Spying on Friends?
Atmosphere of Distrust Hinders EU Anti-Terror Cooperation
By Maik Baumgärtner, Martin Knobbe and Jörg Schindler
The man who wants to explain the psyche of Germany's foreign intelligence service is sipping a cappuccino and talking about the abduction of German tourists in the Sahara Desert a few years ago.
A crisis committee was meeting at the Foreign Ministry in Berlin, and agents at the Federal Intelligence Service (BND) in Pullach, outside Munich, were trying to figure out how to get information about the kidnappers. Human lives were at stake, the pressure considerable.
The French intelligence services had good sources in the region, but they were unwilling to share their information with the Germans, so the BND decided to spy on the French to gain access to it. This was how it came about that the Germans spied on a government agency in a friendly country, one they treated as one of their closest political allies. Friendly? Allied? These are not categories with which the man with the cappuccino is familiar in his work.
A senior BND official at the time, he prefers to keep his name a secret. He recounts the episode to explain why an intelligence service sometimes finds it necessary to spy on one of its partners -- and how it could happen that the BND spied on so many institutions in Europe. Our business, says the man, is based primarily on suspicion.
It took only a few hours after three bombs had exploded in Brussels and 35 people had been killed for politicians and experts to begin calling for better cooperation among intelligence services in Europe.
There was talk of a community of values, of solidarity and of trust. German Interior Minister Thomas de Maizière, a member of the center-right Christian Democratic Union (CDU), mentioned various "pots of data" and the need to finally link them together. Federal Prosecutor General Peter Frank and the domestic policy spokesman of the center-left Social Democratic Party (SPD) parliamentary group, Burkhard Lischka, called for a European counterterrorism center.
Politicians and others have been singing the same mantra for months, and it always happens when there has been an attack. It happened in November, after the attacks on the Stade de France stadium and the Bataclan concert hall in Paris, and before that, in January, on the editorial officials of the French satirical magazine Charlie Hebdo.
The argument makes sense: If terrorists are forming cross-border networks, governments must do the same to fight terrorists. Nevertheless, cooperation among security agencies in Europe remains rudimentary.
The episode in the Sahara illustrates why this is true. Intelligence services mistrust rather than trust each other. Data is hoarded instead of shared. Everyone spies on everyone else, as we have learned from past revelations. The American National Security Agency (NSA) tapped German Chancellor Angela Merkel's mobile phone, and the BND spied on former French Foreign Minister Laurent Fabius. The examples could be continued indefinitely.
For months, the German government has been working on a law to reform the country's intelligence agencies. Its aim is to improve transparency and eliminate mistrust, especially of European partners. But the suspicion is deeply entrenched, as evidenced by the thousands of spying targets, known as selectors, the BND has directed at European neighbors.
They consist of long sequences of letters and characters. The sequence begins with a telephone number, email address or number of a device the BND wishes to spy on, followed by a code for the subject matter: "WPR" for weapons production, "LAP" for agricultural policy, "TEF" for funding of terrorism, "ISG" for an Islamist who poses a potential threat to public safety.
Then comes a three-letter code for the country where the spying occurs. The sequence often ends with a blocking code to identify intelligence services with which the Germans prefer not to share the results of the spying operation: HORT for Hortensie (hydrangea), for example, the code for the United States, and BEGO for Begonia, the code for Denmark.
The BND employees referred to the services of other countries as Fleurop partners (which stands for the Europe-wide online flower delivery service of the same name). Many of the BND selectors included blocking codes, a sign of how deeply the Germans mistrusted these agencies.
The selectors open a window into the world of BND espionage, revealing how pronounced the German agents' desire to gather information was. To some extent, they used the same terms to search the worldwide sea of data as their counterparts from the United States. The overlap encompassed many areas, including politics and business, government agencies and private citizens. The BND was snooping around in crisis zones, but also in countries like the United States. European neighbors were targets of its espionage with remarkable frequency.
For instance, the email addresses, telephone and fax numbers of virtually all European embassies and many consulates in Germany were on this target list, and the agents didn't even shy away from spying on a Vatican delegation. The list also included phone numbers for the interior ministries in Vienna and Brussels, the Defense Ministry in London and the US State Department, as well as banks like HSBC.
