Establish “No Spy Zones”? Current Law Could Make It Hard

Disclosure of U.S. intelligence surveillance activities in Germany and other allied countries has aroused angry public reaction in those countries, and has prompted discussion of the possibility of negotiating “no spy zones” abroad in which certain types of intelligence collection would be renounced and prohibited.

Some have spoken of extending to Germany or other countries the “Five Eyes” agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other.

But a rarely-noted statute could make it difficult for any U.S. administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself.

In the FY 2001 intelligence authorization act (P.L. 106-567, sect. 308), Congress said that the imperatives of U.S. intelligence gathering are to be understood to take precedence over any treaty or international agreement:

“No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.”

By way of explanation, the Senate Intelligence Committee said in a 2000 report:  “There has been a concern that future legislation implementing international agreements could be interpreted…. as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy.”

At a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.

The notion of creating and incrementally expanding “no spy” zones has some history.  In a 1996 op-ed, for example, former U.S. Ambassador Robert E. White proposed that the U.S. explore the possibility on a trial basis:

“One reform might be to select a specific region of the world — for example, Central America — as a testing place. Withdraw all CIA staff from these countries. Let the National Security Council charge our career diplomats with fulfilling Washington’s intelligence requirements. Should Foreign Service officers prove capable of meeting all intelligence needs, then gradually extend this beneficial practice to other countries through pacts of reciprocal restraint by which signatories agree not to spy on or engage in covert action against the other. In order to be eligible to sign such a pact with the United States, the other nation would have to meet minimal standards of openness.”  (“Call Off The Spies,” Washington Post, February 7, 1996).

But even in the post-cold war, pre-9/11 interlude, this proposal did not find a receptive audience, and no such experiment was attempted.