On surveillance, we're 'all foreigners now'

DW: The US has been debating changes to parts of the Patriot Act that allow the NSA to retain telephone records. Some people want the program closed down, others want to extend it and some want to replace it with a new law called the Freedom Act, which would have telecoms companies retain the records. The White House says it's open to the Freedom Act. Are you encouraged by all this?

Thomas Drake: What I am encouraged by is the fact that we're even having the debate. But the USA Freedom Act I have significant concerns about. The government is really attempting to focus any reform on just the phone records program. That's just one of hundreds of surveillance programs. If the Obama administration wants to outsource or offload the phone records and have the telcos - the providers of records - keep those records, then what's the difference? All the other surveillance programs, all the other data that's collected - we're talking e-mail, financial records, Internet usage - all that continues unabated.

Regarding the phone records, for you the retention of the data is the problem rather than who is retaining it?

The problem is retention, period. And the access to it: That goes outside the Fourth Amendment standard, which is probable cause and has to be particularized. In essence, what we've done is expanded the definition of what's "particular," and "particular" in the digital age can be the entire set of records. It's not just one person; it's the records. The records now become the thing you want. That's a "general warrant," no matter what else you call it. In our country, general warrants were absolutely forbidden. You had to have a particular warrant and it had to be based on probable cause.

What's your message to Congress as it considers this?

Don't try to fool us again. I've argued, and others have argued, even national security attorneys and lawyers, that we had everything we needed on 9/10 in terms of law and statute to deal with this then, even the threat of terrorism. We didn't have to go to the "dark side" as [former Vice President Dick] Cheney said five days after 9/11. It was never necessary, and that's a burden I carry. I believe the government wants to keep the attention on the phone records because they have other authorities under which they're already getting that information.

Regarding the latest revelations in Germany, it's been claimed that cooperation between the NSA and the BND went far beyond the scope of the "Memorandum of Agreement" they signed in 2002, in the aftermath of 9/11. What's your view?

It's convenient to claim it went beyond the agreement, that somehow the agreement had some restrictions. The agreement was actually quite open-ended. I personally saw the agreement that was signed in 2002 and it was extraordinarily expansive. This agreement basically gave carte blanche. It was really designed to provide the NSA in particular access to pretty much anything they wanted the BND to collect. The agreement allowed interpretations that would give much wider access to information, beyond any other restrictions even including German law, the constitution, or even EU privacy laws.

What do you say to those who see what allegedly happened - BND providing NSA with intelligence on targets that had nothing to do with terrorism - was a case of the NSA overreaching?

The overreaching wasn't overreach. It was just part of what we could do under the agreement.

What's your response to those on the German side who say they are shocked by what happened?

I find that quite hypocritical. For me it's faux-shock, this idea that somehow, "How could this happen?" This is where I can be quite cynical about this. This was bound to happen under these kinds of agreements and arrangements, spoken and unspoken.

How would you characterize the overall relationship between the two agencies?

I would say that it's far closer than most people would fully acknowledge. Including the German government. Much closer. Of all the "third party" countries with which the NSA has these agreements, the one with the BND would be right at or near the top.

Despite that close relationship, when the scandal first broke in 2013, and with an election approaching, German Chancellor Angela Merkel's government claimed that Washington had offered it a "no-spy agreement" to smooth German concerns over surveillance. Recently leaked emails between the White House and the Chancellery have cast doubt that it was ever going to happen. What's your view?

That was a kabuki dance. Politically it was a brilliant maneuver. Because in essence it put the onus on the United States - and what's the United States going to say? And why would the United States put Germany on the same level as a UK or a Canada or an Australia or a New Zealand [the members of the "five eyes" intelligence alliance]? Truth be told, there's actually no written no-spy agreements even with the five eyes community. There isn't. It's just this understanding that we're not going to routinely spy on each other.

The leaked emails also show Berlin couldn't persuade Washington to publicly promise that US intelligence would obey German laws on German soil. But that request is also seen by many as unrealistic. Is that how you see it?

They've never abided by German laws in Germany! I mean, it's incredulous. The idea that "Somehow, if we had this agreement, that it wouldn't happen. That that would be enough for us - we need it, and then we're ok." Really?

Is it ever in a foreign intelligence service's remit that it should observe foreign laws?

No. Not at all. Foreign intelligence is foreign intelligence. I used to work in foreign intelligence. I used to be at the CIA, I was in the Defense Intelligence Agency, I worked at NSA, I was military intelligence as well during the Cold War. In foreign intelligence, it doesn't matter what the local laws are. It just doesn't matter. It's what you can get away with.

That is what you have said is disturbing about the cooperation Germany's foreign intelligence service is providing on its own soil, on the basis of that 2002 agreement with the NSA.

This is sort of this space of no laws, an extra-legal space when it's foreign intelligence. You have two foreign intelligence agencies in this agreement. This is where I shudder because you have a foreign intelligence service operating as if Germany itself is a foreign nation and for all intents and purposes, when operating on behalf of the NSA - guess what - it is in fact treating Germany as a foreign nation. It doesn't matter whether you're a German citizen or a US citizen, as far as each of the countries' security services are concerned, we're all foreigners now. And that's how we're treated. That should really alarm people.

You don't buy the idea that those at the very top in the Chancellery in Berlin didn't know the full extent of what was going on?

I don't really believe that. I believe that, strategically, they knew what was going on. They may not know all the particulars because, obviously, they have to hold some plausible deniability. But none of this is done without authorization. None of this is done without approval. None of this is done without records. Remember, even the most secret part of the mass surveillance regime that was unleashed in the United States with the approval of the White House was done by a presidential memo. You just don't go off and do these kinds of things without authority. And so I think there's still more to come out.

German lawmakers are holding an inquiry into the scandal. You testified before it yourself. Are you optimistic that Germany will come out of this well?

To me they're uniquely positioned to rise above this, to really look the dark the gift horse of surveillance in the mouth and say what is so. Just say what is so and just come clean about it. I think that's the best history lesson that Germany could give here. Just lay it out. The problem is, there's a lot for people to lose. The one thing that's true about power is that most people don't want to give it up. It doesn't matter what the background is, what the history is. They don't want to give it up. They want to keep it.

Interview: Richard Walker