Van der Huizen 1!

Prudent Precaution or Espionage Scandal? The Transatlantic Relationship and Surveillance Cooperation

MA Thesis in European Studies Graduate School for Humanities Universiteit van Amsterdam

Evelien van der Huizen 6035515

Main supervisor: Dhr. dr. J.B.M.M.Y. Shahin Second supervisor: Dhr. dr. M.E. Spiering

June 30, 2015 Van der Huizen 2!

Index

Page

Introduction 3 1. Interdependence or Independence: A short history of the transatlantic 5 relationship 1.1 The United States of America and Europe before World War II 6 1.2 The Cold War and American national security 10 1.3 Postwar European security policy 12 1.4 German Reunification 14 1.5 Conclusion 17 2. Methodology 19 2.1 Theoretical framework 19 2.2 Newspaper analysis 21 2.3 Conclusion 24 3. Theoretical Framework: liberal democracy and national intelligence 26 surveillance 3.1 Liberal democracy and human rights 27 3.2 U.S. security policy from 1945 onwards 29 3.3 Government espionage and international politics 35 3.4 Conclusion 37 4. Case Study: Edwards Snowden and the classified NSA files 38 4.1 Edward Snowden 38 4.2 Semantics 40 4.3 Security and individual rights 41 4.4 Domestic and foreign surveillance 44 4.5 European and American surveillance 45 4.6 Conclusion 50 General conclusions and discussion 52 Bibliography 56 Van der Huizen 3!

Introduction

In 2012 Edward Snowden approached documentary film director and producer Laura Poitras about publishing classified documents from the National Security Agency he had in his possession.1 At the time Poitras was already working on a documentary concerning government surveillance.2 Uncovering the truth behind secret government activities had been one of the main focuses of her filming career because, as she declared herself, she believed these activities formed a serious threat to the fundamental freedom of America.3 Mid-2013 she and her colleagues Glenn Greenwald and Ewen MacAskill flew to Hong Kong to meet Mr. Snowden for the first time. In Hong Kong they received NSA documents Snowden had procured during the time he worked for this agency. Poitras helped him approach several media outlets that were willing to disclose information about the NSA surveillance network. Shortly after this meeting the documents were made public. The British newspaper The Guardian and the American Washington Post were the first to publish the news, followed by the rest of the world press. However, Poitras and her team claim to be the only people who possess the entire archive of documents Snowden has stolen.4 Although the first evidence was leaked in 2013, information about different aspects of the American and European surveillance activities are still being revealed today. The most recent scandal that involved the NSA an three French presidents did not come from Snowden directly. The American organization supposedly eavesdropped on private conversations of Jacques Chirac, Nicolas Sarkozy and Francois Hollande.5 In October 2013 the same allegations were made concerning private conversations of German Chancellor Angela Merkel.6 The relationship between Germany and the US cooled for a while, but just like France, Germany cannot permit itself to have a bad relationship with the only remaining superpower in the world. Initially, French officials strongly condemned the NSA’s action and the president called for an emergency meeting of the French defense council. A few days later however, the French government assured their citizens that the eavesdropping had stopped and moreover cooperation with the US on security policy would be intensified.7 The ongoing nature of these NSA leaks is disquieting. Even after two years, new espionage revelations are published on almost a weekly basis. The files that have been published over the years have not only exposed the NSA but also British and other European surveillance agencies. In an interview Edward

1 Peter Maass, ‘How Laura Poitras Helped Snowden Spill His Secrets’, The New York Times, retrieved from: http:// www.nytimes.com/2013/08/18/magazine/laura-poitras-snowden.html on June 28, 2015. 2 Micheal Morgenstern, ‘Citizenfour' Review: An Incredible Documentary About Edward Snowden’, The Huffington Post, retrieved from: http://www.huffingtonpost.com/michael-morgenstern/citizenfour-review-an-inc_b_6025984.html on June 28, 2015. 3 Glenn Greenwald, No place to hide: Edward Snowden, the NSA and the U.S. surveillance state, New York: Metropolitan Books, 2014, p. 11. 4Peter Maass, ‘How Laura Poitras Helped Snowden Spill His Secrets’, The New York Times, retrieved from: http:// www.nytimes.com/2013/08/18/magazine/laura-poitras-snowden.html on June 28, 2015. 5 Martin Untersinger and Damien Leloup, ‘Comment la NSA a-t-elle pu surveiller des conversations au plus haut niveau de l'Etat ?’, Le Monde Magazine, retrieved from: http://www.lemonde.fr/pixels/article/2015/06/24/comment-la-nsa-a-t- elle-pu-surveiller-des-conversations-au-plus-haut-niveau-de-l-etat_4660318_4408996.html#2thYjrioeL31MTmm.99 on June 28, 2015. 6 Jacob Appelbaum, ‘Berlin Complains: Did US Tap Chancellor Merkel's Mobile Phone?’, Spiegel Online International, retrieved from: http://www.spiegel.de/international/world/merkel-calls-obama-over-suspicions-us-tapped-her-mobile- phone-a-929642.html on June 28, 2015. 7 Alissa J. Rubin and Scott Shane, ‘Hollande Condemns Spying by U.S., but Not Too Harshly’, The New York Times, retrieved from: http://www.nytimes.com/2015/06/25/world/europe/wikileaks-us-spying-france.html on June 28, 2015. Van der Huizen 4!

Snowden said he hoped to spark a public debate about the level of surveillance activity conducted by western governments.8 According to him the current nature of government data surveillance on citizens has reached a point of becoming dangerously undemocratic. The lack of transparency of the programs put in place by the American and European governments misleads the public and creates an inaccurate image of what the system really does. Governments are getting information wherever they can and by any means they can. Even though they believe that they are doing this for the good of the public and the protection of the state, their actions may actually be disrupting the very governmental system modern western states were built on, namely a liberal democratic structure. The pages that follow will address the issue of government intelligence surveillance and its compatibleness with the democratic systems of the United States and Europe and will use the most recent whistleblower affaire regarding Edward Snowden as a study case. This will be done by answering the following research question: What is the effect of foreign and domestic intelligence surveillance of the United States of America and Europe on the concept of liberal democracy? First, the necessary background information on security concerns on both continents will be provided in chapter one. The chapter will start with an account of the colonial history of the US and Europe’s involvement in this history. Next the focus will primarily lie on the postwar and Cold War era. The last paragraph of the first chapter will discuss the period that followed 9/11. The attack on the World Trade Center in New York has had a profound effect on American foreign security policy and subsequently it also influenced the countries across the Atlantic in Europe. Therefore it is an important part of this research. The second chapter will set up the methodology used for this thesis. First, the structure for the theoretical framework of this essay will be explained. Second, since this thesis will use a media analysis to put the theoretical framework into practice, the method used to conduct this media analysis will be explained in chapter two. Chapter three will lay out the theory on which this entire research is based. This will be done by first discussing the concept of liberal democracy and the part fundamental rights play in western society. Next, the actual foreign surveillance policy put into place in some of the western countries, especially America, will be looked at. Finally, in the context of the NSA scandal the media has played a major role, it was the medium through which the publication of the scandal was initiated. Snowden chose to approach two newspapers with the classified documents. As mentioned before, the theory set up in the first three chapters will be put to the test in the last chapter by analyzing some of the newspaper articles published on the subject of Edward Snowden during the first few months. The information made public by Snowden in these articles will help with shaping a constructive answer to the research question of this thesis.

8 Alan Rusbridger and Ewen MacAskill, ‘Edward Snowden interview - the edited transcript’, The Guardian, retrieved from: http://www.theguardian.com/world/2014/jul/18/-sp-edward-snowden-nsa-whistleblower-interview-transcript on June 28, 2015. Van der Huizen 5!

1. Interdependence or Independence: A Short History of the Transatlantic Relationship

The relationship between the countries of the European continent and the United States of America has not always been based on mutual respect. In the past cooperation between both countries has often been difficult or sometimes even impossible. An important factor in the transatlantic dynamic is the colonial history of the United States. Up until the late eighteenth century America was a part of the British Empire and earlier in the sixteenth and seventeenth century before the British got the upper hand, the territory was divided amongst the European colonial powers. Since the US went from being a European colony to an independent world power the relationship between both continents has not always been easy and the events that followed the attacks of 9/11 and George Bush’ War on Terror have certainly not made it easier since the US government and their European counterparts were not able to come to a mutual agreement about the American actions in Afghanistan and Iraq. The relations between France - ironically enough the same country that helped the Americans defeat the British a few centuries earlier- and the United States became so difficult after the French refusal for support of a military intervention in Iraq that a Republican Chairman of the Committee of House Administration renamed several items on the menu in Congressional cafeterias. French fries became freedom fries and French toast became freedom toast.9 A disappointing yet somewhat comical low-point in the relations between France and America. Another side effect of the terrorist attacks was the controversial Patriot Act signed in October 2001.10 This document has been a “carte blanche” for government espionage which had great consequences for the rest of the world and formed the bases for the Snowden leaks in 2013. Despite the controversy surrounding the revelations made by Edward Snowden, government surveillance is nothing new. You can go back as far as Ancient Rome and find examples of government surveillance networks, intercepted communications and “official” eavesdropping. 11 Unfortunately for Julius Caesar though, even his elaborate spy network was not able to stop his enemies from plotting his death. The events of 9/11 however, had far more invasive effects than the espionage activities of a Roman emperor. The attacks reminded western countries of their vulnerability and made clear that even if the most important thing that we expect from our governments is to keep us free and safe, sometimes assuring our safety means impinging upon freedom. Both in Europe and in the United States governments have struggled with the solution to this dilemma and have dealt with it in their own ways. This chapter will give an historic overview of the transatlantic relationship, with a specific focus on postwar security issues. In order to keep a structured view on the evolvement of these relations it will be divided into several distinct phases. We will start with a look at the relations prior to the world wars. Back then the United States had a smaller role on the political world stage, but in order to have a complete view of how the relationship developed to where it is today, we need to be aware of the past. Therefore, a look at the

9 Sean Loughin, ‘House cafeterias change names for ‘French’ fries and ‘French’ toast: Move reflects anger over France’s stance on Iraq’, CNN International, retrieved from: http://edition.cnn.com/2003/ALLPOLITICS/03/11/sprj.irq.fries/ on March 20, 2015. 10 ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’, U.S. Government Printing Office, retrieved from: http://www.gpo.gov/fdsys/pkg/ PLAW-107publ56/html/PLAW-107publ56.htm on March 20, 2015. 11 Anthony Zurcher, ‘Roman Empire to the NSA: A world history of government spying’, BBC News Magazine, retrieved from: http://www.bbc.com/news/magazine-24749166 on April 29, 2015. Van der Huizen 6! colonial history of Europe and America will be included in this chapter. Next up is the post-war era, during which the Europeans became a partner in the alliance to maintain peace on their continent instead of just depending on their stronger ally, the United States. However, it was also during this period that the polarization between Eastern and Western Europe took hold of the continent. It was the prelude to the Cold War, a time when distrust amongst nations was common and government surveillance prevailed. The last paragraph will discuss the period that followed the horrific events of September 11, 2001. The terrorist attack on American soil ensured that foreign policy would dominate American politics from that point onwards. The aim of this chapter it to supply sufficient background information on the cooperation between the United States of America and the European countries, which will enable the reader to better understand issues surrounding the relationship today.

1.1 The United States of America and Europe before World War II The American Revolution started in 1765 and was aimed against British rule. Colonists of the Thirteen American Colonies had had enough of the British monarchy and rejected its authority by founding the independent United States of America. The conflict was however not just a British-American affair. A few years earlier in 1763, the Treaty of Paris ensured that Spain and France gave up their American territories to Britain, which meant that the British crown now ruled over most of North America.12 The attention of Europe’s powerful countries was triggered by this fight for independence. Colonial rivalry made them eager to see Britain’s domination come to an end. France’s interest was especially high, next to the centuries-old French-British rivalry, the country also had some colonial interests in the region. Following the success of the liberal movement in American and the defeat of Britain, similar movements in Europe gained momentum. Many of revolutionaries in Europe followed the principles of the American Revolution. The most famous example is maybe the French Revolution that took place almost a decade later. These historical ties to Europe made it a it very difficult for the US to disentangle itself from the old continent, even if the motto of nineteenth century America was to become „entangling alliances with none”.13 The nineteenth and early twentieth century were a new period of territorial colonization in Asia and Africa.14 Great Britain had profited greatly from the demise of the Spanish Empire and the political instability of the French Empire in the early nineteenth century. After the Battle of Trafalgar in 1805, Britain became the leading colonial power in the world.15 The battle had been a stark reminder of its naval supremacy to the rest of Europe. However, this new era of colonialism was not just for the European powers, the US was also involved. Foreign territories such as Cuba and Hawaii were of great interest to the USA in order to compete with the already existing colonial powers. Commerce and the rise of nationalism were the driving forces behind this second round of imperialism and the US was not immune to their influences. Thus, expansionism was the mindset that dominated the US foreign policy even if some voices called for a more

12 ‘Treaty of Paris 1763’, Yale Law School The Avalon Project: documents in Law, History and Diplomacy, retrieved from: http://avalon.law.yale.edu/18th_century/paris763.asp on June 22, 2015. 13 Thomas Jefferson, ‘First Inaugural Address’, Advocate of Peace through Justice, No. 4 (1920), p.121. 14 T.C.W. Blanning, Short Oxford History of Europe: the Nineteenth Century, Oxford: Oxford University Press, 2000, p. 11. 15 Ibidem, p. 218. Van der Huizen 7! distant approach.16 These voices thought that isolationism would bring with it more independence from Europe and in particular from Britain. By alienating itself from European affairs the country could create its own success. American politician Bernard Fensterwald was a strong opponent of this line of reasoning, he was convinced that the United States could never practice isolationism in its „purest form”.17 According to him American foreign policy could never amount to anything more than nationalism or pseudo-isolationism:

America never attempted the type of geographical, political, or economic isolationism which was put into effect by Japan in the seventeenth and eighteenth centuries […]. We never tried to promote [a] type of cultural isolationism practiced by the U.S.S.R. and Communist China. What we have practiced has been unbridled nationalism, especially in the political and economic spheres and particularly before World War II.18

With nationalism on the rise in America, there was a strong support for loosening the ties with the Old World. Due to colonialism and mass migration, most Americans were of European origins back in the nineteenth century.19 Staying aloof from European affairs was a way of creating their own New World. The Monroe Doctrine of 1823 is a good example of the self-protectiveness that grew from American nationalism. The 1823 Doctrine was initiated by President James Monroe and stated that any act of European colonialism on the American side of the globe would be considered as an act of aggression and would not be tolerated. According to J.A Field Jr., from this point onwards America was not interested in adding any more territory to their country, but was more set on spreading their liberal ideas across the world: „On the scales of civil liberty and representative democracy none could match the […] Americans.”20. The fact that conquering a country, be it geographically or ideologically, was incompatible with the philosophy of liberal democracy had not yet emerged: some saw imperialism as benevolent and a way of bringing freedom to the entire world.21 Despite their intentions to disentangle themselves from Europe, America did indeed meddle several times in overseas affair.22 In 1883 United States officials started to attend international European conferences that mainly dealt with trades issues. Moreover, the imperialistic turmoil that preceded the Great War and affected the European superpowers was also of great importance to the US, again, because of trade issues. Other examples of American interference are the Moroccan Crises of 1905 and 1911, the Bosnian Crisis in 1908 and the Balkan Wars in 1913.23 The main objective of the US when dealing with European politics was maintaining the precarious balance of power that existed on the continent during the onset of the First World

16 Bear F. Braumoeller, ‘The Myth of American Isolationism’, Foreign Policy Analysis, No. 6 (2010), p. 349. 17 Bernard Jr. Fensterwald, ‘The Anatomy of American Isolationism and Expansionism. Part I’, The Journal of Conflict Resolution, No. 2 (1958), p. 111. 18 Ibidem, pp. 111-12. 19 Ibidem, p. 135. 20 James A. Jr. Field, ‘American Imperialism:The Worst Chapter in Almost Any Book’, The American Historical Review, No. 3 (1978), p. 648. 21 Albert J. Beveridge, ‘In Support of an American Empire’, Teachingamericanhistory.org, retrieved from: http:// teachingamericanhistory.org/library/document/in-support-of-an-american-empire/ on April 23, 2015. 22 Simone E. Baldwin, ‘The International Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World: Appendix’, The American Journal of International Law, No. 3 (1907), pp.808-829. 23 T.C.W. Blanning, Short Oxford History of Europe: the Nineteenth Century, Oxford: Oxford University Press, 2000, pp. 188-200. Van der Huizen 8!

