One Nation Under Surveillance: a New Social Contract to Defend Freedom Without Sacrificing Liberty

310 Pages·2013·2.685 MB·English

by  Chesterman, Simon

ONE NATION UNDER SURVEILLANCE
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One Nation Under
Surveillance
A New Social Contract to Defend Freedom
Without Sacrifi cing Liberty
SIMON CHESTERMAN
1
3
Great Clarendon Street, Oxford ox2 6dp
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Was he free? Was he happy? The question is absurd;
Had anything been wrong, we should certainly have heard.
WH Auden, ‘The Unknown Citizen’
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Acknowledgements
The nature of this research calls for some measure of discretion. In 1998,
the Washington Times reported that US intelligence services were able to
monitor Osama bin Laden’s satellite phone. A CIA agent later argued that
bin Laden stopped using the phone because of the story, and that a causal
link joined the decision to publish to the September 11 attacks on the
United States. As I suggest in Chapter three, the account somewhat exag-
gerates this particular incident, but one must accept that the subject matter
is sensitive. For present purposes, it is suffi cient to note that certain details
of past and current operations will be glossed over and that most inter-
views were on a not-for-attribution or off-the-record basis and thus will
not be identifi ed. Since the book is primarily forward-looking, it is hoped
that this will not unduly distort either analysis or prose.
I am, nonetheless, extremely grateful to the many current and past prac-
titioners who were kind enough to share their time and their insights with
me in New York, Washington, DC, London, Ottawa, Canberra, Singapore,
and elsewhere. In addition, I received valuable comments on various parts
of the text from William Abresch, Rueban Balasubramaniam, Gary Bell,
Curtis Bradley, Tom Donnelly, Michael Dowdle, Michael Ewing-Chow,
Trevor Findlay, Adrian Friedman, Michael Fullilove, Richard Goldstone,
Allan Gyngell, Stephen Humphreys, David Jordan, Liliana Jubilut, Richard
Junnier, Benedict Kingsbury, Chia Lehnardt, Lim Yee Fen, Karin Loevy,
David Malone, Madan Mohan, Paul Monk, Muhammad Aidil Bin Zulkifl i,
Roland Paris, Sharanjeet Parmar, Joost Pauwelyn, Danielle Louise Pereira,
Priya Pillai, Victor Ramraj, Lakshmi Ravindran, David Tan, Tan Hsien-Li,
Patricia Tan Shuming, Tan Teck Boon, Teo Yu Chou, Laura Thomas, and
Ludwig Ureel. Errors, omissions, and violations of Offi cial Secrets Acts are
the responsibility of the author alone.
Thanks also to the many students from New York University School of
Law and the National University of Singapore who have participated in
the Intelligence Law seminar that I have taught for the past few years.
Their insights and their questions frequently helped shape my own views
on this topic.
viii Acknowledgements
The book develops certain ideas fi rst published elsewhere. These
earlier works include Shared Secrets: Intelligence and Collective Security
(Sydney: Lowy Institute for International Policy, 2006); ‘The Spy Who
Came In from the Cold War: Intelligence and International Law’, Mich-
igan Journal of International Law 27 (2006) 1071; ‘Secrets and Lies: Intel-
ligence Activities and the Rule of Law in Times of Crisis’, Michigan
Journal of Inter national Law 28 (2007) 553; ‘ “We Can’t Spy . . . If We Can’t
Buy!”: The Privatization of US Intelligence Services’, European Journal of
International Law 19 (2008) 1055; ‘I Spy’, Survival 50(3) (2008) 163;
‘Deny Everything: Intelligence Activities and the Rule of Law’, in Victor
V Ramraj (ed), Emergencies and the Limits of Legality (Cambridge Univer-
sity Press, 2008) 314; ‘Secret Intelligence’, in Rüdiger Wolfrum (ed), The
Max Planck Encyclopedia of Public International Law (Oxford University
Press, 2009); and ‘Intelligence Cooperation in International Operations:
Peacekeeping, Weapons Inspections, and the Apprehension and Prosecu-
tion of War Criminals’, in Hans Born, Ian Leigh, and Aidan Wills (eds),
International Intelligence Cooperation and Accountability (Routledge,
forthcoming). Permission to reproduce the relevant passages is grate-
fully acknowledged.
My fi nal thanks go to Ming and our family, for showing me what is
really worth watching closely.
Contents
Abbreviations x
Introduction: The End of Privacy 1
PART I. THEORY
1. The Spy Who Came In from the Cold War 17
2. The Exception and the Rule 41
3. Secrets and Lies 67
PART II. PRACTICE
4. The United States and the Turn to Outsourcing 93
5. Britain and the Turn to Law 131
6. ‘The United Nations Has No Intelligence’ 157
PART III. CHANGE
7. Watching the Watchers 205
8. The Transparent Community 223
9. A New Social Contract 247
Select Bibliography 263
Index 285