NSA spying & Transatlantic trade talks
by Bill Waren, senior trade analyst
On April 25, 2016 in New York City, trade negotiators from the United States and the European Union will open a weeklong round of talks on a massive trade agreement, the Transatlantic Trade and Investment Partnership. The TTIP would regulate the two largest economies in the world, the EU with a gross domestic product of $16.63 trillion and the U.S. with a GDP of $15.68 trillion.[i] Unfortunately, the TTIP would also regulate our democratic institutions and courts, — based on the assumption that government stands in the way of global prosperity that will result from relatively unfettered markets and capital accumulation –The TTIP poses multiple threats[ii] to sensible regulatory protections [iii] for the environment, climate and public health that Friends of the Earth and others will raise during the week of the 25th.
One top goal of TTIP negotiators is to lower regulatory “barriers” to transatlantic trade and investment by granting transnational corporations and trade bureaucrats expanded “rights” to challenge the policies of democratic governments before international tribunals.[iv] Another top goal of TTIP negotiators is to expand exports of fossil fuels from North America to Europe, thereby accelerating global warming.
As Erich Pica, the president of Friends of the Earth U.S. explains, “The negotiating framework for the transatlantic free trade agreement is a wish list for international financiers and corporate CEOs who want to roll back environmental and other public interest regulations. Tariffs are already low, so this deal is not about ‘free trade.’ It’s about paying off K Street lobbyists and campaign bundlers. It’s about a reflexive deference to deregulatory dogma. And, it’s about power politics. The spying on European Union and French embassies is characteristic of the secretive and ruthless style of contemporary trade and investment negotiations.”[v]
TTIP negotiations and the NSA spy scandal
Progress on concluding the TTIP deal has been slow. One reason is that the U.S.-EU trade talks have been under a cloud for almost three years as a result of the U.S. National Security Agency spy scandal, which involves U.S. mass surveillance of Europeans and others involved in trade policy.
The New York Times has reported that “In justifying the agency’s sweeping powers, the Obama administration often emphasizes the N.S.A.’s role in fighting terrorism and cyberattacks, but disclosures in recent months from the documents leaked by Mr. Snowden show the agency routinely spies on trade negotiations, communications of economic officials in other countries and even foreign corporations.”[vi]
WikiLeaks published documents showing that, “The NSA high-priority German target list makes clear a US emphasis on intercepting the communications of government offices and political officials dealing with economic, commerce and even agricultural policy.”[vii]
As the Washington Times noted at the time of the WikiLeaks publication, “the NSA spying scandal could create major headaches for … U.S. Trade Representative Michael Froman as he tries to move forward with an ambitious trade deal with the European Union.”[viii] Nonetheless, U.S. spying on European allies did not stop.
European Union officials negotiating with the U.S. on TTIP were clearly angered by revelations by WikiLeaks and The New York Times that the NSA was spying on European trade officials. Viviane Reding, former Vice-President of the European Commission, in a speech at the Johns Hopkins University, School of Advanced International Studies in October of 2013 stated that “Friends and partners do not spy on each other. For ambitious and complex negotiations to succeed there needs to be trust among the negotiating partners. [I]t is urgent and essential that our [US] partners take clear action to rebuild trust.” [ix]
In response, the Obama administration signaled that it might be prepared to curtail some of the activities of the NSA. But the European public and many European public officials, outside of Brussels, were deeply skeptical about U.S. reassurances.
Such skepticism was apparently justified. As time passed and the European furor over NSA spying began to abate to some degree, it was discovered that the CIA had tapped the phone of the German Chancellor.