War. Yet, the increasing presence of the United States on the world stage combined with the rise in power of the German Empire brought a lot of uncertainties for the old diplomatic order. After defeating the French in 1871, Germany had emerged as one of the major powers in Europe. Under Bismarck’s leadership the German economic sector thrived and when Kaiser Wilhelm II came to power in 1888 he sought to model the German Empire on that of the British by expanding its naval power, thinking that a strong overseas empire would increase his country’s wealth and of course, his own prestige.24 This new military policy caused a chain reaction across Europe that would eventually result in the mass mobilization of the entire continent. The Franco-German rivalry was rekindled once more and tensions with Great Britain rose due to the construction of a German navy designed to attack the British Empire. The strong Austro-German support made Russia look to France for a new ally despite the former alliance between Berlin and St. Petersburg. The strong focus on war industry, also referred to as a military-industrial complex, came to a head in the 1910s when one country’s armaments had become an excuse for another country’s army to expand.25 By 1914 relations amongst the European countries were so unstable that a single event in Sarajevo was able to unleash one of the most destructive wars in the history of Europe.26 It is interesting to note that before the 1914-1918 war, the focus of American foreign policy had not been on European affairs but mostly on Southern America. President Woodrow Wilson may be well known for his leadership during World War I, however, his military activities in Latin America prior to the war in Europe are less famous. Wilson was convinced that by making these countries organize themselves along the same principles of democracy as the United States he would serve the interest of the people and help maintain the peace in a part of the world that is so close to the US. His high-minded foreign policy was a sign of the American tendency of spreading the democratic principles that their own country was founded on to other parts of the world. American involvement in the First World War brought around some changes on the transatlantic front. America’s economy developed in such a way that the country now had the economic power to become a true world power.27 For Europe the war had been a symbol of the decline of its own status in the world. During peace treaty negotiations in 1919 and 1920 its demise became even more apparent as France, Italy, Great Britain and the United States of America set out to redraw the continent’s national frontiers. After the war, the empires that had determined the political landscape of the continent for centuries, started to disintegrate. The Russian Empire had ceased to exist after the 1917 revolutions.28 The treaty of Versailles saw to the end of the German Empire and the Treaties of Saint-Germain-en-Laye and Trianon dismantled the Austro-Hungarian Empire and last but not least, the great Ottoman Empire was stripped of most of its territory and was only allowed to keep a small foothold in Europe.29 The collapse of these empires would have left vast parts of Europe unstable were it not for Wilson’s insistence on national self-determination that allowed the treaties to create independent states for minority populations who were previously part of the

24 Christopher Clark, The Sleepwalkers: How Europe Went to War in 1914, London: Penguin UK, 2012, pp. 141-51. 25 Norman Stone, A Short WWI History, London: Penguin Books, 2008, p. 14. 26 Tony Judt, Postwar: A history of Europe since 1945, London: Vintage Books, 2005, p. 4. 27 Margaret Macmillan, Peacemakers: Six months that changed the world, London: John Murray, 2002, p. 10. 28 Julian Jackson, Short Oxford History of Europe: Europe 1900-1945, Oxford: Oxford University Press, 2002, p.192. 29 Idem, pp. 138-45. Van der Huizen 9! fallen empires.30 It is ironic that the president who in other parts of the world had used military and almost imperialistic methods to bring peace now argued in favor of the independence of small nation-states in Europe. Yet, new nation-states such as the Weimar Republic in Germany, were founded on parliamentary regimes based on universal suffrage. It seemed as if Wilson had once again succeeded in spreading the Anglo-Saxon ideals of liberal democracy and collective security to the rest of world, be it this time through diplomatic talks and international treaties. Despite the new found status of the US, Wilson was not able to convince the US Congress of the benefits of becoming a member of the new League of Nations, an intergovernmental organization whose main goal was to maintain world peace. Public opinion in America showed a strong desire for a return to normalcy, meaning a return to a more traditional form of foreign policy with less intervention in Europe.31 The new territorial division in Europe was not successful in preventing the turbulent years that would follow. The new balance of power created by the treaties was in favor of the victors and the economic instability caused by the German refusal to pay for the damages of the Great War was used by the National Socialist German Workers’ Party (NSDAP) to gain popularity amongst the German public.32 After its leader, Adolf Hitler, came to power during the 1930s he slowly started to dismantle Europe’s peace insurance and on the third of September 1939 both Britain and France declared war on Germany.33 The war quickly spread to a large number of countries, first in Europe and later in de Asia-Pacific region. In matter of months the conflict escalated into a world war and the axis powers, Germany, Italy and Japan were victorious on all fronts. In July 1941 the Japanese army took control of French-Indochina, forcing the United States to increase its support for China with an oil embargo against Japan. Nevertheless, it was not until the attack of the Japanese Empire on Pearl Harbor at the end of 1941 that the Americans became militarily involved in the war.34 With American interference the globalization of the war was now complete. In spite of the added military power to the Allied cause it was Russia that managed to stop the German war machine and prevented it from expanding its territory any further. The success of the Normandy Campaign of June 1944 was the next sign that an Allied victory was at hand. In late April of 1945 German forces began to surrender and by the eighth of May the Allies declared victory in Europe.35 Japan surrendered in September of that same year.36 It is from this point in history onwards that the relations between Europe and the United States of America took a new direction as they began to resemble the structures we are familiar with today. It was also the start of closer cooperation between nations on security and defense strategy.

30 ‘Transcript of President Woodrow Wilson's 14 Points (1918)’, retrieved from: http://www.ourdocuments.gov/doc.php? doc=62&page=transcript on April 23, 2015. 31 Bernard Jr. Fensterwald, ’The Anatomy of American Isolationism and Expansionism. Part I’, The Journal of Conflict Resolution, No. 2 (1958), p. 121. 32 Ibidem, p. vii. 33 ‘The Transcript of Neville Chamberlain's Declaration of war’, BBC Archive 1939, retrieved from: http:// www.bbc.co.uk/archive/ww2outbreak/7957.shtml?page=txt on April 20, 2015. 34 Bear F. Braumoeller, ’The Myth of American Isolationism’, Foreign Policy Analysis, No. 6 (2010), pp. 253-4. 35 ‘Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers; June 5, 1945’, Yale Law School The Avalon Project: Documents in Law, History and Diplomacy, retrieved from: http:// avalon.law.yale.edu/wwii/ger01.asp on April 20, 2015. 36 ‘Formal surrender by the Senior Japanese Ground, Sea, Air and Auxiliary Forces Commands within Korea South of 38 North Latitude to the Commanding General, Unites States Army Forces in Korea, for and in behalf of the Commander in Chief United States Army Forces, Pacific’, Yale Law School The Avalon Project: Documents in Law, History and Diplomacy, retrieved from: http://avalon.law.yale.edu/wwii/j1.asp on April 20, 2015. Van der Huizen 10!

1.2 The Cold War and American national security During World War II it had already become apparent that there was a lot of distrust and also disagreement amongst the Allies themselves. A confrontation between Stalin’s Soviet ambitions and the contrasting liberal ideals of America seemed unavoidable. For the Soviets the war had been about defending their borders and restoring its power after the revolutionary period preceding the war, but what started as a campaign to secure the western frontiers of Russia quickly radicalized towards a policy of state control that spread to the nations of Eastern Europe. The countries that fell under its influence were those where the Red Army had pushed back the army of the Third Reich. These satellite states were under control of the Soviet government and their policies were determined by the Marxist ideals promoted by the government.37 For the Unites States their participation on the European front had been a reaction to the spread of Nazism across Europe since there had never been an imminent threat to their own boarders. Yet, the US saw in Communism the same threat they had seen in National Socialism. Even though the Red Army and the United States Armed Forces fought side by side during the war, a rivalry between the USA and the USSR started to emerge. America was afraid that the USSR wanted to expand its sphere of influence by destroying democratic and capitalistic institutions, first in Europe and subsequently across the rest of the world.38 Meanwhile, the Soviet Union fought against American capitalism because of its support of the bourgeoisie class and its rejection of an almighty proletariat.39 The primary battleground of this ‘clash of civilizations’ was the European continent - especially Germany which was divided into several parts - but during the 1950s the conflict reached a global level and divided the world in three sections:

1. The Western world and other parts of the world that embraced capitalism and a more or less democratic form of government. 2. The USSR and its satellite states. 3. Everyone else or the third world. This part of the world was initially not involved in the capitalism versus communism conflict, but could not always remain neutral.40

Geopolitical power conflicts such as the Cold War were not an original concept. However, the technological advancements during this war on both sides of the Iron Curtain made the circumstances of this conflict somewhat different than the previous ones. Nuclear missiles had been developed during WWII and were used by the Allies to end the Japanese offensive. In August 1949 the Soviet Union had already conducted its own successful nuclear tests and the USSR became the second nation to have this power at their disposal. The major nuclear arms race between the United States and the USSR that followed made the stockpile of

37 Tony Judt, ‘The Past is another Country: Myth and Memory in Postwar Europe’, A Journal of Social and Political Theory, No. 87 (1996), pp. 43-44. 38 John L. Gaddis, Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy, Oxford: Oxford University Press, 1982, pp. 33. 39 Phil Gasper (ed.), The Communist Manifesto Karl Marx and Frederick Engels, a Road Map to History’s Most Important Political Document, Chicago: Haymarket Books, 2005, pp. 43-48. 40 Samuel P. Huntington, ‘The Clash of Civilizations?’, Foreign Affairs, No. 3 (1993), p. 23. Van der Huizen 11! nuclear weapons at the disposal of both parties grow rapidly.41 The ability to annihilate each other with the push of just one button was a very new phenomenon in world history. Once it had become clear that Stalin was not the benign figure US propaganda had made him out to be during the wartime years, America entered a period of unprecedented military mobilization during peacetime.42 As early as 1947 President Truman announced to the United States Congress that he would support - financially or militarily - any country threatened by the Soviet Union. The Truman Doctrine set a precedent for American governments still to come and would determine its foreign policy for the next fifty years.43 America’s aim was to enable its allies to rebuild their economies and shape them into a capitalistic and democratic way to prevent their people from turning to communism. In America itself the Office of Strategic Services (OSS), the wartime intelligence organization, had been dismantled in September 1945 in order to declassify its records. Four months after the disappearance of the OSS, the Central Intelligence Group was created, the forerunner of its more famous successor, the Central Intelligence Agency (CIA).44 This was made possible by the National Security Act of 1947, which rearranged the US military under the executive power of the Secretary of Defense and also created the National Security Council to assist the president on matters of national security and foreign policy. On the European side, plans were made for a new security strategy which ultimately involved a lot of cooperation with the US. Security and intelligence agencies of the Allied countries had already enhanced their collaboration during the war, but with the stakes getting higher efforts for collaboration were doubled. One of them, the UKUSA Security Agreement or Five Eyes, was signed in 1949 and entailed an exchange in intelligence between the five parties involved meaning the United Kingdom, the United States, Australia, Canada and New Zealand.45 The existence of this treaty was shrouded in so much secrecy that it was not made public until the twenty-first century. In 2001 the European Parliament published a report called “Report on the existence of a global system for the interception of private and commercial communications”. The report spoke the ECHELON program that came into being due to the collaboration between the five countries and was supposed to keep an eye on communications in the Soviet Union. According to the European Parliament the program had developed itself far beyond its original purpose after the Iron Curtain came down.46 American presence on European soil gave the country the opportunity to expand its markets. Creating a “wall of capitalism to surround and isolate the communistic threat was part of the politics of

41 Henry A. Kissinger, Nuclear Weapons and Foreign Policy, Toronto: W.W. Norton and Company Inc., 1969, p. 99-100. 42 ‘U.S. - Soviet Alliance’, U.S. Department of State Office of the Historian, retrieved from: https://history.state.gov/ milestones/1937-1945/us-soviet on April 30, 2015. 43 Tony Judt, Postwar: A history of Europe since 1945, London: Vintage Books, 2005, p.127. 44 John L. Gaddis, ‘Intelligence, Espionage and Cold War Origins’, Diplomatic History, No. 2 (1989), pp. 191-2. 45 Martin Rudner, ‘Canada’s Communication Security Establishment from Cold War to Globalization’, in: Matthew M. Aid and Cees Wiebes ed., Secrets of Signals Intelligence during the Cold War and beyond, New York: Frank Cass Publishers, 2005, p. 109. 46 ‘Report on the existence of a global system for the interception of private and commercial communications (ECHELON interception system) (2001/2098(INI))’, European Parliament, retrieved from: http:// www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A5-2001-0264+0+DOC+PDF+V0// EN&language=EN on April 30, 2015, p. 13. Van der Huizen 12! containment” conducted by the US.47 The flip side of his strategy was the support America gave to administrations that had dictatorial aspirations and whose ambitions were thus indirectly funded by the world greatest advocate for democracy and freedom. Many of these endorsements lead to unstoppable situations. For one, the anti-communist forces in Afghanistan were backed by the US during the 1970s, but have produced some of the most fanatic member of the Taliban.48 Many dubious Latin-American governments which later on turned into military dictatorships, were upheld through American support. President Truman’s support for the rehabilitation of Western Europe was thus motivated by a fear of communism. A great amount of money was invested in the continent by means of the Marshall Plan starting April 1948: in four years seventeen billion dollars were spend to make Europe prosperous again.49 The North Atlantic Alliance (NATO) and the United Nations were also tools to stop the spread of the Soviet Union.50 Despite the disappearance of the Soviet threat, these intergovernmental diplomatic and military alliances still exist until this day and have contributed to the exchange of information regarding the national surveillance agencies of the member states. In 1952 a special NATO committee was set up especially for this purpose, making it one of the oldest and largest intelligence exchange mechanisms amongst the NATO allies. By the start of the 1960s the Cold War was over a decade old and its contours had been established. Neither the containment politics of the Truman administration, nor the more rigorous tactics of President Eisenhower, who called the struggle ‘A Crusade for Freedom’, had helped to end the power of the USSR and the confrontation between capitalist freedom and communist totalitarianism continued.51

1.3 Postwar European security policy With the help of American money and cooperation, the European continent had started to rebuild itself. After two devastating wars Europe was finally seeking a permanent solution for peaceful coexistence. The Marshall Recovery plan had provided the first step to closer cooperation by forcing the countries to set aside their differences and work together to divide the resources. However, the most crucial step towards change came from a French diplomat who went by the name of Jean Monnet. His plan called for an alliance between Western European countries, in particular France and West Germany. The alliance would be called the European Coal and Steel Community (ECSC) and was intended to unify Europe by neutralizing national competition over natural resources between nations through a common market.52 Two years after presenting the plan, the Treaty of Paris was signed in 1951, establishing the ECSC. The alliance between France and West Germany thus formed the basis for a lasting peace in Western Europe. The European Economic Community (EEC) and the European Atomic Energy Community (Eurotom) were both established by the

47 John L. Gaddis, Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy, Oxford: Oxford University Press, 1982, p. 4. 48 Zalmay Khalilzad, ‘Afghanistan and the Crisis of American Foreign Policy’, Survival: Global Politics and Strategy, No. 4 (1980), pp. 157-9. 49 Tony, Judt, Postwar: A History of Europe since 1945, London: Vintage Books, 2010, pp. 91-3. 50 John L. Gaddis, Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy, Oxford: Oxford University Press, 1982, pp. 114-5. 51 Martin J. Medhurst, ‘Eisenhower and the Crusade for Freedom: The Rhetorical Origins of a Cold War Campaign’, Presidential Studies Quarterly, No. 4 (1997), p. 647. 52 Desmon Dinan, Ever Closer Union: An Introduction to European Integration, Boulder: Lynne Rienner Publishers, 2005, pp. 26-30. Van der Huizen 13! signing of the Treaty of Rome in 1957. These three organizations would later on merge into the European Union (EU) and form one of the pillars created by the Maastricht Treaty of 1992. Following the establishment of a more lasting European agreement for peace there were a number of key events that were of importance to the development of the transatlantic relations. First there was the crisis situation in Egypt concerning the Suez Canal in 1956 proving to the former imperial powers France and Britain that their time in the colonial spotlight was over. Without the aid of the military and financial might of America they would not be able to continue their dominion over the strategically important Egyptian canal. This crisis was followed by another in 1962 when the nuclear arms race lead to the Soviet Union installing missiles on Cuban territory which in turn lead to the US threatening with military action.53 The Cold War which had remained quite frosty up until that point was now at risk of escalating into a full blown nuclear war. Once again the Europeans found themselves in the middle of this geopolitical power struggle and were worried about the repercussions of it. The next calamity was the Vietnam War. This conflict divided political and public opinion on the European side and created resentment in American politics for the lack of support from some of its closest allies. The decolonization process had been anything but smooth for all European countries involved and it had been the anti-colonial pressure from the US - combined with the economic hardship that followed the WWII- that had led to the disintegration of what remained from the European empires.54 Few countries were therefore willing to involve themselves in another conflict. France fought a bitter war in Vietnam in an attempt to hold on to its former glory and by 1962 it had lost nearly its entire overseas empire. Therefore, French support for any American military undertaking was not likely to happen.55 As far as security surveillance policy goes, France had its own elaborate secret service network that is able to assemble the necessary information of all the communications going in and out of France. The Direction Générale de la Sécurité Extérieure (DGSE) is the agency that gathers foreign intelligence. It was run by military personal until the late 1990s and nowadays still operates under the supervision of the Ministry of Defense. As all other secret agencies its actions usually remain secret, nevertheless DGSE has been involved in several international scandals. In 1985 it was responsible for the sinking of a Greenpeace ship just off the coast of New Zealand. This of course, caused outrage in New Zealand for violating their territorial sovereignty.56 Furthermore, there were also rumors that the agency was involved in a grand scale intelligence operation against American business people: “Along with the champagne, the caviar and the chateaubriand on these flights, there may be microphones hidden in the seats and French government spies posing as passengers or flight attendants”.57 French governments might have been reluctant to support some military actions of the US but both countries have helped each other in the field on surveillance intelligence exchange.

53 Tony Judt, Postwar: A History of Europe since 1945, London: Vintage Books, 2010, p. 254. 54 Tony Smith, ‘A Comparative Study of French and British Decolonization’, Comparative studies in Society and History, No. 1 (1978), pp. 70-71. 55 Wilfried Mausbach, ‘European Perspectives on the War in Vietnam’, GHI Bulletin, No. 30 (2002), p. 81. 56 Charles Bremner, ‘Mitterand ordered bombing of Rainbow Warrior, spy chief says’, The Times, retrieved from: http:// www.thetimes.co.uk/tto/news/world/article1980551.ece on April 30, 2015. 57 ‘French have been spying on U.S. Businesses, NBC claims’, Deseret News, retrieved from: http:// www.deseretnews.com/article/182953/FRENCH-HAVE-BEEN-SPYING-ON-US-BUSINESSES-NBC-SAYS.html? pg=all on April 30, 2015. Van der Huizen 14!

