Privacy and Power

Russell Miller

Russell A. Miller

Washington and Lee School of Law

Russell A. Miller was a DAAD/AICGS Research Fellow in 2015. He joined the Washington and Lee law faculty in 2008. His teaching and scholarly research focuses on comparative law theory and methods, comparative constitutional law, German law and legal culture, and public international law. Previously, he taught at the University of Idaho College of Law and has been a guest professor in Germany.

The Germans are angry. They have been simmering since Edward Snowden’s disclosures last summer revealed the startling extent of American intelligence-gathering and data-collection activities in Europe. Now they are boiling-over. The discovery, in the last few days, of paid American informants in the German Federal Intelligence Service and the Ministry of Defense, left President Joachim Gauck sounding exasperated. “Now we really have to say,” he insisted in his annual summer interview, “this is enough.” Alongside reports that the German Government has demanded that the highest-ranking American intelligence officer in Germany leave the country, the Frankfurter Allgemeine Zeitung published an essay in Friday’s edition calling this the “worst crisis in transatlantic relations since the 2003 Iraq war.”

Is there a way out of the crisis? Only if we can foster a better understanding of the very different political mindsets—and the resultingly very different legal frameworks—in both countries. That was the aim of the two-day symposium Ralf Poscher and I convened at the University of Freiburg this week under the title “Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA.” The program built upon our conclusions, outlined in an essay that we published in the fall [German Version] [English Version], about the fundamental nature of the differences between Germany and the United States with respect to the way our countries seek to balance security and liberty. At their core, they are differences in historical experience, political culture and legal culture. Those differences are the source of the dismay and disillusionment felt by Germans and Americans. They are also a significant barrier to the authentic and constructive conversation we must have to move beyond the current malaise. The symposium was sponsored by the University of Freiburg’s Center for Security and Society, the University’s KORSE project, and the German Law Journal.

The different political and legal perspectives—and the different rhetoric upon which they depend—were emphatically on display at the event’s opening session, which featured keynote presentations from Prof. Dr. Anne Peters (Director of the Heidelberg Max Planck Institute for Comparative Public Law and Public International Law) and Lawfare’s editor, Benjamin Wittes. Peters revisited her previous commentary on the NSA Affair, in which she has argued that the NSA programs are illegal as a matter of international law. Peters proceeded in three steps. She systematically mapped the scope of state-based and individual-based protections against espionage, surveillance and data collection (relying in particular on the U.N. Charter and the ICCPR). She then argued, with a reference to the initiatives revealed in the Snowden disclosures, that American programs constituted a serious infringement of the relevant legal protections. Finally, she concluded that the programs were disproportionate.

Wittes responded with a characteristically strong dose of Realpolitik, in which he advanced three arguments. First, he insisted that the activities of the American intelligence community are subject to consequential legal limits and effective political oversight in ways that the intelligence communities in other countries—including Germany—are not. Second, he noted that a widening divergence between German and American foreign policy (emphasizing the countries’ different responses to the Ukrainian/Russian conflict) itself justified American espionage and surveillance interest in Germany. “Merkel regularly speaks with Putin,” Wittes said. “Of course the U.S. wants to know what they’re talking about.” Third, Wittes made the pragmatic observation that intelligence services, by their very nature, defy international legal controls. Leaning heavily on the last point, Wittes concluded that it is an unavoidable reality of international relations that countries spy on one another, on their friends as well as their enemies, and that these activities necessarily unfold in the shadows. Recalling that Israeli espionage against the United States had not profoundly disrupted the Israeli-American relationship, Wittes urged the Germans to “finally grow up.” Peters responded by demanding that the Americans “obey the law.”

The opening presentations were more than just the tired cliché involving Europeans’ insistence on law in pursuit of a cosmopolitan vision and Americans’ resort to the pragmatics of power and Realpolitik in defense of their national interests. Peters and Wittes, embodying these very different political and legal postures, perfectly framed the challenges facing the panelists in the three subsequent panels. On one hand, how can Germans and Americans negotiate the different priority we place on the universal and the national? On the other hand, how can Germans and Americans negotiate the different priority we place on legal and political legitimacy.

