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  BND Scandal: How German Spies Eavesdropped on an Afghan Ministry

BND Scandal How German Spies Eavesdropped on an Afghan Ministry

By SPIEGEL Staff

Part 4: A Menial Sin?

Naturally, the BND denies that it is "simultaneously violating several basic rights," as Max Stadler, a lawyer and member of the Bundestag for the business-friendly Free Democratic Party, puts it. The BND is violating the freedom of the press, a fundamental element of democracy set forth in Article 5 of the German Constitution, he says. "This is a serious, completely unjustifiable incursion into the freedom of the press," says Stadler.

The conspiratorial scrutiny of electronic mail would have been equally scandalous and in violation of basic rights if it had affected a worker or a tourist abroad. Journalists, however, enjoy the special privilege of not having to reveal their sources to the government, and with good reason. Sources that draw attention to abuses and grievances must be assured of their ability to remain anonymous. It is only by guaranteeing this anonymity that the intent of the framers of the German constitution to add another layer of control to parliamentary democracy by means of the freedom of the press can work. The BND's actions were a serious affront to this concept.

But the intelligence agency also violated the general right of privacy laid down in Article 2 of the German constitution. If what the BND did was legal, says Stadler, any secret computer surveillance of any German citizen abroad would be fundamentally legal, because "the protection of basic rights also applies outside our national borders."

Last week Thomas de Maizière, the head of the Chancellery, issued two new official rules. First, in the future any online monitoring must be approved in person by the BND president, and it can only be used as a last resort. Second, the percentage of trained lawyers among the staff will be significantly increased, to foster a stronger culture of paying attention to constitutional obligations.

For Uhrlau, these are thumbscrews that only exacerbate the already tense relationship between the BND and the Chancellery. The BND, for its part, is caught in a viselike grip between the Chancellery and the members of the Parliamentary Control Panel, who "condemned" Uhrlau's behavior.

The parliamentarians are more furious than ever. The affair, says Green Party member of parliament Hans-Christian Ströbele, "is outrageous." His colleague in the FDP, Stadler, says that he is overcome by "cold fury." According to Stadler, the agency "massively and lastingly undermined all trust." Stadler feels the case makes it "clear that the BND must be given a separate and explicit legal framework regarding the instrument of online surveillance."

The members of parliament no longer believe Uhrlau when he insists that he will continue to notify the government of "procedures of particular significance," as the law requires. They find out about affairs and scandals on a monthly basis -- but through the media, not through the committee. This applied to the visits of German officials to Guantanamo Bay and to the BND's operations during the war in Iraq. It also applied during the Liechtenstein affair, in which the BND purchased tax data from an informer for about €5 million ($8 million). In the fall of 2007, Uhrlau himself ordered that such information be withheld from the parliamentary committee.

Many other changes will be needed within the BND before it finally conforms to the principles of the German constitutional state. But the agency is now headed by a president who seemed drained and quiet last week, a man who will find it difficult to muster the strength and support to accomplish the much-needed reforms. He supervises a staff in which employees are watching his every move like predators, eager to spot the next mistake and bring him down.

Nevertheless, up until the middle of last week Uhrlau was still refusing to take measures against staff members. It was only at the instruction of the Chancellery that he decided to launch disciplinary proceedings against a number of officials. One of Uhrlau's close associates will be transferred, and Dieter U., the department manager responsible for the surveillance scandal, as well as the former head of the management team of Division 2, are losing their positions.

One of the president's staffing decisions reveals just how long it took Uhrlau to understand the gravity of the situation. Of all people, it was the head of the management team -- who had kept the scandal secret for the longest amount of time -- who was put in charge of reforming the agency.

Within the CDU and CSU parliamentary group, the head of the BND is considered to be no longer acceptable. Hans-Peter Uhl, a member of the Christian Social Union (CSU), the CDU's sister party, said that confidence in Uhrlau "no longer exists," and that the Chancellery must now "decide how it intends to address this situation."

In a meeting at the Chancellery last Thursday, De Maizière listed the intelligence chief's mistakes. When Uhrlau said that he still felt confident in his ability to reform the agency, it was clear that De Maizière was not about to dismiss him.

Politicians within the CDU/CSU now hope that public pressure will force Uhrlau to resign after all. According to a conservative expert on domestic policy, the statement issued by Thomas Oppermann, the chairman of the Parliamentary Control Panel, leaves no other option open. Meanwhile, senior CDU officials fear that the Uhrlau problem could become a problem for the party as a whole. If he makes further mistakes, Uhrlau could also become a liability for De Maizière, given his vote of confidence in the BND president.

The scandal has significantly sharpened the tone within the CDU-SPD grand coalition government. During a meeting of domestic policy experts from both parties, Wolfgang Bosbach, the CDU's deputy floor leader, pointed out what he sees as an incongruity. "When we are talking about the online surveillance of an Afghan minister, in which a journalist's e-mails are intercepted as by-catch, the SPD considers it a menial sin," he said. "But when it comes to the online surveillance of terrorism suspects, the SPD has significant concerns about the constitutionality of the operation."

The Social Democrats are still -- at least for the moment -- putting their support behind Uhrlau, who is a member of the SPD. SPD floor leader Peter Struck was outraged last week when he contacted his counterpart in the CDU, Volker Kauder, to complain about the conservatives' demands for Uhrlau's resignation. This, said Struck, was not the way to treat one's coalition partners. "We're all in this together," he said.

The SPD leadership considers Uhrlau a loyal comrade, because of his many years of service in senior government positions. He's not the sort of person the party is willing to drop easily.

But of equal importance to the Social Democrats is the fact that Uhrlau, as the former national intelligence coordinator in the Chancellery of former Chancellor Gerhard Schröder, was one of the top insiders during the time of the SPD and Green Party coalition government, which governed from 1998 to 2005. His fate is tied to that of Steinmeier in many respects. If Uhrlau falls, then Steinmeier -- who many are touting as a possible chancellor candidate -- loses a layer of protection between him and the CDU/CSU.

No one in the SPD knows exactly what will happen next. "The SPD would be well advised not to part company with a man like Uhrlau in anger," says one senior member of the party.

MATTHIAS GEBAUER, JOHN GOETZ, RALF NEUKIRCH, MARCEL ROSENBACH, HOLGER STARK

Translated from the German by Christopher Sultan

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