For Great Britain on the other hand the ‘special relationship’ with the United States had a great deal of influence on its security policy. Since the Second World War the United Kingdom has been America’s most loyal ally. Their collaboration regarding security surveillance has not limited itself to the Five Eyes Agreement. Cooperation and information exchange with the American services has been an asset for both the CIA and MI6.58 The Secret Intelligence Service (SIS) or MI6 supplies the British government with foreign intelligence while its sister organization, MI5 takes care of internal intelligence. Both agencies are responsible for national security and are aided in their endeavor to remain secret by the Official Secrets Act. The act states that “[…] it [is] a criminal offense to disclose any official information without lawful authority”.59 MI6 played a crucial role in defeating Nazi Germany by feeding the enemy false information, but before the war the agency did assist the Gestapo with gathering information regarding communism in Europe.60 It suffered further embarrassment during the Cold War when it was discovered that several operations had been compromised by MI6 agents who had been recruited by the Soviet Union.61 In the post- Cold War era the agency gained different priorities and was determined to be more open and transparent towards the public about its activities. As a result the Intelligence Services Act was drawn up, binding the British intelligence agencies to the supervision of the Parliament Intelligence and Security Committee.62

1.4 German reunification When in 1963 German politician Egon Bahr proposed a rapprochement between East and West Germany it created great unease with the Americans. To them the division of Germany had created a buffer zone between the West and communism, without this zone the Soviets would have easier access to part of Europe not yet under their control. The first post-war chancellor of the Federal Republic of Germany (FRG), Konrad Adenauer, had refused to recognize the legitimacy of the German Democratic Republic (GDR), thus holding off any cooperation. However, with the EEC leadership in disarray due to the empty chair crisis in 1965 and the US distracted by the war in Vietnam, the FRG started to look to East-Germany for a political alliance.63 Much to the displeasure of the Americans, Chancellor Willy Brandt started to implement a so called Neue Ostpolitik towards the GDR that would achieve a certain degree of cooperation and communication with the Eastern part of Germany.64 The US was still unshakable in its politics of containment and isolation towards everything that had to do with the Soviet Union or communism. In their eyes German reunification posed a possible threat to their own democratic freedom. Additionally, their European allies were starting to become

58 Martin Rudner, ‘Canada’s Communication Security Establishment from Cold War to Globalization’, in: Matthew M. Aid and Cees Wiebes ed., Secrets of Signals Intelligence during the Cold War and beyond, New York: Frank Cass Publishers, 2005, p. 109. 59 ‘Nationality Instructions Procedural section The Official Secrets Act 1989’, retrieved from: https://www.gov.uk/ government/uploads/system/uploads/attachment_data/file/264795/officalsecretsact.pdf on May 10, 2015. 60 Tony Rennel, ‘The Nazi monster recruited by MI6 to spy for Britain’, The Mail Online, retrieved from: http:// www.dailymail.co.uk/news/article-1202005/The-Nazi-monster-recruited-MI6.html on May 10, 2015. 61 ‘Five of the most notable defections’, The Telegraph, retrieved from: http://www.telegraph.co.uk/news/worldnews/ asia/china/7912237/Five-of-the-most-notable-defections.html on May 10, 2015. 62 ‘Intelligence Services Act 1994 schedule 3’, UK Parliament, retrieved from: http://www.legislation.gov.uk/ukpga/ 1994/13/pdfs/ukpga_19940013_en.pdf on May 10, 2015. 63 The empty chair crisis was a period of non participation from France in the institutions of the EEC. French President de Gaulle did not agree with the attempts of the European Commission to create a shift towards supranationalism. The crisis was resolved in January 1966 when an agreement was reached which stated that an unanimity of vote was needed when major interests were at stake. 64 Judt, Tony, Postwar: A History of Europe since 1945, London: Vintage Books, 2010, p.p 496-7. Van der Huizen 15! more and more economically independent which made it more difficult for America to exert influence over European politics. A new dynamic between Europe and the US started to take form. The US realized that it had neglected their European alliance for too long due to the development in Vietnam when a decision was made to form a European Monetary Union. In an attempt to patch up the relationship a New Atlantic Charter was launched under US Secretary of State Henry Kissinger and 1973 was declared the “Year of Europe”. The positive intentions quickly went South when Kissinger openly complained about the lack of leadership within the EC: “Who do I call if I want to call Europe?”.65 The charter was disrupted even further when unrest in the Middle East broke out and America found little support from their NATO allies for an intervention given their dependence on Middle East oil.66 The Middle East conflict started when an Arab coalition launched a surprise attack on Israel on Yom Kippur or Day of Atonement, a holy day for Judaism. The US showed a resolute support for Israel during this conflict, as did the Soviet Union to the Arabic coalition.67 Frustrations levels were high on both sides of the Atlantic and the EU-US relations were brought to a breaking point as Europe was, once again, caught between a near- confrontation between two nuclear superpowers. The second oil-crisis in 1979 and the invasion of Afghanistan by the USSR confirmed the divergent points of views Americans and Europeans held when it came to dealing with the Russians. America immediately opted for sanctions against the Soviets, while Europe was more hesitant and reluctant to make a decision.68 The new decade brought a new American president and a new foreign policy. During the previous years of struggle Europe had learned to depend on itself and had adopted more inward-looking policies. The political leaders of the EC had started initiatives to deepen cooperation between the members. The European Monetary System was created and the first steps towards a Single Market were made, one of the most transformative initiates in the history of the EC. To say that the ties between the US and the EC were weakened at the start of the 1980s would be an understatement, but the arrival of a new Soviet leader would bring change. Mikhail Gorbachev took office in 1985 and showed a more favorable attitude towards America and Western-Europe. Under his leadership diplomatic relations improved and trade agreements were made between both sides. Yet, no one expected the events of November 1989. The destruction of the Berlin Wall accelerated history: within a few months the Eastern frontiers were opened, the Soviet Union dismantled and with it the Cold War came to an end.69 The reunification of Germany was a momentous event in European history but it also highlighted once more the division between the EU and US. While the EU was afraid the unification could seriously disrupt the European integration process and once more make Germany the dominant party on the continent, the US saw it as an internal matter for Germany and saw no reason the get involved. Fortunately, Chancellor

65 Spiegel interview with Henry Kissinger, Spiegel, retrieved from: http://www.spiegel.de/international/world/spiegel- interview-with-henry-kissinger-europeans-hide-behind-the-unpopularity-of-president-bush-a-535964.html on April 24, 2015. 66 Maria G. Cowles and Michelle Egan, ’The Evolution of the Transatlantic Partnership’, Transworld, No. 3 (2012), p. 10. 67 William B. Quandt, ‘ Soviet Policy in the October 1973 War’, Office of Defense for National Security Affairs (ISA), 1976, pp. 13-31. 68 Maria G. Cowles and Michelle Egan, ‘The Evolution of the Transatlantic Partnership’, Transworld, No. 3 (2012), p. 11. 69 Jacques Delors, ‘Speech at opening of the academic year of the College of Europe’, Bruges, retrieved from: http:// www.coleurope.eu/sites/default/files/speech-files/1989-1990.pdf. on April 24, 2015. Van der Huizen 16!

Helmut Kohl was able to calm the Europeans by stating that “the future architecture of Germany must be fitted into the future architecture of Europe as a whole” and Franco-German cooperation must be encouraged.70 The integration of the European community went even further with the creation of the European Union in 1992 after the singing of the Treaty of Maastricht, which introduced a common Foreign and Security Policy, a European Monetary Union and a Justice and Home Affairs department.71 Included in the Common Foreign and Security Policy was the creation of Europol, an organization that would ensure European cooperation on the exchange of criminal intelligence. In 2001 after the terrorist attacks on New York and Washington D.C., the collaboration would be extended with a Counter Terrorism Task Force. Yet again this deepening of European cooperation made America uncomfortable: if the Europeans would be able to agree on a defense policy of their own, the role of NATO would become less important and with that the position of the US would be less powerful. America’s fear soon became irrelevant when the war in Yugoslavia started and the Western European Union was unable to come up with a swift common response and proofed incompetent in dealing with the conflict. After the Srebrenica massacre in July 1995, where almost 8000 boys and men were killed, the US was forced to step in to prevent any further killings.72 The failure of the EU brought on an incentive for renewing the transatlantic commitment. On the peacekeeping front the Partnership For Peace (PFP) was created to strengthen the position of NATO and with that American influence on EU security policy was assured.73 After the attacks of 9/11 previous feuds between European powers and the new Bush administration seemed to fade away for a brief period as article five of the NATO treaty was invoked for the first time in its history: “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all […]”.74 In America the attacks had brought the country together, people wanted to show that even if they were traumatized they were not defeated. George Bush’s popularity soured because of his resolve to bring those who had attacked the US to justice. According to him terrorists had attacked America “because [they] loved freedom and [the terrorists] hated freedom”. He created a new guideline for American foreign policy, the Bush Doctrine, which made no distinction between the terroristic groups and the nations harboring them. The ultimate goal of the Doctrine was to make the world a safer place - especially for the US - and spread freedom.75 Support in Europe quickly diminished after it became clear that Bush would not limit his so called War on Terror to the territory of Afghanistan but also planned on invading Iraq under the false pretense of the country possessing weapons of mass destruction. According to American officials Iraq was part of the so

70 Maria G. Cowles and Michelle Egan, ’The Evolution of the Transatlantic Partnership’, Transworld, No. 3 (2012), p. 13. 71 Desmon Dinan, Ever Closer Union: An Introduction to European Integration, Boulder: Lynne Rienner Publishers, 2005, pp. 118-23. 72 Helge Brunborg, Torkild Hovde and Lyngstad Henrik Urdal, ‘Accounting for genocide: How many were killed in Srebrenica?’, European Journal of Population, no. 19 (2003). pp. 244-245. 73John Borawski, ‘Partnership for Peace and beyond’, International Affairs, No. 2 (1995), p. 233. 74 Article 5, North Atlantic Treaty (1949), retrieved from: http://www.nato.int/cps/en/SID-ECAE8DB0-F591EC88/ natolive/official_texts_17120.htm on April 4th, 2015. 75 George W. Bush, The National Security Strategy of the United States of America, Washington: The White House, 2002. Van der Huizen 17! called “Axis of Evil”, together with Iran and North Korea.76 France and Germany decided against an attack on Iraq and the US found itself supported by only a small amount of allies, Britain and the Netherlands being amongst them.77 In retrospect it is easy to say that the invasion of Iraq was a mistake, since we now know there were no weapons of mass destruction of any kind to be found and that the country descended into sectarian chaos after the American and coalition forces invaded. At the time the invasion was justified by the all-embracing umbrella of national security. The candidacy of Barack Obama in 2008 was highly anticipated in Europe and was expected to bring change to the international stage of politics. Prior to his election Obama spoke of respect for human rights, tackling global warming and a foreign policy based on diplomacy, things George W. Bush had neglected during most of his presidency. Regardless of the great anticipations, Obama’s words had been more theory than action since he continued in the same line as Bush. Even though he promoted a more multilateral approach, his actions showed that he would only follow this line if it was necessary and would benefit America. Transatlantic relations were strengthen when Obama decided to stop referring to a “war on terrorism” and captured Osama bin Laden, the brain behind the 9/11 attacks.78 He also succeeded in pulling American troops out of Iraq. He did however, not succeed in closing down Guantanamo Bay or change America’s climate policy in any significant way. His renewed focus on Asia has also raised some eyebrows amongst European leaders, even though American officials have repeatedly stated that this commitment is not in any way meant to diminish their relationship with Europe.79

1.5 Conclusion The relationship between the United States and Europe has been one of continued cooperation with mixed feelings on both sides. The postwar period saw the creation of an alliance between a new power and the old European powers. Europe was depending on America for its economy and security and gladly accepted economic aid with after the Second World War. Yet, at the beginning of the fifties the relationship already started to show some cracks. The Suez crisis had made it painfully clear to Britain and France that they were no longer world powers who could act on their own terms. The anti-colonial stance of the Americans made resentment grow quickly amongst Europeans who wanted to hold on to their empires. However, due to the power of the USSR and the spread of communism across Eastern-Europe there was also a reason for cooperation. To America, Western Europe was a buffer zone against the threat of communist totalitarianism. The Truman Doctrine implemented from the fifties onwards deepened the Euro-US collaboration even further. With the financial support of the US, Europe slowly started to recover from its wartime damages and subsequently opted for more independency from America. This worried the US as the status quo was working just fine for them. On the other hand, collaboration between the Europeans was also to be encouraged as the continent had the unfortunate tendency to wage suicidal wars against each other. The

76 George W. Bush, ‘President Delivers State of the Union Address’, retrieved from: http://georgewbush- whitehouse.archives.gov/news/releases/2002/01/print/20020129-11.html on April 30, 2015. 77 Jiri Sedivy and Marcin Zaborowski, ’Old Europe, New Europe and the Transatlantic Relations’, European Security, No. 3 (2010), pp.190-1. 78 Zaki Laïdi, Limited Achievements: Obama’s Foreign Policy, Basingstoke: Palgrave Macmillan, 2012, p. 66. 79 Maria G. Cowles and Michelle Egan, ‘The Evolution of the Transatlantic Partnership’, Transworld, No. 3 (2012), p. 20. Van der Huizen 18! creation of the ECSC and its successors ensured that European states were connected in such a way that starting a new war was made almost impossible. Cooperation and integration were the two new key features of European diplomacy. During the years of the Cold War the link between both continents was constant and of great necessity, but the lack of agreement amongst Europe’s leader has often been a source of frustration for the US. Henry Kissinger was not the first and will certainly not be the last to complain about the lack of leadership and commons purpose in the European community. The reluctance of Europeans to get militarily involved in non-European conflicts has remained a breaking point in the relationship. European hesitance towards involvement in any kind of intervention stems from a difference in cultural background and historical experiences as was made clear by the background discussed in this chapter. Previous experiences regarding military action have never ended well for Europe, but especially World War I and II have influenced Europe’s attitude toward military action, on their own territory and beyond. Nevertheless, it remains clear that commons threats have always been able to strengthen the alliance between Europe and the US and bring both parties together. The history of EU-US relations demonstrates that on numerous occasions Europe has been disappointed by the actions of American presidents even when they had promised a more Europe friendly foreign policy. The relationship has been one that has often been fueled by fear: fear for Nazism, fear for communism or a fear for the creation of a common European market that is impenetrable for American investments. There has never been a golden age of transatlantic relations and I am confident in saying that there will never be one. However, this partnership has lasted for more than sixty years and that makes it impossible to say that the transatlantic relationship has lost its significance. It has simply evolved and adapted itself to the changes of national and international politics and diplomacy. Yes, Americans and Europeans have different ways of looking at the world and this has often been the cause of diplomatic conflicts, but in a world where national affairs are more and more affected by what happens on the international stage, both parties have become increasingly dependent on each other which will ensure the continuation of their transatlantic relationship. Van der Huizen 19!

2. Methodology

This chapter will explain the methodology used for this research. First, a short explanation of the process that was followed to get to the theoretical framework for this essay will be given. Second, the method used to conduct the media analysis of chapter four will be laid out.

2.1 Theoretical framework The theoretical framework that will support the media analysis is discussed in chapter three. Following the conclusion of this chapter the collected newspaper articles or passages of the newspaper articles have been divided into several subcategories:

1. Security and individual human rights 2. American domestic and foreign surveillance policy 3. European surveillance and American surveillance

The different categories will make sure the content of the next chapters is well-ordered and easy to keep track of. In chapter three the various aspects of the subsections have been analyzed such as human rights and domestic versus foreign surveillance policy in the US. While in chapter four the subsections have been used to divide the chapter into three parts. All articles were read with a special focus on passages that touch on security legislation and the implications for fundamental rights, the differences between domestic and foreign surveillance strategy and last but not least, the analysis put a spotlight on the American surveillance legislation and their European counterparts. The subsections were put together with the help of the work of Daniele Glaser, Marci Milanovic and Jack Balkin. All have a special focus on human rights and the threat secret services pose to these rights. In The CIA in Western Europe and the Abuse of Human Rights, Daniele Glaser examines the activities of the CIA in Europe during the Cold War and gives a good perspective on the history of American surveillance in Europe.80 Glaser is especially interested in the covert operations of the CIA in Europe after the Second World War. According to the author it is extremely challenging for academics and journalists to uncover what really took place in Europe during the Cold War since access to information is limited:

Research into CIA covert action and human rights violations in Europe remains a challenging task for academics, as the evidence available is limited, morally sensitive and at times contradictory. […] When the stay-behind networks were discovered in 1990 the press observed that the ‘story seems straight from the pages of a political thriller’ and argued that this large international covert action program represented ‘the best-kept, and most damaging, political-military secret since World War II’. Beyond such sensational journalism the hard facts were, however, much more difficult to come by. Also 15 years later it remains unclear when or whether the full story on the CIA stay-behind operations in Western Europe will be available for a larger public.

80 Daniele Glaser, ‘The CIA in Western Europe and the Abuse of Human Rights’, Intelligence and National Security, No. 5 (2006), pp. 760-81. Van der Huizen 20!

If it is difficult for academics or journalists to uncover the actions of the CIA during the Cold War, a period that took place almost three decades ago, one can imagine that it is almost impossible to investigate the present activities of secret services without the help of whistleblowers such as Edward Snowden. Jack Balkin on the other hand focuses more on the future and the possible existence of a national surveillance state that is authorized to invade citizen’s privacy at all cost in order to protect national security:

In the National Surveillance State, the government uses surveillance, data collection, collation, and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveil- lance State is a special case of the Information State-a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.81

Balkin also provides an insight on the effects of the involvement of the private sector in government surveillance.82 Furthermore, Marko Milanovic provides a more legal approach to the development of security policy in western countries.83 In his essay Human Rights Treaties and Foreign Surveillance, Milanovic focuses on the legality of the surveillance programs put into place by primarily the US and Great Britain. Although the main issue of Milanovic’s paper is foreign surveillance, he starts by taking a look at the different domestic laws that are in place to protect privacy and then graduates to international law and their effect on national surveillance policy:

The primary purpose of this article is to advance this conversation by looking at one specific, threshold issue: whether human rights treaties such as the ICCPR and the ECHR even apply to foreign surveillance. […] The article will show that while there is much uncertainty in how the existing case law on the jurisdictional threshold issues might apply to foreign surveillance, this uncertainty should not be overestimated – even if it can and is being exploited.[…] The only truly coherent approach to the threshold question of applicability, I will argue, is that human rights treaties should apply to virtually all foreign surveillance activities. That the treaties apply to such activities, however, does not mean that they are necessarily unlawful. Rather, the lawfulness of a given foreign surveillance program is subject to a fact-specific examination on the merits of its compliance with the right to privacy, and in that, I submit, foreign surveillance activities are no different from purely domestic ones.84

Since the term surveillance can have a very broad meaning it is best to clearly define the meaning of the concept that will be used as a guideline in this thesis. Marco Milanovic has provided the following definition:

[A]n umbrella term encompassing a wide range of activities conducted for the purpose of gathering intelligence, ranging from audio-visual observation or surveillance in a narrower sense, the interception of

81Jack M. Balkin, ‘The Constitution in the National Surveillance State’, Minnesota Law Review, No. 1 (2008), pp. 1-25. 82 Ibidem, pp. 4-5. 83 Marko Milanovic, ‘Human Rights and the Foreign Surveillance: Privacy in the Digital Age’, Harvard International Law Journal, (2014), pp. 1-77. 84 Ibidem, pp. 7-9. Van der Huizen 21!

communications, electronic and otherwise, to the collection, storage, processing, and transfer of personal data to third parties.85

Keeping in the same line as the Milanovic approach to surveillance policy, different levels of legislation were analyzed to form a theoretical framework. The different levels that have been used are national and international law. The right to privacy is a human right and therefore in most cases it is protected by either constitutional law or an international treaty. One of the main principles liberal democracies exist by is the rule of law and thus the respect of their own constitutional frameworks. Once it is clear how fundamental rights are protected, it also becomes clear under which circumstances they can be violated or restricted. Many of the laws have a passage mentioning national security as a justification for infringing upon privacy rights. Just as most of the surveillance legislation has a passage that mentions that they have been established for the sake of counterterrorism and are measures to ensure national security. In some cases their was no national legislation to provide the necessary protection against the implementation of surveillance activities. The United States for example have no constitutional law that explicitly protects privacy and are not bound to any international treaty regarding the protection of privacy. For EU countries this is different since EU legislation stands above national law of member states, as can be concluded from the rules of the European Court of Justice in the case Costa v. ENEL:

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.86

Since the signing of the Treaty of Lisbon the EU Charter for Fundamental Rights has become a legal binding document for all EU members since article 6 of the Lisbon Treaty states: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of […] which shall have the same legal value as the Treaties’. This article makes the Charter a binding document that has the same legal status as primary European Union law. Therefore, even if a European member state does not provide freedom of privacy in its own national laws, it will still be protected through European law. This entire frame of reference needs to be taken into account when analyzing cases of surveillance policy.