The first panel, entitled “American Voices on the NSA-Affair” gave the German hosts a chance to hear from American experts on the related American law. The complex constitutional and statutory regimes implicated by the NSA Affair are not well understood in Europe. Ronald Lee and Margaret Hu gave deeply insightful and accessible presentations on both the legal limits constraining American intelligence activities (imposed by FISA, the relevant Executive Orders, and the President’s recent Policy Directive) as well as the range of intelligence activities that are not as stringently regulated (including intelligence activities involving non-US persons abroad and newly emerging areas of technology, such as biometric data-collection). I tried to impress on our German hosts that their alarm over American policy is partially fueled by the mistaken assumption that the robust constitutional privacy protection they seem to enjoy under the Basic Law is part of a common constitutional heritage that should manifest itself in American constitutional law with an equivalent commitment to privacy. I argued that, with respect to personal information privacy, the German Basic Law and U.S. Constitution present different textual bases, leading to different privacy jurisprudences, that have been developed by different constitutional tribunals, in pursuit of different constitutional teleologies, in the framework of different understandings of the rule of law.

The second panel, entitled “Domestic Reflections on a New Era of Surveillance and Intelligence-Gathering” asked Germans and Americans to consider domestic legal responses to the new intelligence paradigm. Alec Walen wrestled with the paradox of domestic constitutional law as a limit on the State’s increasingly global activities, including surveillance and intelligence-gathering. He presented a careful case, grounded in both philosophy and law, for the extraterritorial application of a domestic constitutional protection such as the Fourth Amendment to the U.S. Constitution. He conceded that his argument was not yet the law. But he insisted that extra-territorial application of the U.S. Constitution’s liberty protections is a realistic interpretation of the law. “Let the litigation begin,” he concluded. Ralf Poscher argued that the nearly mythological status of the German constitutional right to informational self-determination defies its textual roots, the application of the right in the German Constitutional Court’s jurisprudence, as well as most useful theories of privacy. Especially in response to fast-changing social and technological developments, he advanced an understanding of informational privacy that serves largely to reinforce other liberty interests, such as freedom of speech or freedom of assembly. Poscher’s presentation was an especially valuable invitation to Germans to reflect on just how much privacy the Basic Law actually secures. Susana Sanchez Ferro considered the implications for domestic intelligence services of the increasing necessity of global intelligence initiatives. She was skeptical that these deeply parochial institutions, pursuing a deeply parochial interest such as “national security,” could adequately transnationalize in order to achieve the cooperation seemingly necessitated by the new intelligence paradigm. Sanchez Ferro’s remarks pose a curious and under-examined challenge to Anne Marie Slaughter’s global networks theory, which is now widely embraced.

The third panel, entitled “Transnational Legal Responses to the New Era of Surveillance and Intellgicence-Gathering” involved an assessment, by German and American scholars, of the European and international law implicated by the NSA Affair. Jens-Peter Schneider provided a detailed survey of the developments in European law. His presentation revealed the complex nature of the European response, which, in turn, suggests the underlying difficulties of harmonizing Member States’ policy and interests in this area. Martin Hochhuth and Ben Scott examined the desirability and viability of a German-American “no-spy” agreement. Hochhuth argued that the great risk that Germany alone would respect the limits of such an agreement would have two unfortunate consequences. First, it would degrade the integrity of international law. Second, it would constitute a new example of Germany’s post-war habit of disabling itself from pursuing its own interests. Scott was not more sanguine about the prospects of a German-American “no-spy” agreement. But he suggested that there were a range of smaller issues around which Germany and America could find enough agreement to pursue bilateral cooperation and understanding. For example, he argued that Germans and Americans share profound interests in combatting industrial espionage. Hochhuth and Scott contributed to one of the most insightful themes to emerge from the program. They gave voice to a “clash of exceptionalisms” between Germany and the U.S. that will cloud understanding and cooperation in the areas of security and intelligence. Germany, of course, draws on its uniquely troubled history in pursuing an exceptional degree of restraint and self-denial (usually expressed through a strict fealty to the law and its long-standing enthusiasm for European and international cooperation). America’s exceptional successes in the 20th Century fuel a sense that its interests are aligned with justice more broadly, which, in turn, justifies America’s pursuit of its interests, sometimes regardless of legal limits. In important ways, Hocchuth and Scott were arguing against the logic and momentum of these “exceptionalisms.” Silja Vöneky concluded the panel—and the program—by picking up many of the challenges evident in Peters’ earlier discussion of the international law implications of the NSA Affair. She did not neglect the relevant international human rights law. But it is a credit to Vöneky’s pragmatic approach to international law that she also focused on areas of the law that have often had greater resonance for the United States, including alliance treaties (NATO), the international law prohibition on intervention (U.N. Charter), and consular rights and protections (Vienna Convention on Diplomatic Relations).

