An Angry Europe Faces Up to U.S. Spying and the War on Terrorism’s Legacy

After Snowden revelations, E.U. leaders question the rules of surveillance that emerged after 9/11

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Francois Lenoir / Reuters

German Chancellor Angela Merkel addresses a news conference during an E.U. leaders summit in Brussels on Oct. 25, 2013

Romano Prodi, the former Italian Prime Minister, first felt the reach of U.S. surveillance about 10 years ago, soon after the terrorist attacks of Sept. 11, 2001, when he was serving as President of the E.U.’s main governing body, the European Commission. On an official visit to Jerusalem, he was having breakfast at the King David Hotel when he took a call from the head of an Italian energy firm to discuss the firm’s American competitor. Prodi, who recalled the incident in an op-ed published on Friday, even went onto the terrace of the hotel to make sure no one could eavesdrop on the call. A few weeks later, he awoke to find a transcript of the conversation printed in the press and attributed to anonymous American sources. “It is certain, at least in that case, that terrorism had nothing to do with the illegitimate tapping of private phone conversations,” Prodi wrote in Italy’s Il Messaggero newspaper on Oct. 25.

For European leaders, such violations of privacy seem to have become an occupational hazard over the past decade or so, ever since the U.S. declared its war on terrorism in the wake of the 9/11 attacks. Over the weekend, German Chancellor Angela Merkel became the latest one to face this reality when the weekly magazine Der Spiegel reported that the U.S. National Security Agency began tapping her phone as early as 2002, within about a year of 9/11. On Monday, two Spanish newspapers reported that the NSA had recently collected data on 60 million phone calls in Spain in less than a month. All of these reports were based on documents leaked by former NSA contractor Edward Snowden, whose latest round of revelations has focused on the scope of American spying on its own allies. Across Europe, the leaks are forcing politicians to reassess the legal and moral foundations of the right to privacy, a right whose violation they have often tolerated in the name of the war against terrorism — at least until now.

(MORE: E.U. Pushes for Stricter Data Protection After Snowden’s NSA Revelations)

“People see now that 9/11 led to a lot of chilling effects,” says Jan Philipp Albrecht, a German lawmaker in the European Parliament, where he serves as the rapporteur on data protection. “It became normal not only to accept but to defend this kind of surveillance as a normal reaction to terrorism.” In European politics, raising objections to these practices based on the right to privacy “was not a winning position” over the past 10 years, he says.

But that seems to be changing after the “summer of Snowden,” says Ben Scott, a former policy adviser to U.S. Secretary of State Hillary Clinton who now serves as program director at the Stiftung Neue Verantwortung policy think tank in Berlin. “We’re seeing the end of an era, the era that began with September 11th.”

On Monday, Albrecht will travel to Washington as part of a European delegation to seek tighter rules against the kind of blanket surveillance that the war on terrorism has made commonplace. The visit is one of several initiatives proposed in Europe since the Snowden revelations to protect E.U. citizens from having their communications monitored by American intelligence agencies. “This is not about stopping inadequate behavior,” Albrecht tells TIME. “This is about stopping criminal behavior, illegal cyberattacks that should be seen as the activities of cyberwar.”

(MORE: Germany Summons U.S. Ambassador Over Surveillance Claims)

Currently, the U.S. Patriot Act, which was passed weeks after 9/11 to allow U.S. intelligence agencies greater freedom in fighting terrorism through surveillance and other means, can in practice be used to spy on E.U. citizens even when it violates E.U. law, even when it accesses data that is protected under E.U. law. As Snowden’s disclosures also showed, the decisions of a secret U.S. intelligence court known as FISA can force Internet and phone companies like Google and Verizon to disclose the private data of their European users without their consent. Albrecht and other European lawmakers want both practices to stop. Last week, the European Parliament already called for the suspension of an agreement that allows the U.S. government to access the bank-transfer data of E.U. citizens. That deal was signed in 2010 to help U.S. intelligence agencies track sources of funding for suspected terrorist groups.

In the coming weeks, Germany and France will send separate delegations to the U.S. to seek explanations from intelligence officials about the reported surveillance of European leaders and tens of millions of E.U. citizens. At a summit in Brussels on Friday, E.U. leaders warned that such indiscriminate spying could jeopardize information sharing across the Atlantic. “A lack of trust could prejudice the necessary cooperation,” the E.U. leaders said in a joint declaration.

But the wording of the declaration showed some hesitation at the top of the E.U. hierarchy about changing the post–9/11 status quo. Although the statement alluded to the “deep concerns” of E.U. citizens over “possible intelligence issues,” it still stressed that “intelligence gathering is a vital element in the fight against terrorism.” Some European statesmen also warned of the risks of overreacting to the Snowden leaks. “My fear is that if we come down too hard on the Americans right now, we’re going to cause a lot of trouble for data movement from Europe to the United States,” Alexander Stubb, Finland’s Minister for European Affairs, said in an interview with Deutsche Welle on Friday. Stubb admitted, however, that he has also been forced to accept the loss of privacy. “I am very careful, and always aware that whatever I communicate could be made public,” he said.

