Everyone does it and in any case, there’s nothing anyone can do about it (crosspost from Crooked Timber)

The general reaction to various revelations of spying by the US on its friends and allies, particularly in contexts such as trade negotiations has been “everyone does it” and “in any case, there’s nothing anyone can do about it”. And, as regards direct retaliation against the US, that’s pretty much right. The situation is a bit different for junior members of the Five Eyes[^1], such as Australia. A case now being heard at the Permanent Court of Arbitration in The Hague could set a precedent that will make such spying a high risk exercise.

The background is a 2004 treaty between Australia and East Timor over the division of oil and gas reserves. It’s now come out, via a whistleblower, that while generously building a cabinet room for the new East Timorese government, the Australian government took the opportunity to bug it, thereby gaining a negotiating advantage. East Timor is seeking nullification of the agreement.

IANAL, but the case seems unanswerable. This would be criminal conduct in a commercial negotiation just about anywhere. But, leaving aside the legalities, it’s hard to imagine a more sympathetic plaintiff or a less sympathetic defendant. East Timor is one of the poorest countries on the planet, heavily dependent on Australia. Even in Australia at the time, and without any knowledge of the commercial espionage behind it, the agreement was widely criticised as unfair. Since then, the Foreign Minister at the time, Alexander Downer, has set up a consulting firm which has, as a major client, Woodside Petroleum, the main beneficiary of the deal. And, just the other week, Australian police raided the office of the Australian lawyer acting for East Timor, and cancelled the passport of the key witness.

In these circumstances, an Arbitration Court that found in favor of Australia might as well make a public declaration that it is for sale to the highest bidder. Whatever contortions of legal reasoning the Australian lawyers might come up with are unlikely to convince anyone except other lawyers.
In the face of what looks like certain defeat, I’d expect the Australian government to settle out of court. But even that would be enough to expose every commercial agreement negotiated by a Five Eyes country to legal challenge, not to mention any other governments caught engaging commercial espionage in international negotiations.

There is every reason to expect more whistleblowers. While the unnamed whistleblower in this case, like Snowden and Manning, appears to have acted out of moral repugnance at his government’s actions against a desperately poor country, many more might come forward if enough money was on offer. And, in the context of international trade negotiations, the leverage provided by a threat to revoke earlier agreements could be huge.

[^1]: As an aside, the Anglocentrism of the Five Eyes arrangement is striking in itself and as a demonstration of the fact that the security state is effectively independent of the rest of the government, and even of the military. New Zealand has remained a Five Eyes member in good standing since 1945 even though defense co-operation with the US was suspended for decades over NZ refusal to accept visits from nuclear armed and powered warships.

26 thoughts on “Everyone does it and in any case, there’s nothing anyone can do about it (crosspost from Crooked Timber)

  1. There is this argument, put forward by those purporting to be in the know, that had NZ been more cooperative with the US they would have been told of the presence of French agents in NZ and their target, the Rainbow Warrior. As it turned out it was a fiasco for France, despite or in spite of intelligence.

  2. The East Timorese wouldn’t know what to do with all the money from that oil and gas. You know what unearned income does to the natives. Much better to make sure it all gets to Australians, who have been educated in how to use wealth responsibly. Australia was doing the East Timorese people a favour.

  3. Ken_L: you forgot to say “they’ll get most of it back as foreign aid anyway”.

    Although perhaps supplying consultants should be considered more a war crime than an aid program?

  4. Yes everyone spies but does everyone add criminality, opportunism (his own words) and veniality as Alex appears to have done. Who amongst us believes that Downer has any constructive, consultative contributions to make in Woodside’s operations? This is base payback for services rendered.

  5. But Ken, now the natives have refused to let our noble diggers buy all their boats there’s a hole in our spending plans. That money has to go somewhere…


    (From where I sit, what can I do about it?)

    It’s a fair question. The modern citizen of modern “democracies” like Australia appears powerless. Corporate capital and the bought and suborned major parties will keep doing this until the chickens come home to roost. The chickens of course being things like global warming and resource depletion.

    I guess J.Q. is trying to use the “enlightened self-interest” argument. It would be in our enlightened self-interest to stop some of this spying because the blowback can return to burn us, even commercially. I am yet to see any evidence of such sense from Neocons.

    Margaret Atwood’s dystopian future books (sans the pseudo-religious waffle and the more ridiculous GM animal crosses and human mutations) would seem to be pretty much our future : corporate dictatorship, gated rich, pointless consumerism of bright plastic things, decaying ghettos, widespread poverty, advancing epidemics and finally extinction of a maladaptive species.

