Amid the tensions between Berlin and Washington generated by the NSA affair, one might be tempted to remind both sides of the Atlantic that (apologies to Jack Nicholson’s character in “A Few Good Men”), “you can’t handle the truth.” While the current news headlines in Germany and the U.S. both reference the same acronym—NSA—the debate between the privacy protectors and the security proponents is often a mixture of polemics, posturing, and pandering, with all too little honesty about what is at stake.
The truth is, neither Germans nor Americans have successfully figured out what the proper bounds of security and privacy are in today’s digital environment, and policymakers are woefully behind in reacting to that question.
The truth is that we don’t know how to operationalize effective oversight of government intelligence services, protect national security, and maintain civil liberties. This is in many ways uncharted territory, as Chancellor Angela Merkel once said. And Germany is further behind the U.S. in exploring it.
The sobering truth is that we, the public (German and American alike), did not really want to confront these challenges until an obscure technician named Edward Snowden made it unavoidable. Now we may want the truth, but we are finding it difficult to handle.
Doubting Existing Oversight
In the U.S., the current debate in Congress vis-à-vis surveillance is focused primarily on the boundaries governing domestic intelligence operations. The critique of the current Patriot Act is mostly aimed at the enormous collection of metadata, sparking fears of overreach and misuse involving American citizens. The old search for a needle in a haystack has been replaced with collecting and examining all haystacks to see what can be found. The more the issue has unraveled, the more questions are raised about the real capacity for oversight and accountability. Despite several layers of institutionalized review of surveillance policies and operations, the revelations of programs such as Stellar Wind, PRISM, and Xkeyscore surprised and angered both citizens and policymakers alike. Trust and confidence in the review processes designed to control these policies were put in question. Attempts to present it all under the guise of national security did not persuade legislators or the public as easily as after the horror of 9/11
The essential question circulating around all of this was about the capacity to exercise responsible and trustworthy control over intelligence agencies, which seem to have outrun the oversight structures around them. While the need for national security may not be in question, the trust in the government to guard that security is now in serious doubt.
The U.S. legislative history in dealing with real security dangers reflects the struggle between protecting the public’s privacy and maintaining national security. The misuse of the FBI by J. Edgar Hoover and the compilation of an enemies list by the Nixon White House led to the reforms instituted by Congress in 1978, all of which sought better oversight and accountability. While other reform efforts followed, the passage of the Patriot Act after 9/11 opened the door for today’s problems to emerge as the digital capacity of surveillance expanded exponentially.
Reconciling Public Outrage with the Truth
Following the Snowden leaks there were various efforts by the U.S. government to demonize, deny, and then downplay the revelations. But it was not so much the individuals or institutions charged with oversight who took the lead in responding; rather, it was public outrage that caused them to respond. The struggle to grasp both the problems and solutions continues.
In Germany, the Snowden files uncovered the same policies that upset Americans. But the reaction among Germans was outrage that American intelligence agencies were surveilling them on their own soil, infringing not only on their privacy, but also on German sovereignty. The NSA’s alleged tapping of Chancellor Merkel’s cell phone acted as a catalyst for the public’s fears and concerns.
But gradually the German debate has evolved into questions about Germany’s own intelligence services, and in particular where they also might be engaged in their own surveillance activities, including those in collaboration with American agencies.
Just as it is for the NSA, maintaining the security of their country is the ultimate mission of the German intelligence agency, the Bundesnachrichtendienst (BND). But the fact remains, there has been very limited debate on or discussion of this dimension of Germany’s foreign policy in the German public domain, let alone in the Bundestag. Just as in the U.S., the Snowden files have ignited that debate that until recently had been submerged, neglected, and, frankly, overdue.
Now Germans say they want the truth. But van they handle it better than their American counterparts?
- is that German intelligence services do engage in surveillance outside of Germany and that may involve infringing on the sovereignty of other countries.
- is that they cooperate with other foreign agencies, including those in the U.S. Exchanging intelligence within Europe and across the Atlantic has been going on for a long time. And there has been evidence that such cooperation has helped prevent dangers from turning into disasters.
- is that the U.S. intelligence services have enormous technological capacities and reach beyond what German services have. To the extent that intelligence can be shared, that can benefit security interests of other partners, including Germany.
- is that it includes surveillance of all countries and organizations that matter to the U.S. And although the U.S. can build channels of cooperation with other national services, that cooperation does not exclude independent monitoring of each other. All states have that interest, but not all have the same capabilities.
