Trans-Atlantic Supplicant Merkel Chooses Unity over NSA Truth
There was a time when Angela Merkel was committed to investigating the extent of NSA spying in Germany. Now, though, the chancellor has made an about face. Trans-Atlantic unity is her new priority, and the investigation has been left to languish.
In the world of diplomacy, moments of candor are rare, obscured as they are behind a veil of amicability and friendly gestures. It was no different last Friday at the meeting between US President Barack Obama and German Chancellor Angela Merkel in Washington.
Obama welcomed Merkel by calling her "one of my closest partners" and a "friend" and took her on a tour of the White House vegetable garden as part of the four hours he made available. He praised her as a "strong partner" in the Ukraine crisis and thanked her many times for the close cooperation exhibited in recent years. The birds in the Rose Garden sang happily as the president spoke.
But then Obama made clear who had the upper hand in this wonderfully harmonious relationship. When a reporter asked why, in the wake of the NSA spying scandal, the no-spy deal between Germany and the US had collapsed, Obama avoided giving a clear answer. He also dodged a question as to whether Merkel's staff is still monitored. Instead, he stayed vague: "As the world's oldest continuous constitutional democracy, I think we know a little bit about trying to protect people's privacy." That was it.
Merkel, when asked if trust had been rebuilt following the NSA revelations, was much less sanguine. "There needs to be and will have to be more than just business as usual," she said.
If accepting defeat with a smile on one's face is part of political theater, then Angela Merkel delivered a virtuoso performance. As recently as January, she delivered a sharply worded speech to parliament on the tactics used by US intelligence. "An approach in which the end justifies the means -- one which employs every technical tool available -- violates trust. It sows distrust." She added: "I am convinced that friends and allies should also be able and willing to cooperate when it comes to defending against outside threats."
Cooperation? When Merkel left for the US last Thursday, she had received no promises whatsoever -- not even for the no-spy treaty, an agreement that the US had initially proposed in response to German outrage over revelations that the NSA had scooped up vast amounts of telecommunications data in Germany and monitored Chancellor Merkel's mobile phone. Had Merkel adhered to the common practice among top politicians of avoiding trips abroad when no concrete result can be expected, she would have stayed in Berlin.
The Berlin-Washington Relationship
But there is a kind of special relationship between Berlin and Washington at the moment -- special in that the Chancellor wants to do everything to avoid a conflict with the US. She had every reason in the world to veer from diplomatic politesse. Her very own cell phone, after all, had been targeted by the NSA. But instead, she brought along a valuable gift for Obama: The promise that whistleblower Edward Snowden would not be coming to Germany to give testimony in the ongoing parliamentary inquiry into NSA spying practices.
Merkel still gets animated when talking about American surveillance, but only when the cameras are off. In the Rose Garden last week, she remained just as vague as Obama did, preferring to speak of "differences of opinion." But there are to be no immediate consequences.
The reason is not difficult to pinpoint: The Ukraine crisis. With the situation continuing to escalate, Merkel is eager to demonstrate unity with Obama and the two threatened Russia with further economic sanctions. But the solidarity comes at a price: Merkel has had to back away from some of her own convictions.
Shortly before Merkel took off for Washington, her government in Berlin took steps which will make the work of the NSA investigative committee in parliament that much more difficult. It was only in March that Merkel's conservatives, in conjunction with their coalition partners from the center-left Social Democrats, committed to learning as much about the NSA's practices in Germany as possible. But now, the lofty aims of the investigation have been recalibrated -- and drastically lowered.
That became obvious last week when Merkel's government made clear to the investigative committee what it thinks of the original plan to interrogate Edward Snowden in Germany: namely, not much. In a 30-page report, the government emphasized the "fundamental importance" of the trans-Atlantic relationship "in foreign policy and security questions." The desire for a Snowden deposition in Germany had to take a back seat.
Disempowering the Bundestag
The repudiation even caught domestic policy and legal experts from her own party by surprise. Previously, the discussion had focused on the legal question as to whether Germany would be forced to extradite Snowden to the US should he come to Berlin to give testimony.
But that debate is now passé. Merkel's government, complains Konstantin von Notz, the senior committee representative from the opposition Green Party, has prioritized foreign policy interests and intelligence cooperation ahead of the interests of Germany's own parliament. "It is an attempt to disempower the Bundestag," he says. Should a majority of committee members share his opinion when it meets on Thursday, von Notz adds, then the parliamentary body will have no choice but to challenge the government at the Federal Constitutional Court, Germany's highest judicial body.
As things currently look, Snowden's deposition won't likely be the only issue the court will have to address. Internally, Merkel's government has agreed to provide the parliamentary investigative committee with only limited access to its NSA files. Information regarding the negotiations over the no-spy agreement, for example, is to be kept from the lawmakers. Because the negotiations over the deal are ongoing, one high-ranking government representative told SPIEGEL, information cannot be passed along. Furthermore, he added, the issue touches on "a core area of executive privilege" that is protected by the constitution.
