The Briefing

The Mail of Others

Wednesday, January 29, 2014
Privacy, Security, and the National Security Agency (NSA)

How big a deal is the revelation of widespread National Security Agency data mining operations directed at our European allies, or the NSA listening in on the cell phone of German Chancellor Angela Merkel? On one hand, there has certainly been a public uproar about an overweaning and disrespectful America whose intelligence services are either out of control or, worse, doing exactly what American leaders would like them to do. American ambassadors have been called on the carpet and foreign leaders have spoken out in indignation. Offense has been taken and apologies sought. On the other hand, there has been little talk about a critical rift in transatlantic relations, such as accompanied the George W. Bush administration’s decision to go to war with Iraq in 2003. On the contrary, the Obama administration’s NSA scandal now seems likely to pass from the scene without major consequence.

Our German allies seemed especially troubled over the NSA story, not least for the reason that the German press corps sensationalized to the point of gross inaccuracy its reporting on the leaked documents renegade NSA contractor Edward Snowden disseminated. If Germans thought the NSA was reading their email and routinely listening in on their cell phone calls, they could be forgiven, since that was the tenor of the reporting.

Of course the actual NSA program was focused on metadata collection — not the content of calls and emails, but which numbers and IP addresses connect with each other and when. But these details emerged only after the initially sensationalized coverage hardened an impression of indiscriminate snooping.

As for listening in on Angela Merkel’s cell phone, the United States was guilty as charged. Doing so was almost certainly an error of judgment on the part of US officials. But what kind of error — one of prudence or of principle?

Reflecting on the events, many commentators have concluded that the US should have eschewed such surveillance because officials should have reasoned that any potential benefit from the snooping would be outweighed by the damage that would be done in case of disclosure. This consequentialist reasoning is certainly more relevant than ever now that the United States is finding it so much harder to keep its secrets. The likelihood of disclosure may indeed constitute sufficient reason to refrain from such surveillance.

But it does invite a hypothetical question: should the United States feel free to listen in on an allied leader if, in fact, the government has a very high degree of confidence that it can keep the surveillance secret? In other words, is there a general ethical principle at stake here higher than “don’t get caught”?

I think there is. But it is a little less cut and dried than suggested by the blanket statement Secretary of State Henry L. Stimson famously made in terminating a surveillance program of the postwar era: “Gentlemen do not read other gentlemen’s mail.”

Or rather, Stimson’s statement may be more subtle than it generally gets credit for being. After all, Stimson didn’t say “gentlemen don’t read other people’s mail.” The statement has the ring of a Kantian universal maxim and may in fact be one. But we are first obliged to establish that someone whose mail we will refrain from reading is, in fact, a gentleman.

One way to do that would be to read the other person’s mail — in order to find out if the other person is as she presents herself to be, or is rather acting duplicitously. And the reading of that mail, especially if it turns out to verify her integrity, may be no task for a gentlemen but rather for someone of a more devious sort: a spy, for example. Not for no reason do presidents and even secretaries of state, who usually portray themselves as of the gentlemanly sort, rely on underlings to do the dirty work while they maintain “plausible deniability.”

Consider, for example, Chancellor Merkel’s predecessor, Gerhard Schröder. In office, he exhibited a generally favorable disposition, relative to many other allies, toward initiatives promoted by Moscow, including a gas pipeline from Russia across the Baltic Sea to Germany. Upon leaving office in 2005, he took a highly remunerative position as a director of that very joint venture. This was no doubt due to the influence of a man Schröder has frankly acknowledged as “my friend,” Russian President Vladimir Putin. The Putins were surprise guests at Schröder’s 60th birthday party in Hanover in 2004. Also that year, the childless Schröder and his fourth wife (who had a daughter from a previous marriage) adopted a three-year-old Russian girl from St. Petersburg. Putin and Schröder acknowledged discussing the adoption in advance. In 2006, Schröder and his wife adopted another child from St. Petersburg. So on the basis of the public record, it is no leap to conclude that Putin arranged both a job and an heir for the German chancellor while the latter was in office.