Robert Gramer, writing for The Hill reports that, “A new chapter in the U.S.-Germany spying scandal drastically threatens the United States’ relationship with Germany. As U.S. and German leaders bicker over intelligence collection practices, they are ignoring the most costly casualty — a landmark U.S.-EU trade deal…”
Gramer explains that, “After two German officials were arrested on charges of spying for the United States, Germany ordered the CIA station chief in Berlin to leave the country. This story ripped open painful wounds from the NSA-spying scandal that had barely begun to scab over, when leaked documents revealed that the United States had spied on German citizens and tapped German Chancellor Angela Merkel’s personal phone.”[x]
Once again, the Obama administration issued reassurances. According to The Guardian, Secretary of State John Kerry promised to find the right balance of competing interests and “…officials from the German chancellor’s office are understood to have discussed ‘damage control’ with their counterparts [in the White House], in a co-ordinated bid to contain the fallout from a dispute that has enraged many Europeans.”[xi]
Subsequent publications by WikiLeaks apparently confirmed that the NSA was continuing to spy for the U.S. Trade Representative and other U.S. officials dealing with economic policy, not national security or terrorism.
The NSA and trade policy
WikiLeaks and others have exposed that there has been substantial NSA spying on behalf of the U.S. Trade Representative.
For example, on June 29, 2015, WikiLeaks issued a publication entitled “Espionnage Élysée.” It contained seven top secret U.S. documents related to economic espionage against France on behalf of the U.S. Trade Representative and other U.S. agencies including the US departments of Commerce and Treasury. This involved the interception of all French corporate contracts and negotiations valued at more than $200 million.[xii]
Similarly, WikiLeaks revealed that the NSA intercepted top EU and Japanese trade ministers discussing secret strategy to stop the US “extort[ing]” them at World Trade Organization talks.[xiii] WikiLeaks has also exposed NSA interception of Japanese government and industry communications related to trade negotiations and climate change.[xiv]
The sweep of NSA spying for USTR includes not only trade policy making and negotiations but also the litigation of trade disputes. As The New York Times has reported, “A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States.”[xv]
According to a publication of the American Bar Association, this incident involves serious questions about attorney-client privilege, noting that “this is not a story of tracking down terrorists. This is business espionage, pure and simple — something that Snowden has pointed out frequently.”[xvi]
The NSA & climate policy
The TTIP deal encourages exports of oil, coal and gas that are fueling climate change. A leaked draft of negotiating text on TTIP energy provisions shows that the EU is seeking to expand fossil fuel exports from the U.S. to Europe, no doubt as an alternative to Russian natural gas or greatly expanded renewable energy production. [xvii] So, it is not surprising to learn that the NSA has been spying on climate policy communications among U.S allies as well as trade policy communications.
As one example, WikiLeaks published documents exposing NSA bugging of a private climate change strategy meeting; between UN Secretary General Ban Ki-Moon and German Chancellor Angela Merkel in Berlin. [xviii]
Nor was this the only case of NSA spying on the UN Secretary General’s confidential meetings on climate change. “WikiLeaks editor Julian Assange said ‘Today we proved the UN Secretary General Ban Ki-Moon’s private meetings over how to save the planet from climate change were bugged by a country intent on protecting its largest oil companies. Back in 2010 we revealed that the then US Secretary of State Hillary Clinton had ordered her diplomats to steal the UN leadership’s biometric data and other information. The US government has signed agreements with the UN that it will not engage in such conduct. It will be interesting to see the UN’s reaction, because if the United Nations Secretary General, whose communications and person have legal inviolability, can be repeatedly attacked without consequence then everyone is at risk.”[xix]
WikiLeaks has also published documents showing that, “NSA targets in Japan including the Japanese cabinet and Japanese companies such as Mitsubishi, together with intercepts relating to US-Japan relations, trade negotiations and sensitive climate change strategy.”[xx]
“Julian Assange, WikiLeaks Editor-in-Chief, said, ‘In these documents we see the Japanese government worrying in private about how much or how little to tell the United States, in order to prevent undermining of its climate change proposal or its diplomatic relationship. And yet we now know that the United States heard everything and read everything, and was passing around the deliberations of Japanese leadership to Australia, Canada, New Zealand and the UK. The lesson for Japan is this: do not expect a global surveillance superpower to act with honour or respect. There is only one rule: there are no rules.”[xxi]
WikiLeaks Investigations Editor Sarah Harrison said, “Today’s publication shows us that the US government targeted sensitive Japanese industry and climate change policy. Would the effectiveness of Japan’s industry and climate change proposals be different today if its communications had been protected?”[xxii]
The U.S. Trade Representative is NSA’s client
Mary Bottari, at The Center for Media and Democracy, sums it all up, “Another day, another outraged world leader. The NSA was caught listening in on Angela Merkel’s cell phone much in the way the crooks at Murdoch’s News of the World (now standing trial in a British courtroom) hacked into the phones of celebrities, politicians and teenage crime victims. But there is one good thing coming out of the NSA imbroglio: It is endangering the U.S.-EU trade agreement currently being negotiated behind closed doors with some 600 U.S. industry advisers. New revelations that the Office of the U.S. Trade Representative is one of the NSA’s “clients” will further complicate negotiations…”[xxiii]
[i] NationMaster, Economy >GDP: Countries Compared, http://www.nationmaster.com/country-info/stats/Economy/GDP.
