Angela Merkel’s NSA Challenge

Dieter Dettke

Georgetown University

Dr. Dieter Dettke is a Non-Resident Fellow at AICGS and Adjunct Professor at Georgetown University.

Dr. Dettke served as the U.S. Representative and Executive Director of the Friedrich Ebert Foundation in Washington from 1985 until 2006 managing a comprehensive program of transatlantic cooperation. In 2006, he joined the German Marshall Fund of the United States as a Transatlantic Fellow and from September 2006 to June 2007, he was a Fellow at the Woodrow Wilson International Center for Scholars. His most recent book is “Germany Says ‘No’: The Iraq War and the Future of German Foreign and Security Policy,” published by theWoodrow Wilson Center Press and The Johns Hopkins University Press, Washington, DC, and Baltimore, 2009.

Dr. Dettke is a foreign and security policy specialist, author and editor of numerous publications on German, European, and U.S. foreign and security issues.

He studied Law and Political Science in Bonn and Berlin, Germany, and Strasbourg, France and was a Fulbright Scholar at the University of Washington in Seattle in 1967/68.

Newly-elected German Chancellor Angela Merkel will soon make the almost mandatory trip to Washington, despite the cell phone embarrassment caused by NSA surveillance programs and practices. The monitoring apparently started in 2002 during the Bush administration and in the context of an escalating Iraq crisis when Germany took a strong position opposing the use of force against Iraq. Most likely bureaucratic inertia within the American intelligence community kept the listening program on Merkel’s cell phone alive long after its usefulness was gone.

With apologies extended to Merkel and an invitation by President Barack Obama, an early visit will allow her to present the policy platform of the new German Grand Coalition government to the U.S. government and the American public. Obviously, after the Snowden revelations, she cannot make such a visit without an agreement on how to handle NSA surveillance in the future. President Obama’s address on the “Results of Our Signals Intelligence Review” on January 17 improves the prospects for a successful conclusion of such an agreement. The most important message to the world in his speech was that the U.S. is now committed to extending privacy protection to non-U.S. citizens, regardless of where they are located. This has removed a crucial point of friction over NSA activities.

An agreement will be necessary first to deal with the vast new surveillance capabilities of the digital age, such as the Prism program, and to make sure that surveillance in democratic societies is conducted without violating basic principles of privacy.

After Snowden, a more reliable balance between intelligence capabilities and the protection of core civil liberties—not only for U.S. citizens, but also for citizens of other countries—is essential. But more importantly, and specifically with regard to German-American relations, such an agreement is necessary to rebuild trust between the two countries.

The U.S. and Germany still face common threats. It would be unwise to cripple the capabilities of law enforcement in the fight against terrorism, corruption, drug and human trafficking, as well as proliferation of weapons of mass destruction. Both countries, and the U.S. in particular, are targets of frequent cyber-attacks from various sources, including state and non-state actors. This situation will require close U.S.-German cooperation on cyber security and cyber defense also in the future.

Creating a New Norm for Transatlantic Cooperation

A new agreement might not reach the level of cooperation that characterizes the informal Five Eyes Agreement between the five English-speaking countries, the U.S., Canada, Great Britain, Australia, and New Zealand. For the U.S., the distinction between “informal” and “formal” agreements is critical. Actually, the “informal” Five Eyes Agreement, in practical terms, will most likely go further than any possible “formal” agreement. A German-American bilateral agreement will, however, have to come close to the type of cooperation and intelligence sharing that characterizes the “informal” Five Eyes Agreement in order to avoid a new build-up of unwanted and unnecessary mistrust.

The Report of the President’s Review Group emphasized that in the past, the U.S. has not entered into “formal agreements with other nations not to collect information on each other’s citizens.” This will also be the case in the future, but on the basis of the report the door is open for bilateral arrangements with a small number of allied governments regarding intelligence collection guidelines and practices with respect to each other’s citizens.

This means that what the U.S., by tradition, will not do is to conclude so-called “No Spy Agreements.” For formal agreements the following criteria apply:

  1. shared national security objectives;
  2. a close, open, honest, and cooperative relationship between senior-level policy officials; and
  3. a relationship between intelligence services characterized both by the sharing of intelligence information and analytic thinking and by operational cooperation against critical targets of joint national security concern. Discussions of such understandings or arrangements should be done between relevant intelligence communities, with senior policy-level oversight.

It is difficult to assume that Germany would not meet those criteria.

However, Germany will come with its own objectives for an agreement with the United States that the media continues to call a “No Spy Agreement.” It would be good to clarify in advance that the term “No Spy Agreement” will not be the official title of an agreement, not only because the U.S. does not use formal agreements in such matters.

