SPIEGEL ONLINE

SPIEGEL ONLINE

11/04/2013 05:59 PM

Codependent

Merkel's Pragmatic Approach to the NSA Scandal

Chancellor Merkel might be furious about the NSA's unscrupulous surveillance activities, but reluctance to anger her partners in Washington prevents her from imposing sanctions. Trade issues aside, Germany itself depends heavily on intelligence gathered by the US agency. By SPIEGEL Staff

The surroundings alone clearly indicated that this was no normal discussion. US National Security Adviser Susan Rice led her German guests to the "Situation Room," the intelligence nerve center in the basement of the White House. This is where the commander-in-chief orders drone attacks and issues commands to deploy troops. It was in the Situation Room, for instance, that US President Barack Obama watched US special forces hunt down Osama bin Laden two and a half years ago.

Something has shifted in the relations between Berlin and Washington -- otherwise Christoph Heusgen, Merkel's foreign policy adviser, would not have met with top US officials in a secure conference room last Wednesday. Nothing has strained ties with the US over the past few years more than the revelation that the National Security Agency (NSA) has been tapping German Chancellor Angela Merkel's cellphone.

Merkel doesn't know what should upset her more: the chutzpah of a so-called friend who listens to her phone calls, or the Americans' inability to keep it a secret. Now Merkel has been exposed as a chancellor who was deceived by an unscrupulous intelligence agency. Just last summer, she believed the assurances made by the NSA that it was complying with all laws and regulations on German soil -- at least that's what she said publicly. Now her staff are wondering what will come next. Will the world soon be able to read transcripts of her mobile phone conversations? It would be a political nightmare.

The chancellor has every reason to be angry -- but it's difficult to find the appropriate response. The German government has been considering a wide range of possible sanctions against the US. Should Germany take counterintelligence measures against the Americans -- in addition to its existing operations targeting countries like China and Russia? Should Berlin put the brakes on negotiations for a trans-Atlantic free trade agreement?

A Boomerang Effect

But Germany and the US are so closely linked that every blow dealt to the other side would have a boomerang effect. Shelving the free trade agreement, for example, would primarily impact the export-dependent German economy. The Munich-based Ifo economic think tank has calculated that dropping barriers to trade could create 160,000 jobs in Germany.

Merkel faces a dilemma. She doesn't want to go down in history as a chancellor who allowed herself to be pushed around by her American big brother. On the other hand, she doesn't want to rock the boat too much. Her first move following the outrage over her tapped cellphone was to send a delegation of top-ranking German officials to Washington, including foreign policy adviser Heusgen and Günter Heiss, the foreign intelligence coordinator at the Chancellery.

After Rice had welcomed the guests to the Situation Room, Heusgen presented Germany's wish list. The top item was a so-called no-spy agreement -- an accord in which both sides promise not to spy on each other.

The first element of a pact like this involves renouncing all industrial espionage. This is seen as non-contentious, since neither side currently runs such operations. The Americans quickly signaled their agreement.

Then the Germans addressed their core demand: no technical espionage on German soil. The wording here already includes a concession to the Americans, because information flows globally in the Internet age. Furthermore, this choice of words does not clearly regulate the activities of the US embassy in Berlin.

Another issue remains open: a ban on the surveillance of both heads of state. At first glance, this would appear to be a simple matter. After all, the White House has already given assurances that Merkel will not be spied on in the future. But providing Germany with written assurances could set a precedent that other countries might later invoke -- at least that's what the Americans are afraid could happen.

The Price of Cooperation

It also remains unclear what form such a no-spy agreement would take. When German Interior Minister Hans-Peter Friedrich of the conservative Christian Social Union (CSU), the Bavarian sister party to Merkel's Christian Democratic Union (CDU), flew to Washington last summer, he indicated that he wanted to initiate an accord between the intelligence services. Now, it looks like a treaty will be signed by the governments in Washington and Berlin -- and jointly drafted by the Chancellery and the White House. A second meeting between the two sides is under consideration. The US side would like to see a "more intensive cooperation," Rice said toward the end of the two-hour discussion.

That might sound promising -- but the statement also contains a threat. More cooperation can only be of limited interest to the Germans. The Americans' only real friends are the members of the coalition of Anglophone countries known as the "Five Eyes," which consists of the US, the UK, Canada, Australia and New Zealand. There is an informal agreement among their intelligence agencies not to spy on each other. At the same time, they closely cooperate with each other, and even exchange highly sensitive information. Would that be a model to prevent future espionage attacks?

In any case, the price would be high. The Five Eyes collaborate on spying operations throughout Europe, drone attacks and even the rendition of suspected terrorists. These are dirty operations that would immediately be reviewed by an investigative committee if they were conducted by a German intelligence agency. Not surprisingly, the German government has no inclination to become a member of this dubious club.