  7. @Nearly Normal

    I think venality is the word you mean NN; these offences are too big to be called venial. And the Guardian tells us today (“GCHQ and NSA targeted charities, Germans, Israeli PM and EU chief”) that the Competition czar, an economic role of great international significance, was surveilled.

  8. Like most people engaged in criminal activity they operate on the basis that they will not get caught; but on current trends it’s increasingly likely they will get caught. A bit like the drugs in sport thing, they may get away with it at the time, but lots of evidence remains intact and ever improving means of detection makes it more likely to come to light later when reviewed later.

    I can’t help but think that it’s the tip of the iceberg, that if our security and intelligence services bugged senior Indonesian officials and senior East Timorese officials, they have bugged others and there is a strong likelihood more will come to light. It may well have become accepted and standard operating procedure to do so, and the view that failing to do so, when technology makes these things relatively easy, looks disadvantageous in comparison to taking and making the most of every opportunity. They don’t seem to recognise or acknowledge that what they did was in any way wrong and offensive – which only makes the defense of such behaviour appear more offensive.

    So what is our nation’s good reputation worth? From East Timor’s or Jakarta’s POV, have we ever really had a good reputation? Is that good reputation merely a result of a history of not getting caught? Did Australia’s cheating of East Timor out of it’s resources simply because, with inside information acquired criminally from a nation in desperate circumstances it was easy to force unfair terms on them – did this really advance our national interest sufficiently that we can deem the results worthwhile? I doubt that myself; time will tell but I suspect that ultimately this kind of dishonesty will be shown to not pay.

    There is a difference between “justifiable” espionage to protect Australia’s security and the safety of it’s citizens from dangerous enemies or organised crime and espionage intended to advance our nation’s economic interests and the interests of favored corporate entities which are conflated into being equivalent to those of our nation.

  9. @Nearly Normal
    I think that, like a lot of people on left-wing blogs, you display cynicism towards business activities which is not well informed. A right wing cynic would more accurately say to some ex-politician seeking payback “And what did you do for me today?”. Of course all sorts of patronage is used to send signals and to reassure people that their reliable behaviour will be rewarded: hence even the long term backbencher’s appointment as consul in Outer Ruritania’s second city. Very big long enduring businesses no doubt do the same strategically as in “Look what we did for your predecessor as Minister for Digging Up Stuff”.

    However, I would have thought Alexander Downer would be appointed to the board of or as a consultant to a big international company like Woodside for good commercial reasons. Like Andrew Peacock, Martin Ferguson and not a few others, he really can open a lot of doors and know who to speak to and how to speak to them. Also he would have just about the level of intelligence, at least in relation to business matters, which would assist because of his particular expertise but not threaten the Chairman and CEO. BTW don’t forget that he has been able to get some genuinely interesting jobs of some importance without having to seek cynical motivations: Cyprus comes to mind.

  10. @Ken Fabian

    You raise the questions which often springs to mind when people tell us how bad something will be for Australia’s reputation
    (a) how do they know;
    (b) are they just extrapolating from their actual or imagined embarrassment amongst like-minded acquaintances abroad? (If you don’t get this one just imagine a decidedly non-PC, non-left matriarch who called UK “home” in the 20s to 60s cringeing when she thought of what her UK friends would think of the bogan accent of her niece or nephew just about to be seen off at Port Melbourne for the great voyage).
    (c) what does it matter in practice for Australia and Australians as a whole or their wider purposes?

    Mind you the US reputation for playing it hard, bullying or beating up to gain material advantage etc. doesn’t matter as long as it is not only *the* superpower but, now that it cannot afford the profligacy with which it (also) brilliantly won WW2 (and I haven’t forgotten that it had an ally which was willing to spend the remaining demographic dividend of pre-Bolshevik days – an extra 2 million people a year in 1914! – that will not be likely to be matched in future by India, Nigeria, let alone Pakistan or Yemen…. yes, I prefer to be a nit-picking pedant than a factless waffler…) it also cannot afford to be so incompetent as its employment of Bradley Manning and Edward Snowden show it to be. [And that raises the question whether American democracy, including its legalism and litigiousness, can be afforded without major changes. It was great for liberating the creative-destructive forces of the modern world but now that it is not middling income Americans who are benefiting but hundreds of millions of foreigners…. Oops! how are the smart energetic guys going to manage the country? Yes, yes, retired Chinese Politbureau members will explain how to enjoy life in gated compounds (“a bit like Jo’burg, yes, but it doesn’t have to be so obvious”) but they will have to admit that they have problems too. To coin a phrase “plus ca change, plus ca change”.]

