This House believes German prosecutors should investigate NSA surveillance of Angela Merkel

In October it was revealed that the United States’ National Security Agency had bugged German Chancellor Angela Merkel’s telephone calls and had been spying on her since 2002[1] – long before she became chancellor in 2005. Although the suggestion was first reported in the newspaper Der Spiegel it was taken seriously enough that the BND, Germany’s Federal Intelligence Service, investigated and they too came to the conclusion that the German Chancellor had been bugged by the NSA. Merkel was not amused: “The federal chancellor spoke with President Obama today by telephone. She made it clear that, if the indications prove to be correct, she unequivocally disapproves of such practices, and considers them totally unacceptable. Among friends and partners, like the Federal Republic of Germany and the US have been for decades, such surveillance of communication of heads of government should not take place. This would be a grave breach of trust. Such practices must immediately be put to a stop.”[2]

Merkel is not the only world leader that has been spied upon by the NSA; the agency spied on at least 35 leaders.[3] However she is the most prominent, as well as being an americophile and the head of a country that is a prominent US ally; it might be expected that the US would be attempting to bug the phone of a rival’s leader such as Putin’s but not a close ally.

Despite the statements of outrage as the spying was revealed Merkel would prefer to resolve the situation quietly through diplomacy but there has been little progress in talks and it may not be entirely here decision to make. The German Federal Prosecutor, Harald Range, says that he has sufficient evidence to launch an investigation into the surveillance of the Chancellor’s phone. Whether there is a prosecution is mostly up to the prosecutor; the Justice Minister can block an investigation but it is very rare, and in this case would be controversial.[4]

[1] McGuinness, Damien, ‘US bugged Merkel's phone from 2002 until 2013, report claims’, BBC News, 27 October 2013, http://www.bbc.co.uk/news/world-europe-24690055

[2] Fischer, Sebastian, ‘Merkel’s Phone: Spying Suspicions Put Obama in a Tight Spot’, Spiegel Online, 24 October 2013, http://www.spiegel.de/international/world/suspicions-of-us-spying-on-merkel-phone-awkward-for-obama-a-929692.html

[3] Ball, James, ‘NSA monitored calls of 35 world leaders after US official handed over contacts’, The Guardian, 25 October 2013, http://www.theguardian.com/world/2013/oct/24/nsa-surveillance-world-leaders-calls

[4] Spiegel Staff, ‘Probing America: Top German Prosecutor Considers NSA Investigation’, Spiegel Online, 20 January 2014, http://www.spiegel.de/international/europe/nsa-syping-scandal-a-944415.html

 

Title 
Illegal under German law
Point 

Monitoring communications in Germany’s capital – including the communications of government leaders like Merkel would be illegal under German law. Numerous politicians, such as then interior minister Hans-Peter Friedrich have stated that those “responsible must be held accountable”.[1] There are even those, such as Gregor Gysi from the far left Left Party who say “The fact that the German government and the Federal Prosecutor isn't acting shows that their fear of the US government is greater than their respect for our legal system.”[2] When an act is illegal the state has a moral responsibility to prosecute that act. It should not be OK for another state to break the law simply because it is an ally and there is a desire to keep relations cordial.

[1] McGuinness, Damien, ‘US bugged Merkel's phone from 2002 until 2013, report claims’, BBC News, 27 October 2013, http://www.bbc.co.uk/news/world-europe-24690055

[2] Spiegel Staff, ‘Probing America: Top German Prosecutor Considers NSA Investigation’, Spiegel Online, 20 January 2014, http://www.spiegel.de/international/europe/nsa-syping-scandal-a-944415.html

Counterpoint 

Of course spying on another country is illegal, but everyone does it. Le Monde in July had a report on The Direction Générale de la Securité Extérieure (DGSC) having systematically collected “the electromagnetic signals transmitted by computers and phones in France, as well as the digital streams going back-and-forth between the French and abroad. All communications are being spied on: emails, SMS messages, phone records, Facebook and Twitter updates, which are all then stored for years”.[1]

[1] Follorou, Jaques, and Johannès, Franck, ‘Exclusive: French Intelligence Has Its Own Version Of PRISM’, Worldcrunch, 4 July 2013, http://www.worldcrunch.com/world-affairs/exclusive-french-intelligence-has-its-own-version-of-prism/dgse-prism-secret-service-france-big-brother-/c1s12643/

Title 
No chance of an agreement with the USA
Point 

The German government has been working towards a ‘no-spy agreement’ with the United States. It however looks unlikely that such a deal will every become a reality with officials saying “we won't get anything” and “the Americans lied to us” about the chances of an agreement.[1] German officials have also been disparaging of Obama’s new announcements on restrictions of the NSA; Roettgen, a member of Merkel’s party says “The fundamental question is, should security services be able to do everything they’re technically able to do, Obama essentially said ‘yes’”.[2]  If Germany can’t get an agreement then it has no choice but to act unilaterally.