Was Schröder of the gentlemanly sort, the kind whose mail another gentleman would refrain from reading? I don’t know, but I think a prudent American spymaster might rightly be interested in knowing as much as possible about the budding relationship between Schröder and Putin. The ex-KGB man frankly looked to be running an old-school co-optation operation against Schröder, through blandishments now and the promise of future rewards — something a clever nineteenth-century tsar might have cooked up against one of his feeble-minded European royal cousins.

Nothing Merkel has done publicly while in office nor in her private life has called her integrity into question in like or even lesser fashion. In the absence of such action, she and other allied leaders should be entitled to a presumption of gentlemanliness. It’s not just that the United States would likely gain little valuable information from such snooping, though that’s true, nor that the odds of the operation blowing up in our faces would be too high (also true). A principle that exempts allied foreign leaders from personal surveillance on the basis of good behavior is certainly one we can live with. It also has the virtue of backstopping rather than undermining the gentlemanliness of those currently practicing international politics in relatively gentlemanly fashion. President Obama’s recent policy directive calling for the United States to stop such snooping on allied leaders in the absence of a “compelling national security purpose” balances the principles at stake fairly well.

Germany’s greatest contribution to the principles of global order over the past two generations has been its insistence on an international politics grounded in law. This insistence has allowed Germany to develop a consistent critique of others (including the United States) for acting extra-legally or illegally, at least in the judgment of Germany. The detention center at Guantanamo Bay was one such American failing, and so was the 2003 Iraq war. The NSA activity falls into the same category.

There were rumblings in Germany and at the European Union about a need to punish the United States in some way for our lawlessness over intelligence collection. One problem, however, has been that no one can really think of an effective way to do so. Europe could cancel or delay negotiations on TTIP, the mega-deal for free trade between the United States and Europe. But, of course, that would be harmful to Europeans, indeed arguably more harmful to Europeans than to the United States, and among European countries delay would be most harmful to Germany, Europe’s biggest economy. So that isn’t a very good idea. Or Germany could withdraw from the SWIFT mechanism for tracking terrorist finances — except that preventing terrorist activity is something German officials take very seriously.

The point is that the United States and Europe are so thoroughly enmeshed with each other by now that it is hard to think of any action any one party to the relationship might take to harm another without inflicting significant or greater damage on itself. When the Obama administration is inattentive to Europe (a consistent European perception, especially in light of the “pivot” to Asia) or high-handed with Europe (as in demanding payment from allies for US services in the Libya operation, or being dismissive of Central and Eastern European security concerns about Putin’s increasingly authoritarian Russia) or insensitive to European concerns (as in the abrupt cancellation of politically touchy missile defense systems set for Poland and the Czech Republic, or as in the continued operation of Guantanamo) or insufficiently supportive of European initiatives (as in the run-up to Ukraine’s 11th-hour rejection of an Association Agreement with the EU), the preferred solution on the European side is inevitably more America, not less. The most salient response to the NSA’s German problem has been a call for greater German inclusion in cooperative intelligence work.

Needless to say, a regime of greater intelligence cooperation with the United States is not exactly the outcome the German NSA scandal-mongers were promoting. But if you had to bet on a five-years-later scenario for the NSA revelations, the bet that intelligence cooperation between the United States and Germany will increase in that period would be smarter than a bet on the proposition that snooping on Merkel’s cell phone so damaged relations that the two sides decide to disengage. A policy on snooping on allies that was right in principle would also likely facilitate greater cooperation.

Return to the Briefing daily for new insights from Peter BerkowitzBenjamin WittesJack GoldsmithMatthew WaxmanJessica SternShavit MatiasRuth WedgwoodPhilip Bobbit, and Kenneth Anderson focusing on intelligence gathering in a digital age.