http://www.spiegel.de/international/germany/the-nsa-and-american-spies-targeted-spiegel-a-1042023.html
Walks
during working hours aren't the kind of pastime one would normally
expect from a leading official in the German Chancellery. Especially not
from the head of Department Six, the official inside Angela Merkel's
office responsible for coordinating Germany's intelligence services.
But
in the summer of 2011, Günter Heiss found himself stretching his legs
for professional reasons. The CIA's station chief in Berlin had
requested a private conversation with Heiss. And he didn't want to meet
in an office or follow standard protocol. Instead, he opted for the kind
of clandestine meeting you might see in a spy film.
Officially,
the CIA man was accredited as a counsellor with the US Embassy, located
next to Berlin's historic Brandenburg Gate. Married to a European, he
had already been stationed in Germany once before and knew how to
communicate with German officials. At times he could be demanding and
overbearing, but he could also be polite and courteous. During this
summer walk he also had something tangible to offer Heiss.
The
CIA staffer revealed that a high-ranking Chancellery official allegedly
maintained close contacts with the media and was sharing official
information with reporters with SPIEGEL.
The American
provided the name of the staffer: Hans Josef Vorbeck, Heiss' deputy in
Department Six. The information must have made it clear to Heiss that
the US was spying on the German government as well as the press that
reports on it.
The central Berlin stroll remained a
secret for almost four years. The Chancellery quietly transferred
Vorbeck, who had until then been responsible for counterterrorism, to
another, less important department responsible dealing with the history
of the BND federal intelligence agency. Other than that, though, it did
nothing.
Making a Farce of Rule of Law
Officials
in the Chancellery weren't interested in how the CIA had obtained its
alleged information. They didn't care to find out how, and to which
degree, they were being spied on by the United States. Nor were they
interested in learning about the degree to which SPIEGEL was being
snooped on by the Americans. Chancellery officials didn't contact any of
the people in question. They didn't contact members of the Bundestag
federal parliament sitting on the Parliamentary Control Panel, the group
responsible for oversight of the intelligence services. They didn't
inform members of the Office for the Protection of the Constitution, the
agency responsible for counterintelligence in Germany, either. And they
didn't contact a single public prosecutor. Angela Merkel's office, it
turns out, simply made a farce of the rule of law.
As a
target of the surveillance, SPIEGEL has requested more information from
the Chancellery. At the same time, the magazine filed a complaint on
Friday with the Federal Public Prosecutor due to suspicion of
intelligence agency activity.
Because now, in the
course of the proceedings of the parliamentary investigative committee
probing the NSA's activities in Germany in the wake of revelations
leaked by whistleblower Edward Snowden, details about the event that
took place in the summer of 2011 are gradually leaking to the public. At
the beginning of May, the mass-circulation tabloid Bild am Sonntag
reported on a Chancellery official who had been sidelined "in the wake
of evidence of alleged betrayal of secrets through US secret services."
Research
conducted by SPIEGEL has determined the existence of CIA and NSA files
filled with a large number of memos pertaining to the work of the German
newsmagazine. And three different government sources in Berlin and
Washington have independently confirmed that the CIA station chief in
Berlin was referring specifically to Vorbeck's contacts with SPIEGEL.
An Operation Justified by Security Interests?
Obama
administration sources with knowledge of the operation said that it was
justified by American security interests. The sources said US
intelligence services had determined the existence of intensive contacts
between SPIEGEL reporters and the German government and decided to
intervene because those communications were viewed as damaging to the
United States' interests. The fact that the CIA and NSA were prepared to
reveal an ongoing surveillance operation to the Chancellery underlines
the importance they attached to the leaks, say sources in Washington.
The NSA, the sources say, were aware that the German government would
know from then on that the US was spying in Berlin.
As
more details emerge, it is becoming increasingly clear that
representatives of the German government at best looked away as the
Americans violated the law, and at worst supported them.
Just
last Thursday, Günter Heiss and his former supervisor, Merkel's former
Chief of Staff Ronald Pofalla, were questioned by the parliamentary
investigative committee and attempted to explain the egregious activity.
Heiss confirmed that tips had been given, but claimed they hadn't been
"concrete enough" for measures to be taken. When asked if he had been
familiar with the issue, Pofalla answered, "Of course." He said that
anything else he provided had to be "in context," at which point a
representative of the Chancellery chimed in and pointed out that could
only take place in a meeting behind closed doors.