Still, Germany's intelligence services want to continue to benefit from the information provided by the Americans. Indeed, the Bundesnachrichtendienst (BND), Germany's foreign intelligence agency, is seeking to conclude a second agreement covering its future collaboration with the NSA. This week, Gerhard Schindler and Hans-Georg Maassen -- the heads of the BND and Germany's domestic intelligence agency, the Federal Office for the Protection of the Constitution (BFV) -- plan to travel to the US capital.

Remorse and Defiance

The US is vacillating between remorse and defiance in reaction to the cellphone scandal. So far the NSA's spying activities abroad have attracted little attention in the US media. But that's changing. A number of American politicians are showing signs of regret. US Secretary of State John Kerry read the riot act to the NSA last week. "The president and I have learned of some things that have been happening in many ways on an automatic pilot, because the technology is there and the ability is there," he said, adding that "in some cases, some of these actions have reached too far and we are going to try to make sure it doesn't happen in the future."

Senator Dianne Feinstein, the Democratic chairwoman of the powerful Senate Intelligence Committee, says that she "totally rejects" the surveillance of friendly heads of state. Feinstein, 80, is widely revered as an institution -- and her word carries weight in Washington. She says she doesn't believe that Obama knew about the spying on Merkel.

Most observers in Washington agree that the operation against Merkel could not have been launched in 2002 without the approval of then-President George W. Bush. The surveillance campaign began shortly after the attacks of Sept. 11, 2001, when the US was preparing to go to war against Iraq. There are many indications that a spying campaign began back then -- a campaign that was not only directed against Merkel, but also against the leaders of other allied countries. To this day, US intelligence agencies feel this was justified.

No Signs of Regret

During a meeting with Feinstein attended by German European parliamentarian Elmar Brok, NSA chief Keith Alexander indirectly admitted to spying on the German chancellor. After Feinstein asked three times whether Merkel's cellphone was tapped, participants say that Alexander responded: "Not anymore." In other words, there was definitely spying in the past. The NSA has declined to comment on the issue.

Alexander showed no signs of regret, however. On the contrary, in his opinion "nothing that has been released has shown that we are trying to do something illegal or unprofessional," as he said last week before the House of Representatives Intelligence Committee. Obama's director of national intelligence, James Clapper also testified: "We do not spy on anyone except for valid foreign intelligence purposes." He said he thought the US was doing "the right thing."

When asked by the chairman of the committee, Republican Mike Rogers, whether the CIA or the NSA were capable of using their own criteria for surveillance -- in other words, whether these agencies were acting at times independently and without political oversight -- Clapper replied: "No, absolutely not."

The Intelligence Score Card

Clapper's response means that Obama has some explaining to do. The president has tried to present himself as someone who is interested in clearing up the whole spying scandal. He said that he knew nothing about the tapping of Merkel's cellphone -- and he even apologized to her. But the NSA does not act within a vacuum. It adheres to strict guidelines that the White House has spelled out in the so-called National Intelligence Priorities Framework (NIPF).

Until recently, this list was only known to a small group of insiders. Last week, though, the issue made its way onto the "Daily Show," hosted by TV comedian Jon Stewart. Previously, an NSA spokeswoman had explained that spying missions were not ordered directly by the president, but via the NIPF.

"What the hell is that?", asked Stewart. He then wondered: "If the president doesn't know what's actually happening, how does he run the country?"

The NIPF is effectively the wish list that the government sends to its intelligence agencies. It determines which countries and which governments should be spied on -- and with what level of priority. The list forms the political foundation for the spying activities of all 17 US intelligence agencies.

It was first drawn up in 2003 under President Bush. Since then, this list has been updated every six months. This is done by the Office of the Director of National Intelligence, but only with top-level endorsement from the Oval Office. According to internal NSA documents, the list is "presidentially approved." SPIEGEL has obtained a copy of the list, dated April 2013, from the archives of NSA whistleblower Edward Snowden.

The espionage targets are organized and color coded according to their priority. The intentions of the political leaders of foreign countries are given the highest priority tier "1" -- on par with fighting terror and gathering information about weapons of mass destruction.

Germany figures in the middle of this international intelligence score card, on the same tier as France and Japan, but as a greater concern than Italy and Spain. In the eyes of US intelligence agencies, German foreign policy, along with financial and economic issues, are both rated with a "3." Furthermore, the NSA is interested in Germany's arms control, new technologies, highly developed conventional weapons and international trade, which all have priority "4." Of only minor interest are counterespionage by Germany and threats from cyberspace (priority "5").

