Chancellor Angela Merkel has repeatedly said she knew nothing about American surveillance activities in Germany. But documents seen by SPIEGEL show that German intelligence cooperates closely with the NSA and even uses spy software provided by the US. By SPIEGEL

It was a busy two days for the surveillance specialists of the Bundesnachrichtendienst (BND), Germany’s foreign intelligence agency. At the end of April, a team of 12 senior BND officials flew to the United States, where they visited the heart of the global American surveillance empire: the National Security Agency (NSA). The purpose of their mission can be read in a “top secret” NSA document which SPIEGEL has seen — one of the trove of files in the possession of whistleblower Edward Snowden.

According to the document, BND President Gerhard Schindler repeatedly expressed an “eagerness” to cooperate more closely with the NSA. The Germans, the document reads, were looking for “guidance and advice.”

Their wish was fulfilled. Senior employees with the NSA’s Foreign Affairs Directorate were assigned to look after the German delegation. The Americans organized a “strategic planning conference” to bring their German partners up to speed. In the afternoon, following several presentations on current methods of data acquisition, senior members of a division known as Special Source Operations, or SSO, spoke to their German guests. The SSO, one of the most secretive groups within the intelligence community, is the division that forms alliances with US companies, especially in the IT sector, for data mining purposes. Snowden describes this elite unit as the NSA’s “crown jewels”.

The journey to Washington wasn’t the first educational trip by German intelligence officials across the Atlantic this spring — nor was it the last. Documents from Snowden that SPIEGEL has seen show that cooperation between Berlin and Washington in the area of digital surveillance and defense has intensified considerably during the tenure of Chancellor Angela Merkel. According to one document, the Germans are determined to “strengthen and expand bilateral cooperation.”

Completely Unaware?

This is awkward news for Merkel, who is running for re-election as the head of the center-right Christian Democrats. The German campaign had been relatively uneventful until recently, but now a new issue seems to have emerged: the Americans’ lust for data. Opposition politicians have intensified their attacks in recent days. First Peer Steinbrück, the Social Democratic candidate for the Chancellery, accused Merkel of having violated her oath of office for failing to protect the basic rights of Germans. Not long later, SPD Chairman Sigmar Gabriel referred to Merkel as a “spin doctor who is trying to placate the population.” According to Gabriel, it has since been proven that the German government knew about the NSA’s activities.

But the attacks from the SPD are not the chancellor’s biggest worry; the real threat comes from within. At a very early juncture, Merkel insisted that her government had been completely unaware of the NSA’s activities. It is a position she reiterated before starting her summer vacation last Friday.

She will now be judged on the basis of those statements. Internally, Merkel’s advisors argue that she had no choice but to take such a clear position. After all, both the head of the BND and the president of the Federal Office for the Protection of the Constitution (BfV), Germany’s domestic intelligence agency, had said that they had had no detailed knowledge of the Prism surveillance program and the extent of American data collection. On what basis could Merkel have contradicted them?

But with each day, fears are growing at the Chancellery that a paper could eventually turn up that clearly shows the government’s knowledge of the NSA activities.

But does that really matter? What is worse? To be governed by a cabinet that conceals its connivance from citizens? Or to have a chancellor and ministers whose intelligence agencies exist in a parallel world, beyond the supervision of the government and parliament? Internal NSA documents show that the Americans and German intelligence agencies are cooperating more closely than previously known. The repeated assertions by the government and intelligence agencies in recent weeks that they were not fully aware of what US surveillance specialists were doing appear disingenuous in the extreme in light of the documents SPIEGEL has seen from the collection secured by Snowden.

‘Key Partners’

According to those documents, the BND, the BfV and the Bonn-based Federal Office for Information Security (BSI) all play a central role in the exchange of information among intelligence agencies. The NSA refers to them as “key partners.”

The Americans provided the BfV with one of their most productive spying tools, a system called “XKeyscore.” It’s the same surveillance program that the NSA uses to capture a large share of the up to 500 million data sets from Germany, to which it has access each month, according to internal documents seen and reported on by SPIEGEL on the first of this month.

The documents also reveal the lengths to which the German agencies and German politicians were willing to go to develop an even closer relationship with the Americans. This is especially applicable to the G-10 law, which establishes the conditions under which surveillance of German citizens is permissible. In one classified document — under a section titled “Success Stories” — it reads: “The German government modifies its interpretation of the G-10 privacy law … to afford the BND more flexibility in sharing protected information with foreign partners.”

