US spying scandal: Why Germany and France won't get Britain's deal

As Germany and France prepare to confront Washington over burgeoning allegations of massive US spying on friendly countries, the two allies may be looking enviously at Britain.

The United Kingdom, along with Canada, Australia, and New Zealand, has a decades-old “Five Eyes” agreement with the US not to spy on one another. When German Chancellor Angela Merkel spoke last week of the urgency of reaching an “agreement” with the US on intelligence and information gathering, she may have had the “Five Eyes” model in mind, some German officials believe.

But despite 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.” 

In recent days, Germany and France both expressed their rejection of alleged US targeted spying and massive information-gathering practices, with officials suggesting that intelligence delegations from both countries would quickly travel to Washington to address the issue and seek what French President Francois Hollande suggested would be a new “code of conduct” for spy work.

But the reactions of the two governments have since differed. Germany’s spy chiefs are still expected in Washington, although they are now not likely to arrive until at least the end of the week, official sources said Monday.

On the other hand the French, who are interested in establishing new “rules of the road” but are less focused on agreements that could limit their own services’ activities, are not talking about any delegations rushing to Washington or special high-level meetings – especially any publicly acknowledged ones.

It would be one thing if just Germany and France were seeking fixes to US information gathering, some intelligence analysts say. But as an expansion of the uproar to Spain over the weekend demonstrates, the scandal may continue to grow as more of the thousands of documents stolen by former NSA analyst Edward Snowden continue to leak out.

The Spanish government summoned the US ambassador to Madrid for “explanations” Monday after the Spanish daily El Mundo reported that the NSA had swept up more than 60 million communications by Spanish citizens over a one-month period ending in January.

The “sweep,” similar to activity undertaken in France, was aimed at culling terrorists’ phone numbers and eventually linking them to other numbers, according to US officials, but that explanation did not appear to address foreign concerns.

Spain’s foreign minister, Jose Manuel Garcia Margallo, called the activity “unacceptable,” and said that if confirmed it could damage the “trust” between the two countries.    

One of the most “potent downsides” of the US entering into a binding agreement with Germany on US surveillance would be “setting a precedent that would prompt other states to seek similar arrangements,” says Ashley Deeks, a University of Virginia law professor who previously worked as an assistant legal adviser for political-military affairs in the State Department.

Not only would the US face a loss of intelligence information by extending binding agreements, Professor Deeks says, but the US also has to consider the possibility of a country like Germany at some point electing an “unfriendly” government and thus “complicating” the actions of future US administrations.  

The Obama administration, perhaps in an effort to quiet the howls of protest from Europe over the surveillance allegations, has in recent days suggested President Obama may be willing to negotiate new limits on information gathering and methods.

“The US government looks forward to meeting with” German officials on the issue, National Security Council spokeswoman Caitlin Hayden said in a statement over the weekend. “The US has been in talks with German intelligence officials for the past several months,” she added, “and leaders of both countries have agreed to increase cooperation.”

Yet despite the soothing words from the White House, some experts in US-German relations say they doubt Mr. Obama is likely to offer Germany (or any other ally) the kind of longstanding agreement the US has with Britain. That is especially true given a few key areas of disagreement between the US and Germany, these experts say, including Germany’s commercial ties to China and Iran, and differences over dealing with Vladimir Putin’s Russia.

The University of Virginia’s Deeks says that while the “downsides” of extending binding agreements limiting intelligence gathering to additional countries remain the same, the costs of not doing so have only gone higher in the wake of the latest scandal, since countries are threatening costlier reprisals, including limiting intelligence sharing.

The US might be able to limit the damage and quiet the controversy on the European front by offering some restraints, Deeks writes on the national security blog "Lawfare." But that will do nothing to calm the ire of countries like Brazil and Mexico, she adds, which are likely to continue demanding some kind of agreements of their own with the US. [Editor's note: The original version of this paragraph incorrectly described where Deeks made her comments.]