[1] Medick, Veit, and Meiritz, Annett, ‘’The Americans Lied’: Trans-Atlantic ‘No-Spy’ Deal on the Rocks’, Spiegel Online, 15 January 2014, http://www.spiegel.de/international/germany/us-german-no-spy-deal-in-danger-of-failure-a-943614.html

[2] Donahue, Patrick, ‘Germany Says Obama’s Spying Pledges Fail to Address Concerns’, Bloomberg, 20 January 2014’, http://www.bloomberg.com/news/2014-01-20/germany-says-obama-s-spying-pledges-fail-to-address-concerns.html

Counterpoint 

Officially talks are ongoing so an agreement is still possible. Moreover a failure to reach an agreement does not mean that Germany should act unilaterally. Restraint will in the long term mean Germany is much more likely to negotiate an agreement with the United States as they will be more willing to listen to an ally who has not tried to prosecute US intelligence officials.

Title 
Doing nothing makes Merkel and Germany look weak
Point 

Politics is about action. The German government has to take some action on the issue of NSA surveillance and German privacy or it will look weak. Interior Minister Hans-Peter Friedrich went to Washington in July but was accused of “returning empty-handed” and having “not moved a single step forward on any of the key points”.[1] The stonewalling by the United States provides an opportunity for opponents to Damage Merkel’s new government as well as potentially to show gaps between the SDP and CSU. Merkel has been invited to visit Washington at some point in 2014 by President Obama,[2] Merkel can’t afford for her own diplomacy to have as little result as Friedrich’s.

[1] Deutsche Welle, ‘SPF, Greens slam Interior Minister Friedrich after US surveillance talks in Washington’, dw.de, 13 July 2013, http://www.dw.de/spd-greens-slam-interior-minister-friedrich-after-us-surveillance-talks-in-washington/a-16949123

[2] Reuters, ‘Obama invites Merkel to visit during call about trade, NATO’, 8 January 2014, http://www.reuters.com/article/2014/01/08/us-usa-germany-obama-merkel-idUSBREA071CR20140108

Counterpoint 

Politics is about action. The German government has to take some action on the issue of NSA surveillance and German privacy or it will look weak. Interior Minister Hans-Peter Friedrich went to Washington in July but was accused of “returning empty-handed” and having “not moved a single step forward on any of the key points”.[1] The stonewalling by the United States provides an opportunity for opponents to Damage Merkel’s new government as well as potentially to show gaps between the SDP and CSU. Merkel has been invited to visit Washington at some point in 2014 by President Obama,[2] Merkel can’t afford for her own diplomacy to have as little result as Friedrich’s.

[1] Deutsche Welle, ‘SPF, Greens slam Interior Minister Friedrich after US surveillance talks in Washington’, dw.de, 13 July 2013, http://www.dw.de/spd-greens-slam-interior-minister-friedrich-after-us-surveillance-talks-in-washington/a-16949123

[2] Reuters, ‘Obama invites Merkel to visit during call about trade, NATO’, 8 January 2014, http://www.reuters.com/article/2014/01/08/us-usa-germany-obama-merkel-idUSBREA071CR20140108

Title 
Damages US-German relations
Point 

An investigation would have serious repercussions for German-American relations which would be seriously against German interests. Germany needs the United States as an ally in NATO and both are currently disengaging from deployments in Afghanistan. Much more important might be the impact on intelligence sharing between Germany and the United States. Intelligence officials are concerned “They could simply shut off the faucet,” with the Americans simply no longer providing intelligence to Germany. This would immediately impact German security by making it more likely terrorists could attack German interests.[1] Germany should accept the Obama’s assurances “As long as I am the President of the United States, the German Chancellor need not worry about that [surveillance of Merkel]”.[2]

[1] Spiegel Staff, ‘Probing America: Top German Prosecutor Considers NSA Investigation’, Spiegel Online, 20 January 2014, http://www.spiegel.de/international/europe/nsa-syping-scandal-a-944415.html

[2] Reuters, ‘Obama Tells Merkel, Germans He Will Not Wiretap’, Huffington Post, 18 January 2014, http://www.huffingtonpost.com/2014/01/18/obama-tells-merkel-germa_n_4624463.html

Counterpoint 

A failure by the United States to agree to a no spy agreement already damages relations. One of the leaders of the SPD, Thomas Oppermann, has said “failure of the agreement would be unacceptable” and would “change the political character of relations.”[1] If the US is willing to damage relations by stonewalling then should the Germans really be considering US diplomatic feelings in the matter? The United States gains from its relations with Germany as well as the other way around. Stopping intelligence sharing as a result of a prosecution would be acting against US interests in fighting terrorism.

[1] Deutsche Welle, ‘Impasse at US-Germany ‘no-spying’ talks?’, dw.de, 14 January 2014, http://www.dw.de/impasse-at-us-germany-no-spying-talks/a-17361318

Title 
Will the investigation get anywhere; who should be prosecuted?
Point 

The biggest problem facing an investigation by a prosecutor is whether there is any point in the investigation. Who could be relevant witnesses? Would any of them cooperate?[1] Ultimately who do you prosecute? Germany might be able to bring some of the US staff in Germany who conducted the surveillance to trial but it seems most unlikely that they would be able to get anyone higher up the chain. Is the person who authorised the surveillance really likely to be extradited? It seems unlikely, so why bother?

