Spying on friends

| December 6, 2013

There has been ongoing fallout after the recent revelation of Australia spying on Indonesia’s President, his wife and senior ministers. Dr Patrick Walsh, Senior Lecturer in Intelligence and Security Studies at CSU, argues that spying is one of the prices liberal democratic countries must pay for liberty.

The last three weeks has seen an explosion of media and political commentary about Australia’s 2009 ‘spying’ on Indonesian senior officials, including President Susilo Bambang Yudhoyono and his wife. This revelation is the latest ‘leak’ from a larger set of documents stolen by Snowden from the US secret signals intelligence agency, the National Security Agency (NSA), earlier this year.

The document released originated in Australia’s equivalent to the NSA – then called the Defence Signals Directorate (DSD) and now known as the Australian Signals Directorate (ASD). The document shows a list of Indonesian officials and ministers whose communications were intercepted in addition to President Yudhoyono and his wife in 2009.

These revelations have caused a real hiatus in a special relationship with a near neighbour, but much of the early commentary around the issue has been a bit simplistic or doesn’t really delve into the deeper impact Snowden is having on allowing intelligence to do its job of protecting the country.  Expressing shock and horror that friends might spy on each other does play well to the media and the public in Indonesia and Australia, but it is not really the most important impact of this revelation.

The kind of surveillance that was revealed in this latest Snowden distribution is an example of ‘common knowledge secrets’ between states. In other words, every state knows that others spy on them despite these states having friendly relations with each other. But keeping quiet on this fact helps ensure individual states meet their national security requirements using intelligence without profoundly impacting in a negative way on the broader relations between countries. But the Assange and to a much greater extent the Snowden leaks are game changers as now those secrets have been published. The public now have a lot more detail about not only what topics intelligence agencies collect ON but HOW they do this.

I will come back to this latest leak shortly, but it is worth first getting back to basics and framing what has happened in the broader context of why liberal democratic countries such as Australia do ‘spying’ in the first place.

Answering that question helps inform other more simplistic and less black and white questions being asked lately such as should we spy on friends and is all this surveillance necessary? As citizens of free societies (yes not ones where there are no elections and no checks and balances on the national security apparatus of the state), we need to keep in mind what vital functions intelligence and intelligence collection play before we start deliberating about whether we should spy on friends or anyone else for that matter.

Intelligence collection, whether it is from various forms of communication interception or human sources, has a key role protecting the broad range of economic, political and security interests of a country. Tax payers expect public services in return for giving over some of their hard earnt salaries  to governments. They expect the government to use some of this money for health and education services. But even more fundamentally, they expect some of this money to be spent on providing security and public safety. I would argue that this is a government’s most basic responsibility to the taxpayer. Citizens expect that government resources will be directed by the government to keep them safe not only physically, but also provide a country, which has an economic future, as well as a country that can have friendly relations with nearby trading partners.

It is difficult for intelligence agencies – that play an important role in achieving this basic citizen service ‘safety’ – to do this, if this work is being exposed continuously by individuals like Snowden and Assange. Both individuals seem to take the view that no secret can be a good secret for citizens living in democratic states. They also have an uncompromising position that all kinds of surveillance, including the mass surveillance that most intelligence agencies have become engaged in since 9/11 should immediately cease.  After 9/11 the US in particular, which lost almost 3000 lives, but also other countries like Australia that lost close to 200 people in Bali ramped up their collection technologies and methodologies. Mass electronic surveillance rather than individual interception became a more effective way to intercept the communications of individuals and small networks of groups scattered around the world planning to engage in acts of terror, but also those involved in drug trafficking, weapons proliferation and other forms of organised crime.

A different type of collection platform was required as the new post 9/11 threats are not like the old Cold War state based targets that could be relatively easily tracked in the boundaries of countries. These ‘global outlaws’ ply their illegal trades and hatch their plots to blow up innocent people by working across boundaries and by communicating using global communications networks. It is more difficult to find and disrupt their operations in a sea of global communications. Intelligence collection therefore has to be quick, nimble and the system needs to be global. Mass surveillance of meta-data (not the content of people’s phone calls or emails in the first instance) allows intelligence agencies to look for indicators for suspicious patterns of communication and then match this with other information. If there are grounds for probing into the content of these communications, there are legal processes in countries like the US and Australia that permit this. The hyperbole out in some of the more strident ends of the privacy and human rights communities want to convince people that all meta-data collected is being exploited and this simply is not the case. The NSA is a big agency, but even it doesn’t have the capability to listen to or read everyone’s communications, even if it wanted to.

The Snowdens of the world seem to think it’s ok to keep rupturing the normal ways nations conduct business with each other politically and now even economically (with Indonesia and possibly other countries in the future threatening to halt various trade relations or refuse to route communications through US internet providers) based on intelligence activities becoming public. His end goal of accountability and transparency in the intelligence activities of the US and other western states won’t happen in the way he wishes it to come about. His  strategy is simply resulting in it becoming difficult for intelligence agencies to use their tools of the trade to prevent terrorist attacks and other threats, which can only be known about and actioned on if those that are plotting them ‘don’t know you know’.

Snowden’s actions and very likely future ones by him are like death by a thousand cuts to the intelligence community. Every additional release by him is another cut to making an already challenging job of protecting the country even harder.

This latest release from a bigger quarry of highly classified documents stolen by Snowden from the NSA yet again underlines the naivety of him and his supporters, who believe that stealing and releasing classified information is the only way to increase transparency, accountability and reduce unnecessary surveillance on innocent citizens by the state here and abroad.