The parliamentary investigation poses a direct threat to the activities of German intelligence services and to security strategists in the Chancellery. The country's foreign and domestic intelligence agencies both maintain a "close and trusting cooperation" with the NSA and its British counterpart, the GCHQ, according to a classified government document. Information is also regularly exchanged with the FBI, the CIA, US Homeland Security, Britain's MI5 and several other British and American intelligence agencies. The cooperation has become even closer in recent years and is essential for Germany when it comes to combatting the dangers posed by Islamist terror. There is a concern that an aggressive parliamentary investigation could harm that close cooperation.
"We are afraid that all of our trade secrets will be exposed in the committee," said one intelligence official. To prevent that from happening, the Merkel government has begun erecting hurdles. The so-called "Third Party Rule," for example, is being applied; the rule states that before information acquired by a foreign intelligence agency can be passed along, that agency must first grant its permission. The rule, of course, applies to both the NSA and GCHQ -- meaning that the agencies suspected of having perpetrated large-scale spying in Germany have significant influence over the committee charged with investigating that spying.
Opposition politicians from the far-left Left Party and from the Greens have spoken of "sabotage." They were also nonplussed when they learned last week that the government has based its position in part on legal guidance provided by an American law firm.
The expertise came from the Washington DC-based firm Rubin, Winston, Diercks, Harris & Cooke and essentially means that anyone who has anything to do with Snowden, even journalists, is a potential criminal. "We are of the opinion that if Snowden provides classified information or documents to the Bundestag or to German diplomats who interview Snowden, such acts give rise to criminal exposure under the laws of the United States. The United States would have jurisdiction to prosecute these acts regardless of where they occur," writes firm partner Jeffrey Harris. It is an interpretation that also applies to SPIEGEL and other media outlets that have seen and reported on large numbers of documents provided by Snowden.
An excerpt of the legal analysis commissioned by the German government from the Washington D.C.-based law firm Rubin, Winston, Diercks, Harris & Cooke.
Snowden's American lawyer Ben Wizner says that such a conclusion -- that US officials might seek to hold German politicians criminally liable -- is "beyond absurd." In addition, he notes, Snowden "didn't offer to reveal as a witness new surveillance activities that have not been disclosed yet by journalists."
Whether the NSA investigative committee will now be able to fulfill its mission seems uncertain. And it doesn't look as though other institutions are prepared to shine much light on the affair either. At the beginning of the year, German prosecutors were considering launching a criminal investigation into the monitoring of Merkel's mobile phone. But that plan seems to have been shelved. Such an investigation, according to the explanation, would have little hope of success without legal assistance from the US.
That view marks a significant climb-down. Politicians from both sides of the aisle had hoped to stand up to US intelligence, even if only symbolically. Particularly for the SPD it is a question of credibility. It wasn't all that long ago that Peer Steinbrück, as the SPD chancellor candidate in last fall's elections, accused Merkel of having broken her oath of office by failing to protect Germans from being spied on by the Americans. Party head Sigmar Gabriel said: "I expect from the chancellor in her discussions that she represent the German constitution in America and not the interests of American intelligence services in Germany."
Yapping Dog or Supplicant
But that was before last September's general election -- eons ago politically. Now, even Gabriel believes that being nice to the Americans should be a priority, and seems to have forgotten his stated position that a free-trade agreement with the US can only be concluded if America respects Germans' democratic rights.
But not all Social Democrats have such a poor memory. "Snowden, in addition to others, remains an important witness for the investigative committee," says Rolf Mützenich, deputy floor leader for the SPD in parliament. SPD treasurer Dietmar Nietan agrees that it is a mistake to play down the conflict with the US. "There has been a serious drifting apart and we shouldn't sugarcoat it," he says.
Many among Merkel's conservatives also believe it is unwise of the chancellor to position herself so close to Obama. Several CDU lawmakers are currently on the campaign trail ahead of the European Parliament election later this month and are often asked why Germany is prepared to slap sanctions on Russia in response to the Ukraine crisis when the Americans seem just as uninterested in international law.
"I have noticed in my public appearances for some time now that Germans' critical approach to the US is unfortunately greater than it has been in the past," says CDU lawmaker Wolfgang Bosbach. "There is disappointment about the fact that Obama has seamlessly continued Bush-era policies when it comes to national security issues."
Merkel, of course, is aware of the mood, but she refuses to yield to it. She is convinced that Russian President Vladimir Putin can only be reined in if Europe and the US stand shoulder-to-shoulder in the Ukraine crisis and she is even prepared to sacrifice the NSA investigation to that end. That also means applying a double standard. It is hardly credible to threaten Putin with consequences for breaking international law while ignoring Obama's own violation. Merkel likes speaking of a community of values to which both the US and Germany belong. But what is it worth when Obama's commitment to those values is guided by expediency?
Prior to her trip last week, Merkel and her staff insisted that one had to look at things pragmatically. No matter how loudly Berlin protested, the Americans would have ignored it because they know that Germany is dependent on them, Merkel advisors argue. "We were somewhere between being a supplicant and a yapping dog," says one Chancellery official. Now, Merkel would seem to have chosen her preferred role: as a supplicant.
BY HUBERT GUDE, HORAND KNAUP, ROLAND NELLES, RENÉ PFISTER, JÖRG SCHINDLER, FIDELIUS SCHMID and HOLGER STARK
Translated from the German by Charles Hawley