[ii] There are several examples of the TTIP threat to common sense environmental safeguards. U.S. Trade Representative Michael Froman will be pushing for an investment chapter in TTIP that would allow firms to sue governments for millions or billions in money damages if environmental or public health regulations interfere with expected future profits. TTIP would “harmonize down” European chemical regulations so that they approach low federal standards in the U.S. TTIP would also undercut more effective toxic chemical regulation currently on the books in California and other states. Also, U.S. agri-business has ambitious plans to lower food safety standards in Europe, seeking to deregulate EU restrictions on imports of beef treated with growth hormones, chicken washed in chlorine and meat produced with growth stimulants, among others.
[iii] TTIP will also include cross-cutting disciplines on regulatory review related to sensible environmental safeguards. The New York round of TTIP talks is expected to focus in particular on deregulation of service industries. Services provisions in trade agreements broadly affect the environment, including services related to wastewater, solid waste, hazardous waste, electricity, pollution control, transportation, oil/gas pipeline transportation, and other energy services, to name a just a few.
[iv] According to a European Commission statement on the launch of U.S.-E.U. trade talks: “In today’s transatlantic trade relationship, the most significant trade barrier is not the tariff paid at the customs, but so-called “behind-the-border” obstacles to trade, such as, for example, different safety or environmental standards for cars.” European Commission, European Union and United States to Launch negotiations for a Transatlantic Trade and Investment Partnership, 13 February 2013, available at, http://trade.ec.europa.eu/doclib/press/index.cfm?id=869.See generally, Final Report of the U.S.-E.U. High Level Working Group on Jobs and Growth, February 11, 2013,, available at http://www.ustr.gov/about-us/press-office/reports-and-publications/2013/final-report-us-eu-hlwg.
[v] Friends of the Earth statement on US — Europe trade negotiation, July 12, 2013, http://www.foe.org/news/archives/2013-07-friends-of-the-earth-statement-on-us-europe-trade.
[vi] James Risen, Laura Poitras, Spying by N.S.A. Ally Entangled U.S. Law Firm, New York Times, February 15, 2014, http://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared-american-law-firm.html?_r=0.
[vii]WikiLeaks, The Euro Intercepts, press release, July 1, 2015, https://wikileaks.org/nsa-germany/.
[viii] Tim Devaney, NSA scandal weakens U.S. in EU trade talks, matches China on data theft fears, The Washington Times, August 8, 2013, http://www.washingtontimes.com/news/2013/aug/8/nsa-scandal-weakens-us-in-eu-trade-talks/?page=all.
[ix] Viviane Reding, Vice-President of the European Commission, EU Justice Commissioner, statement on US-spying revelations at a conference organized by the Peterson Institute, Johns Hopkins University, School of Advanced International Studies and the EU Delegation, Washington DC/USA 29 October 2013, “Friends and partners do not spy on each other. For ambitious and complex negotiations to succeed there needs to be trust among the negotiating partners. [I]t is urgent and essential that our [US] partners take clear action to rebuild trust.” European Commission press release, http://europa.eu/rapid/press-release_SPEECH-13-867_en.htm; See also, Vinod K. Aggarwal, Simon J Evenett, Trade talks and national security, Vox (the European “Center for Economic Policy Research”), 15 November 2013. http://voxeu.org/article/trade-talks-and-national-security.
