Probing America Top German Prosecutor Considers NSA Investigation
Part 2: A Dilemma for Germany
The new government seems split on the issue. Justice Minister Maas is sympathetic to the idea of opening an investigation. Both Foreign Minister Steinmeier and Chancellor Merkel haven't taken positions yet. Under German law, the justice minister has the right to order the federal prosecutor to either open legal proceedings or to prevent the agency from doing so. But it's a discretionary power used by the justice minister only very rarely. In this case, it would likely prove highly controversial.
In addition, the chancellor and her two ministers are concerned about potential consequences if the federal public prosecutor does take action. Indeed, they don't see much practical use in Range doing so. One of Merkel's driving principles as a politician has always been to not announce things publicly when it isn't clear if she can deliver.
And most people involved are relatively certain that any investigation into the mobile phone scandal will eventually fizzle out. For one, it is virtually guaranteed that any request for legal assistance from the Americans will remain unanswered. In addition, it's not as if one can just interrogate whistleblower Edward Snowden in Russia. One of the few relevant witnesses who could give testimony is Elmar Brok, a member of the European Parliament with Merkel's conservatives. He said after a visit to Washington that he asked NSA chief Alexander if the chancellor's mobile phone would be spied on. "Not anymore," he claims Alexander told him.
One can only comprehend the Americans' obstinacy if one understands the lengths US intelligence agencies go to keep their operations secret. Efforts to spy on partners and their leaders are among the most classified of the operations carried out by the US as a document from the Snowden trove, which SPIEGEL has been able to see, demonstrates. The document notes that Germany was a US surveillance target from 1946 to 1967. NSA operations from this period, the document shows, were classified for an especially long period of time due to the negative consequences to be feared if were those operations to be made public. Instead of being kept secret for the standard period of 25 years, information pertaining to spying operations on European countries like Belgium, France and Italy were to be classified for 75 years.
The document which discusses the length of classification is dated Dec. 21, 2011 and is signed by the female head of technical surveillance at the NSA. It states, in a rather circuitous manner, that, if communications systems similar to the ones used then were deployed today, it could lead to intelligence targets taking defensive action -- an eventuality, the document notes, which has not yet taken place only because "they simply do not appreciate how well their signals are currently being exploited by NSA/CSS."
The fact that the NSA has run and continues to run secret surveillance operations out of US embassies and consulates is to remain classified for 75 years. Otherwise, it "would cause serious harm to relations between the US and a foreign government or to ongoing diplomatic activities of the US."
The German government faces a dilemma. Should an investigation be launched, it could trigger an ice age in German-American relations -- just at a time when the two countries are in the middle of a difficult withdrawal from Afghanistan and are negotiating over the trans-Atlantic free trade agreement.
Furthermore, German intelligence officials are concerned that an open conflict could result in the reduction in the amount of information the US is willing to share. In recent years, German intelligence has broadened its cooperation with the US and would like to intensify it even further. Intelligence officials have made it clear they are concerned about aggravating Washington so as not to endanger joint operations, such as those aimed at counterterrorism or the illicit arms trade. "They could simply shut off the faucet," says one high-ranking intelligence official. That could also make it more difficult to keep an eye on Islamists who may be planning attacks on German soil.
Rocky Relations with Obama
On the other hand, however, an investigation would send a clear signal that Germany isn't willing to simply accept everything the US does. Merkel isn't a big fan of such muscle flexing, but she has no illusions anymore regarding her relationship to Obama. It has had its ups and downs from the very beginning.
Following an initial period of skepticism, Merkel managed to establish solid ties with the charismatic American president, with the apex coming when she was awarded the Medal of Freedom in the Rose Garden at the White House. Obama held a sappy speech praising Merkel and the chancellor was touched. It has been downhill from there, though. Her disappointment with Obama, his hesitance and his failures only grew -- and then came the revelations about her mobile phone being tapped.
As such, confrontation seems inevitable, and not just between Merkel and Obama. The future of the Internet is also at stake and it remains unclear who exactly is going to stand in the way of US intelligence's grab for total access. Is it perhaps time to transfer Internet administration from the US-based Internet Corporation for Assigned Names and Numbers (ICANN) to the United Nations? And how forceful does a country like Germany need to get in order to be taken seriously in this debate?
There are, in short, significant questions that could be raised during Merkel's next visit to Washington. Obama has sent his invitation, but an exact date has not yet been fixed. In could still take several months before she flies to the US -- assuming nothing gets in the way.
Indeed, it is quite possible that Merkel and her government are quietly hoping that the country's chief federal prosecutor free them from their dilemma. Chief Federal Prosecutor Range could, for example, apply Paragraph 153d of the Code of Criminal Procedure, which states that the country's top law enforcement agency can refrain from investigating if it believes such action might cause greater damage elsewhere. The example given in the paragraph: "The danger of a great disservice to Germany."
REPORTED BY NIKOLAUS BLOME, HUBERT GUDE, HORAND KNAUP, RALF NEUKIRCH, LAURA POITRAS, MARCEL ROSENBACH, JÖRG SCHINDLER, FIDELIUS SCHMID AND HOLGER STARK
Translated from the German by Charles Hawley and Daryl Lindsey
- Part 1: Top German Prosecutor Considers NSA Investigation
- Part 2: A Dilemma for Germany