In 2013 one Snowden revelations after the other made us realize that the state of mass surveillance was as bad as only a few had dared to think. Early in 2014 the German parliament decided to have a closer look with the goal to find out whether any of that was happening in Germany. A temporary committee, or Inquiry, was installed and given the task to investigate against the German government and it’s intelligence services. Did the government, did Angela Merkel know about any of this? What is the role of German secret services: are they part of the system of mass surveillance, and how? What about the drone war and the US base in Ramstein, Germany?
The Inquiry, a small committee of eight members of the German parliament, tried to find answers to these and many other questions. The small opposition in the Inquiry (2 out of the 8 members) pushed hard for Edward Snowden to be heard as a witness, all the way to Germany’s highest court. We all know the result: the most important witness wasn’t allowed into the country. (Representatives of several US companies such as Apple, Facebook or Google were invited but chose not to come.)
Many other witnesses, however, did testify in public as well as non-public sessions in parliament. The Inquiry ended shortly before the next election in July of last year and is said to have been the largest such investigation yet in the German parliament. Many questions remained unanswered or at least partly so, but after questioning dozens of government and intelligence personnel we now know much better how mass surveillance is carried out and how well it is conceiled from parliamentary oversight – even in a country that is often praised for its democratic institutions.
A report of almost 2.000 pages was published, so far only in German. And then there’s a 300 page report that holds the dissenting view of the small opposition in parliament. It was my role during the past 3.5 years as advisor for one of the two opposition parties in the Inquiry to follow the proceedings, prepare the sessions, read the files, follow the witness hearings, and finally write parts of the report.
So far only the summary and introductory remarks of the final report were translated into English.
These are the summary and the introductory remarks of the opposition’s report about the German parliament’s Inquiry on mass surveillance, conducted 2014 – 2017:
Introduction
1. The consequences of the Snowden revelations
The sixth of June 2013 saw the appearance of the first article based on the revelations made by Edward Snowden. That date marked a watershed, as many Internet users realised for the first time that the age of the ‘free Internet’ had ended and that George Orwell’s dystopia of total surveillance was a real option. Moreover, it was being created by intelligence services of Western countries, whose duty should actually be to protect democracy and free speech.
Questions rapidly began to surface as to whether the intelligence services of the United States and the United Kingdom, the NSA and GCHQ, were collecting, storing and analysing data in an equally unscrupulous manner in Europe and therefore here in Germany. What did the Federal Government know about it? Were the German intelligence services – the BND, the BfV and the Military Counterintelligence Service (MAD) – in the dark, or had they kept their knowledge to themselves?
Following the initial shock, which came in the midst of the parliamentary election campaign, the incumbent coalition government of CDU/CSU and FDP decided to sweep the problem under the carpet as far as possible. On 12 August, Ronald Pofalla, Head of the Federal Chancellery and Federal Minister for Special Tasks, stood in front of the cameras and declared that the NSA affair was over. At that stage, many articles based on the Snowden documents had yet to be published.
2. Appointment of the committee of inquiry
The SPD, still in opposition at that time, protested and called for full clarification. When it emerged in October that even the Chancellor’s mobile was fair game for the NSA, it became evident that this issue could not be dropped by decree. At the second sitting of the newly elected Bundestag, a debate on the NSA spying and its effects on Germany and on transatlantic relations was already on the agenda. The debate was based on motions for resolutions tabled by the parliamentary groups of The Left Party and Alliance 90/The Greens. In that debate, Members not only deliberated on the need for a committee of inquiry but also – on the opposition side – discussed how and where Edward Snowden could be questioned by Parliament.
After lengthy negotiations on the subject and scope of the inquiry, the First Committee of Inquiry was appointed. It was often referred to as the NSA inquiry, but later it could just as easily have been called the BND inquiry, not least because the Grand Coalition prevented an effective investigation of the NSA activities.
The subject of the inquiry was to be mass surveillance by the Five Eyes alliance in Germany but also what the Federal Government knew about it and what role was played by German agencies. An important chapter was to be devoted to possible German participation in US drone warfare, covering tolerance of the relay station at the US military base in Ramstein, the possible forwarding of data that could be used in the selection of targets and the questioning of refugees in Germany by the intelligence services.
3. Protests against mass surveillance
The committee of inquiry did not owe its existence to parliamentary efforts alone. The numerous public activities and protests against surveillance that had taken place since the summer of 2013 also made a major contribution to the appointment of the committee.
