Intelligence Operations
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A Russian spy ship spotted about 70 miles off the coast of Delaware on Tuesday has begun "loitering" 30 miles from a US Navy submarine base in Connecticut. The U.S. Navy has responded that they are aware of its presence but respect its right to be there, even for intelligence gathering purposes, as within the freedom of navigation rights shared by all nations and that the U.S. frequently employs.
[ More ]The opponents' second claim is that the treaty would prevent the U.S. Navy from undertaking unilateral action, such as collecting intelligence in the Asia-Pacific region, because permission to do so is not explicitly granted in the text. According to Admiral Samuel Locklear, commander of U.S. Pacific Command, however, "The convention in no way restricts our ability or legal right to conduct military activities in the maritime domain." On the contrary, as U.S. Defense Secretary Leon Panetta put it, U.S. accession to the convention "secures our freedom of navigation and overflight rights as bedrock treaty law." Even so, critics point out, the ultimate indispensability of U.S. naval power means that the country can receive the benefits of the convention without being bound by it. Since the world seems to have functioned perfectly well in this halfway house for some time, it would make no sense to codify the convention now. It would be comforting if all that were true. It isn't.
The 2002 National Security Strategy states that the United States' success in the Global War on Terrorism depends on the destruction and disruption of terrorist organizations by "Identify[ing] and destroying the threat before it reaches our borders."69 Clearly, the United States' ability to conduct intelligence activities effectively is crucial to the prevention of future terrorist activities.70 Thus, Article 19 of UNCLOS, which appears to have ramifications for intelligence activity is highly significant.71
The impact of UNCLOS on intelligence gathering activities hinges on the interpretation of Article 19(2)(c), namely what constitutes innocent passage through coastal states' territorial waters.72 According to proponents of UNCLOS, the Convention will not significantly impact the United States' intelligence gathering activities.73 Proponents will admit that intelligence gathering does not qualify for an innocent activity under Article 19(2)(c) and therefore does not entitle the vessel conducting intelligence activities to the benefits of innocent passage.74 But they note that intelligence activities are not specifically prohibited or regulated by the Convention.75
Nor is there much consolation in the prospect of appealing to ITLOS against the seizure of an American ship, since the most vulnerable American ships would be small craft, gathering intelligence near the coasts of unfriendly states. UNCLOS couples transit rights with provisions for national regulatory measures in coastal waters, including the right of the coastal state to prohibit intelligence gathering in these waters. Suppose an American ship were seized outside the territorial waters of a hostile state, on the claim that it had earlier traversed these waters for illicit purposes and then been pursued into “contiguous” waters—as UNCLOS allows, for a belt of water extending twelve nautical miles beyond the twelve mile reach of “territorial waters.”5 The United States being required to document for ITLOS exactly what its ship was doing in exactly which waters could very well compromise sensitive U.S. intelligence gathering operations.
Though national security remains a top U.S. priority, opponents of UNCLOS have overstated the degree to which the treaty would endanger that security. First, major concerns appear to stem from a misreading of articles 19 and 20.81 Additionally, the provisions at issue were negotiated with the input and consent of the U.S. intelligence community (including the National Security Council) and were approved by the Central Intelligence Agency and the Department of Defense.82 In fact, some of the strongest supporters of the treaty come from the intelligence community and the highest ranks of the U.S. military.83 As for the reliance upon customary international law to ensure permission for navigation by U.S. vessels, some commentators see this as a risky and costly alternative to ratification.84
Myth: The convention would interfere with the operations of our intelligence community. Having either chaired or participated in the 18-agency National Security Council interagency process that drafted the United States' negotiating instructions for the convention, we found this charge so bizarre that we recently checked with the intelligence community to see if we had missed something. The answer that came back was that they, too, were puzzled by this charge, as there was absolutely no truth to it. We are confident that there is no provision in the convention which will, if approved by the Senate, constrain the operations of our intelligence community. In this regard, the United States is already bound by the 1958 convention, and since 1983, pursuant to President Reagan's order, we have operated under the provisions of the 1982 convention, with the exception of deep seabed mining issues associated with Part XI.
The question has been raised whether the Convention (in particular articles 19 and 20) prohibits intelligence activities or submerged transit in the territorial sea of other States. It does not. The Convention’s provisions on innocent passage are very similar to article 14 in the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States is a party. (The 1982 Convention is in fact more favorable than the 1958 Convention both because the list of non-innocent activities is exhaustive and because it generally uses objective, rather than subjective, criteria in the listing of activities.) A ship does not, of course, enjoy the right of innocent passage if, in the case of a submarine, it navigates submerged or if, in the case of any ship, it engages in an act in the territorial sea aimed at collecting information to the prejudice of the defense or security of the coastal State, but such activities are not prohibited by the Convention. In this respect, the Convention makes no change in the situation that has existed for many years and under which we operate today.
