Criminal Justice & the Rule of Law Intelligence

The Tanking of US-German Relations: A Recent History in Links

R. Taj Moore
Thursday, July 17, 2014, 2:15 PM
If you've been focused the last few weeks on ISIS, on Gaza, on the Iran deal, or on the Afghan elections, you might have missed the precipitous decline of U.S.-German relations that is taking place before our eyes---a decline that is occurring almost entirely because of disagreements over intelligence matters. Russell Miller published a lengthy summary of a conference he organized on the subject in Freiburg.

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If you've been focused the last few weeks on ISIS, on Gaza, on the Iran deal, or on the Afghan elections, you might have missed the precipitous decline of U.S.-German relations that is taking place before our eyes---a decline that is occurring almost entirely because of disagreements over intelligence matters. Russell Miller published a lengthy summary of a conference he organized on the subject in Freiburg. But for those who want a basic primer on the issues in dispute, here is a historical summary of the relevant events with links to news stories. At the beginning of July, German police forces arrested a 31-year-old German (New York Times) officer in the Bundesnachrichtendienst (BND), the German intelligence organization, for suspected spying against Germany. The man was arrested because of an email he sent to the Russian Consulate in Munich (Der Spiegel) on May 28, in which he offered to funnel classified German documents to Russian representatives. The German government intercepted the email and began an investigation, ultimately leading to the suspect's apprehension. During the German government’s questioning of the BND official, he mentioned that he had already served as a spy for the US (Deutsche Welle). His arrest led to an investigation of a second potential US agent (Washington Post) who had already been suspected of spying because of his suspicious ties to a US intelligence official. The second individual’s apartment and work office were promptly searched (Der Spiegel). This does not appear to have been a sophisticated scheme (The Daily Beast); the BND officer is thought to have volunteered for the role and to have an identifiable speech impediment and physical injury. This does not sound like the spy of choice for typically covert US intelligence missions but it could also have been a result of poor vetting procedures, assuming the allegations are true. Der Spiegel has reported that the first suspect, Markus R., alleged to have received $34,000 from the US for his services. During a nine-hour interrogation, he shared information about two US contacts he interacted with. The German government has not identified those two individuals yet, should they exist. According to the Spiegel, the CIA might have been managing the operation through its embassy in Austria, not the US Embassy in Berlin. Despite the uproar this incident has inspired, Der Spiegel also reported that Markus claimed only to have shared "five files of material" with US agents. He did, however, smuggle more than 200 documents out of his office. The German government, in reviewing the documents, found an inquiry (Der Spiegel) the Federal Criminal Police Office had sent to BND in the spring; it requested information about an individual working for the Defense Ministry, Leonid K. As the inquiry indicates, Germany had already been investigating Leonid, the second person (Der Spiegel) now suspected of spying on Germany for the US. The U.S. government did not have anything to say (The White House, Office of the Press Secretary) initially. Chancellor Merkel, presumably to demonstrate German frustration with US indifference, publicly announced Germany’s decision to remove the CIA’s head of station in Germany (New York Times), a largely symbolic response to what might be yet another case of US spying in Germany. German leaders have suggested increasing spying against Washington (The Guardian), removing the entire CIA presence in Germany (Foreign Policy), and they have demanded that the US government formally declare whether the individual was an CIA agent (International Business Times). On July 15 (The White House, Office of the Press Secretary), Merkel and Obama held a phone call in which they discussed additional ways to cooperate on intelligence matters. How effective that conversation will be in reducing German frustrations remains to be seen. Taken on their own, these two incidents---particularly given a paucity of public evidence regarding what happened---would probably be just a blip. But they come after a year of what the Germans call the "NSA Affair," which has already riled German public opinion. Just a few days before the arrest, reports circulated that the NSA had been spying on a German student (New York Times) who was affiliated with a European computer hacking group, as well as a digital encryption organization. Even before that, despite some signs of slow US-German progress (Deutsche Welle) on mitigating German fears of broad surveillance practices, feelings were pretty raw. It all started with Edward Snowden’s June 2013 and the revelation that NSA had tapped Chancellor Merkel's phone. Chancellor Merkel called President Obama to clarify news that the US government had bugged her “handy," (The Guardian) as well as to express her severe disapproval of the spying. After the phone call, President Obama and Chancellor Merkel agreed to cooperate more on intelligence sharing (The White House, Office of the Press Secretary). Germans are also sensitive about the degree to which NSA surveillance infringes the privacy of ordinary Germans. It acted on the international stage by introducing and co-sponsoring a United Nations resolution on the “right to privacy in the digital age" (New York Times). Its introduction, and subsequent adoption, was crafted as a global response to the NSA’s expansive surveillance practices. After that there was relative calm until the past couple of weeks. Germany’s political class was still upset, and there were apparent cases of tension over the failure to create a more durable cooperative framework (New York Times) but there were few public disputes. That changed with the discovery of this latest round of potential espionage cases. What happens next will depend on the results of the German investigation, a formal response by the US government, or the revelation of another separate case of spying. A lot is at stake. Not only is basic trust with an important ally at issue, but a number of cooperative agreements between the EU and US could be as well. For instance, there is an ongoing effort to create a free trade deal between the US and EU, but Germany has been reluctant (Reuters) toward committing to it for several reasons, US spying being one of them. Some German leaders have called for an end to the Safe Harbor pact (Der Spiegel), which allows US companies to transfer the personal data of EU citizens to the US for business purposes. This latest revelation will likely add to European frustration over NSA spying on the SWIFT financial database (Der Spiegel), which many EU leaders believe should have led to US access suspension (RT). The same could be true of the passenger name records agreement (Reuters), which was already a topic of controversy because of the NSA affair.  Some believe this deteriorating relationship could push Germany closer to Russia (Der Spiegel), which would further weaken US-German relations. Clearly, there is no shortage of potentially damaging reactions. What is clear is that Germany is upset. Not only is it troubled by the breadth of the surveillance program, it is dismayed that it is the United States, a friend, that is spying on Germany. What Germany might want in order to repair the partnership is unclear, but it likely wants more than platitudes about enhancing intelligence sharing. It might want tangible changes this time around.

R. Taj Moore is a graduate of Harvard Law School, where he served as an editor of the Harvard Civil Rights-Civil Liberties Law Review and Harvard National Security Journal. He was co-director of the National Security Research Committee at the law school. He has previously interned at the Department of Defense. Before law school, he worked as a Scoville Fellow at the Stimson Center. He graduated from Brown University in 2011 with an A.B. in Political Science.

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