Home / Opinion / The messy world of intelligence and its rules

Does spying have international rules? On the face of it, the question is absurd. How can one regulate an activity that is defined by law-breaking and subterfuge, and whose existence must accordingly be disclaimed? And yet, espionage is not wholly disordered.

Silent understandings emerge between rival agencies, indicating what lies beyond the pale. Where spying is parasitic on the architecture of diplomacy, with intelligence officers masquerading as diplomats, this affords another layer of civility. And not all negotiation is tacit. Russia’s KGB (Committee for State Security) and America’s CIA (Central Intelligence Agency) communicated through the Gavrilov channel, named after an 18th century poet. In later years, Americans used it to acknowledge, obliquely, when a vanished Soviet spy had defected, while the KGB disclosed where it had hidden microphones in the new US embassy. Spying does not have laws, but it may have rules—or at least expectations and norms. These are fluid, because secrecy precludes enforcement. The rules bend according to the circumstances of politics and technology. And today they are bending more than ever.

The first example comes from the poisoning of former Russian spy Sergei Skripal in the UK last week. For Russia to hunt down former officials is hardly unusual; the theatrical murder of KGB renegade Alexander Litvinenko in London in 2006, using a radioactive substance, is one of many examples. But to target someone like Skripal, who was pardoned and released in an exchange of prisoners, is exceptional, perhaps unprecedented. While it is possible that Skripal did something to forfeit his protected status, it may simply be that President Vladimir Putin decided to send a message. But it comes at a cost, with a norm shattered and the credibility of future swaps in tatters.

The value of such espionage etiquette is best understood by observing what happens in its absence. The US and Russia have conducted dozens of spy swaps. India and Pakistan, though routinely exchanging civilian prisoners, have not. If Kulbhushan Jadhav were eventually swapped for the Pakistani military officer who vanished in Nepal, and is alleged to be in Indian hands, then this would be the first such exchange in public record. One reason for this may be that neither side has caught sufficient numbers of the other’s most valued agents—the market is not liquid. But it surely also reflects a dearth of trust. In his book The Kaoboys Of R&AW, B. Raman observed that India and Pakistan both treated foreign intelligence officers with customary restraint “except those of each other". Pakistan’s Inter-Services Intelligence employed electric shocks against detained R&AW (Research and Analysis Wing) officers, while India’s Intelligence Bureau (IB), he conceded, had a similarly “brutal manner". Russia’s aggressive treatment of Americans in Moscow is not yet at this level, but gloves are being removed.

A second question is whether certain sorts of spying are more acceptable than others and, if so, whether this line is now blurring. When China pulled off a spectacular cyber-heist of data from the US Office of Personnel Management (OPM) in 2014, including 18 million copies of security clearance forms for federal employees, this was met not with anger, but awe. Michael Hayden, former CIA and National Security Agency director, remarked that if he had the opportunity to grab equivalent Chinese data, he “would not have thought twice". This was “honourable espionage work". However, Beijing’s efforts to steal valuable commercial secrets from private American companies were viewed as an affront to the unspoken rules.

To the uninitiated, this inconsistency is puzzling. In both cases, Chinese espionage involved breaking American laws and hurting American interests; why should one be praised, and the other damned? Clearly, America wants to make commercial espionage taboo because it has more technology to lose, whereas in political espionage, it gives as good as it gets. But why would China play by these rules? Norms will not survive if they leave one side at a disadvantage. Although China has now signed up to pacts ruling out commercial espionage, I am sceptical that these will hold in an era when private firms, rather than state laboratories, are becoming the locus for the most important strategic technologies.

Third, we may be witnessing a blurring of the defensive and offensive aspects of espionage. Spying is neutral; it can be for any purpose, from reassurance to revolution. But technology adds to the opportunities, and to the confusion. If an adversary has placed implants on your nuclear command and control networks, are they there to receive forewarning of an attack, or to enable sabotage of your deterrent? Offensive or defensive intentions can never be known fully. We now know that the Netherlands was able to warn the US of Russian efforts to intervene in the American elections because Dutch hackers were already inside Russia’s networks. Cyber-defence requires cyber-attack. On the other hand, when Russia began cultivating political operatives around Donald Trump, few would have anticipated that, far from ordinary political intelligence gathering, this was the groundwork for an audacious campaign to disrupt and tilt the election itself.

Technology also permits scale. The covert dissemination of information to sway foreign politics is not in itself new. As Paul McGarr has shown, the UK’s information research department, which worked to counter Soviet propaganda, secretly placed material in over 500 Indian newspapers in 1964 alone. But this looks like child’s play alongside Russia’s Internet Research Agency, whose industrial-scale operations on Facebook and Twitter wrenched open American social cleavages. We have only seen the beginning of these complex campaigns, which fuse human intelligence, cyber-espionage and political warfare.

Intelligence, as Carl von Clausewitz said of war, has its own grammar, but not its own logic. Countries do put artificial restrictions on their espionage by choice. They swap rather than kill foreign spies, limit operations against close allies, and treat some targets as more acceptable than others. Some of this is unilateral, some learnt after tit-for-tat spirals, and some worked out through dialogue. But controlling intelligence is not like arms control. It is messy and fluid. The rules and norms of intelligence are—perhaps always—being renegotiated, rewritten, and bent.

Shashank Joshi is a senior research fellow of the Royal United Services Institute in London.

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