[1] Spiegel Staff, ‘Probing America: Top German Prosecutor Considers NSA Investigation’, Spiegel Online, 20 January 2014, http://www.spiegel.de/international/europe/nsa-syping-scandal-a-944415.html

Counterpoint 

There is a big difference between justice not being done because the United States refuses to cooperate and justice not being done because German prosecutors could not get the evidence to bring charges. If the former there is at least a chance of a trial, possibly in abstention, where all the evidence can come out.

Title 
Investigating a sideshow
Point 

The issue of the United States bugging Merkel and whether Germany can reach an agreement to prevent spying in the future is really a sideshow. The bugging of one person no matter how important does not matter. Much more important is the protection of the internet and internet freedom. This German Interior Minister de Maiziere[1]says is what is most important and Germany can work with the USA on it “There are organized criminals, who are interested in our transactions. There are business models that aim to sell individuals' profile images, and so on… The protection of the Internet, against whomever, that is our common purpose, and not just this fixation on the NSA.”[2] Germany should not be fixing on what the NSA has done but be looking at the broader picture.

[1] NB the German government changed on 17th December with a resulting reshuffle

[2] Deutche Welle, ‘German Interior Minister de Maiziere warns over NSA 'fixation'’, dw.de, 10 January 2014, http://www.dw.de/german-interior-minister-de-maiziere-warns-over-nsa-fixation/a-17373037

Counterpoint 

If countries will not act on narrow issues involving privacy freedoms and internet surveillance even when their head of government is on the receiving end then what hope is there for the broader picture? There is no point in proclaiming everyone should follow the law then we would have no crime if there is no mechanism to punish those who commit crime. Germany should not let the NSA get away with its actions or it will surely do the same again in the future.

Bibliography 

Ball, James, ‘NSA monitored calls of 35 world leaders after US official handed over contacts’, The Guardian, 25 October 2013, http://www.theguardian.com/world/2013/oct/24/nsa-surveillance-world-leaders-calls

Deutsche Welle, ‘SPF, Greens slam Interior Minister Friedrich after US surveillance talks in Washington’, dw.de, 13 July 2013, http://www.dw.de/spd-greens-slam-interior-minister-friedrich-after-us-surveillance-talks-in-washington/a-16949123

Deutsche Welle, ‘Impasse at US-Germany ‘no-spying’ talks?’, dw.de, 14 January 2014, http://www.dw.de/impasse-at-us-germany-no-spying-talks/a-17361318

Deutsche Welle, ‘German Interior Minister de Maiziere warns over NSA 'fixation'’, dw.de, 10 January 2014, http://www.dw.de/german-interior-minister-de-maiziere-warns-over-nsa-fixation/a-17373037

Donahue, Patrick, ‘Germany Says Obama’s Spying Pledges Fail to Address Concerns’, Bloomberg, 20 January 2014’, http://www.bloomberg.com/news/2014-01-20/germany-says-obama-s-spying-pledges-fail-to-address-concerns.html

Fischer, Sebastian, ‘Merkel’s Phone: Spying Suspicions Put Obama in a Tight Spot’, Spiegel Online, 24 October 2013, http://www.spiegel.de/international/world/suspicions-of-us-spying-on-merkel-phone-awkward-for-obama-a-929692.html

Follorou, Jaques, and Johannès, Franck, ‘Exclusive: French Intelligence Has Its Own Version Of PRISM’, Worldcrunch, 4 July 2013, http://www.worldcrunch.com/world-affairs/exclusive-french-intelligence-has-its-own-version-of-prism/dgse-prism-secret-service-france-big-brother-/c1s12643/

McGuinness, Damien, ‘US bugged Merkel's phone from 2002 until 2013, report claims’, BBC News, 27 October 2013, http://www.bbc.co.uk/news/world-europe-24690055

Medick, Veit, and Meiritz, Annett, ‘’The Americans Lied’: Trans-Atlantic ‘No-Spy’ Deal on the Rocks’, Spiegel Online, 15 January 2014, http://www.spiegel.de/international/germany/us-german-no-spy-deal-in-danger-of-failure-a-943614.html

Reuters, ‘Obama invites Merkel to visit during call about trade, NATO’, 8 January 2014, http://www.reuters.com/article/2014/01/08/us-usa-germany-obama-merkel-idUSBREA071CR20140108

Reuters, ‘Obama Tells Merkel, Germans He Will Not Wiretap’, Huffington Post, 18 January 2014, http://www.huffingtonpost.com/2014/01/18/obama-tells-merkel-germa_n_4624463.html

Spiegel Staff, ‘Probing America: Top German Prosecutor Considers NSA Investigation’, Spiegel Online, 20 January 2014, http://www.spiegel.de/international/europe/nsa-syping-scandal-a-944415.html

 

X