An Attack on Press Freedom: SPIEGEL Targeted by US Intelligence

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.