Nothing in the Convention will affect the way we currently conduct surveillance and intelligence activities at sea. Opponents to the Convention argue that the Convention’s provisions on innocent passage – Articles 19 and 20 – will prohibit or otherwise adversely affect U.S. intelligence activities in foreign territorial seas at a time when such activity is vital to our national security. I can say without hesitation that nothing could be further from the truth.
While it is true that Article 19 provides that intelligence collection within the territorial sea is inconsistent with the innocent passage regime and that Article 20 provides that submarines must navigate on the surface when engaged in innocent passage, it’s a far stretch to thus conclude that the Convention prohibits intelligence collection and requires submarines to navigate on the surface when transiting the territorial sea. Nothing in Article 19 prohibits a U.S. vessel from engaging in intelligence activities in a foreign territorial sea. If a vessel does engage in such activities, it simply cannot claim that it is engaged in innocent passage. The same rule has applied for the past seven decades. Similarly, Article 20 does not prohibit submerged transits through the territorial sea, per se. Article 20 merely repeats the rule from the 1958 Convention on the Territorial Sea, a convention to which the United States is a party. The rule concerning submerged transits from the 1958 Convention has been the consistent position of nations, including the United States, for more than 70 years and it has never been interpreted as prohibiting or otherwise restricting intelligence collection activities or submerged transits in the territorial sea. In short, if or when the need arises to collect intelligence in a foreign territorial sea, nothing in the LOS Convention will prohibit that activity.
U.S. intelligence collection activities at sea are not constrained by the Convention. This matter was fully reviewed at closed hearings before the SSCI and SASC in 2004. At the unclassified level we can comment that those Committees concluded, after receiving testimony from DoD, CIA, and DoS, that the Convention does not affect US intelligence collection activities. Those agencies confirmed that testimony in recent correspondence to the SFRC. With regard to innocent passage, the United States already obligates itself to abide by articles 19 and 20 of the Convention, and we are already formally bound to the same obligations in the 1958 Territorial Sea Convention.
Under the convention, the United States assumes a number of obligations at odds with its military practices and national security interests, including a commitment not to collect intelligence. The U.S. would sign away its ability to collect intelligence vital for American security within the “territorial waters” of any other country (Article 19). Further- more, U.S. submarines would be required to travel on the surface and show their flags while sailing within territorial waters (Article 20). This would apply, for example, to U.S. submarines maneuvering in Iranian or North Korean territorial waters; they would be required to sail on the surface with their flags waving.
In the mid-1980s the Soviets had drawn a system of straight baselines in the Arctic Ocean. Segment 8-9 is a twenty-six mile line that enclosed Motovsky and Kola Bays. According to the military experts writing in press and magazine accounts, on February 11, 1992, USS Baton Rouge was lurking in what it thought to be international waters when it and a Sierra-class Russian submarine collided.25 In the ensuing diplomatic dispute, the U.S. Navy claimed that the collision occurred more than twelve miles from the "normal baseline," the shoreline, which placed it well within international waters. However, Russia claimed that the U.S. submarine was operating illegally while submerged within its territorial sea as measured from their claimed straight baseline.
Years later, when another Russian submarine, Kursk, sank under mysterious circumstances in the same general area, the Russian Navy immediately claimed that it was the fault of the United States, which had intelligence gathering submarines in the area monitoring the Russian exercises.26 If the United States and Russia were both Party to the Convention, we would likely be able to resolve the legality of this particular baseline segment and avoid such potential incendiary incidents. We continue to have similar disputes concerning excessive straight baseline claims with many other countries all over the world, including China, Iran, Colombia, and Vietnam.
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Opponents of U.S. ratification of UNCLOS have argued that U.S. intelligence operations will be complicated by UNCLOS because it will prevent U.S. submarines from gathering intelligence in territorial waters. However, these operations are already regulated by the existing 1958 convention which the U.S. ratified and expects other nations to abide by. Furthermore, the intelligence community has reviewed the treaty and concluded that it was still in U.S. interests to ratify the treaty.
- Nothing in UNCLOS will change the conduct of naval intelligence operations
- Closed hearings before the Senate Armed Services and Classified Intelligence committees confirmed that UNCLOS will not jeopardize intelligence gathering
- U.S. defense and intelligence community played role in drafting articles 19 & 20 to protect U.S. rights
- Nothing in the convention will impact intelligence operations or the proliferation security Initative
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Under the convention, the United States assumes a number of obligations at odds with its military practices and national security interests, including a commitment not to collect intelligence. The U.S. would sign away its ability to collect intelligence vital for American security within the “territorial waters” of any other country (Article 19). Further- more, U.S. submarines would be required to travel on the surface and show their flags while sailing within territorial waters (Article 20).
- UNCLOS would complicate intelligence operations by facilitating seizure of U.S. assets
- Impossible for proponents of UNCLOS to have high confidence that UNCLOS won't restrict US intelligence operations
- U.S. participation in UNCLOS would undermine military and intelligence operations
- Article 19 or the "Pueblo clause" would devastate U.S. intelligence operations
- Article 20 provisions will negative impact ability of military to use underwater drones