Handygate fallout

Barry Eisler is a best-selling novelist, lawyer and a former CIA operative. He lives in California.

Were you surprised to learn that Angela Merkel's phone has apparently been hacked by US intelligence?

Barry Eisler: I can't say I was terribly surprised. If you had asked me before June when Snowden's revelations first started getting published do I think that the NSA is monitoring every cell phone and other communication of world leaders including allied leaders, I would have said probably. That's what the NSA does. It tries to monitor as much government traffic as it can.

Do you think it is wise of the US to monitor its allies?

No, I think it's a terrible idea on at least several levels. First, there at least half a million people in America with top secret clearances. That's a huge number. So the chances of something like this leaking are pretty high. Over time it is pretty much a guarantee. So you have to ask yourself if you are the NSA what would be the cost of this sort of information that we are bugging the phone of allied leaders getting out. And those costs are high in terms of diplomacy, embarrassment and strained relations.

And then what are the benefits you accrue when listening in on in this case Angela Merkel? And I would say almost none in practice and in theory. I don't know what we could learn by listening to Chancellor Merkel's phone calls that with a little bit of decent imagination and foreign policy prowess we couldn't have imagined on our own. We don't really need to have access to every private or governmental conversation that Merkel is having in order to develop a workable policy with a country like Germany whose interests are largely aligned with those of the United States. We are after all NATO allies and trading partners.

And I think the largest problem - aside from the short term diplomatic costs - of this kind of massive almost indiscriminate spying on every leader and every bit of information you can possible get access to is, it tends to stunt the imagination. Anyone who has ever been in business or had to negotiate a deal knows that you don't need perfect access to all the other side's secret preparations for a business meeting in order to do productive business at that meeting. The most important thing is to try to understand using the power of your imagination what the other side wants and you can then develop a sort of win-win solution as a result of being able to do business together.

There's no reason we can't function with our NATO allies in a similar fashion. The need to spy even on allied governments develops into a kind of pathology where you're afraid to make decisions because you lack what you think is perfect information.

This week and next high-level German officials are in the US to discuss what has been dubbed Handygate (Handy is the German word for mobile - the ed.) What do you think will come out of this?

Probably some sort of carefully worded diplomatic communiqué to the effect that we're going to see reforms and after a full and frank conversation the United States realizes that we need somewhat better oversight over certain aspects of our intelligence programs. The purpose of whatever comes out of these meetings will be primarily to allow the principal players - all of whom are part of their own establishments, all of whom are elite power players within their countries - to save face and to be able to say to their publics that we have handled things well, we defended your interests and things will get better now.

But things aren't really intended to get better. Because as you know the latest revelation is that the NSA is not vacuuming up information on European citizens all by itself, but it's doing so with the complicity of allied governments. So the people who are complaining about these activities are in many ways complicit in them. Dianne Feinstein (chairwoman of the Senate Intelligence Committee - the ed.) would be a great example here in the United States. So much of these meetings are intended as theater to assuage upset citizens, but not to change all that much.

In reaction to the German outrage the US government said that in 2008 Germany also collected data of some 300 Americans. But is it even possible and useful to compare the size, scope and capabilities of German and US intelligence services?

It's hard for me to imagine that any other country maybe to some degree China, but probably not even China, has anything remotely like reach of America's spying apparatus. And that number 300 sounds like something that's fairly targeted. You could imagine the government could do actual court ordered surveillance electronic or otherwise on 300 people. You can't do that discriminate, careful, deliberate, specific surveillance of half a billion people. So comparing what we may loosely call surveillance of 300 people to surveillance of half a billion people is to me an absurdity.

Congress has held hearings about the NSA activities. Do you think the US is ready to do bring about real change to its intelligence system?

I hope so, but it's a little early to tell. There's an interesting coalition in Congress that's putting together a promising bill. It's interesting to see how new coalitions are forming and true political affiliations are being revealed by Snowden's revelation. In Congress right now you have liberal Democrats and Republican libertarians working together out of shared concern for government overreach and intrusion on the lives of private citizens.

Obviously I'd like to see better oversight, new laws, but I am always going to be cognizant of one important thing. And that's this: James Clapper, the director of National Intelligence, the head of America's entire spying apparatus, lied to Congress in testimony to the Senate when he was asked a very clear question, ‘is the NSA vacuuming up data on millions of Americans'. And Clapper said ‘no, not wittingly.'

And then we had Snowden's revelations which proved that Clapper's statement was a lie. Even if we hadn't had had the proof that it was a lie, Clapper himself confessed that he lied. He said his statement was an untruth. Lying to Congress in testimony is a felony. And yet Clapper not only hasn't been prosecuted, he still has his job. So the point is this: We can have all the new laws in the world, but until a powerful official like James Clapper is held legally accountable for violating the law, for the equivalent in this case of perjury, not technical perjury because he wasn't sworn in during his Senate testimony, but that doesn't matter because there is a statute that makes a felony of lying to Congress, it's hard for me to get overly optimistic about the efficacy of just passing new laws. It's accountability through the realistic threat of legal sanctions that ensure the rule of law will be followed.

What does it tell you that international outrage is now focused on top leaders' phones being monitoring which if anything is more like classical espionage and not at the new and potentially far more pernicious fact that the lives of entire innocent populations are apparently monitored, stored and dissected?

In Germany three months ago, Der Spiegel reported that the NSA had vacuumed up something like half a billion phone call and email messages of German citizens in a one month period. The response from the German government was fairly muted about that. And now it turns out that the NSA was also spying on Merkel's private phone and that's caused Merkel and the German government to get really upset.

Likewise Dianne Feinstein, California's Senator and part of the Senate's Intelligence Committee, who is supposed to have oversight over the NSA and the rest of the US spying apparatus. She has done nothing but defend the NSA through all these revelations of its indiscriminate, massive spying on American citizens.

One of the things that continually frustrate me about political discourse in America is that so many people insist on seeing all politics through a liberal/conservative or Democrat/Republican prism. And that prism through which so many people try to understand politics in my opinion distorts and obscures far more than it reveals. If you really want to understand politics not just in America, but in most developed countries including Germany, it's good to look at things not too much as left-right issues, but more as powerful faction versus non-powerful faction issues.

What unites powerful people in America is far more important than the difference between powerful people who might be Democrats and powerful people who might be Republicans. Dianne Feinstein is a Democrat, but she has far more in common with any Republican Senator than she has with any private US citizen. She has much more in common with Chancellor Merkel than with any private US citizen. And this is revealed by the fact that when Dianne Feinstein hears that private citizens are being spied on she basically doesn't care. It's only when one of her fellow elites is being spied on she feels some empathy and she feels that she herself might be threatened by this sort of spying and now is compelled to possibly say and do something about it.