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June 20, 2014 9:47 AM Cross-National Intelligence and National Democracy

By Henry Farrell

Over the last year, there’s been a lot of writing about Edward Snowden (I’ve contributed a fair amount to the genre myself). Most people have discussed either the question of (a) whether domestic NSA surveillance in the US is appropriate and whether it is breaking US law, or (b) the purely political consequences of international surveillance. There’s been relatively little discussion of whether there is a problem in principle with international surveillance, and most of what there has been has concerned the question of whether or not privacy is a universal human right. But the recent Der Spiegel revelations combined with some earlier material points to a narrower but very troubling set of problems for liberal democracies. Cross national cooperation between intelligence services has exploded post-September 11. This cooperation is not only outside the public space but, very often, isn’t well known to politicians either. Such cooperation in turn means that intelligence services are in practice able to evade national controls on the things that they do or do not do, directly weakening democracy.

This concern is at the heart of the Der Spiegel story, which reveals a high level of collaboration between the NSA and the German BND intelligence service.

The fact that the BND cooperates intensively with the NSA — and not just when it comes to counter-terrorism, but also in the undifferentiated mass monitoring of global communications — is demonstrated by documents from the Snowden archive. The Germans are partners and adversaries at the same time. The chancellor swore an oath to defend the German constitution. Furthermore, spying on Germany is not allowed according to the criminal code. The constitutional rights of German citizens are not bendable according to the current state of German-American relations.

There are two possible explanations for what happened. The first is that the US and German governments coordinated with one another to determine what the NSA is allowed to do in its facilities in Griesheim, Wiesbaden, Berlin, Frankfurt and Stuttgart. If that’s the case, the chancellor and her interior minister need to inform the public, because it means they share blame for the actions of the Americans — and for the Americans’ apparent use of data acquired in Germany to kill suspected terrorists. The second possibility is that the NSA is acting on German soil without the knowledge and approval of the German government. If that’s the case, their operations constitute espionage and should prompt the German government to act as it does in other, similar cases.

According to Snowden’s earlier testimony to the European Parliament:

The result is a European bazaar, where an EU member state like Denmark may give the NSA access to a tapping center on the (unenforceable) condition that NSA doesn’t search it for Danes, and Germany may give the NSA access to another on the condition that it doesn’t search for Germans. Yet the two tapping sites may be two points on the same cable, so the NSA simply captures the communications of the German citizens as they transit Denmark, and the Danish citizens as they transit Germany, all the while considering it entirely in accordance with their agreements. Ultimately, each EU national government’s spy services are independently hawking domestic accesses to the NSA, GCHQ, FRA, and the like without having any awareness of how their individual contribution is enabling the greater patchwork of mass surveillance against ordinary citizens as a whole.

The Der Spiegel stories perhaps go further than Snowden, hinting strongly that German intelligence officials likely knew that this was the case and, as long as they had some plausible legal cover, didn’t particularly care. The problem is straightforward. Whether or not you think that there is a global right to privacy, covering all countries, most liberal democracies have strong privacy protections. In countries like Germany and Ireland, that protection is embedded in the constitution. But German intelligence officials are participating in (and very likely conniving at) arrangements that undermine the constitutionally protected privacy of German citizens. Moreover, as Snowden also notes, intelligence agencies in different countries have cooperated to try and push back against domestic laws protecting privacy and limiting surveillance.

One of the foremost activities of the NSA’s FAD, or Foreign Affairs Division, is to pressure or incentivize EU member states to change their laws to enable mass surveillance. Lawyers from the NSA, as well as the UK’s GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorized by lawmakers. These efforts to interpret new powers out of vague laws is an intentional strategy to avoid public opposition and lawmakers’ insistence that legal limits be respected, effects the GCHQ internally described in its own documents as “damaging public debate.”

This has also led to an informal coalition of European spy agencies working together to roll back legal restrictions. This isn’t illegal – but the advice and technical help that e.g. GCHQ has given to intelligence services in Germany, Sweden and elsewhere that want to roll back legal restrictions on intelligence collection would come as an unpleasant surprise to most German and Swedish voters.

Spying and surveillance has been transformed from a national problem, in which there is an uncomfortable relationship between nation-state level democracy and intelligence agencies, into a cross national one, in which intelligence agencies collaborate actively to shape politics and share information across countries, not only often effectively evading national control, but sometimes actively reshaping and reinterpreting national controls to permit much broader forms of surveillance.

Domestic surveillance and security has gone cross-national in part because of technology (the availability both of very large datasets and new techniques to mine them), in part due to the increased interconnectedness of the advanced industrialized democracies (among whom extensive travel, economic relations, information exchange and so on have become far easier and more common), and in part due to the changed political atmosphere post September 11. Post September 11 politics have refocused attention on non-traditional threats, including terrorism in particular. This in turn has led to the creation of new cross national alliances between security-oriented actors in different countries, which have worked together to weaken national civil liberties and privacy protections that they perceive as getting in the way of security goals.

The consequence is that important aspects of domestic security (which used to be at least somewhat constrained by national legal frameworks) have been subsumed into the relatively lawless space of international security and intelligence. Obviously, intelligence agencies continue to do what they used to do, and this constitutes the bulk of their work. But their work touches more and more closely on domestic security too – given the nature of the data, it is often effectively impossible to distinguish between domestic data and international data. And this information disappears into a world where (a) there is no external check on who gets access to it and who doesn’t, and (b) it is used in ways that affect, sometimes dramatically, people’s lives. In the milder cases, watchlists, based on undisclosed (and possibly inaccurate information) determine who can board planes and who cannot; who can pass through customs easily, and who is repeatedly subjected to body searches. As law enforcement and borders controls blur, officials are beginning to arbitrage the opportunities (e.g. waiting for someone to pass through customs so that they can search his laptop without having to get a warrant). As the Maher Arar case showed, unchecked collaboration between intelligence agencies has led to people being rendered to foreign countries for torture.

This implies that national security liberalism, to the extent that it ever was a credible position, isn’t any more. Liberals who embrace national security and extensive foreign intelligence gathering do so on the rationale that there is a clear distinction between national politics (where we owe obligations to our fellow citizens not to torture them or invade their privacy) and international politics (where they believe that at best a much weaker set of rights and obligations applies). But if national intelligence agencies are working across borders, creating a pool of shared information that systematically undermines national protections, then national security liberalism is at best incoherent, and at worst active apologetics on behalf of measures that not only corrode global rights, but the national level rights that they claim to care about too.

[Cross-posted at Crooked Timber]

Henry Farrell is an associate professor of political science and international affairs at George Washington University.

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