- is that Germany maintains the same independent monitoring of the U.S. along with other countries in which it has a significant interest. There is nothing fundamentally wrong with that practice—and those in the intelligence business all know it.
And the truth is, ultimately, that American and German intelligence services reflect national foreign policy goals. American intelligence services collect global information in the first instance to serve American interests and shape U.S. policy. The same is true for German intelligence.
But it is generally safe to say that those interests, German and American, do not include undermining each other as important alliance partners.
There is no question that trust between allies has been damaged over the past years, and American diplomacy has been hurt and its image tarnished by the Snowden revelations. But that is in large part due to the clumsy and often arrogant ways it was handled when the whole affair surfaced.
Many German policymakers’ reactions to the Snowden revelations have been marked by polemics and pandering to the German public. Professing outrage at something that had been going for decades seems in part disingenuous; blaming it all on the NSA without referencing the activities of other European partners engaged in intelligence gathering activities, let alone the German services, seems opportunistic. In fact, the tone of the German debate suggests that intelligence capabilities are not only legally, but also morally reprehensible. This is naive at best and hypocritical at worst.
The truth is that intelligence policies and politicians who designed them are unable to keep pace with the technological leaps over the last three and a half decades, and our oversight tools are not holding up against the enormous capacities surveillance operations can wield in today’s digital age. But these shortcomings don’t mean that we should abandon our intelligence efforts—it means that we have to figure out how to control them and, in those cases where possible and useful, to share them. And there needs to be some humility among policymakers—on both sides of the Atlantic—in admitting that they are often well behind the curve on this issue.
It is a well-known fact that German views on this issue are shaped by the legacy of the twentieth century with two regimes that manipulated surveillance to serve dictatorships. We also know that the shock of the 9/11 attacks in the U.S. generated a massive response in efforts to prevent such attacks from happening again. The result is an allergic reaction in Germany to the whole discussion of intelligence juxtaposed against a U.S. debate shaped by fears about threats to security and by fear about threats of invasions of personal privacy.
Yet intelligence gathering and sharing have been intertwined with German-American relations during the last seventy years. That we have in common. The relationship has continued to evolve but not without its occasional frictions and jagged edges, such as now.
In the German public, the Snowden affair has generated a sense of disappointment with the U.S. both as a beacon of leadership and as a partner. Germany has stood with the U.S. in Afghanistan over the last fourteen years and worked with the U.S. as a supporter in many other settings. To believe that the Americans were snooping on them all along was troubling. To discover as well that the German intelligence services were working with the Americans was even more confusing.
There is also latent antagonism toward the U.S. as part of the long-term dependence on American power and defense capabilities. Suspicions about American motives quickly transform into resentment. Allegations of industrial espionage or imperial behavior, as if Germany was still an occupied country, emerge in this atmosphere.
Lost in these arguments has been the core basis of the German-American partnership over many decades in the very year both countries will celebrate the 25th anniversary of German unification in the fall. The sum of contemporary German-American relations has always been greater than its parts. But the NSA debate has tended to overshadow that.
During the four decades of Germany’s division, the need for intelligence was never questioned. In today’s world, that need has not altered. But the willingness to face that reality seems to have diminished in a unified Germany whose government officials have not been willing to have an open and candid discussion about it. Germans are also finding themselves questioning putting their trust in their own government and intelligence services as a result.
What we are witnessing now in Germany and the U.S. is the need for both governments to be more honest about the truth behind their intelligence policies and operations than they have been heretofore. There is a need to rebuild Germans’ and Americans’ trust in their respective governments to exercise oversight and exact accountability for their policies regarding surveillance and secrecy.
President Obama put it this way in a speech in January 2014: “Given the unique power of the state it is not enough for leaders to say: trust us, we will not abuse the data we collect. For history has too many examples where that trust has been breached. […] Our liberty cannot depend on the good intentions of those in power. It depends on the law to constrain those in power.”
In similar directions, there also needs to be an effort to strengthen trust across borders where needed, such as in the German-American relationship. It would be not at all surprising to see members of the Bundestag and the U.S. Congress able to identify any number of shared concerns as well as share best practices when it comes to forging better equations between securing individual privacy and national security and crafting laws that guide and control our intelligence capacities and needs. We have more in common than we realize.
That exchange would be a good start to helping each other to handle the truth.