The program succeeded as an honest reckoning with Germans’ and Americans’ different perspectives on the issues that have led to the current crisis. Part of that involves the acknowledgment that a diversity of views weave together to form what we roughly characterize as Germany’s cosmopolitan legalism (“obey the law”) and America’s Realpolitik (“grow up”). More importantly, the program succeeded in giving informed Germans and Americans an opportunity to speak about the underlying issues in the light of a better understanding of our differences. Maybe, at least for those who participated in the program, we understand each other better for the effort. That is bound to be a better place to begin if we have any hope of a constructive conversation in the face of the current crisis.

In fact, this brief exchange illuminated the contours of what might be a way forward through the crisis. Germany will insist on anchoring the legitimacy of State authority, including intelligence activities, in the law. But Germans might learn to loosen strict legal positivism in order to give some weight to a jurisprudence that credits law’s expressive and aspirational functions. It can take law a long time to establish an enforceable reality. Hochhuth offered humanitarian law’s long (and still-unfinished) history as an example of this process. But this does not make the path-marking law that leads us towards an Austinian destination pointless. Until the day that international law truly serves as a limit on America’s foreign intelligence activities, the legal regime to which Peters and Vöneky so passionately referred will continue to serve as an aspirational beacon and as a common vocabulary for German and American policy-makers and diplomats. For the time being, this would lend international law some value in the strained German-American relationship.

Americans, for their part, might be persuaded to expand the ex post facto causes of action available to individuals for harms suffered as a result of intelligence community abuses. This would sit well with America’s common law regulatory culture while offering Germans some role for law in the intelligence context. There are obvious limits to this possibility, including the justiciability and privilege issues that dog the existing regime of law suits. But these barriers could be overcome with some modest reform.

The United States also might adopt laws offering greater protection for whistle-blowers and the media that publicizes their disclosures. This aligns with the Realpolitik spirit that Wittes attributed to American policy in the area of intelligence. If the intelligence community is not good enough to keep its work secret, the logic of Realpolitik might suggest that the intelligence community should have to live with and learn from its failures.

America, however, will continue to chiefly insist on the integrity of political processes and institutions as the basis for the legitimacy of its intelligence activities. On one hand, this means that American policy more or less reflects the will of the American public, expressed through the electoral process. Wittes suggested, for example, that neither presidential candidate in the upcoming 2016 campaign would likely offer a platform of substantially more restrained security policies, in part because there is no appetite for it amongst Americans. On the other hand, Americans are convinced that the political processes are adequate to control State power, even in the context of national security and intelligence activities. This is a deep-seated faith, reinforced in this context by the impressive work of the historic Church Committee and by the ongoing, effective congressional oversight it helped establish. The Americans repeatedly pointed to President Obama’s new Signals Intelligence Policy Directive as a current, remarkable example of this (in particular because it seemed to respond in part to distinctly German concerns). This perspective led the Americans participating in the program to ask, repeatedly, for details about Germany’s intelligence objectives and the nature of the political limits on the activities of the German intelligence community. The sense that emerged was that, in Germany’s Chancellor-Democracy with its blurry separation of powers, there might be less of this kind of control than would satisfy Americans. This deserves some careful self-reflection on the part of the German electorate more broadly. One truth that would have to emerge from a more thorough political accounting of German intelligence activities is the reality of Germany’s extensive reliance on and deep cooperation with America’s security institutions, including the intelligence community.

The larger conceptual gap remains Germany’s commitment to a cosmopolitan politics that conflicts with the priority America places on its national interests. In the context of the European Union, the Germans have made a half-century’s experience with the processes of opening and relaxing State sovereignty. That has largely been a process of mutual self-interest pursued in gradual steps that create their own momentum towards deeper integration. Those lessons should be deployed in its relations with the United States. There is something of this in the Five Eyes agreement. Especially in light of the current spy-scandal, it is clear that the Germans know and do things that the Americans want to better understand. As already noted, Germans are heavily reliant on American security and intelligence. There must be an intersection of mutual self-interest between those points that could form the basis of deeper cooperation. And it would be wise for Germany to follow Vöneky’s lead in turning to the international law regimes with the greatest resonance for the United States when pressing for legal limits on American intelligence activity. These include bilateral security treaties (SOFAs), alliance treaties, and the non-interference protections secured by the U.N. Charter.

Dr. Russel A. Miller is an AGI Non-Resident Fellow and Professor at the Washington and Lee University School of Law. This essay appears originally on Lawfare.

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