The Columns

W&L’s Russ Miller Analyzes New Developments in German Spying Scandal

— by on May 28th, 2015

Edward Snowden’s 2013 disclosures of the National Security Agency’s spying and surveillance programs shocked the world. Diplomatic relations between the U.S. and Germany were particularly strained when it was revealed that, for many years, the U.S. had been pursuing massive intelligence gathering operations in Germany, including the collection of Germans’ telecommunications data and content.

“Spying between friends, that’s just not done,” German Chancellor Angela Merkel said at the time.

Now, the shoe is on the other foot as Germany is acknowledging its own surveillance practices and its intelligence agency’s deep cooperation with the NSA, including operations that involved spying on the French president and the aerospace company AirBus.

Washington and Lee law professor Russ Miller, an expert on the German legal system who is one of the only Americans to testify before the German parliament’s special committee investigating the NSA affair, was quoted extensively on these recent revelations in a report in the Christian Science Monitor. Miller discussed the weak oversight of the Bundesnachrichtendienst, or BND, Germany’s foreign services agency. Miller explained that the BND is overseen by the G10 Commission, a panel of former legislators who are often undertrained in the technological aspects of the BND’s work.

“They’re trained for the deployment of a complex legal standard but not necessarily for evaluating the high level technology that the BND uses,” Miller told the paper.

Miller is extensively involved in scholarly efforts to mediate the growing controversy. He presented at the German Center for Research and Innovation conference on cybersecurity and ethics in New York and will participate in June at an American Institute for Contemporary German Studies (AICGS) program in Washington, D.C. on privacy and security. He also authored an essay that is available at the AICGS website in which he discusses the current debate in the U.S. Congress over the USA FREEDOM ACT, arguing that its passage could help repair the “tattered transatlantic relationship” between the U.S. and Germany.  Miller was also quoted in a recent article on the espionage scandal that was published by the German news agency DeutscheWelle.

Miller’s book-length treatment on the NSA affair, its impact on relations between the U.S. and Europe, and the subsequent reevaluation of intelligence practices across the globe is due to be published in 2016 by a major academic press.

Meanwhile, Chancellor Merkel is facing calls from inside and outside the German government to reveal other BND spying targets and to implement major structural reforms within the agency.

“There’s no doubt that the mood has shifted from pretty profound dismay at the Americans and the NSA, to a focus on the BND,” Miller told the CSM. “If there’s a moment for reform, in the German context, this would have to be it.”

Miller serves as a DAAD/AICGS Research Fellow, a former Fellow at the Center for Security and Society at the University of Freiburg, and the Editor-in-Chief of the German Law Journal. He is the author/editor of a number of books, including “Privacy and Power: Transatlantic Relations in the Shadow of the NSA-Affair” (forthcoming 2016), “The Constitutional Jurisprudence of the Federal Republic of Germany” (Duke University Press 2012), and “U.S. National Security, Intelligence and Democracy” (Routledge 2009).

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