Former
Chancellery chief Ronald Pofalla during questioning before the
parliamentary committee investigating the NSA affair in Berlin. "Of
course" he had been familiar with the issue, the former senior Merkel
staffer said. Zoom
HC Plambeck/DER SPIEGEL
Former
Chancellery chief Ronald Pofalla during questioning before the
parliamentary committee investigating the NSA affair in Berlin. "Of
course" he had been familiar with the issue, the former senior Merkel
staffer said.
In that sense, the meeting of the investigative
committee once again shed light on the extent to which the balance of
power has shifted between the government and the Fourth Estate.
Journalists, who scrutinize and criticize those who govern, are an
elementary part of the "checks and balances" -- an American invention --
aimed at ensuring both transparency and accountability. When it comes
to intelligence issues, however, it appears this system has been out of
balance for some time.
Government Lies
When
SPIEGEL first reported in Summer 2013 about the extent of NSA's spying
on Germany, German politicians first expressed shock and then a certain
amount of indignation before quickly sliding back into their persona as a
loyal ally. After only a short time and a complete lack of willingness
on the part of the Americans to explain their actions, Pofalla declared
that the "allegations are off the table."
But a number
of reports published in recent months prove that, whether out of fear,
outrage or an alleged lack of knowledge, it was all untrue. Everything
the government said was a lie. As far back as 2013, the German
government was in a position to suspect, if not to know outright, the
obscene extent to which the United States was spying on an ally. If
there hadn't already been sufficient evidence of the depth of the
Americans' interest in what was happening in Berlin, Wednesday's
revelations by WikiLeaks, in cooperation with Süddeutsche Zeitung,
filled in the gaps.
SPIEGEL's reporting has long been a
thorn in the side of the US administration. In addition to its
reporting on a number of other scandals, the magazine exposed the
kidnapping of Murat Kurnaz, a man of Turkish origin raised in Bremen,
Germany, and his rendition to Guantanamo. It exposed the story of
Mohammed Haydar Zammar, who was taken to Syria, where he was tortured.
The reports triggered the launch of a parliamentary investigative
committee in Berlin to look also into the CIA's practices.
When
SPIEGEL reported extensively on the events surrounding the arrest of
three Islamist terrorists in the so-called "Sauerland cell" in Germany,
as well as the roles played by the CIA and the NSA in foiling the group,
the US government complained several times about the magazine. In
December 2007, US intelligence coordinator Mike McConnell personally
raised the issue during a visit to Berlin. And when SPIEGEL reported
during the summer of 2009, under the headline "Codename Domino," that a
group of al-Qaida supporters was believed to be heading for Europe,
officials at the CIA seethed. The sourcing included a number of security
agencies and even a piece of information supplied by the Americans. At
the time, the station chief for Germany's BND intelligence service
stationed in Washington was summoned to CIA headquarters in Langley,
Virginia.
The situation escalated in August 2010 after
SPIEGEL, together with WikiLeaks, the Guardian and the New York Times,
began exposing classified US Army reports from Afghanistan. That was
followed three months later with the publication of the Iraq war logs
based on US Army reports. And in November of that year, WikiLeaks,
SPIEGEL and several international media reported how the US government
thinks internally about the rest of the world on the basis of classified
State Department cables. Pentagon officials at the time declared that
WikiLeaks had "blood on its hands." The Justice Department opened an
investigation and seized data from Twitter accounts, e-mail exchanges
and personal data from activists connected with the whistleblowing
platform. The government then set up a Task Force with the involvement
of the CIA and NSA.
Not even six months later, the CIA
station chief requested to go on the walk in which he informed the
intelligence coordinator about Vorbeck and harshly criticized SPIEGEL.
Digital Snooping
Not
long later, a small circle inside the Chancellery began discussing how
the CIA may have got ahold of the information. Essentially, two
possibilities were conceivable: either through an informant or through
surveillance of communications. But how likely is it that the CIA had
managed to recruit a source in the Chancellery or on the editorial staff
of SPIEGEL?
The more likely answer, members of the
circle concluded, was that the information must have been the product of
"SigInt," signals intelligence -- in other words, wiretapped
communications. It seems fitting that during the summer of 2013, just
prior to the scandal surrounding Edward Snowden and the documents he
exposed pertaining to NSA spying, German government employees warned
several SPIEGEL journalists that the Americans were eavesdropping on
them.
