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US Intelligence Chiefs Unwilling to Establish a ‘No Spying’ Agreement with Germany

Chancellor Angela Merkel (Creative Commons-licensed Photo by dirkvorderstrasse)

An overwhelming majority of Germans oppose national governments, which collect telephone or internet data in other allied countries in order to “protect national security.” They also are most likely to oppose spying by their own government, according to a new poll by the German Marshall Fund of the United States.

The rejection of surveillance, by security agencies like the National Security Agency or GCHQ, is more profound than in countries like France, Sweden, the United Kingdom and the US.

Faced with this opposition to revelations of NSA spying that have come from documents from former NSA contractor and whistleblower Edward Snowden, including the wiretapping of Chancellor Angela Merkel’s cellphone, leaders of Germany have sought to negotiate a “no spying” agreement with the US.

German newspaper Der Spiegel reported on a meeting between “senior German intelligence officials,” Hans-Georg Maassen, the president of the Federal Office for the Protection of the Constitution, and Gerhard Schindler, head of the country’s foreign intelligence agency, Bundesnachrichtendienst.

The German officials met with NSA director Gen. Keith Alexander and CIA director John Brennan. Neither would agree to any meaningful agreement to not spy on Germany. That does not mean some kind of “cooperation agreement” will not be established in the coming months.

US intelligence leaders are offering to increase how closely agencies work with German intelligence services on “counterterrorism, nuclear proliferation, human trafficking and cybercrime,” which is insignificant since they already do closely collaborate on these issues.

The other portion of the agreement would address espionage and “potential no-spy accords,” according to Der Spiegel. The US does not want to agree to anything because that might require admitting wrongdoing that it has not confessed to committing. It also does not want to set a precedent where other nations seek “no spying” agreements.

Germany would like the US to respect international law and also domestic laws in their country when conducting operations. Daniel-Erasmus Khan, a professor of international law at the Bundeswehr University in Munich, told Der Spiegel, “It goes without saying that NSA employees must abide by German law while on German soil, even if they enjoy diplomatic status.” He added “tapping Merkel’s mobile phone would be illegal no matter who does it — Germans, Americans or diplomats of any nationality.”

Yet, as one unnamed American intelligence official said to the New York Times, “The reluctance is that you never know what you may need, in a month, or a year, or 10 years.” The US would like to have the leeway to break laws to collect intelligence, if that is something they would choose to do.

Australia, Canada, New Zealand and United Kingdom all partner with the US as members of the “Five Eyes.” They share intelligence and, in return, the countries agree not to spy on each other.

One example of what this kind of arrangement has produced is the NSA program, Stateroom. Snowden revealed the NSA program run by the Australian Defense Signals Directorate engaged in spying from Australian Embassies in China, East Timor, Indonesia, Thailand, and Vietnam. They also used the high commissions (the equivalent of embassies) in Commonwealth countries like Malaysia and Papua New Guinea for spying.

Countries engaged in spying operations from their own embassies are expected, under the Vienna Convention on Diplomatic Relations, to respect the domestic laws of countries where they are working or international law. It is abundantly clear from Snowden’s disclosures that the US and the countries, which make up the “Five Eyes” intend to respect neither when trying to collect everything it can from a targeted government.

Fortunately, US intelligence leaders do not have to worry about Merkel pushing back against the US too hard. She does not want what has been exposed to jeopardize a “trans-Atlantic alliance” viewed as critically important. She seems willing to settle for a slight acknowledgment of what was being done against Germany and a pledge to no longer specifically target her communications while she is in power.

But it is known now that the US used its embassy in Berlin for spying. Der Spiegel reported in October that a “special unit of the CIA and NSA” has monitored cellphone communications “in the government quarter.” The teams have worked undercover as “diplomats” and enjoyed “special privileges.” They engaged in illegal wiretapping. And they recognized that if operations like this in any country were discovered “serious harm to relations between the United States and the foreign government” could be caused.

Listening posts have been active in 80 locations around the world, 19 of which are in Europe, including Paris, Madrid, Rome, Prague and Geneva. Two have been operational in Germany. In addition to Berlin, the consulate in Frankfurt has been used by the US for spying.

The political question for Germans appears to be, how much US spying will they be willing to permit? If they cannot get a “no spying” agreement with meaningful commitments from the US, it is a virtual certainty the spying will continue as it was before it was exposed. Spies will just be going to greater lengths to keep what they do secret.

The NSA thinks one way it can persuade Germany to back down is to give them an indication of all the revelations on spying on Germany. Alexander wants to give the government a “Germany package” with material that might be released in the next months.

Such a “package” delivery would be significant, especially if the material inside is the product of guessing what Snowden may have taken. The agency could be revealing operations to Germany, which were not mentioned in any documents taken by Snowden (an added plus for Snowden’s whistleblowing when you think about it, even if the public never finds out about what the NSA admitted to doing).

The security apparatus of Germany seems to want to be in on the operations of the US surveillance state that is spying on all areas of the globe like Australia, Canada, New Zealand or the United Kingdom. That it is hesitant to embrace this eagerness is revealing. It suggests Germany as a power is viewed as some kind of a wild card, possibly even a threat to US superpower.

The threat could stem from it being a foremost economic power in Europe. Being able to collect intelligence on economic decisions may be a priority. It might be viewed as necessary to engage in illegal surveillance to preserve America’s dominance in the world.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."