International institutions were on the list of targets, as well as the United Nations drug control program, the Organization for Security and Co-operation in Europe (OSCE), the Organization of the Petroleum Exporting Countries (OPEC) and the International Monetary Fund in Washington. So were non-governmental organizations, such as Oxfam, Care International, the International Committee of the Red Cross in Vienna, the International Medical Corps in Los Angeles and the International Action Center in New York.
The offices of politicians were also wiretapped, such as that of the Israeli prime minister, along with telecommunications companies like British Telecom and MCI Worldcom, a NASA flight operations center, a department of the US Air Force, and many small and mid-sized companies in Austria and Switzerland, even gun manufacturer Heckler & Koch in the southwestern German state of Baden-Württemberg, which was British-owned at the time it was spied on.
At the beginning of the espionage scandal, it seemed that the BND was mainly gathering information about European targets on behalf of the Americans. One revelation that triggered outrage was that the Germans had wiretapped European companies Eurocopter and EADS for the NSA, fueling speculation over possible industrial espionage. The Americans had given their German counterparts 73 telephone numbers at both companies to monitor. BND terminated the program in 2006, because it violated German and European interests.
It is now becoming clear that the BND listened in on calls associated with at least two phone numbers at the defense contractors for its own purposes, a Eurocopter office in Marignane, France, and an EADS number in Warsaw.
An Atmosphere of Distrust
The surveillance was so broad in scope that it forces the question of whether the targets were all actually necessary to track down terrorists and money launderers, human traffickers and arms dealers. Put differently, how many encroachments on personal data are needed to ensure security in Germany?
The selectors show that part of the BND's mentality is to not trust anyone. But this lack of trust is not talked about, nor is the question of what society expects from an intelligence service, what powers it should have and where its limits should lie. As long as these questions remain unanswered, there can be no honest debate over sensibly combatting terrorism in Europe.
For more than two years, a parliamentary investigative committee has been trying to shed light on the activities of intelligence agencies on German soil. But in this environment of suspicion, lawmakers are encountering one roadblock after the other in their work. Most BND employees are only willing to say the minimum required to avoid being liable to prosecution. Many are unable to remember details, many contradict themselves and some call in sick when called to testify. During the hearings, an attorney for the German Chancellery often interjects as soon as he sees a threat of secret information being disclosed.
This secretiveness also pervades the debate surrounding a new BND law that would police the agency's work. The reform effort has been stalled for some time. The plans to monitor the agency are too lax for some politicians and yet too strict for others, who fear it will paralyze the BND. The skeptics have voiced their concerns behind the scenes, and Finance Minister Wolfgang Schäuble and Chancellor Angela Merkel, both members of the center-right Christian Democratic Union (CDU), have reportedly intervened. Suddenly their party is divided on the issue.
From the investigative committee to the parties to the Chancellery, the case illustrates how two worlds are colliding, those of the reformers and those seeking to preserve the status quo.
Gerhard Schindler is caught between the two.
The BND president points to a photo of a salami sandwich in the office of a scientist in Pullach.
It's his favorite image. A wrinkled white work coat is draped over a chair, a chemical formula is written on a blackboard in the background, and papers, magazines and files are stacked on brown furniture. The sandwich, still wrapped in plastic wrap, is on top of one these stacks. This is the BND to a T, says Gerhard Schindler.
He's surrounded by people holding wine glasses. Schindler has come to the offices of the Gruner + Jahr publishing house in Hamburg to open an exhibition about the BND. Large images by photographer Markin Lukas Kim taken at the BND's Pullach headquarters depict the inner life of the agency. They make the BND seem very old-fashioned, like a relic from the Cold War. There aren't any people in the photos, which were all taken at night, but they depict many details. One could say that they represent the dark past of the BND.
The exhibition is part of a "transparency offensive," says the president, who envisions the BND of the future as a modern intelligence service in a modern democracy.
He recently ordered the elimination of the code names for BND field offices, and employees are also no longer required to conceal who they work for. Some 4,000 of the BND's 6,500 employees will soon have been moved from a hidden compound on the banks of the Isar River in Pullach to a modern, light-filled building in downtown Berlin. Images of the new headquarters are also on display at the exhibition. They could be interpreted to represent the BND's bright future.
Schindler knows how long the path from dark to bright is. He mentions a "deep incision" into the culture of his agency, and a necessary "mental shift." He wants less suspicion and more discussion, as he puts it.