At the end of June 2011, Heiss then flew to
Washington. During a visit to CIA headquarters in Langley, the issue of
the alleged contact with SPIEGEL was raised again. Chancellery staff
noted the suspicion in a classified internal memo that explicitly names
SPIEGEL.
Chancellor Merkel's former intelligence
coordinator Günter Heiss has claimed that information provided by the
CIA wasn't "concrete" enough for the German government to take action.
Zoom
HC Plambeck/DER SPIEGEL
Chancellor Merkel's
former intelligence coordinator Günter Heiss has claimed that
information provided by the CIA wasn't "concrete" enough for the German
government to take action.
One of the great ironies of the story
is that contact with the media was one of Vorbeck's job
responsibilities. He often took part in background discussions with
journalists and even represented the Chancellery at public events. "I
had contact with journalists and made no secret about it," Vorbeck told
SPIEGEL. "I even received them in my office in the Chancellery. That was
a known fact." He has since hired a lawyer.
It remains
unclear just who US intelligence originally had in its scopes. The
question is also unlikely to be answered by the parliamentary
investigative committee, because the US appears to have withheld this
information from the Chancellery. Theoretically, at least, there are
three possibilities: The Chancellery -- at least in the person of Hans
Josef Vorbeck. SPIEGEL journalists. Or blanket surveillance of Berlin's
entire government quarter. The NSA is capable of any of the three
options. And it is important to note that each of these acts would
represent a violation of German law.
Weak Arguments
So
far, the Chancellery has barricaded itself behind the argument that the
origin of the information had been too vague and abstract to act on. In
addition, the tip had been given in confidentiality, meaning that
neither Vorbeck nor SPIEGEL could be informed. But both are weak
arguments, given that the CIA station chief's allegations were directed
precisely at SPIEGEL and Vorbeck and that the intelligence coordinator's
deputy would ultimately be sidelined as a result.
And
even if you follow the logic that the tip wasn't concrete enough, there
is still one committee to whom the case should have been presented under
German law: the Bundestag's Parliamentary Control Panel, whose
proceedings are classified and which is responsible for oversight of
Germany's intelligence services. The nine members of parliament on the
panel are required to be informed about all intelligence events of
"considerable importance."
Members of parliament on the
panel did indeed express considerable interest in the Vorbeck case.
They learned in fall 2011 of his transfer, and wanted to know why "a
reliable coordinator in the fight against terrorism would be shifted to a
post like that, one who had delivered excellent work on the issue," as
then chairman of the panel, Social Demoratic Party politician Thomas
Oppermann, criticized at the time.
But no word was
mentioned about the reasons behind the transfer during a Nov. 9, 2011
meeting of the panel. Not a single word about the walk taken by the CIA
chief of station. Not a word about the business trip to Washington taken
by Günter Heiss afterward. And not a word about Vorbeck's alleged
contacts with SPIEGEL. Instead, the parliamentarians were told a myth --
that the move had been made necessary by cutbacks. And also because he
was needed to work on an historical appraisal of Germany's foreign
intelligence agency, the BND.
Deceiving Parliament
Officials
in the Chancellery had decided to deceive parliament about the issue.
And for a long time, it looked as though they would get away with it.
The
appropriate way of dealing with the CIA's incrimination would have been
to transfer the case to the justice system. Public prosecutors would
have been forced to follow up with two investigations: One to find out
whether the CIA's allegations against Vorbeck had been true -- both to
determine whether government secrets had been breached and out of the
obligation to assist a longtime civil servant. It also would have had to
probe suspicions that a foreign intelligence agency conducted espionage
in the heart of the German capital.
That could, and
should, have been the case. Instead, the Chancellery decided to go down
the path of deception, scheming with an ally, all the while interpreting
words like friendship and partnership in a highly arbitrary and
scrupulous way.
Günter Heiss, who received the tip from
the CIA station chief, is an experienced civil servant. In his earlier
years, Heiss studied music. He would go on as a music instructor to
teach a young Ursula von der Leyen (who is Germany's defense minister
today) how to play the piano. But then Heiss, a tall, slightly lanky
man, switched professions and instead pursued a career in intelligence
that would lead him to the top post in the Lower Saxony state branch of
the Office for the Protection of the Constitution. Even back then, the
Christian Democrat was already covering up the camera on his laptop
screen with tape. At the very least "they" shouldn't be able to see him,
he said at the time, elaborating that the "they" he was referring to
should not be interpreted as being the US intelligence services, but
rather the other spies - "the Chinese" and, "in any case, the Russians."