2.2 Newspaper analysis The documents leaked by Edward Snowden mid-2013 have been discussed extensively in both American and European media. This essay is focusing on international surveillance cooperation and its influence on the democratic principles in western society. Since Europe has been on the receiving end of the consequences of American surveillance laws this analysis of the Edward Snowden affair will be done by researching the reaction in Europe through media analysis. The kind of media outlet that is going to be used in this case was quite obvious, since Snowden selected newspapers as the media outlet to make the NSA documents public, it

85 Ibidem, p.7 86 ‘Costa v. ENEL Case 6/64’, Judgement of the European Court of Justice, retrieved from: http://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX:61964CJ0006 on May 25, 2015. Van der Huizen 22! seems only natural to use the same medium. Furthermore, it is in this medium that the greatest amount of information can be found. When asked about his motives for contacting newspapers for the revelation of the secret documents, Snowden confessed he knew nothing of journalism and had no previous experience with the press, but his main goal was to publish the classified information as quickly as possible to minimize the chances of interception by government authorities. Finding journalists who were prepared to listen to him and willing to take a considerable risk was therefore crucial.87 Additionally he chose two newspapers that were subjected to different juridical systems to avoid that one of them would become a so called Single Point of Failure:

It’s that concept of herd immunity. They run cover for the others. And particularly once you start splitting them over jurisdictions and things like that it becomes much more difficult to subvert their intentions. Nobody could stop it. But as an engineer, and particularly as somebody who worked in telecoms and things like that on these systems, the thing that you’re always terrified of when you’re thinking about reliability is SPOFs – Single Point Of Failure, right? This was the thing I told the journalists: “If the government thinks you’re the single point of failure, they’ll kill you.”88

In order to keep the analysis as comprehensible as possible the research will include newspapers of two member states of the European Union, namely the United Kingdom and France. These member states have played a role either in the NSA documents themselves or in the diplomatic chaos following the disclosure of the documents. British politics have been more supportive of the American foreign surveillance policy and have even played an active role in providing the NSA access to Europe. France on the other hand has a tendency of looking at American politics with a more critical eye. The different perspectives on the United States and its foreign policy and the different relations between the countries have been discussed in more detail in the previous chapter. One of the main points of interest of the newspaper analysis will be if this contrast between national politics is also translated into the way the events are reported in the media. One of the British newspaper used for this media analysis will be The Guardian. Journalists from this newspaper have been involved in the Snowden scandal from the beginning and stayed in contact with the whistleblower ever since. The information provided by this newspaper will possibly give a more extensive and useful insight into the development of the NSA scandal, together with the quality information it will provide seeing it is a newspaper known for its high standards when it comes to reliable journalism. To keep the amount of variables to a minimum the quality of the newspapers has been kept the same as much as possible. On the other hand it is also important for a media analysis to use data from sources with a different background. In this case the choice has been made to incorporate newspapers with different backgrounds by looking at the political orientation of the newspapers. For every country a paper was chosen that is considered to be more rightwing or conservative and a paper known for its more liberal point of view. For the United Kingdom The Daily Telegraph is used as a conservative newspaper and for France Le Figaro.89

87 Alan Rusbridger and Ewan MacAskill, ‘Edward Snowden interview the edited transcript’, The Guardian, 18 July 2014, retrieved from: http://www.theguardian.com/world/2014/jul/18/-sp-edward-snowden-nsa-whistleblower- interview-transcript on 20 June 2015. 88 Ibidem. 89 D. Wring and S. Ward, ‘The media and 2010 campaign: the television election?’ in: A. Geddes and J. Tonge (eds), Britain Votes 2010, Oxford: Oxford University Press, p. 230. Philippe Cohen, ‘Les Couleur Politique des médias’, Marianne, retrieved from: http://www.marianne.net/La-couleur- politique-des-medias_a217177.html on June 20, 2015. Van der Huizen 23!

The Guardian and Le Monde are more supportive of the leftwing parties in their countries.90 For the analysis it will be interesting to see if the difference in political inclination will also be reflected in the manner newspapers discus Edward Snowden’s actions. A thorough media analysis needs to meet certain requirements. It is important to have some guidelines before starting the data collection and analysis process. In this case most of the ground rules used for the approach of this analysis have been taken from Douglas Gould’s Writing a Media Analysis. He describes the analysis process as follows: “[…] analyses entail systematically taking a ‘slice’ of media coverage from a set time-frame, often in the top daily newspapers, magazines and broadcast news outlets”.91 First, as indicated by Gould, a timeframe was chosen to confine the research to a particular period of the Snowden affair. The timeframe used for this study case is three months, starting June 2013 until September 2013. To apply the theory of this thesis onto the entire collection of articles and documents released by Mr. Snowden since June 2013 is too ambitious for a research of this size. The results would have become far too complicated and unreliable to put into context.92 Furthermore, the number of articles that will be collected per newspaper needed to be established. For this research twenty articles have been collected for every newspaper, bringing the total number of newspaper articles used to eighty. Again, as indicated by Douglas Gould, this is only a sample of all the articles that were published on the subject of Edward Snowden but nonetheless is will provide a good impression of the events that took place. Since the data base that will be used for the analysis is an online data base called Lexisnexis Academic the exact search term that will be used needs to be determined as well. The search term used to find all these articles is “Edward Snowden”. Figure 1 shows the number of hits for the term Edward Snowden in Lexisnexis Academic for every newspaper between the first of June 2013 and the first of September 2013.

1. Search results “Edward Snowden” 600

1/6/2013 - 1/9/2013

450

300

150

0 The Daily Telegraph The Guardian Le Figaro Le Monde

90 Clyde Thogmartin, The National Daily Press of France, Birmingham: Summa Publications, 1998, p. 95. D. Wring and S. Ward, ‘The media and 2010 campaign: the television election?’ in: A. Geddes and J. Tonge (eds), Britain Votes 2010, Oxford: Oxford University Press, p. 230. 91Douglas Gould, ‘Writing a Media Analysis’, Communications Consortium Media Center, retrieved from: http:// www.ccmc.org/sites/default/files/WorkingPaper2.pdf on May 2, 2015. 92 Ibidem. Van der Huizen 24!

The amount of Guardian articles immediately jumps out. While the other three newspapers published around two hundred articles on Edward Snowden during the first three months after the NSA files were published, The Guardian published more than four times that amount. Since The Guardian was one of the newspapers Edward Snowden contacted to publish the classified documents, it does not seem strange that the journalist took a particular interest in him. Furthermore, there is in fact a difference in the amount of articles published by the leftwing newspapers and the rightwing. For the British papers the contrast is quite obvious, but the chart also shows a slight difference between Le Figaro and Le Monde, in favor of the latter. To put the information of the first diagram into perspective the second figure gives an overview of the amount of hits the word “espionage” gave in the database before and after the surveillance scandal was made public. The word espionage was used because the definition of the term is the same in both the English and French language.

2. Search results “espionage” 1/3/2013 - 31/5/2013 1/6/2013 - 1/9/2013 500

375

250

125

0 The Daily Telegraph The Guardian Le Figaro Le Monde

Again, the difference in search hits for The Guardian before and after the leaks is remarkable. It is also interesting that this newspaper already showed a greater interest for the subject than the other papers before the scandal broke. With 320 article in six months against an average of 232 for the other newspapers, The Guardian was already leading the way when it came to covering the topic of espionage. Nonetheless, all newspapers have shown a significant increase in interest for the subject of espionage, no matter their political orientation.

2.3 Conclusion This chapter has given three authors whose work has provided a bases for the theory that will be explained in the next chapter and put into practice in chapter four. Daniele Glaser gives a more historical perceptive on surveillance policy form the United States and discusses the difficulties involved with gathering information from security agencies such as the CIA. Glaser also briefly mentions the role of human rights in surveillance activities, but for a more in-depth view on this subject Marko Milanovic’s theory on international law en Van der Huizen 25! surveillance has been used. Jack Balkin on the other hand provides an analysis of the legislation regarding domestic surveillance and constitutional law. Furthermore, the second part of this chapter sets out the method of media analysis adopted for the case study on Edward Snowden in chapter four. This method was loosely based on the theory of media analysis provided by Douglas Gould. A clear and almost scientific approach is needed in order to provide credible results. Four newspapers of approximately the same quality have been chosen and a procedure for the research itself has been thought out in such a way that it will provide a sound bases for a research that will give some trustworthy results. Van der Huizen 26!

3. Theoretical Framework: Liberal democracy and national intelligence surveillance

When Barack Obama visited Berlin in the summer of 2008 he was received as a rock star. Thousands of people filled the streets to listen to his speech in front of the Victory Column. To the citizens of Berlin and to the rest of Europe, his presidential candidacy represented the possibility of change and an opportunity to end the years of unilateralism under the Bush administration. Obama made his intentions clear to improve the relations with his European allies if indeed he was to become president:

In Europe, the view that America is part of what has gone wrong in our world, rather than a force to help make it right, has become all too common. In America, there are voices that deride and deny the importance of Europe's role in our security and our future. […] Yes, there have been differences between America and Europe. No doubt, there will be differences in the future. But the burdens of global citizenship continue to bind us together [...] In this new century, Americans and Europeans alike will be required to do more - not less. Partnership and cooperation among nations is not a choice; it is the one way, the only way, to protect our common security and advance our common humanity. […] That is why the greatest danger of all is to allow new walls to divide us from one another.93

In June 2013 Barack Obama made a second visit to Berlin – this time as President of the United States of America. In his speech he spoke of “shared values” between Europe and America. Obama also referred to the importance of the United Nations Universal Declaration of Human rights and the protection this document gives to “the inherent dignity and rights of all members of our human family”.94 Yet, just a few weeks before this visit to Germany, the relations between Europe and the US had been put to the test by a leak of diplomatic documents by former CIA and NSA employee Edward Snowden. The leaked documents revealed that the US government had been keeping track of worldwide communication by using the advanced technology of programs such as PRISM.95 The origins of this controversial espionage case go back to 2001 and the attacks on the World Trade Centre in New York. Following these attacks President George W. Bush issued a new law called the Patriot Act, which gave the American government the unprecedented legal power to spy on its own citizens: the National Security Agency (NSA) was authorized to register phone conversations of US-citizens without needing to seek legal permission.96 Instead of reversing this obvious infraction on civil rights, Obama chose to continue the path of increased executive power Bush had taken and even expanded it to include the surveillance of foreign nationals.97 Despite initial outrage amongst European leaders, it quickly became clear that most heads of state had been aware of the intelligence gathering by the United States. In some cases countries had even facilitated or cooperated with the American

93 Transcript of Obama’s speech to the citizens of Berlin on Thursday 24th of July 2008, retrieved from: http:// edition.cnn.com/2008/POLITICS/07/24/obama.words/ on April 20, 2015. 94 ‘Remarks by President Obama at the Brandenburg Gate - Berlin, Germany’, The White House Office of the Press Secretary, retrieved from: https://www.whitehouse.gov/the-press-office/2013/06/19/remarks-president-obama- brandenburg-gate-berlin-germany on June 20, 2015. 95 Hall Berghel, ‘Through the PRISM Darkly’, IEEE Computer Society, No. 13 (2013), pp. 86-90. 96 ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’, U.S. Government Printing Office, retrieved from: http://www.gpo.gov/fdsys/pkg/ PLAW-107publ56/html/PLAW-107publ56.htm on March 20, 2015. 97 Jeff Stein, ‘The End of National Reporting?’, IEEE Security and Privacy, No. 13 (2013), p. 66. Van der Huizen 27! intelligence agencies.98 While the scale on which the intelligence gathering took place might have been unprecedented, cooperation in the intelligence field between western countries is not a new phenomenon. We all know the spy stories of CIA and MI6 agents risking their lives for information while trying not to get caught by the KGB. While the Cold War may have been the heyday of government espionage, the fall of the Soviet Union certainly did not bring this period to an end. The following chapter will be dedicated to surveillances laws and their compliance with the principles of a liberal democratic society. I argue that some of the most basic fundamental rights that should be protected in a modern democratic society have been endangered by surveillance laws that have been adopted on both sides of the Atlantic. The chapter will be organized as follows: First, the theory of liberal democracy will be discussed and the role of fundamental rights in western society. In the second part of this chapter, the development of the American security and surveillance policy in the twentieth and twenty-first centuries will be evaluated. Including its Cold War strategy and the consequences it had for its European allies. Furthermore an analysis of foreign espionage issues will be included that will show under what circumstances European and American secret services tend to be either rivals or allies. Based on this information it will be possible to evaluate the scope of the existing surveillance laws and their compliance with human rights law.

3.1 Liberal Democracy and Human Rights The political philosophy that is used to describe the governmental system of the United States and most western countries is liberal democracy.99 The origins of this concept lie in thirteenth century Britain, where the idea was born that a government should exist to protect and serve its people and that rules should apply to both the rulers and the population. These were unconventional views in a time when most European countries were monarchies and monarchs were considered to be ruling by divine right. Britain was one of the first countries in the world to adopt a legal document intended to protect its inhabitants from property theft or wrongful conviction.100 Centuries later this document, the Magna Carta, was used as a source of inspiration for constitutional texts all over the world. The philosophy that inspired the Magna Carta was developed even further during the Enlightenment by numerous scholars defending the principles of democracy and human rights.101 The principle elements a society needs to comply with in order to be called a liberal democracy are the existence of a constitution that protects the rule of law and a government that rules by popular sovereignty. Popular sovereignty is achieved through an electoral system that rules by the majority but takes the rights of the minority into account. The government’s legitimacy is thus based on popular support and its power is limited by means of a written constitution and a judicial system.102 Governmental authority is first and foremost considered as a positive concept in a liberal democracy because it ensures a respect for the fundamental rights of its citizens by forming a society that works to the advantage of individuals. Thus, in its

98 David Wright and Reinhard Kreissl, ‘European responses to the Snowden revelations: A discussion paper’, Increasing Resilience in Surveillance Society, (2013), p. 13. 99 Munroe Eagles, Christopher Holoman and Larry Johnston, The Institutions of Liberal Democratic States, Peterborough: Broadview Press, 2004, pp. 26-29. 100 Micheal Freeman, Human Rights: An Interdisciplinary Approach, Cambridge: Polity Press, 2012, pp. 19-20. 101A.J. Nieuwenhuis and A.W. Hins, Hoofdstukken Grondrechten, Nijmegen: Ars Aequi Libri, 2011, pp. 23-5. 102 Cindy R. Jebb, ‘The Fight for Legitimacy: Liberal Democracy Versus Terrorism’, The Journal of Conflict Studies, No. 1 (2003), p. 5. Van der Huizen 28! purest form a liberal democratic government is not considered a threat to individual freedom. It is a political system that believes in legal order, cooperation and the progress of the individual and is organized accordingly. During the twentieth century the development from monarchal rule to constitutional democracy in Europe went relatively fast due to the instability of the political situation that followed the First World War. Even though many of the interwar governments were built around the principle of self-determination set forth by American president Woodrow Wilson, the political elite of that time did not consider the transition to a liberal democratic constitution as an obvious step.103 Subsequently, the postwar democratic evolution was not achieved without any adversity, but the lessons learned from the totalitarian regimes of the Second World War helped move the change along in order to prevent a repetition of this unfortunate period. Meanwhile in America, the principle of the United States Constitution and the Bill of Rights, ratified in 1788 and 1791, helped to develop the political system of the country into a stable democracy based on the rule of law and respect for the fundamental rights of its citizens.104 Privacy is considered a fundamental right by democratic societies and is protected by domestic law and many international treaties. In the United Nations Declaration of Human Rights and the International Covenant on Civil and Political Rights, the right to privacy is included under article seventeen and is described as follows:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.105

This is a very broad and universal guideline. Regional allocated treaties like the European Convention on Human Rights give a more specified description of what EU citizens can expect from their right to private life, as article eight states:

Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.106

Even though this convention is legally binding, unlike the UN Declaration, it gives a very open ended meaning to freedom of privacy and indicates that if the need arises it may be severely limited. The constitutional laws of individual countries on the other hand do not always provide a specific reference to the

103 Julian Jackson, Short Oxford History of Europe: 1900-1945, Oxford: Oxford University Press, 2009, p. 23. 104 ‘United States Constitution’, Mensenrechten en Democratie, Amsterdam: Faculteit der Rechtsgeleerdheid, 2012, pp. 51-69. 105 ‘International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49’, retrieved from: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx on May 23, 2015. 106 ‘Artikel 8 Europees Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden’, Kluwer College Bundel Wettenteksten II, Deventer: Kluwer, 2012, p. 4361. Van der Huizen 29! right to privacy. In French law for example, the protection of private life is indeed mentioned in the Civic Code, introduced by an Act of Parliament in 1970, but no legal definition of privacy is given.107 This means citizens are dependent on the judgment of French courts for privacy rights.108 The United Kingdom has no written constitution, which makes British citizens depended on article eight of the European Convention of Human Rights for the specific protection against misused of private information.109 In other countries such as Germany, the protection of private life and information is a more sensitive subject due to historical background. Germany has a specific section of its constitution dedicated to the insurance of “privacy of correspondence, posts and telecommunications”.110 The article mentions the protection of telecommunication but does not specify anything about digital communication, this raises the question whether people have the same protections online as they do offline. Yet, it is the second part of this article regarding the possible restrictions of privacy that is especially interesting in the light of counterterrorism and government surveillance:

Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.111

It is remarkable to see that the conditions under which the privacy of ‘the German People’ can be restricted are divided into two parts. First, the protection of the democratic order is mentioned separately from the protection of the security of the country. This division seems to indicate somehow that the two are not the same. Furthermore, this section of the article entirely eviscerates the first part by stating that privacy can be limited whenever it is deemed necessary by the state. National security is often mentioned in constitutional legislation of western democracies as a reason to restrict one or several fundamental rights.