The claim that German intelligence agencies knew nothing was already hard to believe given that they have been cooperating with American agencies for decades. According to an NSA document from this January, cooperation between the offensive divisions of the NSA and the BND’s “Technical Reconnaissance” unit began long ago in 1962.

The Americans are extremely satisfied with the Germans. For decades, Washington poked fun at the conscientious German spies, who always had a legal decree on hand to justify why they were regrettably unable to participate in an especially delicate operation. This was a source of annoyance to the Americans, but ultimately they had no choice but to accept it.

More recently, however, that has changed, as the Snowden documents indicate: The German bureaucrats have become real spies.

During the course of 2012, in particular, the Germans showed great “eagerness and desire” to improve their surveillance capacities and even “to take risks and to pursue new opportunities for cooperation with the US,” according to the NSA documents to which SPIEGEL was given access.

A Close Link

The shift to a more offensive German security policy began in 2007, when Merkel’s conservatives were in power in a coalition with the SPD, the so-called “Grand Coalition.” Based on information the NSA had passed on to the BfV, German authorities discovered a group of Islamists led by convert Fritz Gelowicz, known as the Sauerland cell. Gelowicz and several of his friends had planned to detonate bombs in Germany. To this day, the German government is grateful to the Americans for the tip.

According to the NSA document, the successful operation created “a significant level of trust” between the NSA and the BfV. Since then, the document reads, there have been “regular US-German analytic exchanges and closer cooperation in tracking both German and non-German extremist targets.” The documents show that the NSA also provided several training sessions for BfV agents. The aim was “to improve the BfV’s ability to exploit, filter and process domestic data.” The hope was to create interfaces so that data could be exchanged on a larger scale — a cooperation “that could benefit both Germany and the US,” the paper reads.

The pact also intensified on German soil. An NSA analyst accredited as a diplomat at the US Embassy in Berlin uses an office at the BfV once a week. According to the document, the analyst’s job is to “nurture” the thriving relationship with the BfV. The agent also “facilitates US requirements.” In addition, the Germans set up a “communications link” to the NSA to improve ties between agencies.

Personal relationships also intensified. In May alone, just a few weeks before the Snowden revelations began, BfV President Hans-Georg Maassen, Interior Minister Hans-Peter Friedrich and the 12-member BND delegation paid a visit to NSA headquarters. In the same month, NSA Director General Keith Alexander traveled to Berlin, where he made a stop at the Chancellery, which supervises the BND.

The cooperation went beyond high level visits. According to the papers from the Snowden files which SPIEGEL has seen, the NSA provided the BfV with XKeyscore, and BND officials were also very familiar with the tool, given that their job was to instruct their counterparts with German domestic intelligence on how to use the spy program. The main reason the BfV was to be provided with XKeyscore was to “expand their ability to support NSA as we jointly prosecute CT (counter-terrorism) targets.”

A “top secret” presentation dated Feb. 25, 2008, which almost reads like an advertising brochure (the American spies are apparently very proud of the system), reveals all the things XKeyscore was capable of doing already five years ago.

NSA Pleased with German ‘Eagerness’
According to the presentation, the system is easy to use and enables surveillance of raw data traffic “like no other system.”

An NSA transparency titled “What is XKeyscore?” describes a buffer memory that enables the program to absorb a “full take” of all unfiltered data for a number of days. In other words, XKeyscore doesn’t just track call connection records, but can also capture the contents of communication, at least in part.

In addition, the system makes it possible to retroactively view which key words targeted individuals enter into Internet search engines and which locations they search for on Google Maps.

The program, for which there are several expansions known as plug-ins, apparently has even more capabilities. For instance, “user activity” can be monitored practically in real time and “anomalous events” traced in Internet traffic. If this is true, it means that XKeyscore makes almost total digital surveillance possible.

From the German perspective, this is especially troubling. Of the roughly 500 million data sets from Germany to which the NSA has access each month, XKeyscore captured about 180 million in December 2012.

This raises several questions. Does this mean that the NSA doesn’t just have access to hundreds of millions of data sets from Germany, but also — at least for periods of days — to a so-called “full take,” meaning to the content of communication in Germany? Can the BND and the BfV access the NSA databases with their versions of XKeyscore, which would give them access to the data on German citizens stored in those databases?

If this were the case, the government could hardly claim that it had no knowledge of the Americans’ vigorous data acquisition activities.

German ‘Eagerness’ Is ‘Welcomed’

SPIEGEL put these questions to both agencies and the Chancellery, but it received no answers on the use of the system. The BND merely issued a brief statement, saying that it was regrettably unable to comment publicly on the details of intelligence activities.