For conservatives like Heiss, America, after all, is friendly
territory.
'Spying Among Friends Not Acceptable'
If
there was suspicion in the summer of 2011 that the NSA was spying on a
staff member at the Chancellery, it should have set off alarm bells
within the German security apparatus. Both the Office for the Protection
of the Constitution, which is responsible for counter-intelligence, and
the Federal Office for Information Security should have been informed
so that they could intervene. There also should have been discussions
between the government ministers and the chancellor in order to raise
government awareness about the issue. And, going by the maxim the
chancellor would formulate two years later, Merkel should have had a
word with the Americans along the lines of "Spying among friends is not
acceptable."
And against the media.
German
Chancellor Angela Merkel with US President Barack Obama at the recent
G7 summit in Garmisch-Partenkirchen, Germany: A huge question mark over
press freedom in Germany Zoom
AFP
German
Chancellor Angela Merkel with US President Barack Obama at the recent G7
summit in Garmisch-Partenkirchen, Germany: A huge question mark over
press freedom in Germany
If it is true that a foreign intelligence
agency spied on journalists as they conducted their reporting in
Germany and then informed the Chancellery about it, then these actions
would place a huge question mark over the notion of a free press in this
country. Germany's highest court ruled in 2007 that press freedom is a
"constituent part of a free and democratic order." The court held that
reporting can no longer be considered free if it entails a risk that
journalists will be spied on during their reporting and that the federal
government will be informed of the people they speak to.
"Freedom
of the press also offers protection from the intrusion of the state in
the confidentiality of the editorial process as well as the relationship
of confidentiality between the media and its informants," the court
wrote in its ruling. Freedom of the press also provides special
protection to the "the secrecy of sources of information and the
relationship of confidentiality between the press, including
broadcasters, and the source."
Criminalizing Journalism
But
Karlsruhe isn't Washington. And freedom of the press is not a value
that gives American intelligence agencies pause. On the contrary, the
Obama administration has gained a reputation for adamantly pursuing
uncomfortable journalistic sources. It hasn't even shied away from
targeting American media giants.
In spring 2013, it
became known that the US Department of Justice mandated the monitoring
of 100 telephone numbers belonging to the news agency Associated Press.
Based on the connections that had been tapped, AP was able to determine
that the government likely was interested in determining the identity of
an important informant. The source had revealed to AP reporters details
of a CIA operation pertaining to an alleged plot to blow up a
commercial jet.
The head of AP wasn't the only one who
found the mass surveillance of his employees to be an "unconstitutional
act." Even Republican Senators like John Boehner sharply criticized the
government, pointing to press freedoms guaranteed by the Bill of Rights.
"The First Amendment is first for a reason," he said.
But
the Justice Department is unimpressed by such formulations. New York
Times reporter James Risen, a two-time Pulitzer Prize winner, was
threatened with imprisonment for contempt of court in an effort to get
him to turn over his sources -- which he categorically refused to do for
seven years. Ultimately, public pressure became too intense, leading
Obama's long-time Attorney General Eric Holder to announce last October
that Risen would not be forced to testify.
The Justice
Department was even more aggressive in its pursuit of James Rosen, the
Washington bureau chief for TV broadcaster Fox. In May 2013, it was
revealed that his telephone was bugged, his emails were read and his
visits to the State Department were monitored. To obtain the necessary
warrants, the Justice Department had labeled Rosen a "criminal
co-conspirator."
The strategy of criminalizing
journalism has become something of a bad habit under Obama's leadership,
with his government pursuing non-traditional media, such as the
whistleblower platform WikiLeaks, with particular aggression.
Bradley
Manning, who supplied WikiLeaks with perhaps its most important data
dump, was placed in solitary confinement and tormented with torture-like
methods, as the United Nations noted critically. Manning is currently
undergoing a gender transition and now calls herself Chelsea. In 2013, a
military court sentenced Manning, who, among other things, publicized
war crimes committed by the US in Iraq, to 35 years in prison.