Heading off some of the E.U. demands for change, U.S. President Barack Obama has recently started calling an end to unwarranted spying. In August, during his first formal press conference since the Snowden revelations began, Obama said: “Given the history of abuse by governments, it’s right to ask questions about surveillance.” He went on to proposed tighter regulations of surveillance programs, a reform of the FISA court and amendments to the post–9/11 laws that allow the U.S. to monitor phone records around the world. “America is not interested in spying on ordinary people,” Obama said.

(MORE: U.S. Allies Still Angry at Snowden’s Revelations of U.S. Spying)

In the coming weeks, European leaders will be pushing the U.S. to turn those pledges into action. But that will likely force E.U. members to look hard at their own surveillance efforts, which have often mimicked U.S. practices in the context of the war on terrorism. “Europe is going to have to be a lot more transparent about its own practices,” says Scott, the former U.S. State Department adviser. “You can’t declare that you don’t like what the U.S. is doing, demand a new standard, and not explain how you’re going to abide by that standard yourself. I think the Germans are ready for that. The question is, Are the British, are the French?”

After Merkel learned last week that the NSA had been tapping her phone, Germany took the initiative along with Brazil in drafting a U.N. resolution against “indiscriminate surveillance” of the kind that Snowden’s leaks revealed. Although it did not refer specifically to U.S., the draft condemned such practices in terms much harsher than Friday’s E.U. declaration. “The indiscriminate interception of personal data of citizens constitutes a highly intrusive act that violates the rights to freedom of expression and privacy and threatens the foundations of a democratic society,” the draft resolution said, according to a copy published on Friday by Foreign Policy. The document called on the U.N. High Commissioner for Human Rights to present an interim report “with the purpose of identifying and clarifying principles, standards and best practices on the implications for human rights of indiscriminate surveillance.” The draft has already gotten support from at least 21 U.N. members, Foreign Policy reported.

Albrecht, the European Parliament lawmaker, warns of the risks in letting the U.N. take the lead in this debate before the U.S. and Europe have come up with a trans-Atlantic agreement on curbing excessive surveillance. “We know that states based on democracy and rule of law are not in the majority in the U.N. right now,” says Albrecht. So it would make more sense for the U.S. and E.U. to come up with a “blueprint for global protection” that could then serve as an international benchmark, he adds.

But wherever these new standards are debated, they will have a chance of patching the porous architecture of data protection that grew out of the war on terrorism. As Prodi wrote in his op-ed on Friday, that war forced him into a “passive role” with respect to surveillance even when he occupied the E.U.’s most powerful post. But he and other E.U. leaders are now demanding an end to that passivity. “At stake is not only the freedom but the safety of us all,” Prodi wrote.

MORE: Three Months After Snowden’s NSA Revelations, Europe Has Moved On

17 comments
glennra3
glennra3

This is the real price we pay for the 911 attacks. The loss of our national soul.

Ocsicnarf
Ocsicnarf

The US should be aware that USA no longer rules the world, and allies should be respected.

prismus
prismus

Dumb ass Europeans, bow to your American masters!

JasonDowd
JasonDowd

Once again, thank you Mr. Snowden.

drudown
drudown

@prismus 

Gee, you have to wonder if OPEC money funds the PR Brigade that dispenses such divisive rhetoric.

NothingHereToSee
NothingHereToSee

@JohnNagel If you're going to bother to annotate like a professional paper, try writing it like a professional paper.  Its honestly coming off as tin foil rantings.

drudown
drudown

@SwiftrightRight @glennra3

Tell me, how is it that, in other contexts of such State Action that touch and concern deprivation of liberty or Due Process interests (see, e.g., Parham v. J.R., 442 U.S. 584) the “victim” is entitled to a “review by a neutral factfinder”…but not when the United States’ (1) Diplomatic unity with our trusted European Allies is suffering immediate and/or potentially irreparable harm and/or (2) when the United States’ People have their Substantive Due Process Rights to receive the civil liberties contained within the 4th and 5th Amendments is the “victim”? The refusal of the State to enjoin the egregious breaches of our Supreme Court’s precedent on the area of wiretapping and electronic seizures by the NSA constitutes an abuse of power in itself.

"Wrong must not win by technicalities." - Aeschylus

The notion that 9/11 was the first time warrantless wiretapping was purportedly "justified" is a farce. There is ample case law expressly holding it is per se UNCONSTITUTIONAL. See, Scott v. United States (1978) 436
U.S. 128 ("every wiretap must be conducted in such a way as to minimize the interception of communications not otherwise subject to interception"). How is can the NSA seize such a vast amount of data, records and privileged communications in blatant disregard of precedent and the EXPRESS language of the 4th Amendment…with ZERO probable cause and ZERO limitations on course and scope of the intrusion?

"Wiretapping is a dirty business." - Chief Justice Taft