There has got to be another way­­, a less public way, to ensure that our intelligence collection efforts, which are never risk free, are reviewed periodically, particularly when decisions need to be made about the cost and benefits of targeting some high profile political leaders. No citizen who wishes to go about their normal life safely would want the government to close down their intelligence agencies surveillance capabilities to detect terrorism, weapons of mass destruction and organised crime. However, the Indonesia episode is showing a growing public debate by people and their politicians about the extent to which spying of political leaders should be tolerated. This is not a debate that intelligence agencies themselves should be involved in. They should be left alone to continue to do the great job that they do under the necessary secrecy that this job requires.

The other side of this surveillance equation, the extent to which agencies should be tasked to spy on political leaders or even on the economic activities of a foreign state, is a political debate, which in democratic states like ours is for the government to consider, not the intelligence agencies which serve it. This latest Snowden release and the fallout from it highlights, just like the German Chancellor Angela Merkel’s complaint to President Obama about the NSA intercepting her phone, that such public acknowledgements will, if they keep happening, continue to have a corrosive effect on levels of trust required between states to conduct their broader political and economic relations.  How to deal with this is very difficult and there are no easy solutions to restore trust, while also ensuring intelligence can continue to effectively collect against threats to Australia’s public safety and national security.

President Yudhoyono in a press conference, after receiving Prime Minister Abbott’s conciliatory letter, said that a code of conduct between the two countries surrounding intelligence matters would be the link for restoring normal bilateral relations. Some senior German officials have also suggested an intelligence code between Germany and the US or a set of ‘rules’ for intelligence practice should be adopted and that it might include the prohibition of spying on political leaders.  Or in other words, surveillance should be limited to urgent matters of national security such as terrorism. Constructing codes of conducts may be useful to try and articulate broad ‘standards’ for foreign intelligence collection and restore some trust between allied and friendly states. But the reality remains these will be broad normative statements of intent rather than binding prescriptive agreements which have the semblance of formal bilateral or multilateral agreements.

Other ‘solutions’ to the damaging and much publicised Snowden leaks will require an increase in transparency in countries about the broad surveillance processes they conduct. The cat is now out of the bag, and governments will have to manage and explain in more proactive ways than before what is being achieved in their names and how they can be more transparent about surveillance practices.

Additional reforms including reviewing oversight mechanisms of the surveillance processes in countries like Australia and the US to ensure public confidence can be restored, or at the very least increased, may also be useful post Snowden. The oversights are already robust in both countries, but a review of them in light of Snowden would be beneficial.

In contrast to the above measures, Snowden’s approach is a simplistic, black and white, all or nothing ‘solution’ to increasing standards of transparency over intelligence collection for both foreign and national surveillance practices. As noted above, his actions underscore an argument that releasing sensitive information is critical to any solution, there should be no secrets, and it seems from his actions that the public should be aware of everything done in their name to protect their security.

The problem with this is you can’t do effective intelligence and intelligence collection if everyone in the country knows about it, or everyone in other countries knows about it too. Effective intelligence is about collecting against persons of interests and on issues that help countries understand their security environment more clearly. The collection of secret information or information that another state or party doesn’t know you have collected gives leaders a ‘heads up’ of something that might happen. This could be something that is a good thing for the country, for example knowing ahead of time another country agrees with a new trade deal we want to implement that in turn results in a ‘deal’ that benefits both countries. But it could also be for something that provides warning as mentioned earlier about a bad thing, such as an impending terrorism attack.

Intelligence helps leaders of countries, whether they are in Australia or Indonesia, make better decisions for their country. Both Indonesia and Australia collect all kinds of intelligence, including on each other, and former Indonesian intelligence officials have recently confirmed this, despite the Indonesian foreign minister foolishly suggesting otherwise.

Snowden’s actions make it harder now to collect intelligence with plausible deniability; in other words, it makes it difficult for intelligence collection agencies such as ASD (Australia), NSA (UK) and GCHQ (UK) to do their job if everyone, including the people you are collecting against, not only know you are collecting against them, but much more importantly know the methods you are using and can adapt their communications strategies as a result.

A reduction in plausible deniability lowers the ability intelligence agencies have to warn decision makers about changes that are coming that may result in loss of life of innocent Australians holidaying in Bali, or the reduction in our ability to know who is entering our borders illegally, or not stop biocriminals/bioterrorists bringing in prohibited substances that may result in diseases like food and mouth that would decimate our primary industry economy.

So when reviewing these most recent revelations we need to keep in perspective what a world would look like without effective intelligence which also includes surveillance technology. It would be a less safe and less prosperous world. Spying is one of the prices liberal democratic countries must pay for liberty. We continue to spy simply, because in a world of competing national interests there are no other alternatives. The recent revelations and whatever happens in the next six months is now a political issue between the two countries to manage, although intelligence collection by either state is not going to stop. No leader would preside over such a policy decision.

The offense the Indonesian President feels about this activity in 2009, including the interception of his wife’s phone, does need some kind of special explanation and careful handling by Canberra. It may also require some internal reflection by the national intelligence community about how some collection decisions are made.

The outrage and escalation on the Indonesian side has been running hot in the first two weeks post the leak, and plenty of Indonesian leaders joined the moral outrage bandwagon. With a national election due next year such rhetoric appeals to a domestic audience.  Abbott and Yudhoyono have more recently made very positive statements about the overall health of the bilateral relationship and know that broader enduring contact between Jakarta and Canberra on a range of fronts – terrorism, law enforcement cooperation, development and trade – must in the longer term not be hijacked over one incident.

There is more of this issue left to play out, and it will likely take some uncertain turns before normal transmission is restored between Canberra and Jakarta. However, this one issue is symptomatic of the broader need by political leaders to find other less destructive ways to improve intelligence standards and transparency in liberal democracies than Snowden’s approach.