  11. @Megan

    A real question however for the panel in a real world DFAT sponsored seminar: what rules should one observe when serving the national interest (in making us all individually and corporately richer taxpayers not least)?

    After all, just to take the East Timor case, should we be content to say “oh, it’s just money and you, a recently tribal, colonised people with no history of democratic or even self-government, will spend it just as well as we would and it doesn’t matter that we had an agreement with the then sovereign power which we have been counting on: just take what you want including making Woodside, which pays taxes to us, build facilities in your country where it wouldn’t go in a fit without a huge risk premium. And, oh yes, we’ll keep on providing foreign aid without any concern for whether it serves our interests or even whether it wouldn’t be better spent elsewhere now that you have revenue from offshore oil and gas.”

    Assuming one doesn’t give the answer of the holy fool then the question is whether it isn’t obviously better to have lots of accurate relevant information about an issue on which there is negotiation touching the national interest. Obviously the answer is yes and the much more complicated question then arises as to acceptable methods (and we only know a little of what methods were used in East Timor and exactly why) for all or some of the information one can make good use of. And then it is still a question whether the nation should behave like Secretary of State Stimson who said (if he really said) “gentlemen don’t read each others’ letters” as he closed down much of the US intelligence apparatus. Or should we recognise that international relations are sui generis and International Law has very little in common with domestic law for which there are organised legal means of enforcement and for adjudication, as well as a high degree of comprehensiveness and clarity compared with International Law.

  12. @Neil Hanrahan
    Leaving aside the latent ill-informed racism in your post, just what sort of absurd principle of trade, governance or diplomacy are you proposing? 1) A country (who’s sovereignty I take it no-one, including you, is disputing) owns some valuable resources. 2) You feel that their standards of education or democracy aren’t up to your lofty(?) standards, so the ethical thing to do to steal as many of their resources as you can.

    You also seem confused about what sovereignty means, and what it means when it changes hands. When this happens, agreements with the now-illegitimate previous regimes are, naturally, completely up for renegotiation. I might also remind you, that the previous sovereign power you are referring to was regarded by the Howard government and the UN as behaving so illegitimately subsequent to the referendum that we demanded their forces evacuate and sent in our own military to protect the people of East Timor. This allowed them to hold elections, write a constitution and form government which, funnily enough, they were able to do all by themselves.

  13. @Neil Hanrahan
    Neil, your analysis of this affair has relieved and reassured me because at no stage do you use the word “patriotism” so “scoundrel” need not be inferred.
    You pose, what I thought was a rhetorical question: is it “better to have lots of accurate relevant information about an issue on which there is negotiation touching the national interest”. “Yes”, you replied unnecessarily. SFSG.
    I held my breath, though, when you ventured onto the quick sands of “acceptable methods”; the very essence of the kerfuffle. Now I thought that we had constructed the building, in which the East Timorese negotiators met privately and installed listening devices therein and this may fall within your definition of “we only know a little of what methods were used”.
    Acceptable method?
    Now I, like you, cannot understand “exactly why” we would want to listen in on them. We can’t speak the lingo, they tell awful jokes that you wouldn’t want to repeat and their recipes are rubbish so the “why” must remain a mystery and any further discussion would not be in the national interest.
    On the other hand, their case against us in the International Court could cause problems; even though, as you say, international law is so shot full of holes that even Brandis should be able to dodge the rap but it’s quite possible that they could slip the beak a couple of quid more than we have – it’s the Asian way of doing business.
    Would that be sui generis?

  14. I still think Ken_L’s Poe was the best.

    The others just don’t have that ring. They sound tired, tortured and forced. Ken’s was almost perfectly balanced.

  15. @Nathan

    I’m not sure why I ask as your unsophisticated response suggests little acquaintance with seminars, colloquiums or what-you-will which consider hypotheticals and attempt to provoke detailed, fact-based, hardheaded, answers to difficult questions, but I do have a question you might care to answer something about what you say rather than what you misapprehend about what I say. You say “Leaving aside the latent ill-informed racism in your post”.

    Of course it is just possible that you regard it as dealing with an unimportant matter and one not worthy of clear thought but you do take the trouble to say it, with all its load of your feelings and opinions. How do you justify it? “Latent” is peculiar. As it would usually mean, except perhaps by Humpty Dumpty ” present but not visible, apparent, expressed or actualized; existing as potential” or just “hidden” you really should explain how you uncover the hidden and unexpressed so as to be able to infer reliably that I hold certain views.

