Investigating Surveillance: German Parliament Divided over Snowden Subpoena
Berlin has insisted it wants to scrutinize NSA spying in Germany. But actually inviting Edward Snowden to testify before a paraliamentary investigation is proving delicate. Some in Chancellor Merkel's party are now casting doubt on Snowden's suitability as a witness.
It was, of course, purely coincidental that Glenn Greenwald found himself in Berlin last week, just as the debate in Germany was swelling over whether Edward Snowden should be invited to testify before the NSA investigative committee in the Bundestag, the federal parliament.
Greenwald had flown in from Brazil, where he lives, to speak at the presentation of the Liberty Award, a prize honoring foreign correspondents from Germany. And he didn't pass up the opportunity to pay tribute to Snowden, the man whose source material he has relied on in helping to shed light on the global surveillance system maintained by the United States and Britain. "Every country," said Greenwald, 47, has a moral obligation to help Snowden. That, he added, is particularly true for Germany. Top politicians in Berlin were targeted by the NSA and its British counterpart GCHQ, and Germany would have been none the wiser but for Snowden. Meanwhile, Snowden's visa for political asylum in Russia, where he now lives, is set to expire this summer.
Just a few hours prior to Greenwald's speech, and not even two kilometers away, politicians belonging to Chancellor Angela Merkel's governing coalition made clear that help would not soon be forthcoming. The Greens and the Left Party, both in the opposition, had moved to invite Snowden to testify before the parliament's NSA committee, but conservative and Social Democratic members of the committee are in no hurry and it remains unclear when they might reach a decision. Opposition politicians are furious.
The squabbling within the committee -- which led to the resignation of Chairman Clemens Binninger of Merkel's Christian Democratic Union (CDU) -- is more than just the standard Berlin bickering. Ten months after the NSA spying affair began, the parliamentary investigation has presented Merkel's government with the perfect opportunity to finally demonstrate its resolve in getting to the bottom of US and UK spying activities in Germany. Berlin has frequently insisted it is committed to probing the depths of the scandal, with Interior Minister Thomas de Maizičre (of the CDU) even claiming that "boundless" American surveillance would be addressed. But if the handling of Snowden provides any indication, the government's resolve is to be doubted.
It is perhaps not surprising that Berlin would seem to have gotten cold feet. Snowden's presence in Germany would be delicate in the extreme from a foreign policy perspective. And trans-Atlanticists in the Merkel government have for months been uncomfortable with the fact that many of Snowden's closest supporters have chosen the German capital as their base of operations. Should Snowden, 30, be allowed to join them, many in Berlin fear that US-German cooperation could suffer lasting damage, particularly on intelligence issues.
Were Snowden to testify before the Bundestag investigative committee, says Heather Conley, a former US diplomat who is now with the Center for Strategic and International Studies in Washington, it would be a "major irritant in the US-German bilateral relationship." His testimony, she continues, "will continue to deepen anti-American sentiment in Germany and elsewhere in Europe" -- just at a time when the Ukraine crisis is demonstrating just how important trans-Atlantic ties are.
Partly for that reason, Merkel decided early on not to grant Snowden asylum in Germany. Her fear of a clash with the US is just as great as her concern over a potentially divisive domestic political debate. Government sources say it could lead to a grave fissure in her governing coalition, which pairs her conservatives with the center-left SPD. The final say over visa issues lays with the Interior Ministry, under the control of de Maizičre, one of Merkel's closest allies.
There is, however, an exception: Were a parliamentary investigative committee to subpoena a witness from abroad, the Interior Minister's discretion "could be reduced to nil," according to an expert opinion provided by the Bundestag's research service. On the contrary, he would then be required to do everything within his power to prepare such a visit, unless, the expert opinion notes, the welfare of the state is at risk. That, though, is a "question that can only be answered on an individual basis" -- and parliament has a significant say in the answer.
Both the Greens and the Left Party have been adamant that Snowden should be allowed to come to Germany and the expert opinion produced by the Bundestag's research service has made it clear that the investigative committee provides the best tool to reach that goal. Once Snowden is here, both opposition parties would like to see him stay.
That, though, is an impossibility from the perspective of Merkel's conservatives. "Were Snowden to come to Germany," says conservative domestic policy spokesman Stephan Mayer, "then the government, in my opinion, would be required to accede to the legally unobjectionable extradition request from the US." A final decision in this hypothetical could ultimately lie with the judiciary.
Senior Green party figure Hans-Christian Ströbele says that it is paramount for the investigative committee to learn as much about American surveillance practices as possible. But, he notes, "there is a second important aspect for me: We have to make it possible for a man, whom we have so much to thank for, to live a normal life in a country based on the rule of law." And there isn't much time to achieve that goal, he adds. Snowden's asylum visa in Russia expires in August and nobody knows how long Russian President Vladimir Putin might continue to allow his presence.
The Left Party and the Greens sought to petition for a Snowden subpoena in the very first session of the investigative committee, but conservatives rejected the move. Indeed, the committee chairman, Clemens Binninger, unexpectedly resigned in response last Wednesday, saying that he stepped down to protest opposition efforts to turn the committee into a Snowden circus. In his statement, Binninger said that Snowden was not of particular interest as a witness. "Focusing only on him would lead the committee into a dead-end," he said.
The Greens immediately became suspicious and claimed, with no evidence whatsoever, that Binninger had been pressured into resignation by the Chancellery. Merkel, according to the Greens, didn't want to have a potential Snowden subpoena hanging over her during her trip to Washington at the beginning of next month. Binninger was quick to deny the accusations. "During the entire preparations for the committee, there were no discussions with the Chancellery -- formal or otherwise -- regarding how to approach the witness Snowden," he said, adding that his decision was his alone. Ströbele is not convinced and is now considering subpoenaing witnesses from the Chancellery.
