It was an extravagant promise, one delivered in a state of contriteness. Ernst Uhrlau, the president of Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND), said in a 2006 interview: "When it comes to the private sphere of a journalist, then I have to draw the line." The agency, he said, had "gone too far" and, in the future, "absolute respect for the private sphere" would be its guiding principle. Transparency, Uhrlau said, is important to "ensure that we do not convey the impression that journalists are under surveillance."
Uhrlau's comments were in response to a scandal where journalists had been illegally observed and spied on by informers. The spy chief clearly believed that it was the right time for the kind of promise he made.
And yet it was not a promise he kept -- that much is clear. On June 6, 2006, eight days before Uhrlau uttered his trite assurances, a foolhardy operation began in which a journalist was placed under surveillance once again. This time it was SPIEGEL reporter Susanne Koelbl. The BND, by intercepting and reading her e-mail correspondence with Afghan Commerce Minister Amin Farhang , has triggered a new scandal -- one with the potential to inflict serious political damage, both domestically and abroad.
The electronic assault, using computer software known as a Trojan horse, was directed against a country with which Germany has both friendly and sensitive relations. There are currently 3,400 German soldiers stationed in Afghanistan. The Germans constantly strive to convince the local population that they -- despite the weapons they carry -- are their friends, and that they are there to secure a fragile peace so that reconstruction can succeed. What can they say when confronted with the assertion that friends don't launch attacks against their allies?
The monitoring operation comes in the midst of a public debate in Germany over how far the state should be allowed to go when it comes to monitoring its citizens. Using tools like online monitoring and video surveillance, the state is trying to glean as much information about its citizens, in order to supposedly protect those same citizens against terrorist attack.
But at the same time, the question arises as to whether the government is not taking things too far, violating citizens' rights to privacy and protection against an official thirst for knowledge. A case like this raises doubts over whether a government agency can responsibly handle the technological tools of our age. A great deal of trust has been destroyed, both in Afghanistan and Germany.
No Plans to Resign
The principal responsibility lies with Ernst Uhrlau, 61, and yet he has no immediate plans to resign. Last Friday, a spokesman for German Chancellor Angela Merkel revealed that her confidence in Uhrlau has been "damaged" but not "destroyed." The spokesman made it clear that Merkel expects a commitment from Uhrlau to improve his agency's performance, and that he will indeed have to go if he fails to live up to this new promise.
Many observers are asking if a BND president who has come under such serious criticism is himself even capable of cleaning up the agency -- an agency where things have gone haywire, where no one considers it necessary to notify its director about a serious spying attack, and where agents prefer to act on the sly and have no qualms about writing anonymous whistle-blowing letters? "I have serious concerns that this sort of thing could damage our security situation and impair the BND's essential work in the future," says Fritz Rudolf Körper, an expert on security issues for the center-left Social Democratic Party (SPD).
It doesn't take much far-sightedness to recognize that Germany's foreign intelligence agency will be paying more attention to its own problems in the coming months rather than focusing on challenges on the international stage. This is not good news for the government in Berlin, faced, as it is, with one international crisis after the next, including the cases of two German kidnapping victims who are still being held in Afghanistan and Iraq. Berlin cannot rely on the BND, as the new scandal illustrates.
It all began in a small unit in the BND's Division 2. The department is responsible for "technical procurement" -- in other words, obtaining information with technical means, which mainly involves the wiretapping of telecommunications, called "signals intelligence" in industry jargon. In 2006, Division 2 consisted of 13 specialist departments and a management team (Department 20A), employing about 1,000 people. The departments are known by their German acronyms, like MOFA (mobile and operational telecommunications intelligence gathering), FAKT (cable telecommunications intelligence gathering) and OPUS (operational support and wiretapping technology).
In early June 2006, the OPUS team in department 26E launched an intelligence attack against Afghanistan. The details could have been taken from a Hollywood thriller, and the scope of the operation was far greater than has been revealed to date. According to the BND's secret allocation of responsibilities, OPUS is in charge of "technical and operational attacks on IT systems," a more or less accurate description of its agents' work.
