Local media recently published news reports that previously appeared in American and German media weeks before, that the National Security Agency (NSA), the main US spying agency, was eavesdropping on and monitoring the phone calls and e-mails of German Chancellor Angela Merkel, a strong ally of the United States. The news revealed that the NSA has also been spying on other allies, such as France, the UK, Italy, Mexico, Spain, and all Middle Eastern states, including Egypt — a matter that caused a furore among their governments and violent demonstrations by the public in some countries. It was most disturbing for Merkel and her people to discover, as reported, that the United States was spying on the leader of its strongest European ally, in a time her country had supported the Afghan war, led the efforts of European allies in the attempt to halt Iran's nuclear programme, and with Germany's central role in rescuing European economies in financial crisis. Merkel called Obama and demanded an immediate stop to the spying. German news magazine Der Spiegel had first broke the news, in October, following leaks by Edward Snowden, a former US Central Intelligence Agency (CIA) technician and NSA contractor. The Guardian of London, The Washington Post and The New York Times followed suit. Peter Maass in his lengthy article in The New York Times Magazine of 18 August said that the NSA and the Obama administration became apprehensive and confused when they discovered that Snowden had disclosed to Glenn Greenwald, a former lawyer and columnist for The Guardian in America, and Laura Poitras, an American filmmaker and activist who produced documentary films about horrific American military actions and abuses in Iraq and Afghanistan, a large number of classified documents and information about how the NSA and the CIA were listening to phone calls made by Americans and foreigners, and intercepting text messages and e-mails. Maass said that both Greenwald and Poitras came under scrutiny by NSA agents. He said about Laura that, “In June 2006, her airline tickets on domestic flights were marked ‘SSSS' — Secondary Security Screening Selection — which means the bearer faces extra scrutiny beyond usual measures.” In the end, Poitras moved to Berlin, Germany, and Greenwald fled to Rio de Janeiro, Brazil. As for Snowden himself, he became US law enforcement's most wanted man. He stands accused of stealing classified documents and is considered by the US government as a traitor. He fled to Hong Kong, and eventually landed in Russia, where President Vladimir Putin granted him asylum for a year. Washington, as reported, was afraid that Snowden might deliver the classified documents to the Russians — a charge he emphatically denies, saying he did not carry the documents with him when he travelled to Moscow. The system of spying among nations is not new. It goes back to ancient times, when governments used to post spies in other countries; some of them were citizens of those countries, especially in times of war. That practice was intensified after World War I, even among allies. However, there were politicians who were not happy with the practice. Former US Secretary of State Henry L Stimson was quoted as saying in 1929: “Gentlemen do not read each other's mail.” Ironically, Stimson later oversaw the deciphering by his country of other countries' secret codes during World War II. Before and during that war, US President Franklin Delano Roosevelt and British Prime Minister Winston Churchill were personally active in deciphering German and Japanese “enigma” codes. American media reported at the end of October that US diplomats in US embassies abroad were often implicated in NSA surveillance activities. But the data gathered was only deemed valuable if it related to tracking terrorists belonging to Al-Qaeda or other terrorist groups, or spies, or the whereabouts of nuclear weapons in Pakistan or North Korea, or the conversations between nuclear scientists in Iran. Those are all front-burner intelligence issues. Lesser priorities were the leaderships of adversaries, like Russia, China or Iran, or the state of their economies, the United States government claimed. But what about allies? The spying has included economic developments, oil production, and other things. German political and intelligence officials, as reported, went to the White House in late October looking for answers to questions the US administration has been reluctant to discuss — especially whether spying on Chancellor Merkel would help in tracking terrorists. The Germans were eager to ponder the possibility of finalising a far closer intelligence sharing agreement with Washington that — among other things — would end surveillance of the chancellor. But the White House was reluctant again, lest such a move encourage other “friendly” countries, including Middle Eastern ones — especially Egypt, which is considered a strategic pivot for the United States — to ask for the same. The reality is that the United States has, in the last 10 years, developed the most advanced eavesdropping system in the world, and clearly it is loath to give it up or share its dividends. Reports that the NSA has been spying on allies created a diplomatic crisis for President Obama with Germany, France, Spain and Mexico. On 30 October, news reports revealed that the focus shifted to Russia, not because the US has also been spying on Russian leaders and citizens (Russia and the United States are considered foes and they have long been spying on each other, before, during and after the Cold War), but because Russia, in its attempt to spy on its foes and friends, had distributed gifts to members of the 300 hundred foreign delegates to the meeting of the G-20 summit meeting in St Petersburg, including teddy bears, cups, and cables to connect smart phones with computers. Some of their drives had subsequently been tampered with, it was reported. German intelligence services conducted tests and found that the sabotaged electronic equipment could be used to collect data from computers and cell phones. While many in the United States and other countries did not know in detail about the surveillance programmes of US intelligence agencies before they were disclosed recently by Snowden, an article in The New York Times in 2006, during the George W Bush administration, outlined clearly government efforts to bolster surveillance programmes after the trauma of the destruction of the World Trade Centre on 11 September 2001, and during the US wars in Iraq and Afghanistan. After 11 September, the US government began compiling a terrorist watch list that was estimated, according to report, to include nearly one million names. There was also a list for air travel, the so-called “no-fly list”, which contained the names of tens of thousands of people. The NSA acting general counsel even wrote a letter to senior officials of the Justice Department asking permission to perform analyses on American citizens' phone calls and e-mail text messages. On a warning by the Attorney General in 2002 that