The NSA's Willing Helper
The last few months have also taken their toll on Schindler, who was out sick for some time. Many of his employees feel unfairly criticized and let down by lawmakers. When testifying before the fact-finding commission, these agents, people who were left alone for decades as they quietly engaged in their espionage activities, are now expected to explain to the public how the BND became the NSA's willing helper.
In 2002, the two agencies, still reeling from by the shock of the 9/11 attacks, signed a memorandum of agreement to engage in close cooperation, which included a jointly operated listening station in Bad Aibling south of Munich. After that, BND employees entered millions of search terms, or selectors, for the Americans into their databases -- a program the public only learned about a year ago.
As we know today, the Americans palmed off thousands and thousands of search terms on the Germans that violated German interests. Over the years, the BND sorted out about 40,000 of these selectors, but the number it overlooked cannot be quantified. Some 68.7 percent of the search terms were directed against government offices of European Union partners, while many others targeted German companies.
But the BND also independently spied on many targets in Europe, entirely without being requested to do so by the Americans. It wasn't until the end of 2013 that Schindler issued the order to suspend spying operations on friendly EU and NATO partners, but some problematic selectors remained active nonetheless.
The Parliamentary Control Panel of the German Bundestag in charge of supervising the intelligence services appointed a task force, which paid a visit to BND headquarters in Pullach.
Although the task force was shown a 900-page list of selectors, its final report remained classified.
Nevertheless, some details were revealed -- for instance, that the BND was not only surveilling politicians like the French foreign minister, but also German citizens, such as the diplomat husband of Emily Haber, a state secretary in the Interior Ministry. He was head of the European Union Monitoring Mission in Georgia from 2008 to 2011. Other Germans were also on the list, including employees at EU outposts abroad. Not even German citizens were spared when it came to the agency's suspicions. The task force concluded that the BND had "spied on a large number of targets that were not in conformity with its mandate, and were legally inadmissible."
A Dearth of Scrutiny
How pan-European cooperation among intelligence services is supposed to flourish under these conditions remains a mystery. As long as no clear legal basis for their work exists, and as long there is no reliable supervision of their activities, a European counterterrorism program will make little progress.
Every four years, the German government provides the BND with a secret mission profile detailing which issues and countries it should focus on and address. There are also three bodies that monitor the BND: the G-10 commission of the Bundestag, which consists mainly of experienced lawyers; the Parliamentary Control Panel, which meets behind closed doors; and a department at the Chancellery headed by State Secretary Klaus-Dieter Fritsche. But neither the government nor any of these bodies has learned very much about the everyday activities of BND agents, in part because no one is asking pointed questions.
This, at least, might explain why Chancellor Merkel made a statement on the sidelines of an EU summit on Oct. 24, 2013 that would be remembered for years to come: "Spying between friends, that's just not done." It was a reaction to the news that the Americans had eavesdropped on one of her mobile phones. At the time, didn't she know that the BND was also spying on Germany's friends? How blind were politicians, and how ignorant?
The NSA investigative committee recently held its 91st meeting inside a committee conference room in Berlin. Foreign Minister Frank-Walter Steinmeier, a member of the center-left Social Democratic Party (SPD) sat down at a semi-circular table, facing 10 members of the Bundestag in the hearing.
Behind him, representatives of the federal ministries, the intelligence services and the German states observed the hearing as stenographers took notes. The foreign minister peered out a row of windows, where he could see excursion boats passing on the Spree River outside. The building's architect once wrote that his design was meant to symbolize the German Bundestag's claim to openness and transparency.
Steinmeier spent more than an hour giving his opening presentation. He described the situation shortly after the 9/11 attacks, which revealed a "completely new quality of terrorism," as well as the need for close cooperation with the Americans. He said that he still supports this cooperation today.
The foreign minister used his words to paint a large political picture, something he does very well.
But he seems less interested in the small brushstrokes.
From 1999 to 2005, Steinmeier served as chief of staff in the Chancellery under Gerhard Schröder, which also made him the BND's top supervisor. He claims that he knew nothing about problematic selectors at the time, and that he never issued any orders to spy on European partners. According to Steinmeier, he also never received any such dossiers in his later role as foreign minister. In fact, he said, he had no need for the BND's information, because he was already familiar with the European partners' political positions.
Steinmeier's predecessors said similar things to the investigative commitee. In his hearing, Thomas de Maizière said that until leaving his position as head of the Chancellery in 2009, he had received no indication that the BND had entered search terms like "EADS" or "Eurocopter" for the Americans. Was the Chancellery that clueless for so many years?
