The "NSA Affair" Goes Criminal in Germany

By Ingrid Wuerth
Monday, October 28, 2013, 10:00 AM

The "NSA Affair" still commands German headlines. Over the weekend, the news was dominated by the fit-for-a-spy-novel revelations that the top floor of the U.S. Embassy on Pariser Platz (overlooking the Brandenburger Tor and the Reichstag) apparently housed equipment and officials that listened in on Chancellor Merkel’s calls. There is a great picture here. It all seems so 20th Century. Except that the fallout serves as a vivid reminder of the loss of U.S. soft power in this century. On Monday, Die Zeit describes the outrage in Germany as increasing. German politicians (from the right, left, and center) continue to take a hard line: still calling for the suspension of EU-US trade talks; proposing a U.N. General Assembly resolution; sending a high level German delegation to the U.S. to demand more information; suggesting trilateral U.S.-French-German talks; describing a German parliamentary investigation as unavoidable; suggesting that the E.U. should stop sharing information with the U.S. about international air passengers and should abandon the Swift-Code agreement to hinder international bank transfers to and from the U.S. Reports also suggest that a preliminary criminal investigation is underway. The Minister of the Interior emphasized that if the Americans listened in on cell phone conversations in Germany, they “violated German law on German soil” and that those responsible should be held accountable.

Are criminal prosecutions a real possibility? I think it unlikely. The news reports did not analyze---or even raise---the question of immunity for the people sitting behind the windowless facade on the top floor of the embassy. The Vienna Convention on Diplomatic Relations, to which both Germany and the United States are parties, provides immunity from arrest, detention and criminal jurisdiction not just for diplomats but also for "members of the administrative and technical staff.” Articles 29, 31, 37(2).

Are the people engaged in data collection---allegedly from the NSA “Special Collection Services”---employed “in the administrative and technical service of mission,” so as to qualify for immunity under the treaty? Art. 1(f). Article 10 requires the sending state (the U.S.) to inform the receiving state (Germany) of the arrival of a member of the mission, including administrative and technical staff. Assuming that the U.S. did so with respect to whomever is doing the data collection (probably a fair assumption, I think), then the U.S. will argue that the matter is closed. In 2011, questions arose as to whether Raymond Davis, a CIA agent in Pakistan who shot and killed two people, was entitled to immunity as “administrative and technical staff.”  The U.S. maintained that the only relevant question is: “was he notified as a member of the administrative and technical staff upon entry to the Ministry of Foreign Affairs? And the answer to that question was yes. . . . When someone enters our country, if that person is notified as a member of the administrative and technical staff of a diplomatic mission that's the end of the story on that side.”  Under heavy pressure from the United States (along with a large financial payment to the victims’ families), Pakistan released Davis without trying him, although Pakistan did not officially state that that Davis was entitled immunity.

Even if Article 10 notification alone is not enough to qualify for immunity, an NSA data agent housed in the US embassy may well be employed in the “technical” “service of the mission.” The treaty lists mission “functions,” which includes the broadly-worded: “protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.”  Art. 3(1)(b) (emphasis supplied). Such language arguably includes data collection, even if not permitted by domestic German law. In any event, the Article 31 list of mission functions is non-exclusive. The appropriate functions of a mission were disputed at the outset of Julian Assange’s stay in the Ecuadorian embassy in London. The U.K. apparently threatened to enter the embassy and arrest him for extradition to Sweden, citing in part the use of the mission in a manner “incompatible with the Vienna Convention.” The U.K. quickly backed down, however. Assange is still at the Ecuadorian Embassy in London.

Germany can, under the treaty, declare any person on the mission staff either persona non grata or (for people without diplomatic rank) “unacceptable,” effectively forcing their departure. Moreover, article 41 provides (without prejudice to immunity), that it is the duty mission of staff to “respect the laws and regulations of the receiving State [Germany].” Remedies for a violation of this provision are not specified.

NSA and other officials in the United States, like President Obama, are not protected by diplomatic immunity. As long as he is in office, Obama is however protected by head of state immunity under customary international law from all criminal proceedings in foreign domestic courts. Lower level officials are entitled to immunity only for their official acts, which likely include data collection, even if illegal under foreign domestic law.

Whether or not most countries would or should spy on their allies, and even if criminal prosecutions are unlikely, the uncomfortable fact remains: this is a diplomatic and public relations disaster for the United States, which is perceived as arrogant and indifferent not just to the privacy interests of the Chancellor, but also of European and U.S. citizens. That is the heart of the problem. News outlets and commentators are less and less focused on the Chancellor’s cell phone and more focused on the collection and storage of data from Europeans, the general loss of trust between the countries, and the “heavy political failure” in Washington with respect to privacy issues generally. The administration needs to reevaluate its surveillance of foreign leaders, but it also needs to accelerate its review of data collection practices in the United States and develop a policy it can confidently defend both at home and abroad.