Berlin and the NSA Questions Mount for Merkel's Chief of Staff

Revelations that German intelligence services have been using US spying software could create problems for Angela Merkel and her chief of staff, who is responsible for coordinating the agencies. Opposition politicians are demanding answers.
The Federal Chancellery in Berlin has become the new focus in the NSA snooping scandal.

The Federal Chancellery in Berlin has become the new focus in the NSA snooping scandal.

Foto: Adam Berry/ Getty Images

German Chancellor Angela Merkel had hoped to tune out of politics this week during her annual hiking holiday in northern Italy But that may prove difficult following the latest revelations in the spying scandal involving America's National Security Agency (NSA) and its mass surveillance of German communications.

Over the weekend, SPIEGEL reported  on NSA documents seen by the magazine's journalists from the trove of data provided by whistleblower Edward Snowden, indicating not only that German intelligence agencies worked together with the NSA, but also that they deployed some of its tools -- even after Merkel became chancellor.

That, combined with indications that German intelligence agencies may have been playing fast and loose with data privacy laws in Germany, has the opposition foaming. "The latest media reports about the close relationship between German and American intelligence services confirm the impression that the German government either feigned ignorance, kept quiet about its complicity or that the intelligence agencies have gotten out of control," Peer Steinbrück, the Social Democratic challenger for the Chancellery, said in a Monday statement.

"The most alarming news is that the government of Ms. Merkel appears to have made the interpretation of the G-10 law (which establishes the conditions under which surveillance of German citizens is permissible) more flexible in order to make it easer to provide protected data to foreign services," he added. "Now it has to be clear that the time of playing this issue down has passed."

"The issue here goes to the core of our democracy and constitutional state," Steinbrück said. "That's why it is to be expected the chancellor herself demand a binding pledge from the US government to immediately cease the spying on citizens, companies and possibly official locations in millions of instances."

Bad Time for Merkel

According to the documents seen by SPIEGEL, a high-ranking delegation with Germany's foreign intelligence service, the BND, travelled to NSA headquarters in Maryland to receive data collection training at the end of April. The documents also indicate that workers with Germany's domestic intelligence agency, which monitors extremism, were given training by their American partners.

That in and of itself isn't objectionable. But what is controversial is that the German services have deployed one of the NSA's most useful tools. The XKeyscore data program is a system, the documents show, capable of capturing unfiltered communications with a "full take," meaning metadata and content of communications, for up to several days at a time.

Over the weekend, Hans-Georg Maassen, the president of the Federal Office for the Protection of the Constitution confirmed the agency had deployed the program for testing.

The revelations come at a bad time for Merkel, just weeks before federal elections. The chancellor and her cabinet have been massively criticized  in recent weeks for their tepid efforts to clarify the spying scandal, which included revelations that the NSA spied on European Union institutions and up to a half-billion German communications connections each month. The government will now have to explain what it knew. The claim oft repeated by various officials that the government first learned about the spying activity through press reports is losing credibility fast. Is it really possible, some are asking, that cooperation was so deep between the three intelligence agencies that they were exchanging software without those with responsibility getting a whiff of the American's data obsession?

The details also raise new problems for Merkel because they will shift some of the focus in the scandal to her Chancellery and her chief of staff, Ronald Pofalla, who is also the chancellor's intelligence coordinator. The Chancellery is responsible for the government's supervision of intelligence agencies, and critical questions will be posed about whether Pofalla knew about the programs. The heads of the intelligence agencies meet several times a month with Chancellery officials to discuss current developments, and Pofalla has had plenty of opportunities recently to ask questions.

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Pofalla is likely to come under considerable pressure -- if he didn't know anything, then he allowed the intelligence services to make a fool out of him. And if he did have details, then he will have to answer questions about why he didn't mention that knowledge to the closed-door committee in parliament responsible for oversight of German intelligence. Pofalla chose not to comment when contacted on Sunday by SPIEGEL ONLINE.

Meanwhile, Merkel's opponents are already lining up with criticism. "The German government is behaving like an obedient altar boy to US security policies," said Renate Künast, the Green Party's floor leader in parliament. "Supervised by the Chancellery, the BND is dealing in our private data."

There are still many open questions, including how and when the German foreign intelligence service used XKeyscore and what kind of data was captured. Most important, however, is the question of whether or not it was deployed legally or whether German services are obtaining data on Germans in illegal ways and then passing it along to its American partner. The Office for the Protection of the Constitution chief Maassen ruled out that possibility in an interview with the Bild am Sonntag newspaper, and the BND's Schindler has also said it didn't happen. But one of the Snowden documents indicates that the BND was very familiar with the system -- so much so that it offered to provide training on XKeyscore to colleagues at the Office for the Protection of the Constitution.

In general, it appears the BND has been a good partner to the Americans. The documents note an "eagerness" by BND President Schindler to cooperate more closely with the NSA. "The BND has been working to influence the German government to relax interpretation of the privacy laws to provide greater opportunities of intelligence sharing," NSA agents noted in January.

Leaders with the center-left Social Democrats (SPD), Germany's most important opposition party, are outraged. "If it is true that the BND president wanted to circumvent German privacy laws, then he has to be replaced," party boss Sigmar Gabriel said on Sunday.

'It Is Orwellian'

In Steinbrück's Monday statement, he also asked why Pofalla hasn't yet commented on the allegations.

Hansjörg Geiger, who has served as head of both the BND and the Office for the Protection of the Constitution, is likewise furious. In Monday's Frankfurter Allgemeine Zeitung, he lambasted the US intelligence services' spying programs, saying unlimited data retention and surveillance needs to be stooped. "It is wrong, it is Orwellian," he said. "The sheer possible quantity of monitoring creates a new quality," he said. He called for the creation of an "Intelligence Codex" to regulate the work of intelligence services within the EU and NATO. Under it, any intelligence work on the territory of another member state would only be allowed with its permission and under the agreement that local laws were observed. Mutual political and economic espionage would be explicity forbidden.

Members of the Parliamentary Control Panel in the Bundestag have also vented. By law, the government is required to regularly and "comprehensively" inform the 11 members of the board, which meets in secret, about the work of the BND and the Office for the Protection of the Constitution, and explain "procedures with special importance."

Panel members have critical questions about why the BND and Office for the Protection of the Constitution remained mum about the use of the software. "We should consider engaging a special investigator," said SPD domestic policy expert Michael Hartmann. Steffen Bockhahn, a member of the panel with the Left Party, also expressed his frustration. "It appears there is fear of being forbidden (from taking certain actions), and that's why they aren't forthcoming," he said. "It's apparently not clear to them that they are obliged to inform the Control Panel."

The next meeting of the panel had been scheduled for August. But Ronald Pofalla has now said he hopes to provide the body with more information this week. It has not yet been determined when that will take place.