NSA Scandal Parliamentary Spying Inquiry Poses Challenges
New details continue to emerge over alleged US spying in Germany. A parliamentary investigation could provide clarity - but it also has limitations. The issue constitutes the first stress test for a future coalition government.
The list is long: There have been 39 investigatory committees in the history of the German Federal Republic. Soon that number may rise to 40. The center-left Social Democratic Party (SPD), the far-left Left Party and the Greens have insisted on a parliamentary inquiry into the activities of US intelligence agencies in Germany. The conservatives are committed, at the very least, not to hinder such a probe. That leaves the door wide open for one.
All participants know that such an investigatory committee would be unprecedented in that it would be dealing with the fundamental problems of the digital age. It would be different from prior committees. And because there is a desire to send a multi-party signal of protest to Washington, it is hard to get around it.
On the other hand, the committee could quickly reach its investigatory limits. Because how useful is an investigation that would largely have to make do without witnesses or files from overseas? How should an honest evaluation work if the two biggest parties are forming a new government and therefore acting in unison? And what exactly should be investigated?
There are four problems standing in the investigation's way. The first is that it complicates ongoing talks to form a new government.
The spying scandal broke right as coalition talks were underway between Chancellor Angela Merkel's center-right Christian Democratic Union (CDU), its Bavarian sister party, the Christian Social Union (CSU) and the Social Democrats. Any possible investigative committee could prove to be the first test of whether the parties can function well together. For example, if the parties quibble over appointments to the panel, it could look awkward and have negative effects on ongoing coalition talks. What's more, even once a panel is chosen, the two sides could try to score points against each other by calling witnesses with potentially embarrassing information.
The situation is particularly uncomfortable for the Social Democrats. After criticizing Merkel's government during the summer, they must now also demonstrate a willingness to join any investigation -- but in a tempered way that doesn't frighten off the conservatives. For this reason, the SPD is reportedly saying that an investigative committee is "unavoidable," in language meant to induce the CDU and CSU to support its plans. Both sides have now taken the first step toward collaboration by agreeing to hold a special meeting of the Bundestag, Germany's parliament, to discuss the NSA scandal. But the primary goal of doing so was really to buy time.
What Kind of Mandate?
The second problem involves its investigative mandate. The more concrete the investigative mandate is, the better the chances of finding answers to the panel's questions. For example, such a mandate could call for explanations on: how Merkel's cell phone was tapped; whether or not she was overly lax in how she used it; how the NSA allegedly eavesdropped on millions of German citizens; and the role of the Chancellery in the entire scandal.
As things are still taking shape and being aligned, the problem is that the grand coalition might formulate any possible investigation mandate in terms that are as vague as possible. Indeed, as much as many Social Democrats would like to see Ronald Pofalla, Merkel's chief of staff, or Interior Minister Hans-Peter Friedrich land in a pickle, in strategic terms they cannot be interested in having a committee that is destabilizing a government that they belong to themselves. Consequently, the committee might primarily focus on the role played by German intelligence services, as well as on the question of why it took them so many years to get wind of the spying activities.
Limited Means and Hybrid Solutions
The possible committee's third problem relates to its limited means. In the digital age, surveillance is not something that necessarily takes place within defined national boundaries, but the committee's resources would be directly influenced by these borders.
For example, the committee won't be in a position to subpoena witnesses from the United States, or NSA files and White House documents, leaving them without many key pieces of the puzzle. Instead, the panel will be forced to limit itself to questions related to happenings within Germany itself. Having Edward Snowden testify would also be illuminating, but the possibility is unrealistic. What's more, witnesses might refrain from providing public testimony if they believe that doing so could harm Germany's security. Indeed, one can always cite this argument and use it as a pretext when refusing to provide details about the security-service operations.
One way around this would be to have the panel assume the hybrid form of an investigative committee and a Parliamentary Control Panel (PKGr), which is responsible for scrutinizing the work of the intelligence services at the federal level. In this way, some matters could be handled in a completely public manner, while others could be looked at behind closed doors.
Questions Over Staffing
A complicated parliamentary calendar is the fourth problem for a possible committee. Although the Bundestag plans to hold a special session on Nov. 18 to discuss these matters, it is questionable whether any investigative committee would be able to start its work anytime soon. After all, the panel still needs to be staffed, to formulate an investigative mandate, to subpoena documents and to hammer out witness lists and schedules.
The biggest hurdle involves personnel issues: The panel needs to be formed immediately, but that won't be all that easy before the new government is sworn in. Important posts still need to be awarded, and no one can tell at this point who will even be available to assume a position on this panel.