The NSA and the White House were similarly curt in their responses to SPIEGEL inquiries, merely noting that they had nothing to add to the remarks President Barack Obama made during his recent visit to Berlin.

The new revelations also shine a spotlight on the presidents of the BND and the BfV, Gerhard Schindler and Hans-Georg Maassen. Both men are relatively new in their positions. But BND President Schindler in particular, in office since January 2012, has already made his mark. He embodies the new, more offensive approach being taken by the foreign intelligence agency, which the NSA has expressly praised. Schindler’s “eagerness,” according to the NSA documents, was “welcomed” already in 2012.

When he came into office, the outspoken head of the BND encapsulated the new willingness to take risks. Internally, he asked each BND department to submit three proposals for joint operations with the US intelligence agencies.

Of course, there are also positive sides to this closer cooperation with the Americans. One of the BND’s responsibilities is to protect German soldiers and prevent terrorist attacks. Doing so adequately is impossible without help from the Americans. Conversely, the BND’s reputation has improved among US intelligence agencies, especially after it proved to be helpful in the Kunduz region of northern Afghanistan, where the German military, the Bundeswehr, is stationed. The Germans are now the third-largest procurer of information there.

They don’t just share their information with the NSA, but also with 13 other Western countries. Some time ago, the agency brought its technical equipment in Afghanistan up to the latest standard. Results have been especially good since then, and the NSA is pleased.

In recent years, the BND has had the capability to listen in on phone conversations on a large scale in northern Afghanistan, aiding in the arrests of more than 20 high-ranking members of the Taliban — including Mullah Rahman, once the shadow governor of Kunduz.

Relaxed Interpretation of Privacy Laws

According to an NSA document dated April 9, Germany, as part of the surveillance coalition in Afghanistan, has developed into the agency’s “most prolific partner.” The Germans are similarly successful in North Africa, where they also have special technical capabilities of interest to the NSA. The same applies in Iraq.

But according to the documents, the German foreign intelligence agency went even further in its effort to please the Americans. “The BND has been working to influence the German government to relax interpretation of the privacy laws to provide greater opportunities of intelligence sharing,” the NSA agents noted with satisfaction in January.

Indeed, when Schindler took office, BND officials were divided over whether it was legal to pass on information to partner intelligence agencies that had been obtained in accordance with the German G-10 law. Schindler decided that it was, and the United States was pleased.

The surveillance base in Bad Aibling, a well-known American listening post in southern Germany, also shows how close ties are between the BND and the NSA. It was a symbol of technical espionage during the Cold War. Most recently, the NSA referred to the listening post by the code name “garlic.” Although the last parts of the base were officially handed over to the BND in May 2012, NSA officials still come and go.

The NSA chief for Germany is still stationed at the local Mangfall Barracks. Some 18 Americans were still working at the surveillance station at the beginning of the year, 12 from the NSA and six working for private contractors. The office is expected to be scaled back during the course of the year, with the plans ultimately calling for only six NSA employees to remain at the base. According to the Snowden documents, their work will be to “cultivate new cooperation opportunities with Germany.”

To be sure, intensive cooperation in counterterrorism activities is part of the core mission of Germany’s foreign intelligence agency. But did lawmakers know about the scope of cooperation with the Americans? And, if they did, since when?

Making Things Worse

So far, the BND has been able to count on support from the Chancellery for its new approach. But things seem to be changing. The surveillance scandal has the potential to shake public confidence in the German government and in Chancellor Merkel — and could negatively effect her chances for re-election.

The NSA’s activities, of course, are not exactly driving the German people into the streets in droves. Nevertheless, revelations as to the extent of America’s surveillance abroad are chipping away at Merkel’s image as a reliable manager of the government. Some 69 percent of Germans are dissatisfied with her efforts to shed light on the issue, a number that has alarmed the Chancellery. Until the end of last week, Merkel had tried to distance herself from the subject, issuing only sparse statements. Instead of Merkel, Interior Minister Friedrich was expected to handle the delicate matter.

But Friedrich only made things worse, returning largely empty-handed from his trip to Washington. Instead, he seemed extremely proud of the fact that he had been allowed to speak with US Vice President Joe Biden.

To make matters worse, Friedrich had hardly returned to Germany before making the remark that “security” was a “Supergrundrecht,” a new concept that implies that security trumps other civil rights. A minister charged with upholding the constitution who suddenly invented an interpretation of the German constitution that suits the NSA’s purposes? At that moment, Merkel must have realized that she couldn’t leave things entirely to her interior minister.

