The place of covert surveillance in democratic societies: A comparative study of the United States and Germany

In the wake of the September 11 attacks, undercover policing has become an increasingly important law enforcement tool in the United States and in Europe. More frequent deployment of covert tactics has confronted democratic governments with difficult questions about how these extraordinary operations should be controlled and conceptualized. How ubiquitous should covert tactics become, and how should regulatory systems respond to their increased importance? What are the challenges of taming the constantly changing and highly contested practices of undercover policing, which stubbornly resist oversight? Legal systems differ in their concerns about undercover surveillance and in their willingness to deploy covert agents and informants against a spectrum of perceived threats ranging from national security dangers like terrorism or political and religious extremism to organized crime, drug trafficking, and more ordinary forms of criminality. In most democracies, political elites, legal actors, and critics agree that undercover investigations are in some sense a necessary evil. But national legal systems vary in what they mean by that. They have disparate conceptions of what makes covert investigations troublesome; of the proper goals of infiltration; and of the mechanisms by which undercover tactics should be legitimated and controlled. In short, legal systems forge different regulatory compromises and accord different degrees of legitimacy to the "necessary evil" of covert operations. Much of the scholarship about undercover policing in Europe has focused on doctrine. My study examines undercover policing empirically, through 89 qualitative, open-ended field interviews that I conducted with state and federal police officials, undercover agents, training and supervisory officials, control officers, prosecutors, and judges in 15 of the 16 German states. Through these interviews, I examined the ground-level strategies and practices of those who conduct, supervise, and evaluate covert operations. I organize my comparison of the United States and Germany around four dimensions of conflict with fundamental norms, including tensions with (1) privacy and trial rights such as the right to cross-examine witnesses; (2) the mandate to separate intelligence-gathering from law-enforcement functions; (3) norms against improper interactions between undercover agents and their target environment; and (4) values of accountability and oversight. This article identifies national differences between the degrees to which undercover policing conflicts with higher-order values along the four dimensions of comparison. The article links these tensions with a number of "legitimacy deficits" peculiar to each system. Differences between the degree of conflict with higher-order norms help explain why the legitimacy of Germany's covert policing system remains considerably more contested than its American counterpart-even as Germany imposes much more significant regulatory constraints on the initiation and conduct of undercover operations.