Back in the G.D.R.

Earlier this week, Charles Lane wrote an impassioned defense of the National Security Agency in the Washington Post, taking on German critics who had likened the agency’s newly disclosed surveillance practices — Spiegel reported in late June that American intelligence services were monitoring some 500 million electronic and telephone communications each month — to those of the old East German Ministry for State Security, the Stasi. Lane derided the claim of Spiegel columnist Jakob Augstein that “no matter in what system or to what purpose, a monitored human being is not a free human being.”

In Lane’s world, whether a person under the government’s loupe is “free” apparently turns not on the fact of surveillance, but on the purpose the surveillance serves. He argues:

The political goals and institutional context of a given state’s intelligence-gathering make all the difference. In East Germany, the purpose of surveillance was to protect an unelected party that exercised a monopoly of political and economic power on behalf of a foreign military occupier, the Soviet Union. The Communist Party’s ideology politicized every aspect of life, rendering the pettiest deviations, in word or deed, threatening — and thus subject to secret official scrutiny. Unchecked by any law, Stasi spying evolved into an end in itself. East Germany really was a “surveillance state.”

Lane is certainly right that comparisons between the current surveillance programs of the NSA and those of the Stasi can be problematic. The Stasi was fundamentally a police operation, outfitted with vast powers to deal with citizens whose loyalty to the worker- and peasant-state were suspect. Its practices ran the gamut of snooping, extending into the horribly abusive practices highlighted in Florian Henckel von Donnersmarck’s memorable film The Lives of Others: intruding into the most intimate family settings to pit loved ones against one another, thereby promoting distrust and anxiety in the interests of the state. As the historian Jens Gieseke has written, the Stasi was an “all-purpose state enterprise for securing the state’s capabilities and power for suppressing any political opposition.” It was also remarkably effective in securing and enhancing its position within the state system of the G.D.R., doubling in size and budget roughly every decade.

By comparison, the NSA — whose growth trajectory has been similar to the Stasi’s and whose budget is in the vicinity of $10 billion — works in the shadows and focuses on the world of electronic communications. Its objective is to intercept silently and without detection. It serves to arm and inform the state, but it is not a police organization. It has been involved in the interception of salacious pillow talk between members of the armed forces and their spouses or loved ones, and it has apparently targeted journalists, though these activities appear at least on the surface to have been viewed as misconduct.

Questions persist as to how effectively the NSA’s surveillance powers are policed against abuse, but the two organizations are, aside from their well-honed surveillance skills, not especially similar. Is Lane correct, however, in saying that the fundamental difference between the two is the Stasi’s lawlessness?

East Germany was indeed a surveillance state, but it was one in which the power and authority of the intelligence services to spy on their own citizens rested on an elaborate network of laws that empowered surveillance and eroded the rights of citizens specified in the country’s constitution. The detention of citizens was subject to strict legal regulation, and long-term imprisonment rested on decisions taken by courts. As is the case in many nations, matters that involved sensitive national-security issues could be tried in secret by special courts (the 1a panels of the Bezirksgerichte), but long-term detention required a criminal conviction. The conduct of Stasi officers was also subject to careful regulation and discipline — there are, for instance, no documented cases in which Stasi officers physically tortured detainees using such “enhanced interrogation techniques” as waterboarding and forced standing, which were approved and employed in recent years by the American intelligence community.

This isn’t to say that the Stasi was any less loathsome, only that it operated under the strictures of a highly formalized legal system. This system ultimately bent to allow increased Stasi surveillance, and the rights of East German citizens became ever more ephemeral. This is not the reality of America today. However, the Stasi’s evolution does reflect the corrosive effect a powerful surveillance apparatus can have on legal institutions — in other words, it reflects what America (and Germany) must guard against.

So Lane is wrong to trivialize the concerns that the NSA scandal has provoked, and to refute the historical example of the Stasi. Having experienced two dictatorships in the past century, Germans are perhaps more sensitive to issues of state intrusiveness than their American allies, and possess a deeper understanding of how the systematic invasion of privacy by the state can undermine the essential ties of human existence. With Germany heading for parliamentary elections on September 22, Chancellor Angela Merkel commands far more confidence than her rival, Peer Steinbrück, but his hapless Social Democrats have now found an issue that truly resonates with the voters. Few Germans have been satisfied with Merkel’s response to the revelations, but like most Beltway insiders, Lane offers no meaningful response to their concerns: his defense is geared solely to American citizens, who are assured of the existence of unverifiable protections —  ones that apparently don’t extend to America’s German, British, Scandinavian, and other allies.

The NSA’s trawling in Europe was a clear violation of the domestic law of many of our allies. This fact cannot remain a point of indifference to official Washington if it is to emerge from the current storm with its alliances intact.