3.2 United States security policy from 1945 onwards When Simone de Beauvoir visited the United States for the first time just after the Second World War, she noted the signs of scaremongering against the Soviet Union. She pitied the disappearance of individualistic freedom America had been known for around the world. According to her “the anti-communist fanaticism of the Americans had never been more virulent. Purges, trials, inquisitions, witch-hunts – the very principles of democracy had been rejected.”112 In her opinion the principles of democracy which form the bases for the American Constitution had been compromised by the aggressive anti-communist policies of the US government. During this period, also nicknamed the Red Scare, the government passed several laws to

107 ‘Article 9 Civil Code as of 1st July 2013’, Legifrance le service public de la diffusion du droit, retrieved from: http:// www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations June 11, 2015. 108 Ibidem. 109 Colin Turpin and Adam Tomkins, British Government and the Constitution: Text and Materials, Cambridge: Cambridge University Press, 2007, pp. 264-77. 110 ‘Article 10 Basic Law for the Federal Republic of Germany’, Deutscher Bundestag, retrieved from: https:// www.bundestag.de/blob/284870/ce0d03414872b427e57fccb703634dcd/basic_law-data.pdf on June 11, 2015. 111 Ibidem. 112 Stephen J. Whitefield, ‘The Culture of the Cold War’, in: Christophe Bigsby ed., The Cambridge Companion to Modern American Culture, Cambridge: Cambridge University Press, p. 256. Van der Huizen 30! prevent communism from gaining any foothold on American soil. Amongst them was the Communist Control Act of 1954 which outlawed all communist organizations or any practice of the Marxist ideals.113 This anti-communist campaign caused a lot of unrest and distrust amongst the American public as people suspected of any affiliation with communism were denied their civil and political rights. The National Security Act (NSA) of 1947, mentioned earlier in chapter one, made it even easier for government officials to infringe upon the civil rights of citizens by providing a policy for intelligence surveillance.114 The threat of the USSR had called for anti-communist conformity amongst American and this unity was to be enforced by institutes like the House Un-American Activities Committee (HUAC) and the Federal Bureau of Investigation (FBI). The later also had the power to monitor civilians on American soil suspected of communist affinities.115 All of these new government bodies were somewhat immune to government oversight and were definitely not democratically elected, therefore upsetting the concept of separation of powers that forms the basis a democratic government. America was a country known for its defense of democracy and civil rights, but was now finding ways to limit the freedoms of its own making. If the protection of the rights and liberties of citizens is to be considered one of the essential components of a democracy, it could be asked whether or not the anti-communist legislation that was passed during the Cold War era was a democratic response to the threat of the Soviet Union. It was clear from the start that the Soviet government never intended to build a society based on a respect for civil rights; they were only interested in expanding their sphere of influence. Government authorities will of course argue that the restriction of privacy rights or any other fundamental right is done for the protection of the country and its citizens. However, in their fight against communism, the United States turned to methods that in some ways greatly resembled those used by the communist movement they were trying to stop. It is important to note that American constitutional law provides no general expressed right to privacy. The American Bill of Rights does however mention the protection of specific aspects of privacy such as the protection of beliefs, home, person and the protection against self-incrimination, under which, one could argue the right to privacy of personal information is also protected. These rights can be found in the Fourth and Fifth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.116

No person shall be […] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.117

113 ‘Communist Control Act of 1954’, U.S. Statutes at Large Public Law 637, pp. 775-780. 114 ‘Section 702 of the Foreign Intelligence Surveillance Act (FISA) Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect702.pdf on June 15, 2015. 115 Stephen J. Whitefield, ‘The Culture of the Cold War’, in: Christophe Bigsby ed., The Cambridge Companion to Modern American Culture, Cambridge: Cambridge University Press, pp. 257-8. 116 ‘Fourth Amendment United States Constitution’, Mensenrechten en Democratie, Amsterdam: Faculteit der Rechtsgeleerdheid, 2012, pp. 51-69. 117 ‘Fifth Amendment United States Constitution’, Mensenrechten en Democratie, Amsterdam: Faculteit der Rechtsgeleerdheid, 2012, pp. 51-69. Van der Huizen 31!

When reading these amendments it immediately becomes clear that there is no specific mention of privacy, a concept that was of course unknown by this name in the eighteenth century. On the other hand, the circumstances under which law keeping authorities can ‘seize’ belonging of individual citizens is made very clear: a warrant needs to be issued. The abstract and outdated content of the both amendments makes it difficult to apply to modern surveillance laws. The text itself gives no clarity whether digital information is protected since it speaks of the physical intrusion of a person’s house or domaine. Furthermore, if we were to follow the letter of the law and apply it to a case of government surveillance on citizens, it would make surveillance legal once the individual in question received a “just compensation” for it. Assuming of course that communication is considered a private property. Over the years Supreme Court decisions on the subject of privacy have provided more certainty, however this has not always been in favor of the protection of privacy. In Katz v. United States the court made it clear that the Fourth Amendment did not provide any general right to privacy, nor does it protect information given to third parties on a voluntary basis.118 According to the courts’ judgement in Smith v. Maryland, citizens could not expect telephone numbers to be included in the Fourth Amendment since they “knowingly give that information to telephone companies when they dial a number”.119 This is very interesting ruling given the NSA activities under the legislation of the Patriot Act also includes telephone data surveillance. The scope of the anti-communist measures taken by subsequent governments during the Cold War did however not limit itself to the territory of the United States. The American secret service agents dedicated to protect their country form the threat of communism, also kept an eye on the political developments in Europe. Immediately after World War Two so-called “stay behind networks” of CIA agents were installed all over the continent.120 According to Daniele Ganser these operations were made legal by a clause in the National Security Act stating that the CIA had the duty to “perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct”.121 The excerpt “such other functions and duties” refers to potential covert operations that were used when the normal diplomatic route was not effective enough or a military action would be too invasive. To ensure the legitimacy of these intelligence operations Document 10/2 of the National Security Council was adopted by the United States Congress. Article five of this document gives the US government the mandate to carry out missions all over the world:

As used in this directive, “covert operations” are understood to be all activities (except as noted herein) which are conducted or sponsored by this Government against hostile foreign states or groups or in support of friendly foreign states or groups but which are so planned and executed that any US Government responsibility for them is not evident to unauthorized persons and that if uncovered the US Government can plausibly disclaim any responsibility for them. Specifically, such operations shall include any covert activities related to: propaganda, economic warfare; preventive direct action, including sabotage, anti-sabotage, demolition and

118 Katz v. United States, 389 U.S. 347, United States Supreme Court, (1967), retrieved from: https:// supreme.justia.com/cases/federal/us/389/347/ on June 11. 2015. 119 Smith v. Maryland 442 U.S. 735, United States Supreme Court, (1979), retrieved from: https://supreme.justia.com/ cases/federal/us/442/735/case.html on June 11, 2015. 120 Daniele Ganser, ‘The CIA and Western Europe and the abuse of human rights’, Intelligence and National Security, No. 5 (2007), p. 768. 121 Ibidem, p.760. Van der Huizen 32!

evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerrillas and refugee liberation groups, and support of indigenous anti-communist elements in threatened countries of the free world. Such operations shall not include armed conflict by recognized military forces, espionage, counter-espionage, and cover and deception for military operations.122

In order not to harm the reputation of the government in power, covert operations have remained secret by making sure only a limited amount of government officials were fully informed. It is remarkable therefore that the official website of the CIA states that the executive power for the covert action lies only with the President of the Unites States.123 Any operations that can be traced back to American intelligence agencies could do serious damage to the reputation of the president in office which in turn makes the country a less powerful actor in international politics. The most infamous stay behind operation in Europe during the Cold War is the Gladio Affair or Operation Gladio. The aim of this operation was to stop a possible communist takeover in Italy: keeping the Italian left from gaining power by supporting the rightwing parties.124 However, the means by which the Americans set about to achieve their goals were not always within morally acceptable boundaries, or legal boundaries for that matter. Sabotage of the Italian elective system and the sponsoring of terroristic attacks by the extreme rightwing were part of the CIA strategy. The possibility of an electoral victory for the left was reason enough for the National Security Council to advise in favor of such drastic measures. Operation Gladio not only refers to the Italian part of this network of covert operations, but also to the ‘stay behind armies’ that were put in place all over Europe. As far as it is known the CIA was active in Belgium, Denmark, Germany, France, Greece, Luxembourg, the Netherlands, Norway, Austria, Portugal, Spain and Switzerland.125 In West-Germany they even went as far as recruiting former Nazi party members into the German program to ensure an anti-left mindset.126 Even though many European leaders denied having any knowledge, most governments had been aware of the stay behind missions. When the entire ordeal was made public during the 1990s, Austrian Prime Minister Franz Vranitzky and French President Francois Mitterrand were amongst those claiming to have been deceived by American intelligence forces. They were however, corrected by their Italian colleague who affirmed that the political leaders of Europe had been fully aware of what was happening on their territory.127 Nonetheless, parliaments were often left out of the loop, making these secret operations lacking in democratic legitimacy. The current foreign surveillance policy in America is dominated by the FISA act drawn up in 1978 and the USA Patriot Act or the ‘Uniting and Strengthening America by Providing Appropriate Tools

122 Document NSC 10/2 retrieved from:https://history.state.gov/historicaldocuments/frus1945-50Intel/d292 on May 5, 2015. 123 Daniele Ganser, ‘The CIA and Western Europe and the abuse of human rights’, Intelligence and National Security, No. 5 (2007), p. 761. 124 Daniele Ganser, NATO's Secret Armies: Operation GLADIO and Terrorism in Western Europe, London: Routledge, 2005, pp. 3-4. 125 Daniele Ganser, ‘Terrorism in Western Europe: An Approach to NATO’s Secret Stay-Behind Armies’, The Whitehead Journal of Diplomacy and International Relations, (2005) p. 69. 126 Eric Lichtbau, ‘In Cold War, U.S. Spy Agencies Used 1000 Nazis’, The New York Times, retrieved from: http:// www.nytimes.com/2014/10/27/us/in-cold-war-us-spy-agencies-used-1000-nazis.html?_r=0 on May 5, 2015. 127 Daniele Ganser, ‘The CIA and Western Europe and the abuse of human rights’, Intelligence and National Security, No. 5 (2007), p. 771-2. Van der Huizen 33!

Required to Intercept and Obstruct Terrorism Act’.128 This last document was signed in 2001 by President George W. Bush. According to section 215, high ranking government officials are allowed to have access to personal data of US citizens or any “tangible things” if this helps them combat terrorism:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities[…].129

The permission for surveillance is given by the United States Foreign Intelligence Surveillance Court (FISA Court). This court was established by the 1978 Foreign Intelligence Surveillance Act (FISA) and as such its orders have to remain classified. In 2007 however, the New York Times published an article claiming that according to government officials “the National Security Agency [was eavesdropping] on Americans and others inside the United States [were searching] for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying”.130 The lack of warrants made the NSA actions unlawful in the light of the Fourth Amendment of the US Constitution discussed earlier in this chapter. Despite the public debate these claims initiated and the controversy surrounding Section 215, the Patriot Act was extended in 2005 and again in 2011 by President Obama, with section 215 still intact in its original form.131 Due to congressional disunity the Patriot Act has not been extended as of June 2015 and the U.S. A. Freedom Act has been proposed as a substitute. This act has been described as a “an advocate for the public’s privacy rights at the Foreign Intelligence Surveillance Court”.132 The Act has as main purpose to control the amount of data that is collected by the NSA and increase the transparency of its activities. Time will tell if this document is really able to rein in the powerful NSA network. Yet, the real question is if the Patriot Act has been so significant for the national security of America as some of the senators have been claiming for years, why did it not pass in Congress? The government has been making a case for the Act by stating that this controversial prevision has been effective in preventing terroristic attacks.133 The fact of matter is that the list of cases that can be cited where the NSA surveillance has played an important role is extremely short and

128 ‘Section 702 of the Foreign Intelligence Surveillance Act (FISA) Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect702.pdf on June 15, 2015. ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’, U.S. Government Printing Office, retrieved from: http://www.gpo.gov/fdsys/pkg/ PLAW-107publ56/html/PLAW-107publ56.htm on March 20, 2015. 129 Ibidem. 130 James Risen and Eric Lichtbau, ‘Bush Lets U.S. Spy on Callers Without Courts’, The New York Times, retrieved from: http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html on March 20, 2015. 131 ‘Patriot Act extension signed into law despite bipartisan resistance in Congress’, The Washington Post, retrieved from: http://www.washingtonpost.com/politics/patriot-act-extension-signed-into-law-despite-bipartisan-resistance-in- congress/2011/05/27/AGbVlsCH_story.html on March 20, 2015. 132 Ellen Nakashima, ‘With deadline near, lawmakers introduce bill to end NSA program’, The Washington Post, retrieved from http://www.washingtonpost.com/world/national-security/with-deadline-near-lawmakers-introduce-bill- to-end-nsa-program/2015/04/28/8fd1cf6e-edb4-11e4-a55f-38924fca94f9_story.html?tid=hybrid_linearcol_1_na on April 30, 2015. 133 Ed Pilkington and Nicholas Watt, ‘NSA surveillance played little role in foiling terror plots. experts say’, The Guardian, retrieved from: http://www.theguardian.com/world/2013/jun/12/nsa-surveillance-data-terror-attack on April 30, 2015. Van der Huizen 34!

America has instead been hit by attacks since the system was but into action. The Boston marathon bomber in 2013 and the Pentagon shooting in 2010 being just a few of them. In 2008 Obama approved an amendment of the FISA Act to make data gathering by the NSA on foreign soil legal. The amendment of Section 702 was especially controversial because it provided the procedure that the NSA should follow if ‘[…] targeting, for foreign intelligence purposes, […] communications of foreign persons who are located abroad.”.134 These regulations formed the basis for the PRISM program revealed by Edwards Snowden. Surveillance laws such as section 702 FISA and the Patriot Act are counteracting the protection given by the U.S. Constitution. It is nonetheless remarkable that according to FISA section 702 only surveillance of non-US citizens is permitted. This seems to imply that US citizens are better protected against government espionage and also leads to the suggestion that citizenship of a country is a condition for access to fundamental rights. The findings of the U.S. Supreme Court in the case of United States v. Verdugo-Urquidez seem to confirm this supposition. The case dealt with a nonresident in a foreign country. The court determined that the Fourth Amendment of the Bill of Rights regarding the protection of property does not apply to foreign citizens.135 An explanation for this court ruling could be that a government only has to fulfill its protective duty towards the people that elected them and to whom they are accountable by a kind of social contact. Human rights specialist Marko Milanovic argues however that such a contract, of which the US Constitution is an example, do not exclude non-citizens from the responsibility of a government: “[O]ne can both believe that governments rest on the consent of the governed, derive their just powers therefrom and are accountable to their citizens, and that governments owe certain basic duties towards non-citizens as well. The two are not necessarily incompatible.”136According to Mr. Milanovic citizenship is a very arbitrary aspect since a person often acquires it through birth and it should not be used as a base for fundamental rights.137 The second aspect of Section 702 regarding foreign intelligence suggests that simply by setting foot on US territory anyone should be protected from infringement on the right to privacy or on any fundamental right. The revelation of the existence of so called American ‘black sites’ on European soil is in accordance with that idea. In 2007 the European Parliament published a highly critical report stating that member states have accepted secret CIA flights across their air space with passengers on board who were on route for US prisons on foreign soil where they may face the prospect of torture.138 The use of torture is prohibited by both the Eight Amendment of the U.S. Constitution and several international treaties such as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and article three of

134 ‘Section 702 of the Foreign Intelligence Surveillance Act (FISA) Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect702.pdf on June 15, 2015. 135 United States v. Verdugo-Urquidez 494 U.S. 259, United States Supreme Court (1990), retrieved from: https:// supreme.justia.com/cases/federal/us/494/259/case.html#264 on June 15, 2015. 136 Marko Milanovic, ‘Human Rights and the Foreign Surveillance: Privacy in the Digital Age’, Harvard International Law Journal, (2014), p. 12. 137 Marko Milanovic, ‘Human Rights and the Foreign Surveillance: Privacy in the Digital Age’, Harvard International Law Journal, (2014), p. 13. 138 ‘Transportation and illegal detention of prisoners European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI))’, European Parliament (2007), retrieved from: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6- TA-2007-0032+0+DOC+PDF+V0//EN on March 21, 2015. Van der Huizen 35! the European Convention on Human Rights.139 The European countries that were accused naturally denied any involvement in the affair yet a second report published by the European Centre for Constitutional and Human Rights confirmed the existence of the flights as well as the existence of unlawful detention centers in Eastern Europe.140 Just like the Guantanamo Bay detention center, these American black sites are established on foreign ground where different rules do apply to the detainees. Under the previously stated assumption the detainees would not be able to lay claim on fundamental rights set forth by the U.S. Bill of Rights. Only on US soil would these prisoners be protected.