Internal memos show that the BND was already reporting problematic NSA selectors to a department head in the Chancellery in early 2008. Former BND President Ernst Uhrlau also told the committee that the selector problems were discussed at length in the Chancellery in 2008. Was the Chancellery head not present in that debate? Or is de Maizière simply having a memory lapse?
There will be no credible responses to these questions, because the agreements between intelligence agents and their supervisors are usually verbal. For instance, no minutes are prepared for the so-called presidential group, in which the heads of the security agencies at the federal level meet in the office of the Chancellery head every Tuesday. The Americans call this method "plausible deniability." Those who leave no paper trail behind have nothing to deny.
Taking on a Life of Its Own
Through a lack of political leadership, the situation took on a life of its own. At the BND, it manifested itself in the unbridled collection of data. Was a shipping company suspected of proliferation, because it had once shipped goods to Iran? Should a chemical manufacturer be monitored because its products can be used to build bombs? These questions were discussed often and heatedly, say BND employees. When in doubt, however, the agents reverted to entering the surveillance target. For an intelligence service, neglecting to do something is worse than gathering too much information.
The employees had little to fear from a legal standpoint. The BND operates largely without binding rule. The BND law enacted in 1990 consists of 12 sections, which are intended to create a framework for the agency's operations. But when it comes to conducting surveillance abroad, one of the BND's main tasks, it operates largely outside the confines of German law.
The BND also violated the rules in its thirst for data. This is evident in its forwarding of raw data to the Americans, which was even automated in 2002. Internal documents show that at that point, BND offices had long known that these activities were partly opposed to German and European interests.
But the BND brushed aside the concerns -- and used a bizarre justification to do it. According to an expert report, the "deliberate disclosure" of such data is "illegal," but through the use of a filter, the BND documented its intention not to pass any sensitive data from Germany or Europe to foreign intelligence services. It neglected to mention that this filter didn't work very well from the start.
It is legally "unobjectionable," according to the report, if the automatic sharing of data "is to be viewed as being of greater value" than the isolated forwarding of "information about German citizens." In other words, close cooperation with the NSA was more important than protecting the constitutional rights of German citizens.
Schindler's agency even wanted to give itself a carte blanche of sorts for intercepting satellite communications. The BND law is invalid in orbit, the agency wrote in a memo dated 11/25/2014, explaining its so-called space theory to the Chancellery. A department head working for Chancellor Merkel retorted that she considered the BND's argument to be "hardly acceptable."
Failures in Government Supervision
As these examples show, government supervision of Germany's intelligence services has failed. In response, the SPD parliamentary group presented the key parameters of a reform of the BND in June of last year, and seven months later, many of those ideas were incorporated into a draft bill that emerged from the Chancellery.
Under the proposed legislation, not just Germans but all citizens and institutions in the EU would be placed under special protection against surveillance in the future. The BND president would be required to sign off on critical surveillance operations. The draft law also calls for an external panel consisting of several units that would monitor BND activities more closely.
The domestic policy experts of the government coalition in Berlin quickly agreed on the basic elements of the proposal, and Schindler also agreed. The draft law, says Karlsruhe constitution law expert Matthias Bäcker, will at the very least create a framework for the BND's work. Although Bäcker criticizes some provisions as too vague, he believes that on the whole the effort is an attempt to provide BND employees with greater legal security.
Nevertheless, the reform still has a long way to go before implementation. Talks within the government coalition have been bogged down for weeks, because the CDU is divided. Domestic policy expert Clemens Binninger, who is also the chairman of the Parliamentary Control Panel, supports the draft put forward by the Chancellery. In contrast Patrick Sensburg, chairman of the NSA investigative committee, proposes that an outside control committee should "report regularly to the Chancellery." Other politicians with the CDU and its Bavarian sister party, the Christian Social Union (CSU), would rather see the BND left as it is.
"The necessary reform cannot become a bone of contention in the CDU/CSU," says Burkhard Lischka, the domestic policy spokesman for the SPD parliamentary group. He is calling on the coalition partners to complete the legislative procedure. The opportunity "to place the intelligence service on a modern and clearly constitutional basis" should not be squandered, "especially not in times when we face the threat of attacks and we need our intelligence agencies to cooperate in partnership."
The draft bill was originally slated for debate in the German parliament, but it has been put on ice for the time being.
Once again, suspicion has prevailed.
Translated from the German by Christopher Sultan