Spying is about breaking other countries’ laws to get information. Some countries use this information to win deals for their businesses or steal intellectual property, but the United States and many other countries restrict themselves to targets relevant to national security. Although it may be true that this will always occur between states—even friendly ones—there are certain norms when it comes to espionage, and elected leaders are obligated to maintain sufficient oversight. There are numerous examples of American and Soviet restraint in conducting intelligence activities during the Cold War, and U.S. leaders created nearly as many checks on programs that overstepped their mandate.
The flap over the NSA’s program is another episode in this long history. It is new in the sense that it shows how the means of surveillance in the digital age has far surpassed the ability of governments to control it. This goes well beyond the German-American relationship and includes every country in the world that makes use of the internet and the services that depend on it. The need now is for the United States to work with its allies and others to change the rules of the game, but not give up spying all together.
Even Germany should hope that it does not abandon spying. While Chancellor Angela Merkel’s top officials are in Washington to discuss a “no-spy” agreement with the United States, they should remind her of the many ways that such an agreement would affect Germany’s own interests. Greater access to American intelligence does not guarantee greater influence over its activities. More importantly, an intelligence agreement akin to the so-called “five eyes” could jeopardize Merkel’s own important relationship with leaders around the world.
The club of five English-speaking countries—U.S., UK, Canada, Australia, and New Zealand—signed a series of agreements after World War II to consolidate their war-time activities and share communications intelligence and technology—hence “five eyes.” This was seen as a unique opportunity to extend America’s reach in the global conflict against the Soviet Union. The countries still routinely share communications intelligence collected by the NSA, the British GCHQ, and from listening posts around the world.
Contrary to popular belief and media reporting, however, this club is not literally a “no-spy” zone. A version of the UKUSA Agreementhttp://www.nsa.gov/public_info/declass/ukusa.shtml declassified in 2010 by the NSA states little beyond the stipulation that each government should advise the other of intelligence activities within its borders. It is, however, a de facto “no-spy” zone in the sense that the five signatories generally know enough about each other’s leaders, are largely in sync when it comes to national security policy, and are not usually competitors in their relations with other countries.
Not Yet a “Sixth Eye”
Such an agreement would be the wrong model for Germany.
By becoming a “sixth eye,” Germany would restrict its ability to make its own informed decisions about world crises. It is believed that up to 90 percent of the information among the “five eyes” flows from the United States, and this directly supports close coordination on security policy. Most Germans are understandably skeptical of the kind of “slam dunk” intelligence that contributed to the U.S. decision to go to war in Iraq and fueled skepticism about the U.S. administration’s threat to strike Bashar al-Assad’s regime in Syria. By locking itself into such an agreement, Germany might steadily lose the ability to independently verify such intelligence on its own.
Germany would also need to invest heavily in new systems to keep up with U.S. technology. Cyber security experts recognize that the country is several years behind the United States. Indeed, this lack of investment is perhaps a major reason why the Bundesnachtrichendienst (BND) did not realize that Chancellor Merkel’s cell phone had been compromised. But it is unrealistic to think Merkel or her coalition partners would dare increase their funding for surveillance programs in the wake of the NSA revelations, which distracted the public’s attention from Berlin’s costly failure to build a European surveillance drone.
The impact on diplomatic and business networks would also be considerable. It is no secret that Russia and China, in particular, are high priority targets for U.S. intelligence agencies. By becoming a closer intelligence partner with the United States, Merkel would risk chilling her relationships with these countries and others in the same export markets that German industry needs. Would Russian President Vladimir Putin or Chinese President Xi Jinping be more circumspect with Merkel if Germany’s intelligence services became more closely integrated with the United States? The impression among foreign leaders that German actions are merely part of a Washington-sponsored agenda should worry Berlin.
Of course, some countries may already assume so. West Germany and several other government friendly to the United States have long been “third parties” to the UKUSA agreement. Germany’s own post-war intelligence services also owe much to the support of the occupying Allied forces. Intelligence cooperation continued after reunification and deepened considerably since 9/11, contributing to our shared understanding of the Hamburg cell that planned the attacks and the prevention of several terrorist plots in Germany over the past decade.
It is clear that Germany has long gotten what it needs from U.S. intelligence, but it now realizes it is too small to independently shape the way electronic surveillance is conducted. Germany does, however, enjoy a certain moral authority on data privacy born from the deep scars of its history. The United States and Germany would thus be ideal partners in establishing new rules of the road.
A first step could be to sign a Memorandum of Understanding affording German citizens the full protection from unauthorized intelligence activities as is standard among the “five eyes” and (probably) Israel. This does not necessarily have to include greater access to U.S. intelligence or technology—i.e., full membership in the club. But it at least would give Germany a seat at the table similar to its prominent role at the United Nations along with the five permanent members of the Security Council—the P5+1.
An E5+1 might thus avoid the thorny issue of unduly limiting both governments’ independent ability to collect or share information vital to their national interest. It could, however, help lead to the establishment of a norm on the proper balance between information privacy and security, which all other nations would be called upon to adopt.
Spy Policy as Domestic Policy
Chancellor Merkel now has more room to maneuver in negotiations with Washington than she did before she was re-elected. While the NSA revelations had little impact on the vote, the German public will certainly rally behind her now that it appears she has been besieged by America’s security apparatus. Such sympathy has no doubt proved useful in the midst of complicated coalition talks with the country’s left-leaning political parties.
The issue also gives Merkel a chance to deflect American pressure on other issues. The latest Treasury Department finger-waving at Germany over its cautious approach to economic stimulus is only one of several such instances over the past few years. Germany’s tepid response to international crises in countries like Libya and Syria has also befuddled world leaders. Merkel would certainly like a break from American policymakers’ insistence that German power reflect its economic weight.
Rather than hope the issue goes away, Merkel and Obama should take the opportunity to forge a workable agreement and repair the German-American relationship. Besides, it is in Merkel’s own interest to temper unrealistic demands for a no-spy zone. While her intelligence services deserve the blame for not protecting her better, they should not be forced into an alliance no one needs.