3.3 Government espionage and international politics Government espionage has been a part of the game of international politics for centuries, but this is also the case for intelligence exchange between countries. It is impossible for one surveillance agency to have ears and eyes everywhere, therefore it is not surprising that many of the arrangements made during the Cold War, both bilateral and multilateral, had survived the fall of the Berlin Wall.141 The degree of collaboration or disagreement depends on the seriousness of the common threat countries are facing. The fruitfulness of any operation, be it bilateral of multilateral, depends mostly upon the trust that exist between parties. Ironically enough human rights records of a country are usually also part of the trustworthiness and are taken into account before collaboration. Especially for western governments, who have a tendency to promote human rights beyond their own boarders, it can be damaging for their credibility to exchange information with a country that violates those same rights. For the more powerful agencies like the CIA and NSA cooperation is often a tool by which they gain access to information from territories beyond their own jurisdiction. While other agencies may give access to areas that are otherwise of limit and are able to gather information much faster or to obtain a better understanding of cultural circumstances.142 The increase in surveillance activity of European and American authorities has been a gradual progress with careful changes in already existing legislation and the implementation of new laws over the years. Efforts for cooperation between international intelligence services where reinforced whenever a common threat or a crisis situation occurred. During the Cold War era many European countries increased international surveillance exchange. The same pattern can be observed in the wake of the attacks on the World Trade Centre in New York or even after the more recent attacks against Charlie Hebdo. Following the attack on the French satirical newspaper in January 2015 a new law concerning intelligence gathering in the

139 ‘Eight Amendment United States Constitution’, Mensenrechten en Democratie, Amsterdam: Faculteit der Rechtsgeleerdheid, 2012, pp. 51-69. ‘Chapter IV Human Rights Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, United Nations Treaty Series, (1984), retrieved from: https://treaties.un.org/Pages/ViewDetails.aspx? src=treaty&mtdsg_no=iv-9&chapter=4&lang=en on March 21, 2015. ‘Artikel 3 Europees Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden’, Kluwer College Bundel Wettenteksten II, Deventer: Kluwer, 2012, p. 4359. 140 ‘CIA 'Extraordinary Rendition' Flights, Torture and Accountability: a European Approach’, European Center for Constitutional and Human Rights, (2009), retrieved from: http://www.ecchr.de/ecchr-publications/articles/ publications.html on March 21, 2015. 141 Stephanie Lefebvre, ‘The Difficulties and Dilemmas of International Intelligence Cooperation’, International Journal of Intelligence and Counterintelligence, 16(2003), pp. 527-42. 142Stéphane Lefebvre, ‘The Difficulties and Dilemmas of International Intelligence Cooperation’, International Journal of Intelligence and CounterIntelligence, No. 4 (2003), pp. 534-7. Van der Huizen 36! name of national security has been accepted by L’Assemblée National in May 2015.143 The legislation was put on a fast track and accepted by a large majority in the French parliament due to the sense of urgency and fear triggered by the January attacks. Critics have however already started to compare the new legislation to the American Patriot Act.144 The document clearly states for which purposes the new legislation for intelligence gathering may be used, but with sentences such as “major foreign policy interests” and “[…] the prevention of attacks on the Republican form of institutions”, indicate that the executive powers have been given the liberty to increase surveillance activities on French citizens and foreign nationals in the name of national security.145 The digitalization of communication has brought another dimension to the concept of surveillance since the progress of technology has made it easier to assemble information. Old fashioned targeted information gathering has turned into indiscriminate mass data collection, since there is no limit to the amount of data that can be saved:

Prior to human review, the acquired communications — including those to, from, and/or between Americans, as well as those communications without any foreign intelligence value — are stored in a vast government database.146

Laws that permit surveillance authorities to collect information on untargeted citizens do not only violate their right to privacy, it also defies their right to be forgotten: there is no certainty files will be destroyed after a certain amount of time. Because of the existence of unlimited surveillance gathering professor of constitutional law, Jack Balkin, is convinced that the risk of developing a irreversible surveillance state is real. In his essay regarding the creation of a National Surveillance State, Balkin argues that the US have already become an authoritarian information state since, according to him, they “grab as much information as possible because this helps maximize their power [and] they try to keep the information they collect—and their own operations—secret from the public.”147 Next to the obvious lack of transparency and accountability, Balkin distinguishes another threat to the democratic principles. Government authorities are often not equipped to deal with the large amount of metadata that is collected; therefore they hire companies from the private sector to process and store the gathered data. The main problem with outsourcing government activities to private enterprises is that these companies are not restricted by the constitutional protection of privacy or any other constitutional law for that matter:

[C]ompanies [will] amass and analyze more and more information about people in order to target new customers and reject undesirable ones. As computing power increases and storage costs decline, companies

143 Franck Johannes, ‘L’Assemblée nationale vote la loi Renseignement’, Le Monde Blogs Libertés Surveillées, retrieved from: http://libertes.blog.lemonde.fr/2015/05/04/lassemblee-nationale-vote-la-loi-renseignement/ on May 23, 2015. 144 Ibidem. 145 ‘Projet de Loi relative au renseignement’, Assemblée Nationale Service de la Séance division des lois, (2015), retrieved from: http://www.assemblee-nationale.fr/14/ta-pdf/2697-p.pdf on May 23, 2015. 146Jewel v. NSA, case no. 08-CV-4373-JSW, United States District Court for the Northern District of California, (2012), retrieved from: https://www.eff.org/document/summary-evidence on May 24, 2015. 147 Jack M. Balkin, ‘The Constitution in the National Surveillance State’, Minnesota Law Review, No. 1 (2008), p. 17. Van der Huizen 37!

will seek to know more and more about their customers and sell this valuable information to other companies and to the government.148

The implications for the liberal principles on which these nation states were built would thus be severe. Citizens are not aware that the government they elected is violating the very same rights they expected them to protect.

3.4 Conclusion This chapter has shown that privacy is considered a fundamental right in a democratic society which is protected either directly by a national constitution or an international treaty. The philosophy of liberal democracy expects that governments are elected into office to ensure the liberty and the rights of citizens by the implementation of constitutional law. Therefore governmental power is not something that should be feared since they are the tool by with democracy is kept into place. Nevertheless, development of extensive intelligence networks and the digitalization of communication in the post war era have changed the role of government. It has taken on a more active part in society instead of remaining on the outskirts of civilian life. Authorities are now focused on the prevention and prediction of threats to national security. Despite the fact that privacy is considered a fundamental right and as such is part of constitutional law, it is often unclear what is actually included in this right. Even if the word communication is mentioned in the law itself, it is not always self-evident that this also entails digital communication. Another problem of the digital age is the amount of data collected by governments that are often not properly equipped to deal with it. Outsourcing data analysis to private enterprises is therefore not uncommon. These enterprises are however not subjected to the same restriction as governments are and often use the data for their own purposes without the knowledge of the people in question. The extreme rise of terrorism during the last decades has obligated many western governments to increase or adapt their security policy. The American security authorities have gained significant power in the wake of 9/11 with regards to citizen surveillance. Even though both US citizens and foreigners are liable to these regulations, it seems as if Americans have a better chance of laying claim on their right to privacy than foreigners. The U.S. Constitution does however not mention the right to privacy directly, only the Fourth and Fifth Amendments from the Bill of Rights would come close to something resembling the protection of privacy. The vague definitions do however leave the concept open for interpretation and restriction by lawmakers and this in turn has led to laws such as the Patriot Act and the FISA Amendment Act. Mass surveillance has not only become an issue in the US. France has been one of the most persistent opponents against America’s counterterrorism surveillance approach but when their own national security was under attack last January they showed the same mentality as the Americans in 2001, with a French Patriot Act as result. It is only natural that the implementation of the principles of liberal democracy, on which society on both sides of the Atlantic is based, changes through time and adapts to different circumstances. Conditions and circumstances have to be taken into account and it is clear that the threat of terrorism western countries are facing cannot be defeated while keeping all liberties intact. In order to remain safe, citizens have to give up a certain amount of freedom. However, the manner some governments have chosen to ensure national security does not conform to the principles of democracy.

148 Ibidem. Van der Huizen 38!

4. A case study: Edward Snowden and the NSA files

Two days after the first leaked NSA documents were made public by the British and American newspapers The Guardian and The Washington Post, an article was published in The New Yorker with the title “So Are We Living In 1984?”. The title refers to a novel published by the English author George Orwell in 1949.149 This novel takes place in a world of mass surveillance and government manipulation implemented by an entity called “Big Brother”. Written just after the Second World War and during the Cold War, many of this novels’ motifs are taken from the developments in the real world, even though the story takes place in a fictional world. Statements made by the fictional omnipresent tyrannical government were inspired directly by Soviet policy.150 George Orwell tried to show his readers what was bound to happen if ever communism would prevail in the United States. The author of The New Yorker article however, used the novel to point out another possible threat closer to home, namely the United States government and asked whether its actions can be compared to those of the totalitarian state in the book. Fortunately the answer to this question is no, since the US government has neither the intention of controlling the minds of its citizens nor overrule the democratic constitution on which its society was built. There is however a point of comparison between the mass gathering of surveillance in the fictional world and in the real one. The classified government documents leaked by Edward Snowden in 2013 revealed that the activities of the NSA were going above and beyond themselves to gather as much information as possible from citizens. However, the NSA did not limit itself to national surveillance, the leaked documents also revealed cases of foreign espionage and international cooperation regarding mass communication surveillance. Amongst the countries that were targeted are many of America’s longstanding European allies. This chapter will provide an overview of the surveillance leaks by means of a media analysis. As mentioned in chapter two, the research will be based on newspaper articles retrieved from four different European newspapers. The structure of the case study is as follows. First a short introduction to the events surrounding Edward Snowden in 2013 will be given. Second, the subjects discussed in the newspaper articles will be divided into subcategories: The first section will focus on the contrast between security and individual rights. The second category will cover the situation regarding domestic versus foreign surveillance. Finally, a comparison between European and American surveillance will be made. The newspaper articles will give a good insight into the public debate the leaked information has started. Moreover, these articles will help determine if the theory discussed in chapter three regarding the conflict between constitutional law and mass surveillance can be put into practice.

4.1 Edward Snowden Starting June 2013 former CIA and NSA employee Edward Snowden approached The Guardian and The Washington Post with classified government documents he obtained during the four years he worked for the

149 Ian Crouch, ‘So are we living in 1984’, The New Yorker, retrieved from: http://www.newyorker.com/books/page- turner/so-are-we-living-in-1984 on June 13, 2015. 150 Tim Tzouliadis, The Forsaken: An American Tragedy in Stalin's Russia, New York: Penguin Press, 2008, pp. 48–49. Van der Huizen 39!

NSA.151 Previous to working as an intelligence contractor for the NSA, Snowden had been recruited by the CIA and received intensive hacker training while working for them. These skills eventually helped him with the gathering of thousands of classified NSA documents. To avoid being caught by the American authorities, Snowden left the US for Hong Kong before making the documents public. Here he resided for a few weeks after which he tried to reach Ecuador. Unfortunately for Mr. Snowden within a few days his identity had been made public and by the time he wanted to leave his passport was already cancelled by the US authorities, leaving him stateless and stranded. He was forced to stay in Sheremetyevo Airport for several weeks before his asylum application was accepted by Russia, where he has remained ever since.152 It seems ironic that a citizen from a country known for its promotion of fundamental rights should have to flee to a country known for its disrespect of these same rights. The reason for these extreme measures was the sensitive information the documents contained. The classified files exposed information about several programs used by the NSA to collect telecommunication metadata and internet communications from American and foreign citizens.153 They also revealed the NSA’s extensive history of information exchange with their British and German counterparts. After it was established that Edward Snowden was responsible for the information leaks he was immediately branded a fugitive by the United States government. Senator Dianne Feinstein even called him a traitor since his actions did not reveal any crime committed by the NSA but showed the workings of a system that had been approved by Congress:

La sénatrice démocrate Dianne Feinstein a condamné un " acte de trahison ". Dans ce camp, on rappelle que la qualification de " lanceur d'alerte " comporte une définition très précise. L'employé doit avoir révélé une infraction. Or, dans le cas de la NSA, les deux programmes que le jeune homme a dévoilés ont été approuvés - et réapprouvés - par le Congrès.154

Other efforts to discredit him were made by people like Jeremy Bash, a former CIA employee and co-writer of the section 702 of the FISA Amendment Act:

Aucun Américain n’est visé par ce programme, a-t-il insisté. Les efforts pour faire de Snowden un héros vont tomber à l’eau.155

Nevertheless, China and Russia were not keen on following the instructions of the US. Given the reputation of China regarding fundamental rights such as freedom of speech and press, it did not come as a surprise that

151 William E. Scheuerman, ‘Whistleblowing as civil disobedience: The case of Edward Snowden’, Philosophy and Social Criticism, No. 7 (2014), pp. 611-12. 152 Pim van den Dool, ‘Russische verblijfsvergunning van nog drie jaar voor Edward Snowden’, NRC Handelsblad, retrieved from: http://www.nrc.nl/nieuws/2014/08/07/russische-verblijfsvergunning-van-drie-jaar-voor-edward- snowden/ on June 14, 2015. 153George Packer, ‘ The Holder of Secrets’, The New Yorker, retrieved from: http://go.galegroup.com/ps/i.do?id=GALE %7CA387220373&v=2.1&u=amst&it=r&p=LitRC&sw=w&asid=e3bb3087820d3ab590093b4ada7a8590 on June 14, 2015. 154 Corine Lesness, ‘Montrée du doigt, la Maison Blanche tente de minimiser l'affaire Snowden’, Le Monde, June 12, 2013, p. 3. Translation: Democratic senator Dianne Feinstein called it an “act of treason”. In this camp, it is emphasized that the qualification "whistle-blower" has a very specific definition. The employee must have revealed an offense. In the case of the NSA however, the two programs Snowden has revealed have been approved - and re-approved - by Congress. 155 Ibidem. Translation: No American is targeted by this program, he insisted. Efforts to make Snowden a hero will fail. Van der Huizen 40!

Snowden’s choice of refuse became a point of critic but apparently, Snowden had chosen his destinations with care. In an interview he told The Guardian that he had chosen Hong Kong as a first place of refugee because of its independence from Beijing and “spirited commitment to free speech and the right of political dissent”. In that same interview Snowden also discussed his motives for becoming America’s next whistleblower:

If living unfree but comfortably is something you’re willing to accept, and I think many of us are, it’s the human nature, you can get up every day, you can go to work, you can collect your large paycheck for relatively little work against the public interest, and go to sleep at night after watching your shows. But if you realize that’s the world that you helped create, and it’s going to get worse with the next generation, and the next generation, who extend the capabilities of this sort of architecture of oppression, you realize that you might be willing to accept any risk, and it doesn’t matter what the outcome is, so long as the public gets to make their own decisions about how that’s applied.156

He admitted to having had doubts about leaking the documents and that he was perfectly aware of the witch hunt it would start once the documents were out there in the media for everyone to read. He also claimed that after Barack Obama’s election he thought about aborting his mission if the new president would reverse the legislative actions of the Bush administration.157 Despite his promise for more NSA transparency, Obama chose to continue in the same line as George Bush and gave Snowden the final push to going public with the documents.

4.2 Semantics Within days after The Guardian published their first story about the NSA surveillance activities Snowden’s identity had become public. The reactions to his actions were mixed. To some he was a hero for making the NSA secrets public. Former whistleblower Daniel Ellsberg called Snowden’s actions “some of the most important leaks in history”.158 Others called him a coward for leaving his country and compared him to the likes of Aldrich Ames and Robert Hansson, two Cold War double agents: “les vrais whistleblowers ne quittent pas le pays.”159 He was even declared a fool for risking his own life to disclose facts everyone already knew. After all it is a widely known fact that countries spy on their citizens and allies: “[…] Snowden’s leaks won't so much spark a new debate as reopen an old one”.160

156 Glenn Greenwald, Ewen MacAskill and Laura Poitras, ‘Edward Snowden: the whistleblower behind the NSA surveillance revelations’, The Guardian, June 12, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/ 09/edward-snowden-nsa-whistleblower-surveillance on June 15, 2015. 157Ewen MacAsill, ‘Front: Snowden: truth will out on scale of US surveillance’, The Guardian Final Edition, June 18, 2013, p. 1 158 Dan Robert, Spencer Ackerman and Tania Branigan, ‘Edward Snowden’s explosive NSA leaks have US in damage control’, The Guardian, June 10, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/10/white-house- nsa-leaks-edward-snowden on June 15, 2015 159 Spencer Ackerman, ‘Edward Snowden is a whistleblower, not a spy - but do our leaders care?’, The Guardian, July 5, 2013, retrieved from: http://www.theguardian.com/world/2013/jul/05/edward-snowden-nsa-whistleblower-spy on June 15, 2015. Corine Lesness, ‘Montrée du doigt, la Maison Blanche tente de minimiser l'affaire Snowden’, Le Monde, June 12, 2013, p. 3. Translation: Real whistleblowers don’t leave their country. 160 Peter Foster, ‘Operation Prism: so should we all be scared?’, The Daily Telegraph, June 10, 2013, retrieved from: http://www.telegraph.co.uk/technology/internet/10110548/Operation-Prism-so-should-we-all-be-scared.html. Van der Huizen 41!

This is the range of different reactions that can be found in the newspapers used for this chapter. The Guardian, being the first newspaper Snowden entrusted with his stolen files, tends to write in a more positive tone about the whistleblower while attacking the authorities that are performing or authorizing mass surveillance. Words such as “resistance”, “sacrifice” and “respected” were used in collocation with Edward Snowden by the journalists of The Guardian. The newspaper has dedicated an entire section of their website to this whistleblower case. The Daily Telegraph on the other hand was more conservative with its praise towards the former NSA employee. The word “whistleblower” was used considerably less by these journalists, instead Edward Snowden is referred to as “reckless”, “fugitive”, and “rogue”. Another interesting article can be found in The Daily Telegraph about Snowden’s girlfriend, published just a few days after his name had become known to the public. With remarks such as “Mr. Snowden was believed to have planned to marry Miss Mills before turning their world upside down with his decision to leak NSA document, and to leave without telling her why”, the article seems more fitting for a tabloid newspaper than the quality news outlet The Daily Telegraph is supposed to be.161 The attitude towards Snowden in Le Monde and Le Figaro was very similar. Both newspapers seemed to support the actions of the former CIA employee. Furthermore, the papers also show attention for the French network of intelligence gathering and their dependence on American surveillance data for its national security. Le Monde published an article about the surveillance activities of the French secret service DGSE with the title Révélations sur le Big Brother Français.162 However, the majority of the French newspaper sample that was gathered, was concentrating on the unlawful activities of American and British authorities.

4.3 Security and individual rights The Guardian claims that several US politicians have said that the data collected by the NSA has helped to convict several individuals and to combat terrorism. The examples of the arrests of Faisal Shahzad and David Headly are mentioned by them. Both of them were involved in terroristic activities. U.S. authorities have claimed that the arrests were made with the help of modern surveillance techniques put into place after 9/11. Yet, court documents leaked by Snowden and an interview with those involved in the arrests suggest that the NSA data contributed little to nothing to the arrest of both criminals. Instead it was British intelligence obtained though traditional investigative work that tipped off the American authorities:

[…][C]ourt documents lodged in the US and UK, as well as interviews with involved parties, suggest that data- mining through Prism and other NSA programmes played a relatively minor role in the interception of the two plots. Conventional surveillance techniques, in both cases including old-fashioned tip-offs from intelligence services in Britain, appear to have initiated the investigations.163

161 Nick Allen, ‘Edward Snowden's girlfriend Lindsay Mills 'lost and alone' after whistleblower flees to Hong Kong’, The Daily Telegraph, June 11, 2013, retrieved from: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/ 10112012/Edward-Snowdens-girlfriend-Lindsay-Mills-lost-and-alone-after-whistleblower-flees-to-Hong-Kong.html on June 13, 2015. 162 Jacques Follorou and Franck Johannes, ‘Révélations sur le Big Brother français’, Le Monde, July 4, 2013, retrieved from: http://www.lemonde.fr/societe/article/2013/07/04/revelations-sur-le-big-brother-francais_3441973_3224.html on June 17, 2015 163 Ed Pilkington and Nicholas Watt, ‘NSA surveillance played little role in foiling terror plots, experts say’, The Guardian, June 12, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/12/nsa-surveillance-data-terror- attack on June 14, 2015. Van der Huizen 42!

