Edward Snowden in Germany: a basic question of German sovereignty?

Englisch vesion of previous post.

 

Err…what? Germany’s Vice Chancellor on the question of witness protection.

In my post last week, I commented at length last week on why the Germany government decidedly lacks balls. I also argued that they would do well to acquire some and call Edward Snowden as a witness. The uncomfortable situation that would undoubtedly arise with the US would be manageable, I suggested, if the German government wanted it to be.

Following recent events, I am not so sure I believe that anymore.

I am not sure, either, that I fully disagree – however much I would like to – with the German vice chancellor Siegmar Gabriel when he asks the question of who would guarantee Mr Snowden’s safety in Germany (link in German). Until last Thursday, I would have insisted that it was for the German government to do that. Unless they couldn’t be bothered or were too wimpy to do it.

In fact, when I first read that Mr Gabriel had asked that very question, I was quite certain that this was simply a case of a politician saying one thing before the election and its exact opposite after.

After all, Mr Gabriel said last July, when he was still opposing not deputy-leading the government that Mr Snowden should be placed under witness protection. Germany should take the NSA and GHCQ to court. The constitutional rights of German citizens were under threat. He expected the German government to do something about that.

Now that Mr Gabriel is in government, he isn’t saying any of that.

Fine, I thought, a case in point of what happens to politicians once they change from being the opposition to being the government. They lose their nerve.

I was going to write a nice little blog post, demonstrating that legal options of getting Mr Snowden to testify in Germany and then refusing to hand him over to the US do exist.

Really, they do. Law bloggers have discussed this at length.

And I stand by my opinion that there can be no meaningful NSA inquiry without Mr Snowden’s testimony. I stand by my belief that it would be irresponsible for the German government to refuse that option – and that it would be insulting to Mr Snowden too.

Let us hope, I thought, that the German opposition enforces witness protection, if not asylum, for Mr Snowden. Germany could be very proud of itself if they did.

 

What if they are right?

Now I am not entirely sure they can anymore. I am certain that the government will try and stop that from happening at every turn. And I am concerned that Mr Snowden, should he come to Germany, would be extradited to the US pretty much the second he had both feet on German soil – if he even made it as far.

Mr Gabriel, after all, mentioned the incident with the Bolivian plane last year.

And anyway, the German government already seems to be planning Mr Snowden’s extradition. Why else would it request, as German dailies reported on Thursday, from the US government the exact details of the charges against Mr Snowden, as well as clarification on whether or not Mr Snowden could face the death penalty if he was extradited to the US?

The German government claims that it would be obliged to comply with a formal extradition request from the USA and that this is the reason why it currently seeks clarification on certain legal specifics of the extradition request issued last year. (In case anyone’s interested, a copy of the extradition request sent to Venezuela last year is here).

Vice chancellor Gabriel has claimed that there may be risks involved in inviting Mr Snowden to Germany that not even the government can calculate, suggesting that Germany might not be able to hold up its end of any testimony-in-return-for-asylum bargain with Mr Snowden.

At first, this just made me angry. It looked like a transparent move to block any attempt of the opposition of enforcing asylum or witness protection for Mr Snowden by a minority vote, so as to avoid any uncomfortable confrontation with the US government. It seemed to prove, once and for all, that the German government has little to be proud of.

After all, the government is doing precious little at the moment, foreign policy wise, to protect the German Grundgesetz or the rights of the German people. And if Germany extradites Mr Snowden, Germans can go back to hanging their heads in shame. Never mind how hard the country has worked to shake off its disgraceful history, extraditing the world’s most famous whistleblower wouldn’t exactly help Germany’s international reputation.

Then I got exceedingly worried. What, I wondered, if they really *can’t*? Not legally, I mean. As I said before, legally there would be options – if the government dared to stand up to the US – of supporting Mr Snowden. It would merely be a question of the German government putting the proverbial foot down. That’s the theory.

What about the practice, though, I started wondering. What if the German government’s refusal to invite Mr Snowden to Germany is not so much spineless pig-headedness as a veiled warning? Suppose they really wouldn’t be able to stop the NSA who, according to vice chancellor Gabriel, know very well what every single person in Germany is doing, from kidnapping Mr Snowden and taking him back to the US?

Perhaps the US wouldn’t even have to do it clandestinely. Perhaps the US military stationed in Germany could simply arrest Mr Snowden, citing the NATO SOFA agreement.

At least the worry that Mr Snowden would not even reach Germany seems justified. There are precedents for that kind of thing. However, what about the worry that even if he did reach Germany, he would not be safe? What if Germany, as the NY Times quotes Germany’s Die Zeit really cannot defend itself against powers like Russia or the US? If Germany doesn’t have the strength to do that, then all of a sudden, the government’s pitiful conduct in the NSA affair seems to make a certain, regrettable amount of sense…

If that really is the case, then Germany has much greater worries than the question of whether or not it should – or could – protect this particular whistleblower. Then Germans have to ask themselves who really pulls the strings in their country and why the German government is incapable of stopping the NSA – or any other US agency – from acquiring a witness that is under their protection. You could argue that not even the US Congress can fully rein in the CIA.

Yet, if the USA can simply override German law to do what they like (and I mean physically, not “just” electronically and virtually), then what does that say about Germany’s ability, ultimately, to protect itself, its citizens or future political asylees?

Suddenly, the question concerning Mr Snowden’s asylum may turn into the much more fundamental question of German sovereignty.

 

German sovereignty – an illusion?

This may go back as far as 1945. After the Second World War, Germany and the US never ratified a formal peace treaty. The post-1991 Two-plus-Four Treaty theoretically grants Germany full sovereignty but if the lack of a peace treaty in any way interferes with Germany’s ability to protect its asylees, then this is in need of urgent review.

