Spy, Deny… Lie? Germany’s latest surveillance scandal proves that the BND really is in bed with the NSA.

This blog’s been quiet for a while now, even though much has happened that I would have liked to write about. Work got in the way. Now that I have a few quiet moments, I would like to update English speaking readers on what is happening in Germany. Most of the links in this post are to articles in German but I will try to explain the events being reported as best I can.

So, in case you’ve missed it: the sh** is hitting the fan at the moment for Germany’s foreign intelligence agency, the Bundesnachrichtendienst (BND), and also, increasingly, the German government over something that has been dubbed “the new BND scandal”.

What’s going on?

There is new evidence that Germany’s foreign intelligence agency helped the NSA spy on people and corporations in Germany. Did the German government know and lie about it?

About a week ago, German weekly DER SPIEGEL reported that the NSA has been spying on Western European and German targets for years. No, that’s not exactly news, we have known for a while now that all is not well in spy land (thank you, Edward Snowden!) However, now there is new evidence that Germany’s foreign intelligence agency helped the NSA spy on people and corporations in Germany – or at least the BND knew about the spying and did nothing to prevent it. Further allegations are that the German government knew too and lied about it.

Here is what seems to have happened: A so-called Memorandum of Agreement exists between the NSA and the BND. Germany and the USA agreed on it in 2002, following the 9/11 terror attacks. “The agreement pertained”, as DER SPIEGEL reports (link to article in English), “to joint, global surveillance operations undertaken from Bad Aibling.” (Bad Aibling is “the largest listening post outside Britain and the USA,” according to Wikipedia.) In line with the Memorandum, the NSA provides the BND with daily lists of “selectors” (like phone numbers and email addresses) that the BND then uses to search its surveillance databases for information. When it was formed, the agreement contained the reassurance that “neither Germans nor Americans — neither people nor companies or organizations — would be among the surveillance targets.” Selectors on German citizens or corporations, even corporations with German involvement were to be removed by the BND before running the NSA’s selector lists against its databases. This is because German entitites are protected by the German constitution. The problem: the BND started noticing in 2008 (link to article in English) that the NSA kept trying to sneak in selectors targeting corporations like Eurocopter, EADS (now Airbus), as well as the French government, and the European Commission.

Following the revelations about NSA mass surveillance by Edward Snowden in 2013 – and only then, i.e. five years after potential violations had first been noticed – the BND took a closer look at the selectors provided by the NSA and concluded that at least 2000 of them ran counter to German and Western European interests. At this point in time, however, the BND had already – wittingly or not – matched these selectors against information in its databases. According to initial reports, neither the BND leadership, nor the German Chancellery, Angela Merkel’s office, which is tasked with overseeing the BND, were informed of the discovery. Instead, the BND asked the NSA simply to “cease and desist”, i.e. to stop trying to sneak in questionable search parameters.

The Bundesnachrichtendienst “told parliamentarians in 2013 that the cooperation with the US in Bad Aibling was consistent with the law and with the strict guidelines that had been established.”

Acting in good faith or bad, the BND “told parliamentarians in 2013 that the cooperation with the US in Bad Aibling was consistent with the law and with the strict guidelines that had been established.” Sound familiar? Yes, same here. However, in 2014 the NSA investigative committee in the German parliament, tasked with examining NSA spying in Germany and also, increasingly, the conduct of the BND, began probing reported violations of the Memorandum. Prompted by the committee’s investigation, the BND once again looked at the NSA selectors, concluding that 40,000 of them were suspicious.

Consider that number: 40,000 search parameters that violate an agreement which states that Germans and German corporations are to be exempt from NSA spying.

In case anyone doubts that the BND simply overlooked these selectors or that it somehow didn’t know what the NSA was trying: over the years, these 40,000 suspicious selectors had been placed on a “rejection list” precisely because the BND noticed them and knew they were dodgy. More than that, DER SPIEGEL reported on Friday that BND employees found 12.000 suspicious selectors in 2013 but were instructed to delete them by their superiors. Which means the BND knew full well that something was amiss. What they don’t seem to have done was report it to their superiors or the Chancellery. It seems that only in March this year – almost two years post-Snowden – did the information finally make it to the Chancellery. If this is true, then the evidence of the BND’s questionable conduct has unfortunate implications for BND-chief Gerhard Schindler. When this was first reported, questions were asked about whether or not Schindler was even capable of keeping his own agency in check. However, things quickly turned out to be trickier than that. The real question soon became what exactly the Chancellery, and chancellor Merkel herself, knew.

Now, the German ministry for home affairs claimed up until 14th April this year that they had no knowledge of industrial espionage by the NSA in Germany. However, on 15th March this year, BND-chief Schindler admitted to Merkel’s office that BND-employees had noticed thousands of dodgy selectors over the years. So that would be a month between the government learning that something wasn’t quite right and then denying any knowledge of it. It gets better: according to DER SPIEGEL, the BND informed the Chancellery much earlier than this year about the NSA’s suspicious conduct. As DER SPIEGEL explains, Germany’s home secretary, Thomas de Maiziere, headed the Chancellery from 2005 until 2009 and was apparently briefed on NSA and BND activities (including the suspicious ones) in time for a US visit in 2008. Questions are being asked about how much he knew and if his ministry lied to parliamentarians on when stating that it had no knowledge of industrial espionage by the NSA in Germany. As statements like the one made by the ministry for home affairs are coordinated within the government, this also implicates the current head of the Chancellery, Peter Altmeier, who allegedly had been informed about BND/NSA-violations a month before de Maiziere stated the contrary.

Remember what Snowden said in July 2013 about the Germans being in bed with the NSA? It seems that there is little question that this is true. The real question seems to be: exactly how many German government officials and ministries are partaking in the orgy?