    Then you need to make clear what you regard as “racist” and why it is, in this case, as you seem to assume, either wrong in fact or perhaps right in fact but somehow morally reprehensible. Do you, as a matter of interest, think all countries deserve to be left alone to deal with their people and everything that affects them without judgment from outside? Have you noticed the many interventions in Africa where letting them get on with self-government unfettered by the views of high-minded people in the West seems to have fallen by the way side? I am in fact inclined to keep out of other people’s messes in case you think I have just implied unqualified approval of some kind of new colonialism. If anyone is going to sort out the more dysfunctional African countries it will no doubt be the Chinese whose sensitivity on matters that you might think involve “racism” may perhaps be gauged by their treatment of Tibetans and Uighurs (not much respect for sovereignty by China if it involves them not totally controlling the headwaters of many major rivers…..)

  16. @Neil Hanrahan
    On second thoughts, latent was probably a poor choice of word as what you wrote wasn’t actually very subtle. In fact just after I replied I was struck by a sudden fear that your viewpoints (note viewpoints rather than arguments since the conclusions you offer don’t logically follow and you offer no facts to back up your assertions) were so silly, I was in fact ruining a well crafted joke.

    I read your post as follows:
    1) There are some people in East Timor who still live in tribal groups.
    2) Therefore the country as a whole can’t possibly engage meaningfully in democracy. Also there can’t possibly be a sufficiently large number of East Timorese who understand governance and politics sufficiently well to form a government that can be trusted to handle its own revenue and affairs.
    3) We are therefore justified in taking revenue that is rightfully theirs, and, not just spending it for them in their own country patronising as that would be, but simply absconding with it for ourselves.

    2) is factually wrong, and I’m skeptical that anyone who wasn’t engaged in judging all members of some ethnicity by some vague ideas they have about some members (i.e. a racist) would think it was true.

    Also, 3) is simply a logical non-sequitur and doesn’t follow. Furthermore, it’s self-evidently unethical, a point I notice you don’t bother to contest.

  17. @Nathan

    To be fair to Neil, his defence of ripping off the poor neighbours was refreshingly free of dissembling. No disingenuous concessions were made to niceties like equity at all. Since these are merely designed to settle the stomachs of the squeamish this is to be welcomed.

    If Australia is going to rip off poor foreigners, we ought not to pretend we aren’t.

  18. Australia’s “deal” with Timor in 2004 certainly made me squeamish and cringing at the sheer audacity of our government of the time. Punching above our weight, we dropped a friggin’ anvil upon the Timorese government’s head, fed them a sh*t sandwich, and told them to luv it. So much for showing a little charity. There are times when mimicry of a superpower is insufferable, and that 2004 deal is a prime example.

    Now that we can be fairly confident that our own spies and diplomats were used in 2004 to conduct what is in effect industrial espionage upon a neighbour, rather than political/military espionage, it does invite the question as to whether the same practice was in place prior to, and during, the AWB kickback fiasco. That kickback fiasco was happening when we were in conflict with Iraq, making it more than merely a commercial transgression, arguably.

  19. John, there is a good podcast by Richard posner arguing that cold war spying was a good thing because each side was less ignorant of the other’s intentions and capabilities

  20. @Neil Hanrahan #14

    “BTW don’t forget that he has been able to get some genuinely interesting jobs of some importance without having to seek cynical motivations: Cyprus comes to mind.”

    Is this tongue in cheek? Or just extreme naivety? Genuinely interesting and important to whom? He is a consultant trading on his contacts and insider knowledge for personal gain.

    Re Timor Leste, don’t just apply pre-conceived dogmas, look at the facts. I may be wrong, but my slightly insider take on this is that their leaders, who previously embraced the Downer-Alkatiri deal in 2006 (?), are now lashing out at the failure of Woodside Petroleum to do what they anticipated (but never got formal agreement on), being on-shore petro-chem development, rather than export of primary products.

    TL has an absolutely enormous natural resource endowment, to fund 1 million people, but despite adopting in theory the Norway model to avoid the resources curse, and with enormous international goodwill, has yet to get it right. ETAN and Lao Hamutuk are highly informative information sources on TL.

  21. Perhaps our ASIS spying should be directed at match-fixing of cricket matches, especially international matches. We could offer to renovate the change rooms and club rooms of certain cricket-mad nations, as a charity work of course, and we’d be in.

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