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Civil Rights

Why Angela Merkel is Wrong

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I enjoy being proven right as much as the next person. This week’s revelations on German intelligence practices do just that. The Germans have admitted that the Bundesnachrichtendienst (BND) has not only inadvertently scooped up conversations of senior American officials like Hillary Clinton and John Kerry[1], it has also actively targeted NATO ally Turkey as part of an ongoing intelligence gathering operation[2]. Chancellor Merkel has regularly castigated the US for its own foreign intelligence activities within Germany and Europe, saying: “spying among friends? That’s unacceptable.”[3] The Chancellor is now back-pedaling like an Olympic champion. The German press, which had enjoyed a year-long field day bashing the NSA and US, is now swallowing a very bitter draught indeed. Oh happy day.

uncomfortable

But this is hardly unexpected to anyone who knows anything about intelligence, or even with just a modicum of experience in the real world. Back in 2013 when Mr. Snowden’s revelations about the extent of US intelligence gathering were first made public, I wrote:

“Perhaps slightly more revelatory is the fact that it is not just the government of the United States which has been snooping on its citizens; in fact, Mr. Snowden reveals that just about every major – and even minor – power on earth has gotten into that game.”[4]

Nothing has happened to change that assessment. Everyone with the technical means and sufficient budget is involved in the game to a greater or lesser extent and that includes most of Europe. When I drive to or from work along the A-6 highway to Madrid, I pass the Centro Nacional de Inteligencia (CNI), Spain’s CIA. CNI has undoubtedly played a major role in the wave of high profile arrests of suspected ETA members that have increased in recent years. I speculate, but this is almost certainly the fruit of increases in domestic technical capabilities as well as greater coordination between the NSA, CNI and the French DGSE[5] in the wake of the 11 March 2004 Madrid train bombings. And I would be shocked if CNI were not actively monitoring the situation in Catalonia.

The national advantages to be derived from the increased scope and capabilities for intelligence services from the intersection of the ubiquitousness of mobile phones and personal computers as well as the advances in data storage and data processing capabilities are simply too great to be ignored; and no nation is going to ignore them. So forget about stopping mass surveillance; the question is how do we define the acceptable limits of mass surveillance and ensure that it remains consistent with our liberties.

It is useful to frame the discussion first by defining the most typical types of surveillance that occur:

intelligencematrix

Some combinations from the above matrix are more worrying and repugnant to the liberties of a free citizen than others. For example, almost no one disputes that conducting signals intelligence (SIGINT) against foreign military targets in an effort to develop a threat matrix is well within the purview of government: that, in fact, it would be criminally negligent for a nation’s government NOT to conduct such activities to ensure no future Pearl Harbors[6] occurred. On the other hand, mass surveillance of domestic political activities of private individuals is something usually associated with the Orwellian state, not a liberal democratic Republic.

What has most Americans pissed off with the NSA is the fact that it does involve mass domestic surveillance, that there is a ludicrous degree of judicial oversight, that what guidelines and processes that do exist seem to be violated routinely and without consequences, and that the data gathering covers an amazingly broad spectrum of information that seems to bear little or no relation to the ostensible purpose of stopping terrorism. And we are right to be angry: our Constitutional and natural rights do not stop at the digital threshold. Congress and the judiciary must determine how best to ensure that these fundamental rights are extended into cyberspace and protected as well. That sort of intelligence gathering is what leads down the slippery slope to censorship, repression and authoritarianism.

On the other hand, intelligence activities targeting foreigners face few or no legal obstacles. Ms. Merkel is wrong in asserting that spying on friends is unacceptable. She is not constitutionally protected from having her conversations recorded; that is a matter of courtesy between nations, nothing more. There are very good reasons why the United States might want to spy on its friends beginning with the timeless assertion of British statesman Benjamin Disraeli: “there are no permanent friends, only permanent interests.”  Mrs. Merkel is catering to the domestic German audience in making such statements and being disingenuous in the bargain, as recent revelations prove. Furthermore, the United States government would be reprehensibly naïve should it believe it.

Take, for example, the situation in Ukraine. Germany and the United States are more or less aligned in their broad position regarding Russian intervention, but there is significant disagreement regarding the specifics around “red lines” and sanctions. To expect Mrs. Merkel to be perfectly candid about the German position with Mr. Obama or Mr. Kerry is entirely unrealistic: yet the United States has a vital interest in understanding the real position and internal debates of its most important ally in Continental Europe. Whether the US then chooses to do so is a matter of courtesy and consequences, as I mentioned, but not one of law.

Germans may be pissed off by the NSA snooping about their private business, but given that European jihadists make up a substantial element of the Islamic State’s fighting force, there are clear and wholly justifiable reasons for these operations to continue and for data to be shared between agencies. Multiple jihadist recruiting rings have been broken up in Great Britain, Spain, France and Germany over the past year: those operations were not enabled by the superior attentiveness of beat cops.

It is not credible to believe that the Germans were wholly unaware of US capabilities and activities prior to Mr. Snowden’s leak given the degree of intelligence sharing and cooperation between the two countries. They chose not to make an issue out of it until domestic pressure forced their hand. This is a similar policy to that of the United States, whose government, companies and research centers are the targets of choice for foreign operatives the world over. John J. Fialka demonstrates in his 1999 book “War by Other Means: Economic Espionage in America” how American businesses have been targeted for decades by both our enemies and our friends[7] for trade and technology secrets, and that the costs borne by the US economy are really incalculable.

agencies

That is the nature of the game. Mrs. Merkel knows it as well as anyone. Relations with Germany are not going to be permanently damaged, nor will German-Turkish relations. I’m not excusing the clear abuses being perpetrated by agencies infatuated with their new toys and capabilities, but I am saying that these activities serve a real need. The real problem remains in the area of domestic surveillance, where there is a need for additional supervision and restrictions to ensure proper oversight of domestic intelligence gathering: that means doing away with FISA and going back to the tried-and-true system of normal court-issued warrants. Additionally, an international framework on digital privacy to supplement the rights enshrined in the Universal Declaration of Human Rights[8] is long overdue

Meanwhile, foreign intelligence gathering on friends and foes alike remains an indispensable part of everyone’s national security strategy. You might have asked American reporter James Foley his opinion on the subject, if he had not been beheaded by ISIS fanatics[9]. The threat remains clear and present.


Sources and Notes:

[1] “German security recorded at least one Kerry conversation: magazine,” Reuters, 16 August 2014

[2] “Targeting Turkey: How Germany Spies on Its Friends,” Der Spiegel, 18 August 2014

[3] Alex Spillius, “Angela Merkel: spying between friends is unacceptable,” The Guardian, 24 October 2013

[4]Fernando Betancor, “The Destruction of the Commons,” Common Sense, 30 June 2013; reprinted by Open Democracy

[5] Direction Générale de la Sécurité Extérieure

[6] An excellent case of a success surprise attack carried out IN SPITE OF excellent signals intelligence prior to the fact

[7] Germany is specifically mentioned as ramping up their economic intelligence capabilities targeting the US during the 1990’s.

[8]From the UN website.

[9]Karen de Young and Adam Goldman, “Islamic State claims it executed American photojournalist James Foley,” The Washington Post, 20 August 2014

 

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