Thousands of people demonstrated in many German cities in July under the aegis of the Stop Watching Us alliance and in August to mark the International Day of Privacy. There were organised walks round the site of the BND headquarters in Berlin, to the BND surveillance facility in Schöningen and to the Dagger Complex in Griesheim. In an initiative entitled Ein Bett für Snowden (‘A bed for Snowden’), 40,000 people expressed their support for granting Edward Snowden asylum in Germany.
More than sixty writers addressed an open letter to the Chancellor calling for an investigation. A petition expressing support for the letter attracted 80,000 signatories. Many people began to consider for the first time how they could protect themselves from surveillance, for example by encrypting their communications.
All of these things made their mark and encouraged us to press in Parliament for an inquiry.
4. The work of the committee was important
The committee of inquiry has achieved a great deal in little more than three years. We know more about the work of the intelligence services in Germany today, particularly their use of surveillance technology. In spite of many attempts by the Federal Government and the parliamentary groups of the governing coalition to place tight restrictions on the investigation of many points, we must pass favourable judgement at the end of these three years. Apart from an inquiry in the European Parliament and by a committee in Brazil, the German committee of inquiry was the only one in the world to be appointed by a parliament to investigate the revelations made by Edward Snowden.
5. Protection of privacy is a universal right
Many of the findings of the inquiry relate to the violation of fundamental rights, that is to say rights guaranteed by the Basic Law. The main right affected by the investigated activities was privacy of posts and telecommunications, as enshrined in Article 10 of the Basic Law.
It is important for us to stress that our primary focus on the rights of the population of Germany does not stem from their being more important to us than people in any other countries. Our mandate was to examine whether and how the Federal Government and its authorities had been acting unlawfully. Whereas we believe that all people’s communications should be afforded the protection guaranteed by Article 10, the Federal Government takes a decidedly different view – conflicting, by the way, with the opinion expressed by leading scholars of constitutional law. According to the government view, the German intelligence services have a greater duty of care when conducting surveillance of Germans than when conducting surveillance abroad. We have judged them on the basis of that criterion.
We were subjected to tight restrictions in our investigation of BND activities abroad. There remains a great deal more to be done to shed light on digital surveillance on a global scale. We are, however, convinced that we have succeeded, through the work of this committee of inquiry, in providing an important building block for this effort.
Summary
1. Stonewalling by the Federal Government with majority support
From the perspective of the opposition groups, the first committee of inquiry of the 18th electoral term served an important purpose and was manifestly successful. In spite of deplorable stonewalling on the part of the Federal Government and its active obstruction of parliamentary investigation, we succeeded in shedding more light on the constitutionally questionable to downright illegal intelligence practices exposed by Edward Snowden and in focusing public attention on other problem areas, facts and scandalous wrongdoings.
The investigation was rendered considerably more difficult and, to all intents and purposes, obstructed by a Federal Government that showed no interest at all in revealing, let alone examining and remedying, practices and cooperative activities in which German intelligence services were engaging and which clearly merited investigation and posed evident legal problems. Many security classifications of files and cases have been assigned for the sole reason that their exposure would have caused political embarrassment to the Federal Government.
The Basic Law itself, in Article 44, enshrines the right of Parliament to appoint a committee of inquiry and establishes the principle that the committee’s hearings should be public. From the outset, however, the Federal Government engaged very extensively in blanking out information on files or removing entire documents from submitted material. At the same time, it submerged the committee in veritable floods of badly processed files and prescribed security classifications of files and meetings, with which the CDU/CSU and SPD majority on the committee often obediently complied, acting as the ‘bodyguard of the Government’, to quote Lars Brocker, writing in the journal of public administration Die öffentliche Verwaltung in 2014; it constantly invented new procedures, whereby venues for the perusal of files were relocated to various places outside the Bundestag. Countless meetings were given ‘top secret’ classifications, even though it was often indiscernible how public knowledge of the proceedings of those meetings could ever have endangered the continuing existence of the Federal Republic. On several occasions sweeping allegations were made that committee members were betraying secrets. They were threatened with criminal investigations. In this context, representatives of the executive publicly raised the spectre of terrorist attacks resulting from the work of the parliamentary committee of inquiry; these, they said, would materialise if the foreign counterparts of the German intelligence services withdrew their cooperation because Parliament was performing its duty of investigating years of unlawful conduct on the part of those very services.
2. No testimony from Edward Snowden
The courageous revelations made by Edward Snowden made the world aware that the intelligence services of the Five Eyes alliance were using digital technology to develop an invasive system of total surveillance. Snowden was named as the first witness of the committee of inquiry; his testimony would have been of the utmost importance to the committee. The fact that we were unable to obtain his testimony is down to the concerted efforts of the Federal Government and the Grand Coalition majority on the committee; to our regret, these efforts were endorsed by judicial decisions.