But the Chancellery too was caught off guard by Binninger's sudden resignation. Chancellery sources note that Binninger was apparently unprepared for the political nature of most parliamentary investigative committees. To be sure, Merkel's staff has also denied accusations that it sought to influence the investigation, but sources also admit that Merkel is eager to avoid travelling to the US under the shadow of an impending Snowden visit to Berlin.
During the investigative committee's second session last Thursday -- now under the leadership of Patrick Sensburg -- coalition politicians listed a number of concerns related to the potential Snowden subpoena. Myriad questions pertaining to such a visit would have to be resolved, including organizational issues and Russia's potential stance.
The When and the How
When the Left Party and the Greens refused to back down, coalition lawmakers resorted to a procedural trick. Although the opposition can make as many motions to collect evidence as they like, the majority decides on when and how such motions are addressed.
The majority decided to delay the vote on whether to subpoena Snowden until its next meeting. By then, the government is to determine if and how such a visit could be arranged. Whether coincidence or not, the government has been asked to provide that information by May 2, precisely the date on which Chancellor Merkel embarks on her next trip to the United States to meete with President Barack Obama.
Committee Chairman Sensburg believes this is sensible, saying that it must be determined in advance whether Snowden has "anything relevant" to say. "Only then can we consider the question of when, where and how" it can take place, he said. The politician also said that the questioning didn't necessarily have to take place in Germany. The SPD's senior official on the committee holds a similar view. "I admonish all members of the committee not to use the Snowden issue to create media attention," he said. "That would be cheap and inappropriate."
Green Party politician Konstantin von Notz, on the other hand, is annoyed. "The Christian Democrats and the SPD are defending the government's interests," he said. "If that continues, then the next four years are going to be terrible." He says his faction is considering challenging the procedural tricks now being used by the majority at Germany's Federal Court of Justice. Notz said he finds it absurd that there has been a debate for weeks now on whether or not Snowden would make an important witness. "He is one of the most important ones," he said.
One man suspected early on that people would seek to discredit the whistleblower: Snowden himself. Even as he began his flight, he said that the American government would seek to impose long-term damage to his credibility as a witness.
Snowden wasn't a senior employee at the NSA, but he was an unusually perceptive and critical one. He says he made the decision to turn against his employer when, while working as a systems administrator, he stumbled across a document from the NSA's general inspector dating from 2009. In it, an NSA lawyer at the agency's headquarters in Fort Meade, Maryland, outlined the tectonic changes that had been made to America's security structures following the Sept. 11, 2001, terrorist attacks. It described in detail how the NSA had been given wider leeway for its operations with significant support from former Vice President Dick Cheney.
That's the point at which Snowden came up with the idea of obtaining as many documents as he could. He had been planning his departure from the NSA for over a year. US officials claim that he then used a webcrawler to automatically detect and download data. Among other areas, they claim he used the software program to obtain reports from the powerful technical surveillance unit, which had a sort of online black board behind the firewall where reports were posted with information about various secret operations.
Information about that alone could be significantly valuable to the parliamentary committee. It would allow members of German parliament, who know little about the NSA's structures, to learn how the US intelligence service is organized, which data is stored, where it is stored and for how long, and the importance of certain types of documents. Even just the way he handled the material shows how deeply he dove into the NSA's inner workings. He sorted the data into categories that document the NSA's various secret programs -- the surveillance of other countries or Internet infrastructure, for example. He stored the some 50,000 documents from Britain's Government Communications Headquarters (GCHQ) separately. The papers include diverse clues that are also important for the investigation in Germany. They would spotlight, for example, the close cooperation between the NSA and the largest American telecommunications companies, like AT&T -- a cooperation which, documents show, sought to direct part of international data traffic through the United States to make it possible for the NSA to access it.
Of particular relevance to Germany is a program called "Tempora" which is operated jointly by the NSA and GCHQ. The program, operated out of Bude in Cornwall, is used by the intelligence services to tap parts of international data traffic in the large fiber optic cables that run across Europe. "Tempora is the first 'I save everything approach' ('full take') in the intelligence world," Snowden says. He claims "it sucks in all data, no matter what it is, and which rights are violated by it." Last week, Bloomberg reported that the NSA has been exploiting the Heartbleed bug in order to tap encrypted data. The US government has denied the allegation.
One of the parliamentary committee's key objectives is to determine the extent to which the NSA is surveilling the German people. Tempora would seem to be an important piece of this puzzle. Snowden spent a lot of time looking into Tempora and would likely be able to say a lot about the program.
Snowden's German lawyer, Wolfgang Kaleck, is convinced of this. Last Friday, he assured members of the committee in writing that Snowden occupied a "unique work status" in the US intelligence service structure. "He possesses expertise that for this reason alone is of crucial importance because he may be the only specialist of such rank who would also be willing to or is in a position to share his knowledge with the NSA investigative committee."
The decision on whether the former NSA employee testifies is a decision that Snowden himself must make. Diplomatic sources in Berlin suggest that Snowden would have to "think twice" about traveling to Germany. Even if he had hopes for applying for amnesty here, the risks for the 30-year-old in traveling from Moscow to Berlin would be considerable.
Memories in Berlin are still fresh of how vigorous efforts were in July 2013 to force a plane carrying Bolivian President Evo Morales to land in Vienna. At the time, the Americans suspected that Edward Snowden was on board the aircraft.
BY NIKOLAUS BLOME, HUBERT GUDE, RENE PFISTER, JÖRG SCHINDLER AND HOLGER STARK
Translated from the German by Charles Hawley and Daryl Lindsey
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