[x] Robert Gramer, Collateral damage: US spy scandals endanger the world’s largest trade deal, The Hill, contributor blog, July 22, 2014, http://thehill.com/blogs/pundits-blog/international/212912-collateral-damage-us-spy-scandals-endanger-the-worlds.
[xi] Paul Lewis, The Guardian “Kerry urges Europe: don’t let NSA surveillance concerns thwart trade talks: Secretary of state tries to salvage trade deal with EU by telling leaders the US will find ‘the right balance’ on surveillance” November 5, 2013, http://www.theguardian.com/world/2013/nov/05/kerry-urges-europe-nsa-spying-trade.
[xii] WikiLeaks, “Espionnage Élysée, 29 June 2015, https://wikileaks.org/nsa-france/.
[xiii] NSA Targets World Leaders for US Geopolitical Interests: European Union, https://wikileaks.org/nsa-eu/intercepts/.
[xiv]WikiLeaks press release, Target Tokyo, July 31, 2015 https://wikileaks.org/nsa-japan/.
[xv] James Risen, Laura Poitras, Spying by N.S.A. Ally Entangled U.S. Law Firm, New York Times, February 15, 2014, http://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared-american-law-firm.html?_r=0.
[xvi] Sharon D. Nelson, John W. Simek, Snowden NSA Revelations Will Change the Practice of Law, American Bar Association, Law Practice Magazine, Volume 40, Number 4, July/August 2014, http://www.americanbar.org/publications/law_practice_magazine/2014/july-august/hot-buttons.html.
[xvii] A Friends of the Earth Europe report shows that Michael Froman, the U.S. Trade Representative, successfully challenged an EU fuel quality directive that would limit shipments to Europe of dirty Canadian tar sands oil, including that which would flow through pipelines for export from U.S. ports. To top it off, in January 2016, the Canadian company TransCanada announced its plan to sue the U.S. government for more than $15 billion under the North American Free Trade Agreement — in compensation for the Obama administration’s rejection of the Keystone XL pipeline: one of the most notorious and reviled proposed fossil fuel projects worldwide.“A new report documents the threat of VIP privileges for corporations in trade deals like the Trans Pacific Partnership and the Transatlantic Trade and Investment Partnership. This joint report by Friends of the Earth, Sierra Club and others calls for the U.S., EU, Canada and others to reject VIP treatment for corporations and to say no to trade agreements that include special rights for foreign investors. Another new report shows that the TTIP deal in combination with the Trans Pacific Partnership trade agreement would more than double the number of fossil fuel corporations that could follow TransCanada’s lead and use corporate dominated arbitration tribunals as a backdoor way of challenging U.S. policies that keep fossil fuels in the ground.
[xviii] WikiLeaks, Intercepted communication between UN Segretary-General Ban Ki-moon and German Chancellor Angela Merkel reveal Ki-moon’s confidence in EU as a necessary leader in the climate change negotiations., https://wikileaks.org/nsa-un/intercepts/#intercept2.
[xix] WikiLeaks, NSA Targets World Leaders for US Geopolitical Interests, 23 February 2016. https://wikileaks.org/nsa-201602/.
[xx]WikiLeaks press release, Target Tokyo, July 31, 2015 https://wikileaks.org/nsa-japan/.
[xxi] WikiLeaks, Target Tokyo, Press Release, Friday 31 July 2015, https://wikileaks.org/nsa-japan/.
[xxii] WikiLeaks, Target Tokyo, Press Release, Friday 31 July 2015, https://wikileaks.org/nsa-japan/.
[xxiii] Mary Bottari, NSA Spying Scandal Roils US-EU Trade Negotiations, Huffington Post Blog, January 23, 2014, http://www.huffingtonpost.com/mary-bottari/us-eu-trade-negotiations_b_4251035.html.