the misuse of such information “could raise serious concerns,” the NSA promised to impose safeguards. The Bush administration gave its approval. Wiretapping programmes expanded during the George W Bush administration. Fear of a new terrorist plot like that one of 11 September 2001 prompted Bush, with his Republican majority in Congress, to enact a law to increase the system of eavesdropping without a court warrant, as the law used to require. That was extended to include foreign nationals residing in America. Bush also established the so-called “military commissions” where cases related to matters of national security could be tried with no journalists or TV cameras present, and where defence lawyers were prevented from reviewing secret documents — an absolute violation of the law of due process required by the 14th Amendment to the US Constitution. Many Americans, in particular Muslims, were subject to scrutiny as a result of this system, which outraged freedom activists in the United States and abroad. Late President Richard Nixon was spying on Americans' telephone calls who he considered pro-communism and/or opponents of the Vietnam War, a matter that was challenged in courts as a breach of privacy protected by the 4th Amendment to the US Constitution. But the US Supreme Court in 1979 ruled that Americans could not have an expectation of privacy about what numbers they called. This unfortunate decision put the United States back into the Dark Ages, before the enactment of the constitutional amendment protecting citizens' privacy. Based on this ruling, the US Justice Department and the Pentagon concluded that it was legal to create a data system that gathered the timing, location, and other relevant information of calls, and later on social media like e-mails and text messages, but not their contents. The NSA was exempted from seeking warrants for spying on foreigners. On 30 September, a news report article published in The New York Times by Eric Schmitt and Michael Schmidt, mentioned that the NSA intercepted messages and telephone conversations between Ayman Al-Zawahri, who succeeded Osama bin Laden as head of Al-Qaeda, and one of his aides, Nasser Al-Wuhayshi, head of the Yemen-based Al-Qaeda in the Arabian Peninsula, discussing an imminent terrorist attack against US embassies in the Middle East. The NSA also discovered that Al-Qaeda's leadership and operatives were talking about the information that Snowden disclosed. This what the agency was afraid of. The classified information leaked about US surveillance programmes now became available to Al-Qaeda. NSA officials considered, as reported, the new Al-Qaeda plot as one of the most dangerous since 11 September 2001, prompting the US to close 19 of its embassies and consulates in the Middle East, including those in Egypt, for a week in October. The State Department discovered later that the plot was against the US embassy in Yemen. As a matter of fact, spy agencies had expected the Snowden disclosures to have a broader impact on national security in general, and specifically agencies concerned with counterterrorism efforts, according to Schmitt and Schmidt. According to reports in the US media, the scope of surveillance by the NSA caused a lot of apprehension among Americans when they discovered that the agency was able to identify people's friends and associates, detect where they were at a given time, and acquired clues to religious or political affiliations. The agency was able to pick up sensitive information like calls to psychiatrists' offices, late night messages to extramarital partners, or exchanges with present partners. While the US government considers Snowden a thief and a traitor, and has accused him under the Espionage Act, many analysts and columnists look at him as a whistle-blower. Is it his fault that successive US governments dumped the constitution and dived into the dark work of building a surveillance state? President Obama has extended the system of eavesdropping and spying on telephone conversations and e-mail and text messages to include foreign individuals in their countries, and not only heads of states. But whereas ordinary citizens can do little to protest, it was surely embarrassing for the Obama administration that, during the annual meetings of the UN General Assembly in September, Brazilian President Dilma Rousseff delivered a speech scolding President Obama for monitoring her personal electronic communications and those of her aides, members of her government and private corporations. She called the surveillance programme a “breach of international law” and “a situation of grave violation of human rights and civil liberties and capture of corporate activities; and especially of disrespect to national sovereignty.” The Brazilian president demanded explanations, apologies and guarantees that such spying would never be repeated. To her, too, US claims to be pursuing terrorists rang hollow. The NSA was found gathering information about Brazil's trade and commercial activities, especially on its oil giant, Petrobas, the largest company in Brazil. In a moment of conscience, perhaps driven by the damage to the US's reputation, President Obama lately ordered in-depth reform of the NSA's spying programme in the wake of Snowden's disclosures. The NSA had not informed Obama of its spying on Merkel, which started in 2002 when she was a rising star in German politics. The president ordered the end of spying on Merkel and a review of the programme of spying on heads of states in friendly countries. The White House also informed Democratic Senator Dianne Feinstein, chairwoman of the Senate Intelligence Committee, of its plan to reform the spying system, including a broader review of intelligence gathering. Senator Feinstein was ready to hold hearings on the subject. Although she is a strong supporter of the administration's necessary surveillance programmes, she is also a strong believer that the US should not be spying on “phones or e-mails of friendly presidents and prime ministers”. The NSA was even reported to have been spying on the phones and e-mails of British Prime Minister David Cameron — the US's strongest ally. But the Obama administration has not decided to end its spying on leaders of all allied countries. It seems there has been an internal discussion in the administration to decide on categories of allies. “Prohibiting eavesdropping on Merkel is an easier judgment than, for example, collecting intelligence on the military-backed government of Egypt,” wrote Mark Landler and David E Sanger in The New York Times, 29 October. General Abdel-Fattah Al-Sisi should be on alert. But if President Obama is trying to reform the intelligence gathering system, isn't that implicitly a self-admission that Snowden didn't do anything wrong? On the contrary, he helped Obama to discover abuses in the intelligence system. I am sure if Obama looks at the matter with the mind of a constitutional law professor, as he once was, the situation would seem completely different. The writer is an international lawyer.