Don’t get excited

The reaction to the news in Germany is interesting, to say the least. Yasmin Fahimi, the general secretary of the Social Democratic Party – currently in a coalition government with Angela Merkel’s Christian Democrats – described the allegations as “grave” and said that the NSA scandal in Germany was reaching a new dimension. She also accused the Chancellery of failing spectacularly at its BND oversight duties. These are unusually harsh words in an otherwise pretty cosy coalition that hasn’t been known for its particular zeal at shining a light on NSA spying or, in fact, the involvement of Germany’s BND. Fahimi isn’t wrong, of course.

If the Chancellery indeed knew about what was going on, Merkel’s words that spying among friends “is just not done” would sound pretty dishonest.

Sadly, the SPD general secretary’s words are also deeply disingenuous. “Dimensions” were grave from day one – at least for the 48.000 million German citizens who have been subject to warrantless NSA surveillance. However, no one in this or the previous German government seemed to think the dimensions quite grave enough to properly confront the USA about what the NSA was doing. And that absolutely includes the Social Democrats.

Which is also why we should probably hold back on our excitement at the prospect of the “thorough investigation” Angela Merkel is now promising. It’s not, after all, like we haven’t heard those words before. Over the past 22 months since Snowden first revealed NSA spying to the world, there have been a number of occasions when the German government feigned outrage (like, for instance, when it emerged that the US had spied on Angela Merkel’s phone) and promised to get to the bottom of what was really going on, only to then calm down again pretty quickly and move on. This is true of both Merkel’s CDU and the SPD whose leader, vice-chancellor Sigmar Gabriel, demanded that Snowden be given witness protection in Germany when his party was still the opposition, only to completely reverse that demand once he himself was in government six months later.

What complicates matters further, as Severin Weiland comments here, is that members of both coalition parties have been responsible for the BND in recent years. Therefore, if members of the SPD now pushed too hard for the CDU’s conduct to be investigated, the CDU might return the favour. Considering that both parties are currently running a country together, exactly how likely is that to happen? Already they are citing classified information as one reason why answering questions about who knew what and when may be difficult. Again: sound familiar?

Perhaps de Maiziere’s statement about his own ignorance was simply “the least untruthful” answer he could give?

Chances are that, as Sascha Lobo comments, Merkel’s government has something to hide. It would explain their unwillingness to cooperate with any serious investigation effort in the wake of the Snowden revelations.

Fair enough, the opposition is once again calling for Snowden to be called as a witness (Green Party) or even accusing the BND of treason and labelling it a “branch” or “subsidiary” of the NSA, while demanding that BND-chief Schindler resign (DIE LINKE, Germany’s far-left party). Treason and industrial espionage might be among the charges brought by the German attorney general who, as of Friday, is investigating whether or not there is enough evidence to file criminal charges against the BND. However, it isn’t the first time he is doing so in the wake of the Snowden revelations and last time around (which was less than a year ago when he was seeking evidence to indict the NSA for spying both on Merkel and the NSA investigative committee) nothing came of it. As for the opposition: considering their diminutive size and their past lack of success at, for example, securing asylum for Snowden in Germany, it is questionable just how likely they are to make that big a difference in the overall scheme of things.

Cautious optimism?

What may be grounds for cautious optimism is the reaction of the NSA investigative committee who have demanded to be given the BND’s rejection list (the one with the 40000 dodgy selectors on it). Ironically, the German government is now consulting with the US government about whether or not this will be possible. Recent history suggests that the USA aren’t likely to agree to release the list to German parliamentarians, which would then force the German government to make its own decision in the matter. Christian Flisek, who represents Germany’s Social Democrats on the NSA committee, has said that he “doesn’t care” what the USA think, but chances are that the German government will disagree.

Glyn Moody, on Ars Tecnica, predicts (link to article in English) a “considerable political fallout from the latest news. Because of the way the affair has been handled, with the German Chancellor kept in the dark for years, it is widely expected that the head of the BND, Gerhard Schindler, will be forced to resign” but I don’t quite share his optimism.

That any of this will actually have the kind of repercussions necessary to prompt a real and comprehensive investigation aided by the German government even at the risk of affronting the USA seems doubtful. As this commentator states, nothing is ever that simple, the German government has a strong interest in working with the USA on surveillance, as well as protecting what seem to be several important people central to the government and close to Angela Merkel herself.

All apparent indignation aside, it wouldn’t be the first time that the German governments fails at a thorough investigation into its own failures in relation to NSA spying, let alone the conduct of the BND.

Far from an opportunity of perhaps getting to the bottom of the NSA’s activities in Germany and Europe, this latest BND scandal might turn into yet another example of either the reluctance or sheer impotence of the German government to take decisive action.

Meanwhile, the Airbus Corporation, allegedly one of the NSA’s targets, is threatening to sue for industrial espionage. Perhaps that, then, is part of the solution. Like Silicon Valley tech companies, fearing a major backlash from angry consumers over their alleged cooperation with the NSA, finally started making changes in favour of encryption and against surveillance, so perhaps an affronted German industry will exercise the necessary pressure that will lead to a much needed reconsideration of German-US relations in favour of a thorough investigation.

Then again, the next election is two years away and, as we have seen repeatedly since Snowden first arrived on the scene, a lot can happen, be swept under the rug or simply forgiven and forgotten in a space of as little as 22 months.

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2 thoughts on “Spy, Deny… Lie? Germany’s latest surveillance scandal proves that the BND really is in bed with the NSA.

  1. Pingback: “The bare beginning of reform”: two years on, Snowden’s work “has only begun” | Notes from Self

  2. Pingback: Happy Birthday, Edward Snowden, and sorry about Germany! | Notes from Self

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