And if it is simply a question of no treaty whatsoever, of the US playing rogue, doing whatever they like, and acquiring whoever they want on German soil in defiance of German laws, and – yes – the German constitution, then this should be Germany’s primary concern.

Then again, it turns out that the German Grundgesetz, although often referred to as the German constitution, isn’t even a proper constitution at all. I shamefully admit to being as ignorant of this as apparently most Germans are. Here was me going on about how the UK doesn’t have a written constitution and how problematic this is for, for example, journalists. Only to find out that Germany, strictly speaking, doesn’t have a constitution at all.

I cannot be the only one who finds this worrying.

Perhaps Mr Snowden’s case isn’t simply an example of the spinelessness of one particular government. Perhaps, given the murky contractual and constitutional situation, the German government really wouldn’t be able to protect Mr Snowden in its own country. Perhaps Germans are just now becoming aware for the first time since the fall of the Berlin Wall – and 23 years too late – that it is high time to draw up both a formal peace treaty and a “proper” constitution.

If that is the case, then the threat to the rights enshrined by the German Grundgesetz extends far beyond NSA spying or data protection. Then the German “constitution” is, in some way at least, completely meaningless.

If this is true, it means that short-term, no amount of campaigning by the German people or the German opposition will do anything for Edward Snowden.

Long-term, it means that Germans urgently need to look into strengthening their ability to protect themselves from violations of its constitutional and sovereign rights by other governments – and for that to happen, these rights first need to be fixed in formal treaties and a formal constitution.

However, if Germany effectively cannot protect Mr Snowden – be it because of the particulars of the post-1945 or post-1991 treaties or because the US are simply too powerful (or perceived as such) for meaningful opposition – then Germany needs to be very, very worried. Then they need fix the underlying issues first, foremost and with great urgency.

If Germans become aware of the omissions and neglected opportunities that have brought them to this point because of Edward Snowden, then this is doubtlessly one more addition to that “incredibly large debt of gratitude” that “the public, around the globe, owes him” and “one which it’s unclear we’ll ever be able to pay off” – for the present there may be no way for Germany to start paying it off.

 

No way of protecting Edward Snowden?

I do hope that I am wrong. I do hope that these are merely the ramblings of an under-informed mind and that things will start looking up again once I have fixed my information deficit.

I hope that the sovereignty granted Germany in the Two-plus-Four treaty means proper sovereignty, that the Grundgesetz is, to all intents and purposes, a “proper” constitution. And I still hope that the Snowden asylum question is mostly the work of a government whose foreign policy is at best too weak and at worst simply useless. That I could deal with.

And I think I actually do believe that. I do believe that not even the USA would ride roughshod over Germany’s sovereignty by kidnapping a recognised asylee. That would go beyond all common and other sense. A lot of people the world over are watching Edward Snowden very closely and I dare say it would do the US’s reputation no small amount of damage if they made light of Germany’s laws this visibly. Okay, so perhaps the NSA knows what everyone in Germany is doing. I daresay it would still be noticed if they decided to either abduct or simply get rid of Mr Snowden – this would be an unlawful act that people wouldn’t just swallow. I hope. Then again, the incident with Evo Morales’ plane tells a different story…

Yet even if I am right on this count, the chances of Mr Snowden travelling to Germany and staying safe there long-term remain remote. The biggest threat is the German government itself. I, for one, do not trust Angela Merkel and her minions not to extradite Mr Snowden. Which, if it happened, would be one of the most shameful moments in German foreign policy that I can remember. It would undo what the refusal to follow the US into the Iraq war did for German self-esteem, for combating the post-WW2 cultural cringe. I do hope that the German government realises what extraditing Mr Snowden could mean for the self-image of the nation and the German people, not to mention Germany’s international reputation.

I do think that this, at least, is something the German government is very aware of. Hence the attempt to keep Mr Snowden out of Germany – it would mean being able to avoid the question of asylum or extradition altogether.

So, I am deeply sorry, but unless someone convinces me that there is a very real chance that Germany can and will protect Edward Snowden for a substantial amount of time, I do not think it is advisable for him to go there.

And personally I would prefer it, if he packed in any needless risk-taking in this particular case too. Don’t get me wrong, I do understand the motivations behind his appearance on Russian live TV this week. I wasn’t surprised by any of the reasons he gave for doing what he did. They are very good reasons and the episode once again testifies to Mr Snowden’s integrity. Yet I cannot help being concerned about where Mr Snowden’s apparent willingness “to effectively sacrifice himself to get this debate going” – and keep it going – will lead.

Since this week, I have a hunch that Mr Snowden would take the risk of going back to the USA to stand trial if he thought it necessary for further debate – or that he would take the risk of that happening so he can add to the debate in Germany through his testimony.

I really hope he refrains from doing that. I cannot be the only one who believes that Edward Snowden would be no good to anybody in a prison cell. And I certainly don’t t think the risk is worth taking for the case of the German inquiry. Not if Germany’s government isn’t prepared to protect him. After all, it seems that the German government isn’t interested in any proper NSA investigation – or debate – either. That, in itself, is a problem that urgently needs fixing. However, the fixing is something the German people must do.

Still, whether or not to risk testimony in Germany or by video link without any conditions is obviously Mr Snowden’s call to make.

Irrespective of what he ends up doing, Mr Snowden has already given publics around the globe some powerful tools with which to fix their ailing democracies. Everywhere people could, if they wanted to and were well-informed enough, start holding their governments accountable. My guess it that Mr Snowden would say that this would be a good way of paying off that debt of gratitude we owe him. No matter what happens to him as a person.

About time, then, that we started doing it.

Although ideally without sacrificing Mr Snowden and others like him in the process.