This does not absolve us of the responsibility to keep pressing for Edward Snowden to be allowed to live his life without being subjected to political pressure; we must keep hoping that he will yet be able, at a future date, to give the Bundestag an insight into his knowledge of mass surveillance in Germany.
3. Mass surveillance in Germany and the rest of the world
The evidence gathered by the committee indicated indiscriminate and unauthorised mass surveillance, not only in the framework of Operation Eikonal but also by means of ‘selectors’ (search terms) used by the National Security Agency (NSA) and the Federal Intelligence Service (BND). German nationals and companies have also been among the perennial targets. No further light could be shed on direct mass surveillance conducted by the NSA in Germany and in other countries from a German base, because files and witnesses from the United Kingdom and the United States were not available.
The term ‘indiscriminate mass surveillance’ was coined as a result of the Snowden revelations. It expresses the particular nature of the surveillance infrastructure that was first exposed in 2013. Many details of the systems and activities of the Five Eyes alliance that were described in the published documents could not be examined in committee, because the Federal Government systematically withheld from the committee almost all files relating to the intelligence services of the US, the UK, Canada, Australia and New Zealand. There were, however, no grounds whatsoever to doubt the truth of the information contained in the Snowden documents, nor did any witness statement suggest otherwise. The committee found compelling evidence that the BND in particular is part of this global surveillance structure.
4. BND cooperation with the NSA in Bad Aibling
The Memorandum of Agreement of 2002 between the BND and the NSA on joint telecommunications surveillance in Germany was intended, among other things, to give the NSA access to data from the Frankfurt Internet exchange point (IXP) but did not enter formally into force in the absence of the requisite consent from the Bundestag.
5. Data tapping in Frankfurt without a G-10 restriction order
Between 2005 and 2008, as part of the joint BND/NSA Operation Eikonal, the BND engaged in data tapping in Frankfurt am Main without legal authorisation. The operation was executed by Deutsche Telekom without a restriction order having been issued under the Act Restricting the Privacy of Posts and Telecommunications (G-10 Act), in spite of very strong reservations among Deutsche Telekom staff. In this way, data were leaked to the BND over several years through unauthorised breaches of telecommunications privacy. Deutsche Telekom and the BND thus deliberately deceived and subverted the established system of parliamentary oversight as well as conniving in a sustained infringement of the law.
6. The myth of the functioning filters
The practical implementation of Operation Eikonal typifies the NSA practice of conducting surveillance activities jointly with local intelligence services. A key feature of that particular case was the technological aspect of its objective, since it was based on a ‘data for technology’ deal, whereby the NSA supplied software in exchange for data and intelligence from the BND and the Federal Office for the Protection of the Constitution (BfV).
The technology required for tapping transit cables should not have been used by the BND because it had been ‘certified’ without having been fully tested by the Federal Office for Information Security. The data filters that were used were never able to filter out reliably from transfers to the NSA all data protected by the G-10 Act.
7. Problematic NSA selectors in BND data
It has been and remains a feature of the cooperation between the BND and the NSA that the BND filters its captured data with the aid of NSA search terms. The results are then forwarded to the NSA. On paper, all communication data concerning Germans should have been filtered out. Although the files concerning these selectors ought to have been handed over immediately to the committee of inquiry, because they relate to key elements of its investigation remit, the opposition had to table its own request for evidence in order to obtain them. Very many of the selectors had nothing to do with terrorism or illegal arms trafficking but did impinge on German and European interests. This issue, however, ultimately proved impossible to clarify, because the Federal Government denied the committee the right to peruse the selectors. Through the concocted construct of a ‘Federal Government trustee’, who examined the NSA selectors together with the BND, a clarification was simulated which never actually took place.
8. BND data transfer to the NSA from Bad Aibling
Within the scope of the cooperation that took place in Bad Aibling, the BND transferred to the NSA about 1.3 billion items of data each month. The BND drew an unwarranted distinction between content and metadata, although metadata are also capable of revealing extremely intimate details about data subjects. Vast volumes of metadata were captured and processed, and the raw data streams from entire communication links were automatically forwarded to the NSA. This automated and indiscriminate transfer of all captured metadata is disproportionate and manifestly illegal.
9. Operations Glo[…]and M[…]S[…]
Besides Operation Eikonal, the committee of inquiry also dealt with Glo[…], another operation conducted jointly by the BND and a US intelligence agency, and Operation M[…]S[…], a wiretapping project conducted with a British intelligence agency. There was very little scope for investigation of these two operations. The results do reveal, however, that in this case, too, the BND circumvented the oversight bodies. While the Anglo-German project was halted immediately after the publication of the Snowden revelations, Operation Glo[…] was carried out under false pretences. In the context of the operation, communication data were unlawfully captured and processed.