The newspaper also mentioned that in the past a number of members of the United States Congress have tried to highlight the misconduct of the NSA by trying to amend the surveillance legislation. One of them is republican Justin Amash who challenged the already existing legislation by calling it “an unnecessary and unconstitutional violation of American privacy”.164 His proposal for an amendment was rejected 217 votes to 205 in Congress. In one of The Guardian articles of August 2013 former NSA director Bobby Ray Inman argues that the US authorities have gone far beyond their mandate, therefore:

The US should conduct a comprehensive reappraisal of laws and authorizations to balance privacy, civil liberties and surveillance across the public and private sectors. […] I'm not going to make a case to you that revisiting all the terms of the Patriot Act is justified. I would be very comfortable with specific authorization for collection and controls on how it's done. That's how we started out originally in this process.165

Inman suggest the implementation of the checks and balances of the surveillance laws should be improved. Under the current surveillance laws, in order for the NSA to access communication their demand for access needs to be approved by a court order from the Foreign Intelligence Surveillance Court.166 The document leaked by Edward Snowden however proved that the oversight role of the court is almost insignificant, since the NSA does not specify its demands but merely asks for an approval of so called “general orders”. These “general orders” do not specify the target only the general guidelines that will be used:

Once armed with these general orders, the NSA is empowered to compel telephone and internet companies to turn over to it the communications of any individual identified by the NSA. The Fisa court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.167

Countering this argument is the author of an article in The Daily Telegraph. Peter Foster writes that Snowden’s claim that western governments were transforming into authoritarian surveillance states is invalid and unproven. He argues that the democratic constitutions on which most western societies are built will protect them from doing so and that the public response to the leaked NSA documents showed that American citizens have faith in the protection that their Constitution provides:

It's a messy, imperfect and sometimes slow to-react system, but over time it has shown itself to work. Instinctively, the American public knows this to be true, which is why it has greeted Mr Snowden's "revelations", if that is what they are, with a collective “meh”.168

164 Spencer Ackerman, ‘NSA surveillance: narrow defeat for amendment to restrict data collection’, The Guardian, July 25, 2013, retrieved from: http://www.theguardian.com/world/2013/jul/25/nsa-surveillance-amash-amendment-narrow- defeat on June 3, 2015. 165 Spencer Ackerman, ‘Ex-NSA chief urges surveillance reforms’, The Guardian Final Edition, August 31, 2013, p. 29. 166 David B. Cohen and John Wilson Wells, John Wilson, American National Security and Civil Liberties in an Era of Terrorism, New York City: Palgrave Macmillan, 2004, p. 34. 167 Glenn Greenwald and James Ball, ‘The top secret rules that allow the NSA to use US data without warrent’, The Guardian, June 20, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without- warrant on June 2, 2015. 168 Peter Foster, ‘A self-regarding idealist whose warnings of tyranny ring hollow; There is no evidence to support Edward Snowden's fears of a surveillance state’, The Daily Telegraph, July 19, 2013, p. 20. Van der Huizen 43!

Reactions to the Amash amendments show the same point of view and call Snowden’s decision to make the classified documents public “an overreaction that increases the danger for terrorism”.169 Furthermore, an article from The Guardian claims that leading members of the House Intelligence Committee have said the following:

The charge that the program tramples on the privacy of citizens is simply wrong. This program balances our duty to protect the privacy of our fellow Americans with the equal duty to protect the nation.”170

In another article from The Guardian the difficult balance between safety and privacy is mentioned again:

Snowden and others quote Benjamin Franklin: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Others profoundly disagree, claiming that mass surveillance is a necessary price to pay if it defeats those who would cause America, its allies and their citizens murderous harm.171

Both quotes confirm Obama’s argument that it is impossible to have a hundred percent security and a hundred percent privacy at the same time.172 In some of the French newspaper articles that were highly critical towards the US, it was also argued that human rights are often the result of an equilibrium between the right to a private life and the right to live in safety:

[L]es droits humains sont le fruit d'un équilibre entre notre droit primordial à la vie privée et notre droit à la vie et à la sécurité, y compris celui d'éviter les bombes des terroristes ou de voir nos communautés détruites par la drogue et les trafiquants d'êtres humains. 173

The Constitution of the US is quoted or mentioned in many of the articles focusing on the impact on civilian rights. The Fourth and the Fifth Amendment are proclaimed as giving protection against surveillance:

[Edward Snowden’s] biggest misconception is the fallacy, popular with both the liberal Left and the libertarian Right, that countries like the US and Britain are just a click of an NSA mouse away from becoming what Mr

169 Spencer Ackerman, ‘NSA surveillance: narrow defeat for amendment to restrict data collection’, The Guardian, July 25, 2013, retrieved from: http://www.theguardian.com/world/2013/jul/25/nsa-surveillance-amash-amendment-narrow- defeat on June 3, 2015. 170 Ibidem. 171 Editorial, ‘Leading Article: Civil liberties: Surveillance and the state’, The Guardian Final Edition, June 17, 2013, p. 28. 172 Peter Foster, ‘Operation Prism: so should we all be scared?’, The Daily Telegraph, June 10, 2013, retrieved from: http://www.telegraph.co.uk/technology/internet/10110548/Operation-Prism-so-should-we-all-be-scared.html. 173 David Omand, ‘Pourquoi s'indigner que les agences de renseignements fassent leur travail?’, Le Figaro, June 14, 2013, p.16. Translation: Human rights are the result of a balance between our basic right to privacy and our right to life and security of person, this includes prevention of terrorist bomb attacks or destruction of our communities by drugs and human trafficking. Van der Huizen 44!

Snowden calls a "turnkey tyranny”. […] That's why America's founding fathers wrote the constitution and codified the kinds of checks and balances that keep it from sliding into the darkness of dictatorship. 174

Peter Foster’s argument of constitutional protection seems strange and out of place since we have seen in the previous chapter that the U.S. Bill of Rights offers no direct protection against privacy invasion. Only a vague description is given of a protection of property with no mention of communication, let alone digital communication. In another Daily Telegraph article written by the same journalist under the title Operation Prism: so should we all be scared? Peter Foster refers to whistleblower Daniel Ellsberg:

[…] The fears raised by Ellsberg […] are largely directed at some as yet unknown event in the future, which will be the trigger for this vast apparatus to be turned against the American people, not used for their defense: “Obviously, the United States is not now a police state,” concedes Ellsberg, “But given the extent of this invasion of people’s privacy, we do have the full electronic and legislative infrastructure of such a state.”175

Daniel Ellbergs suspicions follow almost the exact same line as Professor Jack Balkin, who also fears that a American National Surveillance State will come to pass if the right trigger emerges. A few of the articles also focused on the involvement of private contractors in government surveillance. These private companies claim to be “improving public safety with analytics” and offer “expertise in helping cope with large amount of data”. Again, this is what Jack Balkin warned against in his essay regarding the creation of a surveillance state. Private contractors are not held back by any system of checks and balances and neither do they have to concern themselves with constitutional restrictions. The information they receive can also be used for their own purposes of promotion and marketing strategy. American media claim that “about a third of Americans with top secret security clearance are private contractors”.176

4.4 Domestic and foreign surveillance The collection of telecommunications metadata of citizens may not be the right course of action for a democratic government such as the US, the problem does not end there. Under section 215 of the USA Patriot Act of 2001 the NSA is allowed to “collect […] the phone records of millions of Americans”.177 Section 702 of the 2008 Foreign Intelligence Surveillance Act Amendments, however provides the NSA with the base for programs such as PRISM.178 As mentioned in the a previous chapter, the US Bill of Rights

174 Dan Roberts, ‘Activists stage second national day of protest against NSA’s domestic spying’, The Guardian, August 4, 2013, retrieved from: http://www.theguardian.com/world/2013/aug/04/national-day-protest-nsa-spying on June 9, 2015. Peter Foster, ‘A self-regarding idealist whose warnings of tyranny ring hollow; There is no evidence to support Edward Snowden's fears of a surveillance state’, The Daily Telegraph, July 19, 2013, p. 20. 175 Peter Foster, ‘Operation Prism: so should we all be scared?’, The Daily Telegraph, June 10, 2013, retrieved from: http://www.telegraph.co.uk/technology/internet/10110548/Operation-Prism-so-should-we-all-be-scared.html. 176 Julian Borger, ‘Edward Snowden’s choice of Hong Kong as haven is a high-stakes gamble’, The Guardian, June 9, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/09/edward-snowden-hong-kong-gamble on June 9, 2015. 177 ‘Section 215 of the USA PATRIOT Act of 2001’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect215.pdf on June 15, 2015. 178 ‘Section 702 of the Foreign Intelligence Surveillance Act (FISA) Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect702.pdf on June 15, 2015. Van der Huizen 45! seems to guarantee the protection of fundamental rights to its own citizens but does not extend this curtesy to foreigners. The PRISM program can be used by the NSA to collect data from internet data banks such as Google, Facebook, Microsoft, Yahoo! and Apple from “foreign persons who are located abroad”.179 Since the activities of PRISM affect Europe and its citizens, the news coverage regarding this debacle in the papers used for this analysis was extensive. The newspapers focused on the reactions of officials from EU institutions and individual member states. Officials from the European Commission proclaimed they would reinforce their efforts to ensure a data protection agreement with the US:

This issue is very critical for us in Europe … There will be growing resistance against an agreement with the US unless there are some clear guarantees from their side that our European principles of data protection are respected.180

Other documents that were revealed a few weeks after the first information was leaked, proved that the US government was not only targeting EU officials on European territory, but also on American soil:

US intelligence services are spying on the European Union mission in New York and its embassy in Washington. […] One document lists 38 embassies and missions, describing them as "targets". It details an extraordinary range of spying methods used against each target, from bugs implanted in electronic communications gear to taps into cables to the collection of transmissions with specialized antennae. […] The US intelligence service codename for the bugging operation targeting the EU mission at the United Nations is "Perdido".181

In chapter three the Supreme Court case United States v. Verdugo-Urquidez seemed to prove that the protection of human rights in America also depends on a person being present on American soil. This disclosure of infiltration in the EU mission in New York and EU embassies in Washington seems to contradict this theory of territorial protected human rights.

4.5 European and American surveillance For many of the European leaders it must not have come as a surprise that the United Kingdom has its own version of PRISM called Tempora.182 Bilateral cooperation between Britain and the US has been intensive

179 ‘Section 702 of the Foreign Intelligence Surveillance Act (FISA) Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons’, retrieved from: http://fas.org/irp/news/2013/06/nsa-sect702.pdf on June 15, 2015. 180 Nicolas Watt, ‘Prism scandal: European commission to seek privacy guarantees from US’, The Guardian, June 10, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/10/prism-european-commissions-privacy-guarantees on June 15, 2015. 181 Ewen MacAskill and Julian Boger, ‘ New NSA leaks show how US is bugging its European allies’, The Guardian, June 30, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/30/nsa-leaks-us-bugging-european-allies on June 15, 2015. 182 Frédéric Lemaitre, ‘Berlin demande à Londres des explications sur son programme d'espionnage Tempora’, Le Monde, June 27, 2013, p. 3. Van der Huizen 46! ever since the Second World War. Furthermore, as mentioned in chapter three both countries do not have a constitutional law that specifically protects privacy rights. The Tempora system became operational in 2011 and is used by the British Government Communications Headquarters (GCHQ) to access European internet data:

[L]es services de renseignements britanniques avaient accès aux câbles transatlantiques à fibres optiques par lesquels transitent les communications téléphoniques et Internet. Grâce à des accords secrets passés avec les entreprises qui exploitent ces câbles, les services secrets de Sa Majesté partagent les données avec leurs homologues américains.183

According to The Guardian the amount of data that is collected by GCHQ can rival with the NSA and once again no distinction is made between citizens and actual targeted suspects. Snowden has provided the media with documents suggesting that the collected data was also shared with the NSA.184 When news broke about the Tempora program, European leaders were quick to condemn the British spying activities; especially the reaction of the German government was picked up in the newspapers:

Germany blasts Britain over GCHQ’s secret cable trawl: Minister questions legality of mass tapping of internet and phones.185

Berlin demande à Londres des explications sur son programma d’espionnage « Tempora ».186

Chancellor Angela Merkel expressed her indignation about Tempora and the German justice minister called it “a Hollywood Nightmare” and immediately asked his British colleague for an explanation.187 A couple of weeks later Snowden responded to the German indignation by publishing documents that showed that German and other European governments were working with the US intelligence agencies on a regular basis:

Les agents de la NSA travaillent main dans la main avec l’Allemagne, tout comme avec la plus part des autres pays occidentaux.188

183 Ibidem. Translation: The British intelligence services had access to transatlantic fiber-optic cables that carry telephone and Internet communications. Through secret agreements with the companies operating these cables, the British secret services share data with their American counterparts. 184 Ewen MacAskil, ‘GCHQ taps fibre-optic cables for secret access to world's communications’, The Guardian, June 21, 2013, retrieved form: http://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa on June 5, 2015. 185 Alan Travis, Kate Connolly and Nicolas Watt, ‘GCHQ surveillance: Germany blasts UK over mass monitoring’, The Guardian, June 26, 2013, retrieved from: http://www.theguardian.com/uk/2013/jun/25/germany-uk-gchq-internet- surveillance on June 5, 2015. 186 Frédéric Lemaitre, ‘Berlin demande à Londres des explications sur son programma d’espionnage « Tempora »’, Le Monde, June 26, 2013, retrieved from: http://www.lemonde.fr/europe/article/2013/06/26/berlin-demande-a-londres-des- explications-sur-son-programme-d-espionnage-tempora_3436728_3214.html on June 6, 2015. Translation: Berlin asks London for an explanation regarding the British spying program "Tempora". 187 Alan Travis, Kate Connolly and Nicholas Watt, ‘Front: Germany blasts Britain over GCHQ's secret cable trawl: Minister questions legality of mass tapping of in- ternet and phones’, The Guardian Final Edition, June 26, 2013, p. 1. 188 ‘Les Européens coopèrent avec la NSA, selon M. Snowden’, Le Monde, July 9, 2013, p. 2. Translation: NSA officials work hand in hand with Germany, as with most other Western countries. Van der Huizen 47!

German surveillance services were just as well collecting data on a massive scale. Again, not only individual suspects were targeted, instead the Bundesnachtrichtendienst (BND) is conducting mass surveillance on citizens, before passing it in to the NSA. This exchange of information is however not a one way street. The data provided by the NSA makes sure the European governments can by-pass their own privacy laws:

Les autres agences ne nous demandent pas d'où nous tirons nos informations. Elles peuvent de la sorte protéger leurs responsables politiques en cas de critiques sur la manière dont on viole à grande échelle la vie privée des gens dans le monde entier.189

Edward Snowden claims the secret services of these countries have been relying on American intelligence for decades. By receiving data from the NSA, they were able to bypass national laws that prohibited them from gathering information themselves.190 Despite the German protests against the PRISM program and their demand to immediately shut down these “Cold War tactics”, the BND themselves have been cooperating with American secret services since the end of the Second World War and the activities of NSA are no exception to that cooperation.191

“Germany’s foreign intelligence services [had] known for years about US surveillance and storage of its citizens data, according to reports undermining official claims that Berlin was shocked by the scale of the affair”.192

The bilateral collaboration between the NSA and European surveillance services has made it difficult for the EU member states to come up with a mutual response to the surveillance policy of the United States. French President François Hollande called for a postponement of the EU-US negotiations regarding the TTIP trade agreement, while other countries such as Germany and Britain were not eager to do the same.193 Instead the German Minister of Interior Affairs was quick to defend the American security policy:

Tous ceux qui sont chargés de la sécurité des citoyens en Allemagne et en Europe savent que ce sont les services secrets américains qui nous ont toujours donné des indications importantes et précises.194

This supportive attitude from the German government can be explained by the close collaboration between American and German security agencies, even if they will not admit that this collaboration may go outside

189 Ibidem. Translation: The other agencies do not ask us where we get our information. Thus they can protect their political leaders when they are criticized for violating on a large scale the privacy of people all over the world. 190 ‘GCHQ cleared of illegal online snooping but law under review’, The Daily Telegraph, July 18, 2013, p. 10. Tom Whitehead, ‘Americans pay GCHQ £100m to spy for them, leaked papers claim’, The Daily Telegraph, August 2, 2013, p. 8. 191 Jeevan Vasagar, ‘Germany has known about US surveillance’for years’’, The Daily Telegraph, July 15, 2013, retrieved from: http://www.telegraph.co.uk/news/worldnews/europe/germany/10180140/Germany-has-known-about- US-surveillance-for-years.html on June 10, 2015. 192 Jeevan Vasagar, ‘Germany 'knew for years' about US surveillance The Daily Telegraph, July 16, 2013,p. 13. 193 Frédéric Lemaître, Philippe Ricard and Jean-Pierre Stroobants, ‘L'Europe, divisée, cherche une réponse aux soupçons d'espionnage américain’, Le Monde, July 3, 2013, p. 4. 194 Cécile Boutelet , ‘Le camp Merkel révèle que la coopération avec la NSA remonte à l'équipe Schröder’, Le Monde, August 9, 2013, p. 4. Translation: All those who are responsible for the safety of citizens in Germany and Europe know that the US Secret Service always has given us important and precise information. Van der Huizen 48! democratic boundaries. Countries that are less entangled with the NSA may find it easier to condemn the PRISM program:

Tant en raison de la présence d'islamistes dangereux en Allemagne que des liens diplomatiques et politiques entre les Etats-Unis et l'Allemagne, il est vraisemblable que leurs services de sécurité collaborent davantage qu'ils ne l'admettent. […] La coopération germano-américaine est parfaitement légale, ont-ils précisé, puisqu'elle repose sur un accord de 2002.195

It is remarkable that a law proposed by the European Commission that would ensure more privacy protection for EU citizens has been stalled in negotiations between member states for months. The General Data Protection Regulation was released in 2012 and had been subjected to over three thousand amendments. It seems ironic that countries are so reluctant to protect personal data of citizens when laws concerning the legalization of surveillance are accepted without reluctance.196

National security is a matter for the member states, but [..] a clear legal framework for the protection of personal data is not a luxury or a constraint: it is a fundamental right. This is exactly the spirit of the EU's data protection reform that has been on the table for 18 months and where we see that some member states are not moving very enthusiastically towards adopting this reform swiftly. But in turn they give a lot of priority to legislation […] which allows you to limit civil liberty rights of consumers. So I think it is high time that […] that member states move up a gear and show their commitment in protecting EU citizens' fundamental rights and privacy rights in the 21st century.197

The protection of citizens and national security is cited as the main reason for the existence of laws such as the Patriot Act. The scope of the mandate given to NSA by the FISA Court also reaches the communications and data used by the media to do their work. If journalists are limited in their ability to perform investigative reporting, the surveillance actions of the NSA may be considered limiting the freedom of press, also considered a fundamental right.198 In one of the articles from The Daily Telegraph actions of the British officials are mentioned regarding the destruction of computer equipment that belonged to the newspaper The Guardian. Apparently these sanctions were authorized by Prime Minister Cameron because the computers systems on which the Snowden document were kept were deemed to unsafe too contain such valuable information:

195 Ibidem. Translation: On account of the presence of dangerous Islamists in Germany as well as the diplomatic and political ties between de United States and Germany, it is likely that their security services are collaborating more than they admit. The cooperation between Germany and America is perfectly legal, they said, since it is based on a agreement that dates from 2002. 196 Nicolas Watt, ‘Prism scandal: European commission to seek privacy guarantees from US’, The Guardian, June 10, 2013, retrieved from: http://www.theguardian.com/world/2013/jun/10/prism-european-commissions-privacy-guarantees on June 15, 2015. 197 Ibidem. 198 ‘Leading Article: Edward Snowden: History will be kind to him’, The Guardian Final Edition, June 26, 2013, p.32. ‘United States Constitution’, Mensenrechten en Democratie, Amsterdam: Faculteit der Rechtsgeleerdheid, 2012, pp. 51-69. Van der Huizen 49!