In
addition, a criminal investigation has been underway for at least the
last five years into the platform's operators, first and foremost its
founder Julian Assange. For the past several years, a grand jury in
Alexandria, Virginia has been working to determine if charges should be
brought against the organization.
Clandestine Proceedings
The
proceedings are hidden from the public, but the grand jury's existence
became apparent once it began to subpoena witnesses with connections to
WikiLeaks and when the Justice Department sought to confiscate data
belonging to people who worked with Assange. The US government, for
example, demanded that Twitter hand over data pertaining to several
people, including the Icelandic parliamentarian Brigitta Jonsdottir, who
had worked with WikiLeaks on the production of a video. The short
documentary is an exemplary piece of investigative journalism, showing
how a group of civilians, including employees of the news agency
Reuters, were shot and killed in Baghdad by an American Apache
helicopter.
Computer security expert Jacob Appelbaum,
who occasionally freelances for SPIEGEL, was also affected at the time.
Furthermore, just last week he received material from Google showing
that the company too had been forced by the US government to hand over
information about him - for the time period from November 2009 until
today. The order would seem to indicate that investigators were
particularly interested in Appelbaum's role in the publication of
diplomatic dispatches by WikiLeaks.
Director of
National Intelligence James Clapper has referred to journalists who
worked with material provided by Edward Snowden has his "accomplices."
In the US, there are efforts underway to pass a law pertaining to
so-called "media leaks." Australia already passed one last year.
Pursuant to the law, anyone who reveals details about secret service
operations may be punished, including journalists.
Worries over 'Grave Loss of Trust'
The
German government isn't too far from such positions either. That has
become clear with its handling of the strictly classified list of
"selectors," which is held in the Chancellery. The list includes search
terms that Germany's foreign intelligence agency, the BND, used when
monitoring telecommunications data on behalf of the NSA. The
parliamentary investigative committee looking into NSA activity in
Germany has thus far been denied access to the list. The Chancellery is
concerned that allowing the committee to review the list could result in
uncomfortable information making its way into the public.
The
roof of the US Embassy in Berlin appears in the foreground, with the
cupola of the German parliament building, the Reichstag, in the
background. It is believed the US conducted esponiage from its Berlin
Embassy. Zoom
DPA
The roof of the US Embassy in
Berlin appears in the foreground, with the cupola of the German
parliament building, the Reichstag, in the background. It is believed
the US conducted esponiage from its Berlin Embassy.
That's
something Berlin would like to prevent. Despite an unending series of
indignities visited upon Germany by US intelligence agencies, the German
government continues to believe that it has a "special" relationship
with its partners in America -- and is apparently afraid of nothing so
much as losing this partnership.
That, at least, seems
to be the message of a five-page secret letter sent by Chancellery Chief
of Staff Peter Altmaier, of Merkel's Christian Democrats, to various
parliamentary bodies charged with oversight. In the June 17 missive,
Altmaier warns of a "grave loss of trust" should German lawmakers be
given access to the list of NSA spying targets. Opposition
parliamentarians have interpreted the letter as a "declaration of
servility" to the US.
Altmaier refers in the letter to a
declaration issued by the BND on April 30. It notes that the spying
targets passed on by the NSA since 2005 include "European political
personalities, agencies in EU member states, especially ministries and
EU institutions, and representations of certain companies." On the basis
of this declaration, Altmaier writes, "the investigative committee can
undertake its own analysis, even without knowing the individual
selectors."
Committee members have their doubts. They
suspect that the BND already knew at the end of April what WikiLeaks has
now released -- with its revelations that the German Economics
Ministry, Finance Ministry and Agriculture Ministry were all under the
gaze of the NSA, among other targets. That would mean that the
formulation in the BND declaration of April 30 was intentionally
misleading. The Left Party and the Greens now intend to gain direct
access to the selector list by way of a complaint to Germany's
Constitutional Court.
The government in Berlin would
like to prevent exactly that. The fact that the US and German
intelligence agencies shared selectors is "not a matter of course.
Rather, it is a procedure that requires, and indicates, a special degree
of trust," Almaier writes. Should the government simply hand over the
lists, Washington would see that as a "profound violation of
confidentiality requirements." One could expect, he writes, that the "US
side would significantly restrict its cooperation on security issues,
because it would no longer see its German partners as sufficiently
trustworthy."
Altmaier's letter neglects to mention the
myriad NSA violations committed against German interests, German
citizens and German media.