Last Friday, shortly before leaving for her summer vacation, Merkel unveiled an eight-point plan intended to provide more data security. But most of her points felt more like placebos. How, for example, are European intelligence agencies to agree on common data privacy guidelines if British and French intelligence agents are already snickering over the Germans’ obsession with data privacy?

In a Bind

Merkel is in a bind. On the one hand, she doesn’t want to give the impression that she is doing nothing about the Americans’ lust for information. On the other hand, this also brings the scandal closer to the chancellor. In the end, it will revolve around the question of how much the government knew about the Americans’ surveillance activities. Last Friday, the BND insisted, once again, that it had “no knowledge of the name, scope and extent of the NSA ‘Prism’ project being discussed.”

But even if that’s true, Prism was only a part of the NSA’s surveillance system, and the new documents show that Germany was indeed extremely familiar with the agency’s comprehensive ability to spy. They benefited from it, and they wanted more.

But Merkel claims that she knew nothing about the Americans’ surveillance software. “I became aware of programs like Prism through current news reports,” she told the left-leaning weekly newspaper Die Zeit last week. According to Merkel’s staff, when she uses such language, she is relying on statements made by the German intelligence chiefs.

But what does that mean? Does the German government still have its intelligence agencies under control? Or have they become a kind of state-within-a-state?

And who exactly keeps track of whether the agencies, in their zeal to enforce the “Supergrundrecht” of security, haven’t already gone too far?

The place where the activities of domestic and foreign intelligence agencies ought to be debated is the Parliamentary Control Panel in the German Bundestag. By law, the government is required to regularly and “comprehensively” inform the 11 members of the board, which meets in secret, about the work of the BND and the BfV, and explain “procedures with special importance.”

Oddly enough, the board has met four times since the beginning of the NSA scandal, and, four times, lawmakers have learned little about the global data surveillance programs. Instead, they were forced to listen to long-winded lectures by those responsible, the essence of which generally was: We really don’t know anything.

Spotlight on Merkel

Over the years, the board has mutated into a stage for large egos and is no longer particularly secret. The problem is that many panel members don’t have sufficient time or expertise to truly understand the kind of activities the intelligence agencies are engaged in. It is a perfect situation for Germany’s spies: The less the public learns about their activities, the more they can go about their business undisturbed.

“Monitoring of the agencies is purely theoretical,” says Hans-Christian Ströbele, the Green Party representative on the board. “We don’t learn about the truly explosive issues until they’ve been exposed by the media.” This isn’t surprising, given the vagueness of statutory provisions on the supervision of intelligence agencies.

The agencies enjoy “complete freedom,” says attorney Wolfgang Neškovi, who once spent many years on the control board for the Left Party. The CDU, its Bavarian sister party, the Christian Social Union (CSU), and the liberal Free Democratic Party (FDP) have now agreed to establish an intelligence body to monitor the intelligence agencies. But in light of recent events, CDU domestic policy expert Clemens Binninger believes that a “major solution” is needed. He favors the idea of a parliamentary intelligence official, to be provided with his own powers and staff.

There is also growing mistrust of the intelligence agencies within Merkel’s government, a situation which led to a memorable scene in the federal press conference last Wednesday. According to a NATO document that had been circulated before the press conference, the German military was indeed aware of the existence of Prism. Government spokesman Steffen Seibert stated that it was the BND’s assessment that the program in question had nothing to do with NSA spy software. But he made sure to keep a distance from the intelligence agency’s assessment. Later, the Defense Ministry issued a statement of its own which directly contradicted the BND statement.

It is an awkward situation for Merkel. In the midst of an election campaign, her government suddenly looks to be characterized by chaos. Of course, if it turns out that the intelligence agencies were deceiving her, she could clean house. BND chief Schindler would seem to be in the front of the firing line, with Ronald Pofalla, who, as Merkel’s chief of staff, is tasked with monitoring the intelligence agencies, not far behind.

But the Chancellery staff has no illusions. The SPD and the Greens will continue putting Merkel in the NSA spotlight no matter what happens. “The chancellor is more interested in defending the interests of the US intelligence agencies in Germany than German interests in the United States,” says SPD Chairman Gabriel. It seems unlikely that the opposition will stand down any time between now and election day, on Sept. 22.

BY RENÉ PFISTER, LAURA POITRAS, MARCEL ROSENBACH, JÖRG SCHINDLER and HOLGER STARK
Translated from the German by Christopher Sultan
07/22/2013 12:19 PM

Find this story at 22 July 2013

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