, and would have no appetite for an intrigue which would have little obvious benefit to Britain but which could cripple the U.S.-British relationship for decades.
Nor is there any actual proof
Napolitano, a Fox News television personality, does not seem to have good evidence for these extraordinary claims. As he describes it on his website:
Sources have told Fox News that the British foreign surveillance service, the Government Communications Headquarters, known as GCHQ, most likely provided Obama with transcripts of Trump’s calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ — a foreign intelligence agency that, like the NSA, operates outside our constitutional norms — has the digital versions of all electronic communications made in America in 2016, including Trump’s. So by bypassing all American intelligence services, Obama would have had access to what he wanted with no Obama administration fingerprints.
This statement is notable both for being strategically vague and for not understanding what the NSA does. Spicer quotes a strong claim by Napolitano on Fox News that Obama “went outside the chain of command” and “used GCHQ.” Napolitano is much more cautious in the print version, where he claims that unnamed intelligence sources said that GCHQ “most likely” provided transcripts. That’s not a claim as to fact, made by someone who claims to have seen the transcripts or had firsthand knowledge of the relationship. It is a (in my opinion highly dubious) suggestion as to plausibility, made by someone who does not claim to have direct knowledge of what happened.
Furthermore, Napolitano doesn’t seem to have a strong understanding of the actual controversies between the defenders and critics of modern surveillance law. For example, Napolitano seems to think that the GCHQ is able to generate transcripts because it has “full access” to NSA computers, which in turn ” has the digital versions of all electronic communications made in America in 2016, including Trump’s.” In fact, if the GCHQ were looking for data on American communications, it would be far better advised to look to its own resources than to the NSA. Although critics argue that the NSA collects too much ‘incidental’ data and metadata on Americans, they do not claim that the NSA has “the digital versions” (whatever that means) of all American communications, or anything like it. Napolitano is not a sound source for explosive political claims.
This statement will hurt intelligence cooperation
Trump is engaged in an unprecedented battle with large segments of his own intelligence community. Spicer’s statement internationalizes the dispute. The statement has led in the short term to diplomatic embarrassment for the Trump administration. Its long term consequences for intelligence are likely to be more substantial.
U.S. intelligence partners — in the Five Eyes and elsewhere — are increasingly nervous about sharing sensitive intelligence with the Trump administration because they do not know how it will be used or who it will be shared with. This accusation will greatly exacerbate these fears, suggesting that the Trump administration does not prioritize continued close collaboration with its intelligence partners. GCHQ has said that the allegations are “utterly ridiculous.” The Trump administration’s behavior will strengthen the case of skeptics within Britain’s political and intelligence establishment, while weakening the case of people who want to continue an intense relationship during the Trump administration.
Both critics and defenders of cross-national intelligence collaboration agree that there has been an extraordinarily high level of trust among a few select intelligence agencies since World War II. The “Five Eyes” was a club that other states clamored to get into (during the Snowden controversy, Germany tried to use revelations about U.S. spying as a lever to open the door to German participation in the Five Eyes). Now club members have much less reason to trust each other and membership looks substantially less attractive.