They secretly planted a so-called Trojan horse spying software in the computer network of Afghanistan's Ministry of Commerce and Industry. The software is designed to install itself on a third-party computer and quietly help send the contents of its hard drives to Germany. Perhaps it will never be fully clear why the BND chose this particular ministry and whether other government agencies in Kabul were also affected -- most of the files relating to the case have apparently been destroyed. The Chancellery, which is responsible for supervising the BND's activities, has now ordered a special investigation.
The Trojan horse enabled the agents at OPUS to monitor the ministry's activities, providing the Germans with a treasure trove of confidential data, internal documents and various government e-mail addresses and the corresponding passwords. Among that information was the log-in details for the personal e-mail account of 68-year-old Commerce Minister Amin Farhang.
Bending the Rules
One of the absurdities of the affair is that the BND set its sights on a declared friend and loyal ally of Germany. Amin Farhang had studied in Cologne and spent several years in the notorious Pol-i-Charkhi prison near Kabul before he managed to flee the country in the early 1980s and travel to Germany, where he settled in the western city of Bochum. He returned to Afghanistan in 2001, this time "for good," as he says, to help with reconstruction after the fall of the Taliban regime. And then Farhang became the target of a German intelligence attack.
Thanks to the Trojan horse, agents at BND headquarters in Pullach near Munich soon learned that Farhang was using an e-mail account from the American Internet giant Yahoo. The information came complete with the minister's password, allowing the Germans to simply log in to the account and read his e-mail correspondence.
The e-mail account included correspondence within the Kabul ministry, as well as messages from SPIEGEL reporter Koelbl to Farhang, whose fluent German makes him a logical contact person for journalists. At the time, Koelbl had been reporting from Afghanistan for five years, and over time she had developed a trusting relationship with Farhang.
The agents in department 26 immediately noticed the e-mails from SPIEGEL's spiegel.de domain. They requested guidance on how to proceed. For two days, their request went unanswered.
This was about the time when the alarm bells should have started ringing at the BND. Even an agent of entirely average ability should have recognized that an enormous problem was taking shape. The head of the management team at Division 2, who had been briefed on the issue, should also have reacted. But he didn't.
Instead, the OPUS team manager in charge of the operation issued a bizarre order in mid-June. E-mails written by Koelbl and Farhang that were clearly personal were not to be read. Agents were permitted to open e-mails whose subject lines were ambiguous -- but they were required to stop reading the minute they realized that the content was exclusively personal. Aside from these restrictions, everything else was fair game. Over a period of six months, the BND agents read more than 30 e-mails between Koelbl and the Afghan cabinet minister.
The OPUS team manager, uncertain over whether his group's actions were permissible, turned to his colleagues for advice. Legal experts in the department were supposed to check if the operation constituted surveillance of telecommunications. Under Article 10 of the German Constitution, which protects the secrecy of telecommunications, this type of surveillance would have been illegal. But the BND legal experts concluded that the OPUS group's activities did not qualify as surveillance of telecommunications, because the exchange of e-mails had already taken place. Their idiosyncratic conclusion was that the BND was allowed to analyze, without official authorization, the ministry's hard drives and Farhang's e-mail.
It was an appealing conclusion, at least for the men at OPUS. It enabled the agents to circumvent Germany's laws regarding privacy of electronic communications. Although the law provides the BND with extensive powers, a 1999 ruling by Germany's Federal Constitutional Court means the agency is required to abide by strict rules, including going through an approval process.
But the BND agents interpreted their own legal experts' opinion to mean that none of those pesky rules and procedures applied to them -- and simply kept on reading.
The End of the Affair
When the agents came to work on Nov. 27, 2006, they logged in to Farhang's inbox and discovered an e-mail from the SPIEGEL reporter. The subject line read: "Afghan doctor from Germany detained -- Judiciary demands payment for his release." In the e-mail, Koelbl described the case of an Afghan man who had been arrested under unclear circumstances. The son of the man, who lives in Germany, had contacted SPIEGEL and asked for help.