10. The BND selectors
It is not only the NSA that seeks intelligence from captured data – the BND also searches on the basis of its own selectors. Once the investigation mandate had been broadened, it became clear that these selectors related not only to the areas covered by the BND remit but also targeted other entities such as friendly governments, European institutions, international organisations, journalists and civil society. A public examination of this issue was blocked by the Federal Government. The Federal Chancellor, as she herself has indicated, had no idea what Germany’s own intelligence service was up to when she expressed her outrage at NSA surveillance of her own mobile phone with the comment, “Spying among friends just isn’t done”.
11. No-spy deal: Ronald Pofalla’s campaign flights
With the assertion, made five weeks before the 2013 Bundestag election, that the United States had offered ‘not to spy on us’, the Federal Government of the day pulled the plug on the extremely irritating and inconvenient summer-long topic of inadmissible, unlawful and indiscriminate mass spying on millions of people by the NSA and the BND. This statement was not true. There were only proposals for a working party to discuss talks on intelligence problems, but no offer of a no-spy agreement had ever been made. On the contrary, the White House took pains to point out that, from the very beginning, the United States had consistently emphasised that no such deal would be struck. By then, however, the elections had come and gone, and Pofalla’s statement had achieved its purpose.
12. The blind spot of economic espionage
Counterintelligence is the task of the BfV, the Federal Office for the Protection of the Constitution. In spite of numerous leads concerning economic espionage received from the intelligence services of countries classed as friendly states, the BfV remains entrenched in a Cold War mindset. Targeted counterintelligence activities, when conducted at all by digital means, are focused on countries like Russia and China; in the case of friendly states like those of the Five Eyes alliance, we evidently look the other way, in spite of the vaunted ‘360° vision’. Counterintelligence also suffers from the fact that a federal intelligence agency, the BND, acts as a submissive service provider to the NSA instead of reporting findings to the BfV.
13. The Main Office for Questioning: volunteered information used for drone warfare?
Until the summer of 2014, behind the nameplate marked Hauptstelle für Befragungswesen (‘Main Office for Questioning’), the BND operated a covert agency which carried out questioning, mainly of asylum-seekers, in cooperation with the US and UK intelligence services. These interviewees were unaware that they were being questioned by a member of the US secret service, who would sometimes be the sole interviewer. There was no legal basis for either the interviews themselves or for the transfer of data to the United States. Another dubious aspect is the close cooperation in which the Hauptstelle für Befragungswesen engaged with the Federal Office for Migration and Refugees, which supplied the BND with the requisite particulars of potentially interesting individuals in the first place. The Hauptstelle was formally dissolved in the summer of 2014. Nevertheless, questioning of asylum-seekers by German intelligence services still goes on today.
14. The secret war and the role of the US base at Ramstein: Federal Government responsibility for drone killings
The role of Germany in US drone warfare is clear, for the US Air Force base at Ramstein is the main hub of the US drone programme in Europe. This inevitably means that the data required to make the drones fly are gathered together there. That was made plain by the collected evidence, particularly the testimony of Brandon Bryant, a former US drone operator. It is also an established fact that the Federal Government has been closing its eyes for many years to the importance of the role played by Ramstein in the US drone programme. Back in 2011, it was already aware that some of the responsibility for targeted killings in countries such as Yemen, Somalia and Pakistan, and thus for the deaths of hundreds of civilian victims, lay with decisions taken on German soil. It has not taken any appropriate action to stop this. The Federal Government bears legal responsibility and has fallen short in meeting its obligation to ensure that the conduct of US armed forces on German soil is consistent with fundamental rights and international law. Instead, it has spent years deceiving the Bundestag about the facts and the extent of its own knowledge in its answers to direct parliamentary questions on this matter.
To my knowledge in no other country there was anything similar – but I’d love to hear more about questions raised about mass surveillance by the Five Eyes and their partners in other places. And the reactions if there were any.
If you’d like to invite me to speak about the content or the proceedings of the Inquiry please get in touch.
Der Verfassungsschutz ist mit der Wahl und den Snowden-Leaks fast in Vergessenheit geraten. Vor knapp zwei Jahren begann die letzte Skandal-Serie des Verfassungsschutzes, die das Format gehabt hätte, die Regierung ins Wanken zu bringen. Die Kanzlerin hat es ausgesessen und inzwischen ist es fast vergessen. Zwischenzeitlich wurde in ausgesprochen respektablen Zeitungen und auch bei mehreren Parteien darüber nachgedacht, ob nicht besser wäre, den Verfassungsschutz aufzulösen.