There were […] fears that the Guardian's own computer system was not secure enough to be trusted with protecting such highly sensitive information. This was why the Prime Minister "explicitly" sanctioned the operation to destroy computer equipment at The Guardian's offices […].199

This questionable action from British authorities was followed by another when the partner of one of the journalists that helped Snowden make the NSA documents public was detained in a London airport for nine hours under the British Terrorism Act.200 Taking into account the journalist’s involvement in de NSA case, it seems very likely that the arrest was politically motivated. Inspired by these peculiar interpretations of anti- terrorism laws, newspaper Le Monde made an analysis of the situation in the United Kingdom regarding its tradition of civil liberties. Britain was one of the first countries in Europe to adopt a legal document protecting its inhabitants form wrongful conviction or theft that inspired countries all over the world. It is regrettable, the journalist from Le Monde concludes, that this tradition of civic laws is no longer intact:

Pour les défenseurs des libertés civiles, ces événements récents confirment ce qu'ils dénoncent depuis des années : le pays de la Magna Carta ne mérite plus sa réputation. […] [L]e Royaume-Uni semble en train de rapidement se diriger vers une situation où la "sécurité nationale" prend le pas sur tout le reste.201

David Cameron has proclaimed his government is considering leaving the Human Rights Act (ECHR). This will make it even more difficult for British citizens to assert his or her right to privacy. Up until this point many of the attempts of the British government to infringe upon the civil rights of British citizens have been blocked by the European Court of Human Rights established by the ECHR, but once they decide to exit the treaty they cannot be held accountable by this court:

Jusqu'à présent, les tentatives des gouvernements successifs d'empiéter sur les libertés ont été régulièrement bloquées par la justice. Le " Guantanamo britannique " a été fermé, la garde à vue des suspects de terrorisme a été rabaissée à quatorze jours, les droits de fouille de la police ont été encadrés... Presque à chaque fois, ces victoires se sont fondées sur la Convention européenne des droits de l'homme, que le Royaume-Uni a signée en 1951 et qu'il a incorporée dans sa loi en 1998. Mais le gouvernement de David Cameron envisage très sérieusement de sortir de la Convention.202

199 Tim Ross, ‘Cameron ‘sanctioned’ destruction of paper’s hard drives’, The Daily Telegraph, August 21, 2013. 200 Claire Carter, ‘Reporter’s partner detained at Heathrow’, The Daily Telegraph, August 19, 2013 Eric Albert, ‘Le gouvernement Cameron reconnaît avoir fait pression dans l'affaire Snowden’, Le Monde, August 23, 2013, p. 4. 201 ‘ANALYSE; Le Royaume-Uni n'est plus le pays des libertés’, Le Monde, August 28, 2013, p. 18. Translation: For defenders of civil liberties these recent events confirm what they denounced for years: the country of the Magna Carta no longer deserves its reputation. [...] [T] he United Kingdom seems to rapidly head towards a situation in which "national security" takes precedence over everything else. 202 Frédéric Lemaître, ‘Berlin demande à Londres des explications sur son programme d'espionnage Tempora’, Le Monde, June 27, 2013, p. 3. Translation: Until now, attempts by successive governments to encroach on civil freedoms were regularly stopped by court. The “British Guantanamo” was closed, the maximum period of detention for terrorist suspects was reduced to fourteen days, police search rights were supervised ... Almost every time, these victories were based on the European Convention on Human rights, which was signed by the United Kingdom in 1951 and incorporated into British law in 1998. But the government of David Cameron is considering seriously to withdraw from the Convention. Van der Huizen 50!

4.6 Conclusion A fear of terrorism and an extreme focus on national security have dominated international politics and has directed western governments towards the hasty implementation of surveillance laws that can limit certain fundamental rights. It is however difficult to answer the question whether the threat of terrorism justifies the blank check in surveillance law making some western governments have given themselves. Some argue that legislation such as the Patriot Act can transform democratic societies into something that should be feared and avoided. Professor Jack Balkin argues that the system of check and balances that is inherent to democratic societies will not be able to prevent a national surveillance state from emerging. Some of the articles read for this research agree with this theory and suggest that a surveillance state is only a few steps away from transforming into a full-blown totalitarian regime. It is worrying that the degree of transparency of many surveillance agencies is severely lacking. The complicated legislation makes it difficult to decipher what is allowed and what is not. Many of the articles used for this analysis agree that governments should do everything in their power to prevent terrorist acts such as New York, London or Madrid. Yet, the choice the US and many other European countries have made, according to the leaked classified documents, is that of mass civilian surveillance. Nowadays, the amount of data that can be gathered and saved by secret services is much larger than a few decades ago. The possibility to keep documents for an indefinite amount of time is also new. The right of citizens to be forgotten after a certain amount of time if proven innocent has disappeared. The possibility to freely communicate with each other without having to fear that your conversation is being recorded or tracked should be considered an essential part of western democracy and a guaranty governments should be able to fulfill. As far as civilian surveillance is concerned, the newspaper articles show that Europe is as much responsible for violating fundamental rights as the US is. The Snowden documents show that European governments such as Germany and Britain have turned en masse towards surveillance measures that resemble those of the NSA. EU member states have an obligation to protect fundamental rights through their commitment to the Treaty of Lisbon and the European Convention of Human Rights. Yet, according to Mr. Snowden they fail miserably in defending the right to privacy. It is interesting to see that in the newspaper sample used for this chapter there was far less attention for the conflict between the private sector and the public sector than anticipated. The fact that governments are using private companies to analyze data for them is mentioned only a few times in the newspaper sample. These companies are not subjected to the constitutional laws a government has to abide by and can thus use the data to whatever purpose they want, which is an even further violation of privacy. Le Monde and Le Figaro both took their traditional anti-American stance regarding the NSA documents. Both newspapers were very critical of the governments involved in the espionage scandal but focused especially on British involvement in the NSA scandal. Le Monde and Le Figaro put a lot of emphasis on the long lasting cooperation between the different American and British secret services. Even though it was revealed within the timeframe used for the media sample of this analyses that, French authorities were conducting their own version of NSA spying, the main focus remained on Britain and the US. The few articles that were critical of Edward Snowden cold be found in the more rightwing newspaper Le Figaro. The Daily Telegraph was less positive about Edward Snowden’s decision to leak classified information to the public. The articles focused on the necessity of surveillance for national security. Van der Huizen 51!

Especially Peter Foster made a strong case for a surveillance state. In several articles he states that we live in an age where this kind of security policy is necessary and that it will help to protect democratic values instead of destroying them. The Guardian, finally, is more positive towards Snowden; they tend to put the spotlight on the misconduct of both American and European governments. Van der Huizen 52!

General conclusions and discussion

With new revelations on the NSA being published worldwide on almost a weekly basis, the topic of this thesis seems almost too open-ended to write about. However, government surveillance and foreign spy activities have been on the radar of international politics for centuries. The historical background on surveillance used in this essay goes back to the start of the twentieth century. Naturally during the Second World War countries kept an eye on their surroundings in order to anticipate their enemy’s actions, but it is after the war that international surveillance amongst both allies and enemies really excelled. The modernization of recording methods and data storage possibilities also contributed to the growth in surveillance activities, but these developments were first and foremost triggered by distrust amongst the allied countries themselves. It is often in times of crisis that changes in the area of technology, politics and legislation develop quickly. In this case the tension between the United States and Soviet Russia was the motivational factor behind the increase in surveillance activities. America hoped to be able to defeat the USSR and its communist message through a policy of containment across the Atlantic and a strict domestic non-tolerance policy against communism. Europe was still recovering from the damages caused by two consecutive devastating wars on its own territory and was caught in the middle of this geopolitical and ideological conflict. One of the side effects of this conflict with Soviet Russia that was felt by Europe was the American attempt to contain communism in Eastern Europe by means of CIA stay behind missions. These missions were put into place without going through the proper democratic channels: national parliaments were left in the dark as the covert missions tried to influence local politics or even national elections. The American approach towards the Soviet threat showcases a returning disagreement between American and European foreign policy. Both sides need each other’s support on the international stage, but since the end of World War II the US has taken the lead in the relationship and has maintained a foreign policy Europe has struggled with on many occasions. America has a view on world politics that has been influenced by its colonial history. The country’s struggle for freedom during the eighteenth century has resulted in a tendency to adopt a rhetoric of freedom and strategy for democratization across the world. Meaning that their involvement or intervention in the world is often justified under the blanket of freedom and democracy advancement. President Wilson’s quest for national self-determination in Europe during the interwar period is an example, but also his South-American policy. Wilson tried to impose democracy either through diplomatic or military means in regions that are of great strategic importance to the US. Unrest in Europe or a neighboring country could destabilize America. Some other examples are the Marshall Plan, the Truman Doctrine and the Bush Doctrine. All of them are implemented with the best intentions towards the countries that are involved, but after taking a closer look, the real motive turns out to be less noble and always involves the protection of American national security. Both the Marshal Plan and the Truman Doctrine created a European buffer zone against the USSR for America. The Bush Doctrine created the right cover for the US to invade a country that harbored a terroristic threat the Bush administration wished to eliminate. During the last century the US has also been one step ahead of their European neighbors in the field of surveillance legislation and implementation. Where European leaders have often been hesitant on Van der Huizen 53! increasing surveillance on their own citizens, the US has taken the lead, especially after the attacks on the Twin Towers in New York in 2001. This event has worked as a catalyst for surveillance legislation in the US but also amongst some of its allies. The Patriot Act was implemented and the National Surveillance Act - originally set up to legalize the espionage activities targeted toward the USSR - was extended with the possibility to spy not only on US-citizens but also on foreign nationals. The hesitancy of European countries to follow America’s lead has on many occasions led to accusations of an incoherent attitude and a lack of unity amongst Europeans. One of the reasons for this absence of consensus between the US and Europe is a difference in historical background. In the past, restrictions on civilian liberties in Europe have never ended well, Germany being the case in point. The same reasoning regarding military enterprise can be found across the twenty and twenty-first centuries. The Vietnam War and the War on Terror in Iraq and Afghanistan are two good examples of conflicts that divided public and political opinion across the continent. Next to the economic resources needed for such an enterprise, the human costs were also taken into account. Thus, it can certainly be said that Europe and the United States hold different points of view when it comes to military interventions and international politics. However, this essay has showed that when it comes to the restriction of civil liberties and rights the attitude of Europe is changing. In the field of domestic and foreign antiterrorism surveillance the US is the leading authority, but Europe is catching up. Which is a development that poses a major threat to the freedom of privacy for European and American citizens. Chapter three contains an analysis of different types of legislation that ensure the protection of civil rights. It turns out that most countries have incorporated some kind of privacy protection in their constitution, another legally binding document or an international treaty they are a part of. The definition of privacy that can be found in these documents is however often outdated or too vague to be able to determine if the protection of privacy in this digital age is ensured. The Fourth and Fifth Amendment of the US Constitution are the constitutional laws that should protect people in the US from a violation of their privacy. Yet, an analysis of the jurisprudence of the US Supreme Court has shown that their definition of the term privacy is not always in favor of privacy protection itself. Of course the threat of terrorism is real, several incidents over the years have indicated as much, but surveillance programs set up by a democratic government should aim to protect civil rights and therefore privacy, as much as possible. The surveillance legislation implemented by the US government after 9/11 has done the opposite. Even if the legislation itself severely restricts and limits the mandate of surveillance agencies the documents revealed by Edward Snowden indicate that the theory of the law is lacking when put into practice. The leaked NSA documents show that the NSA does not specify in its warrant requests who they are going to be used for. Thus, the FISA Court gives its approval for general surveillance warrants that can be applied to any surveillance cases without the knowledge or supervision of the juridical system. The surveillance activities of the NSA do not stop at the US boarder since Section 702 FISA has permitted the agency to monitor foreign citizens. NSA files have exposed a CIA infiltration of the EU missions in New York and Washington, but also a surveillance network on European territory. This has caused some controversy amongst European leaders who claimed to have had no knowledge of this broad spying network. Yet again Edward Snowden has shed an interesting light on this matter. Not only did he expose that most European countries have a connection with the NSA, but also that European heads of state are well aware of this collaboration. The initial outpour of outrage and indignation form government officials quickly diminished when this was revealed. For European citizens it is an especially troublesome situation Van der Huizen 54! since most of them are protected by two layers of legislative protection when it comes to human rights, one layer being the national constitution of EU member states and the second the European Human Rights Act. When working with the NSA or collecting data from this organization, European secret agencies are thus circumventing two layers of legislative protection that are intended to safeguard the privacy of normal, innocent civilians. The new surveillance technology programs have brought with them another constitutional problem due to the amount of data that is collected. Most governments do not have the manpower to process the load of information that is being collected through the constant monitoring of individuals. Therefore they outsource the analysis of the data to private institutions that are not submitted to the restrictions of constitutional laws since it was intended to protect citizens from the intrusion of governments. The private sector has therefore gained access to vast amounts of data from citizens they can use to the advantage of their own objectives, commercial or otherwise. Transparency and openness are essential ingredients for a democratic society that is founded on trust between citizens and a government that can be held accountable. It should be difficult for a government to keep secrets from the people who voted them into power. Yet, it is understandable that full transparency about the surveillance programs put into place is not possible since it would make the system weaker when used for the purpose of counterterrorism. The problem with the way surveillance is developing is that governments are also surveying innocent citizens and therefore freedom is actually restricted by the very thing that is supposed to protect it. Furthermore, the trigger for restricting freedom by means of surveillance is often an attack on freedom. A very recent example is the attack on Charlie Hebdo and the reaction it brought about. While the people of France were gathering in the streets to proclaim their support for fundamental rights such as freedom of speech and press, the French government put together a new law that would give their surveillance institutions the power to seriously violate these rights. Peter Foster, journalist for The Daily Telegraph, is convinced that citizens need to trust the protection provided by the constitution and claims that the suggestion from Snowden that western governments are transforming themselves into authoritarian surveillance states is ridiculous and unproven. His faith in the power of constitutional law stands in stark contrast to the arguments provided by Jack Balkin. Balkin has written several essays on the subject of excessive government surveillance, and argues that the Unites States is already well on its way to cancel the freedoms they fought so hard for a few centuries earlier during the American Revolution. Besides the obvious effect the surveillance revelations have had on the trustworthiness of the US government towards their own citizens, it has also had an impact on the reputation of America on an international level. Diplomatic relations are based on trust and openness amongst allies. Naturally, countries cannot agree with each other on every aspect of international politics since interests are not always aligned. It is also clear that government espionage is not solely an American phenomenon but that European countries are just as guilty when it comes to wanting unlimited access to information about their citizens. David Cameron and Francois Hollande have been put on the spot by Snowden and have even shown their disregard for fundamental rights in their reaction towards the leaks by attempting to limit press freedom. The revelations made by Edwards Snowden have not affected the relationship between the US and Europe in a major way, since both are not going to put their diplomatic relationship and cooperation on the line for something that was already know Van der Huizen 55!

Finally, it can be concluded that European countries and the United States do not differ as much from each other in their counterterrorism surveillance policy as they do in other areas of international politics. Even though the US has been implementing surveillance on a grand scale for a longer period and has developed an espionage network some countries could never achieve, this does not take away the fact that the security policy in the European countries that were analyzed for the purpose of this research are going in the same direction. The process is slower, but the transition is happening. Even though France and Great Britain have very divergent opinions on the US, both countries have been actively spying on their own citizens and neighbors. France is even planning on adopting its own version of the USA Patriot Act. Yet, the revelations have triggered a public debate about the current situation and the incompatibleness of mass surveillance with democratic values. Government monitoring has certainly contributed the security of the US and Europe, but how much surveillance can these democratic societies withstand? Even if the activities of agencies such as the NSA and GCHQ are covered by valid legislation this does not automatically mean the actions are also conform to the principles of democracy. Citizens need to be able to trust in the accountability of their governments and not depend on whistleblowers like Edward Snowden to tell them what is really happening behind closed doors. The current level of surveillance in the United States and across Europe is incompatible with the democratic values entrusted in many constitutions and international treaties. Van der Huizen 56!

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