But the BND agents decided, once again, to stretch the law to suit their needs. Although the e-mail was subject to the protection afforded the press, they reasoned that in this case the constitutional rights of the presumably kidnapped man also applied -- even if the intelligence agents were completely unfamiliar with the case. They concluded that they were within their rights to open the mail, and they subsequently read four e-mails between Farhang and Koelbl in which they discussed the Afghan doctor's abduction.
The supposed abduction turned out to be a false alarm. Nevertheless, a legal expert objected to the agents having read the e-mails, prompting the head of the OPUS group, on Nov. 27, to notify his department director, Dieter U., about the new violation of the freedom of the press. Dieter U. ordered all e-mails relating to the journalist to be deleted. Two days later, on Nov. 29, 2006, the BND terminated its surveillance of Farhang's e-mail correspondence.
There were various points at which the agency's president, Ernst Uhrlau, could have been clued in to the sensitive case. When another online debacle, the Congo affair, was being cleared up in the spring of 2007, department director Dieter U. should also have mentioned the Farhang/Koelbl case.
In the Congo case, the BND's Division 1, which was responsible for managing intelligence sources, used Trojan horses to infiltrate computers in Congo, hoping to gain information that could be of use to German troops serving as peacekeepers in the crisis-ridden African country. But the operation was exposed when one of the BND agents misused the powerful espionage tool to intercept his partner's romantic correspondence with a member of the German military, the Bundeswehr. The intimate e-mails made the rounds and the abuse became known within the agency.
The embarrassing affair led to a series of crisis meetings between the BND and the Chancellery. Since then, the BND has seen to it that all e-mails sent from addresses that include Germany's .de country domain are automatically shielded from surveillance. But the Afghanistan case was not addressed during these crisis meetings.
It wasn't until later, in December 2007, that the scandal reached the BND president, at least according to Uhrlau. A critical legal expert approached another BND department, Division 8, which is responsible for security, and reported the computer attack. The head of Division 8 spoke with his counterpart in Division 2, Dieter U. On Dec. 21, 2007, the last working day before the Christmas holiday, Dieter U. finally filled in Uhrlau on the case.
At that point, officials at the Chancellery and in the German parliament, the Bundestag, should have been notified. Uhrlau claims that orders were issued to this effect, but that the internal memo containing the directive was lost in a pile of documents. Today the Chancellery refers to this incident as the "second serious error."
'Speechless and Outraged'
Two parliamentarians, members of the German parliament's intelligence oversight committee, the Parliamentary Control Panel (PKG), received a letter in mid-February 2008. According to the distribution list, SPIEGEL was supposedly also sent a copy of the letter, but it never reached the magazine.
The letter, apparently written by an anonymous BND employee, described "an unusual, additional case of surveillance of a journalist." The whistleblower, who would eventually play a key role in divulging the affair, wrote that the BND was "attempting to cover up the operation." Without the incriminating letter, neither the Chancellery nor the members of the Bundestag would likely ever have learned of the wiretapping activities.
Parliamentarian Norbert Röttgen, who belongs to the center-right Christian Democratic Union, paid the additional postage for the letter, which did not have a stamp. He then read it and, on Feb. 25, forwarded it to the Chancellery. The office of Thomas de Maizière, the head of the Chancellery, contacted BND President Uhrlau on Feb. 26.
It was only then that the BND began a comprehensive investigation of the incident. Lo and behold, the legal expert who had raised objections to the surveillance in the first place still had a few copies of the Koelbl e-mails sitting in her files, a full 15 months after receiving the order to eliminate all evidence. This time she complied, and destroyed the documents.
At first, Uhrlau neglected to notify the SPIEGEL reporter. Koelbl, however, had in the meantime received tip-offs -- vague at first, but then more specific -- that her e-mails had been read, and she requested a meeting with Uhrlau. The BND president only admitted to the monitoring when directly asked about it by Koelbl during the meeting. SPIEGEL began investigating its legal options, including the possibility of criminal charges.
Farhang himself was also stunned by the BND's intelligence assault on him and his ministry. "I am speechless and deeply outraged," says Farhang. "The Germans apparently fail to understand what my involvement in this case could mean for me. In Afghanistan, one is quickly suspected of being a spy, even when one is only the victim of an unbelievably despicable act like this one."
