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01/20/2014 05:49 PM

Probing America

Top German Prosecutor Considers NSA Investigation

By SPIEGEL Staff

Germany and the US appear to be edging closer to political confrontation. The Federal Prosecutor says there is sufficient evidence to open a politically explosive investigation into NSA spying on Chancellor Angela Merkel's mobile phone.

Last Tuesday, on the sidelines of an Social Democrat party caucus in Berlin, German Justice Minister Heiko Maas ran into Foreign Minister Frank-Walter Steinmeier. Maas pulled his fellow SPD member aside and warned him about what could become a difficult matter. "Something may be coming our way," Maas whispered, and noted that the foreign minister could be affected as well. Germany's federal prosecutor, Maas intimated, is currently considering opening an investigation into the scandal surrounding the surveillance of Chancellor Angela Merkel's mobile phone by US intelligence. It's a step that would undoubtedly be considered an affront by the Americans.

Steinmeier listened attentively and nodded several times, but he didn't say much. At the start of his second posting as foreign minister (he previously served for four years from 2005-2009), Steinmeier is facing the extremely tricky problem of new discord in German-American relations.

The current difficulties got their start in October, when SPIEGEL reported that US intelligence services were interested in Merkel's mobile phone. When the magazine published its report, the National Security Agency's curiosity suddenly became an open act of provocation.

Merkel Fights Back

In short, US President Barack Obama allowed Angela Merkel, his "friend," to be eavesdropped upon. It didn't go uncommented either. "We're no longer living in the Cold War," Merkel's spokesman countered. The chancellor also complained personally to Obama. Merkel staffers said Obama's reaction had been contrite, that he said he would quickly rectify the situation and that he offered far-reaching concessions. But Germany has been waiting in vain ever since.

The Americans may be primarily to blame for the delay, but it is nevertheless becoming a problem for Merkel -- not least because the revelations from the archive of former spy Edward Snowden continue to flow. The risk is high that she will appear as powerless in the face of US obstinancy as her former interior minister, Hans-Peter Friedrich, did last summer. After his fruitless trip to Washington, he was ridiculed in the press and became the butt of numerous jokes.

It is a scenario Merkel would like to avoid. But a showdown is not in her interests either -- and formel investigative proceedings would mark the next step toward escalation. In conflicts like this, there are often many losers, but seldom winners.

Avoiding Further Mistakes

Chancellor Merkel has recognized the dimensions of her problem. After missteps last year, she strengthened the Chancellery's role in addressing the spying scandal. She has assigned the task to her new chief of staff, former environment minister Peter Altmeier, and Klaus-Dieter Fritsche, a former deputy minister in the Interior Ministry. She expects the two to finally make headway on the issue.

In the close to eight months that have passed since the first reports were published about the National Security Agency's massive spying operations, the only things Germany has been given by the US are well-meaning assurances. Last summer, the German government sent a list of questions about their surveillance programs to the Americans and the British, whose GCHQ intelligence agency has likewise been accused of conducting espionage against European Union member countries. To this day, neither has provided complete answers. Instead, ever more threads are becoming visible in the global spying network. It is also slowly dawning on the Germans that the parameters of a No-Spy Agreement announced by the NSA will never become a reality. German government representatives last week denied media reports claiming that negotiations were close to collapsing. At the same time, hopes are no longer high.

Merkel's staff sensed as far back back as November that a full-fledged No-Spy Agreement might not be possible. Pointing to Germany's privacy of correspondence, posts and telecommunications law, which is anchored in the constitution, Gerhard Schindler, the head of the country's foreign intelligence agency, the Bundesnachrichtendienst (BND), demanded concrete commitments, but the Americans fought over demands they said would be equivalent to sacrificing any espionage at all.

Instead NSA chief Keith Alexander called for an agreement that would include more detailed provisions for closer cooperation between the intelligence agencies, particularly on issues such as counter-terrorism. But then the White House took over negotiations from the NSA and began questioning compromises that had already been reached. To this day, the US has refused to offer a full explanation in response to allegations about spying on Merkel's mobile phone.

Obama's speech on Friday didn't change much. Music played from violins and NSA chief Alexander and a number of important senators, including Dianne Feinstein, sat inside the Justice Department as they waited for what could have been a historical speech. But it soon became clear that Obama wanted to use the opportunity to announce a kind of democratic version of total surveillance. None of the NSA's disputed spying programs would be ended, but more independent controls would be imposed, including a panel of legal experts. What Obama did do is reiterate his promise that he would not eavesdrop on the leaders of countries that are US allies in cases where there are no pressing security reasons for doing so. He said he had ordered his national security team and the intelligence community to "rebuild trust" going forward. He added, however, "Now let me be clear: Our intelligence agencies will continue to gather information about the intentions of governments … around the world."

Germans Seek Clarity

Few view that as true peacemaking, and voices within the German government calling for a tougher approach are growing more numerous. Domestic policy experts have been openly placing their hopes on German Federal Public Prosecutor Harald Range, who has spent months looking into a possible official investigation into the NSA for spying on German soil.

Michael Hartmann, a domestic policy expert with the SPD, says he expects "clarity as soon as possible." His colleague Clemens Binninger of the CDU, recently elected as chairman of the Parliamentary Control Panel, the body in parliament responsible for supervision of the intelligence services, concluded, "It seems quite clear to me that the law was violated on German soil." He says it would be understandable if an investigation were opened.

The official line at the Public Prosecutor's Office is that it remains unclear what will become of the allegations against the NSA. The office is treating the surveillance as two separate instances. One is the allegation that the NSA spied on the data of Germans millions of times. The other is the allegation that it eavesdropped on the chancellor's mobile phone. Thus far, the Prosecutor's Office has told parliament that there isn't yet enough evidence to pursue a formal investigation.

It's a position that Hans-Christian Ströbele, a member of parliament with the Green Party who gained global headlines by visiting Edward Snowden in Moscow in late 2012, considers absurd. "They're just looking for reasons to shirk responsibility because the issue is too controversial for them," he says. Gregor Gysi, the head of the parliamentary group of the far-left Left Party, rails against what he describes as government "yes-men" when it comes to America. "The fact that the German government and the Federal Prosecutor isn't acting shows that their fear of the US government is greater than their respect for our legal system."

However, one person is giving serious consideration to doing just the opposite: Prosecutor Range himself. He already signaled to Merkel's last government that there was sufficient evidence for him to launch an investigation into the issue of the chancellor's mobile phone. It's an assessment he has since shared with the new leadership inside the Justice Ministry, despite some concerns within his own agency. "Who's going to spring into action like a tiger if they know they will wind up a bedside rug?" posits one source close to the proceedings.

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.

'Serious Harm'

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

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