More importantly, any meaningful agreement would primarily have to focus on intelligence cooperation that includes mutually agreed limitations and conditions. It follows that a new agreement will not end cyber-espionage and surveillance programs. These programs will also be necessary in the future in the fight against terrorism and international crime. They help both the U.S. and German governments to counter common threats. What needs to end is the vast U.S. government collection and control of bulk data unrelated to specific threats and without respect for a sphere of individual privacy. The collection of so-called meta-data stored long-term either by the government or private companies fails to protect the privacy rights of U.S. and other citizens. It is the indiscriminate collection of personal information that needs to be replaced by a more targeted approach at the outset. What needs to be achieved in the future is more transparency on intelligence activities, and in particular more transparency of the judicial process that legitimizes surveillance activities.

In the case of the U.S., it is the secrecy of the Foreign Intelligence Surveillance Court (FISC) that diminishes the value of intelligence operations in the pursuit of justice. Without more transparency the U.S. will not be able to win back the normative power it lost as a result of the Snowden revelations.

In Germany, the expectations for a bilateral agreement with the U.S. are extremely high with regard to a more effective protection of privacy. The coalition agreement between the CDU, CSU, and SPD, which serves as the policy platform of the Grand Coalition under the leadership of Angela Merkel for the next four years, requires the German chancellor to make sure that three conditions for the conclusion of a bilateral agreement are met:

  1. To fully clarify the scope and magnitude of the surveillance activities of the U.S. foreign intelligence services directed against German citizens and the German government and to make sure that cooperation, not surveillance, between allies prevails.
  2. To assure comprehensive data protection. This issue will also be addressed in a Europe-wide data protection initiative.
  3. To strengthen counter-espionage and to improve the German communications infrastructure.

What might complicate Angela Merkel’s visit in Washington is the fact that many issues she will have to negotiate on a bilateral level between the U.S. and Germany overlap with EU interests and objectives. The German chancellor has to make sure that, on the one hand, a bilateral agreement with the United States does not weaken European standards and objectives. A German chancellor would face harsh criticism, in particular in the European Parliament, if a bilateral German-American agreement would not meet European standards. On the other hand, Merkel has to ensure that EU actions and decisions do not stand in the way of a bilateral agreement. This will not be easy because the objectives of EU institutions and their implementation and Germany’s interests are not necessarily identical. The EU Parliament, for example, has its own agenda that it would like to see implemented:

  • European Digital Habeas Corpus;
  • The conclusion of an Umbrella Agreement between the EU and the U.S. designed to improve the protection of privacy of EU citizens.
  • The establishment of a Code of Conduct with regard to surveillance activities with the aim that no US espionage is pursued against EU institutions and facilities.

While these objectives do not necessarily conflict with the views of the German government, the European Parliament’s strategy, first, to suspend the Safe Harbor Agreement for the transfer of commercial data until there is sufficient evidence and trust that data transfers with the U.S. take place in compliance with the highest EU standards and, second, to suspend the TTIP agreement until the Umbrella Agreement negotiations have been concluded, threatening that it will only consent to the final TTIP agreement provided the agreement fully respects fundamental rights recognized by the EU Chartercould turn out to cause serious harm to the global economy and Germany’s economic interests.

Transatlantic Trade and Investment Partnership and Surveillance

TTIP, the Transatlantic Trade and Investment Partnership, is a win-win initiative. A successful agreement would create thousands of jobs on both sides of the Atlantic and add substantial economic growth in Europe and in the United States. A suspension would dramatically increase already existing difficulties putting the entire project at risk. TTIP should not become the hostage of the necessary clarification and improved standards of privacy protection. In the interest of both TTIP and privacy protection, these issues should not be dealt with on the basis of a linkage strategy. The same is true for the European Parliament’s suggestion to tie its consent—a sine qua non for the ratification of TTIP—to successful U.S.-European negotiations on an Umbrella Agreement on surveillance activities. The end result could be the failure of transatlantic negotiations on cyber issues as well as on trade and investment, and both sides could end up with the erection of cyber walls instead of enhanced cooperation.

The Need for Global Internet Governance

Going separate ways in the common task of shaping internet governance for the future would also be the beginning of a process of unraveling globalization. Information technologies have added huge amounts of economic growth to the global GDP. They are the most important drivers of economic progress worldwide, not only in the U.S. and Europe. Access to information technologies is of even greater importance for the development of countries in Africa, Asia, and Latin America.

In order to get the rules for internet governance right, the U.S. and Germany should put the frictions over NSA spying behind them as soon as possible and begin to focus on the best way to establish governance rules for the digital age. If anger and retribution dictate the actions that need to be taken as a result of the Snowden revelations, more harm than good will follow threatening both the political as well as the economic future of the transatlantic partnership.

The views expressed are those of the author(s) alone. They do not necessarily reflect the views of the American-German Institute.