The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany

Abstract

My study of undercover policing explores the ways in which democratic legal systems change when they legalize highly contested police practices that have long been quietly tolerated and accorded minimal scrutiny. Undercover policing is a prime of example of such a practice. It has long been subject to remarkably little legislative oversight and systematic regulation in the United States and Western Europe. It exists in a twilight of legality—a necessary evil, but one inviting anxieties about its legitimacy and consonance with the rule of law. Under pressure from the European Court of Human Rights, Germany (along with other Western European countries) has attempted to regulate covert operations in a more systematic fashion. The German experience examined in my article suggests how difficult it is to tame and legitimate a constantly changing and normatively contested practice such as undercover policing. The article contrasts German attempts to create an explicit legal basis for this power –and a comprehensive regulatory system – with American willingness to leave covert practices largely unregulated. The article focuses on the consequences of these divergent approaches for the legitimacy of covert practices. German legal and administrative reforms succeeded in improving legitimacy along some dimensions while undermining it along others, and, indeed, introducing new bases on which the legitimacy of undercover police work is subject to challenge. In the United States, by contrast, law enforcement agencies have succeeded in defusing a variety of reform initiatives through internal reforms, with little legislative or judicial supervision. As a result, many problems of legitimacy persist – with little visibility. American challenges to the legitimacy of covert tactics now focus less on criminal cases than on the use of such tactics in domestic intelligence investigation. My analysis of German covert policing rests on 89 field interviews that I conducted between 2002 and 2004 with state and federal police officials, undercover agents, training and supervisory officials, control officers, prosecutors, and judges in fifteen of the sixteen German states. I also compared evidence from interviews with a variety of written sources, including ministry guidelines, training materials, prosecutors’ memoranda, judicial opinions, scholarly criticism, and news stories. The open-ended, qualitative field interviews are at the heart of the project. They help to uncover the principles animating otherwise shadowy German covert operations. And they illustrate the dilemmas inherent in the practices; the obstacles to reform; and the different tradeoffs which the American and German regulatory systems have made in securing the legitimacy of these practices.