This raises the question of what exactly the role of an intelligence service is in a country like Afghanistan. Should it be permitted to practice all of the tools of its trade there? Or should it exercise restraint when the risk of collateral damage in the foreign policy arena is clearly too great?
The BND is traditionally very active in Afghanistan, where its operations sometimes stretch the limits of what is acceptable. When 38 Afghan politicians and clan leaders convened at a United Nations-led summit at the Hotel Petersberg outside Bonn in November 2001, "some of us felt distinctly uneasy," recalls one intelligence agent today.
According to the agent, the number of BND informers at the conference ran into double figures, with several ministers in Afghan President Hamid Karzai's interim government acting as informants for German intelligence. In fact, there were so many informants that a debate erupted at BND headquarters in Pullach over whether the agency had too much access and "whether we should perhaps consider deactivating some of our sources." That was exactly what happened.
When relations between two allied countries are at risk, as they are at present, one would like to see the head of the BND take matters into his own hands, rather than leaving it to someone else such as the head of one of his agency's departments.
'Appalled and Disgusted'
Until now, the German-Afghan relationship, says Afghan Foreign Minister Rangeen Dadfar Spanta, "was a very good one" -- "was" being the operative word.
For a number of hours on a Sunday morning two weeks ago, Spanta, 54, wondered if he himself could have been the target of the German surveillance operation. "Suddenly you remember all the e-mails you wrote," says Spanta. "You go back and read through each and every one of them, checking to see if you might have written something objectionable."
On the morning of his interview, the normally calm Spanta is practically unrecognizable. Fidgeting nervously in his baroque chair, he sits, gesticulating, in front of an oil painting which depicts the former glory of his now-devastated country. "I am appalled and disgusted by these methods, which have no place in a constitutional state," he says. He adds that he attempted several times in the previous week to reach the German foreign minister, Social Democrat Frank-Walter Steinmeier, but to no avail. (Steinmeier has since telephoned Spanta to apologize for the incident.)
That the Americans might do something like this, says Spanta, who, like Farhang, studied in Germany, "was clear to us." But the Afghan government would "never have considered it possible" that such an attack would have come from Germany, "our closest friend, the country in which I always felt safe as a democrat." "I was shocked," he says, but adds: "We will remain friends. I don't want to provoke a big scandal." Then he says: "This sort of thing must never happen again."
A delegation of senior German government officials will find itself listening to similarly strong language this week. Spanta expects diplomats from the German Foreign Ministry to offer both an explanation of the operation and an apology when they travel to Kabul in preparation for a June donors' meeting in Paris.
The domestic aftermath of the affair is just as serious as its international repercussions. The BND is clearly out of touch with the current political debate in Germany. For months, German politicians have been grappling with thorny questions about the constitutional state and the relationship between freedom and security. On the one side are the law enforcement agencies and Interior Minister Wolfgang Schäuble, a member of the conservative Christian Democratic Union, who has just presented draft legislation that would, among other things, allow the Federal Criminal Police Office (BKA) to install video cameras in private residences.
On the other side is a widespread feeling of unease in the face of an ever-expanding surveillance arsenal, which the Federal Constitutional Court emphasized in a recent groundbreaking ruling on online surveillance. In essence, the decision allows the law enforcement authorities, in emergency situations, to do what is absolutely necessary to ward off specific threats that, for example, threaten human lives. On the other hand, the authorities must refrain from resorting to steps that are technically feasible but not essential.
Although the German court's decision to allow online surveillance relates to the German domestic intelligence agency, the Federal Office for the Protection of the Constitution, it can be applied just as easily to other law enforcement agencies. In addition, the Federal Constitutional Court used the opportunity to devise a basic right for computer users, under which the "confidentiality and integrity of information technology systems" will be considered a constitutional right in the future. The BND will also be forced to submit to the new standard. For the time being, the agency is contributing to a general sense of unease about the government's lust for data, especially since it clearly acted illegally.
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