Some countries like Cambodia, Laos and the Vatican are completely uninteresting from an American perspective, as are many European countries like Finland, Croatia, Denmark, the Czech Republic, Liechtenstein and Luxembourg. These countries are all marked in white, with no priority whatsoever.

Countries like Bangladesh, Thailand, Sweden, Uzbekistan and Malaysia are only marginally interesting according to the espionage rating list. The US focuses here in isolated issues, but only to a minor degree. The topics in question are rated with a "4" or a "5."

A 'Strategic Advantage'

Insiders in Washington have known for a long time how intensively the US spies on foreign governments. During the previous fiscal year, US intelligence agencies had to tighten their belts. While the budget shrank by $1.3 billion (€960 million), spying on foreign governments was one of the areas in which the White House actually increased spending.

"We are bolstering our support for clandestine SIGINT capabilities to collect against high priority targets, including foreign leadership," it says in a top-secret draft budget for 2013 that Director of Intelligence Clapper presented to Congress. He said the goal here was to maintain a "strategic advantage."

Clapper, who sat across from the German delegation as a negotiating partner last Wednesday, feels that spying on Merkel and her entourage is completely normal. "It's invaluable to us to know where countries are coming from, what their policies are, how that would impact us across a whole range of issues," Clapper told the House Intelligence Committee, adding: "It isn't just leaders themselves, it's what goes on around them."

The Germans arguably have every reason to tell the Americans that that they are fed up. Germany's domestic intelligence agency, the BFV, is responsible for counterespionage in Germany, and it would be at least theoretically conceivable that this agency could be mobilized against the US surveillance apparatus. But no high-ranking politician among Merkel's conservatives or the left-leaning SPD is calling for such a measure.

There is little that the German government fears more than the fury of its partner in Washington. If the Americans were to shut off the flow of information out of revenge, "we would be partially blind," says a high-ranking German security official.

A Codependent Relationship

In fact, an internal German government statistical study shows just how closely German and American spies have been collaborating for years -- and how dependent the Germans are on the support of their trans-Atlantic partner. This is particularly true when it comes to Islamist terrorism. A large proportion of the relevant knowledge here comes from the UK, Israel and the US.

Furthermore, the NSA provides the BND with a constant flow of information on flashpoints like Pakistan and North Africa. This intelligence concerns arms and drug trafficking, organized crime in Russia and illegal immigration from places like the Balkans. In 2012, the NSA supplied the BND with 750 reports on these issues. During the same year, the German foreign intelligence service received 4,538 information packages from the CIA, along with 2,169 from the Central Command of the US Armed Forces and 519 from the Defense Intelligence Agency. The BFV is also grateful for every bit of information that it receives from US intelligence agencies. Last year, this amounted to 1,830 reports. According to internal sources, it was only thanks to help from the Americans that it was possible to prevent devastating attacks on German soil.

In January 2013, a Berlin court found German Yusuf O. and Austrian Maqsood L. guilty of being members of the terrorist organizations German Taliban Mujahedeen and al-Qaida, and sentenced them to long prison terms. Currently, four suspected al-Qaida members are being tried in the Düsseldorf Higher Regional Court on charges of planning a "spectacular terrorist attack" in Germany. In both cases the Americans reportedly provided vital intelligence.

The Germans are also becoming increasingly dependent on the US for cutting-edge technology. For instance, the Americans are providing the BND, as well as the BFV, with access to their XKeyscore intelligence mega-software. In return, the BFV has agreed to go easy on American citizens. In its contractual obligations with the Americans it states that the intelligence agency will use XKeyscore "and ensure that the software is not used to target US citizens."

Spying Sovereignty

Nevertheless, some politicians in Berlin are no longer comfortable with the notion that they are at the mercy of US intelligence agencies. CDU domestic policy expert Clemens Binninger fully supports the idea of exclusively routing German data traffic through autonomous networks in the future. But that's not enough, says Binninger: "In addition to the requisite collaboration in collecting information, our goal must be to become largely independent," he contends. His counterpart in the SPD, Michael Hartmann, takes a similar view: "Our services have to be state-of-the-art, both in terms of technology and personnel, so we can generate our own results."

There have been initiatives like this in the past. In 2008, August Hanning, a senior official at the German Interior Ministry at the time, pressed ahead with plans for the creation of a German headquarters for telecommunications surveillance, modeled after the NSA, and located in the western German city of Cologne.

According to Hanning's plans, the German federal police, the Federal Office of Criminal Investigation, the BFV and the BND were to pool their resources. The BND declined to participate in the scheme -- and after critics warned that the planned miniature German NSA violated national laws preserving the separation of the police and intelligence agencies, then-Interior Minister Thomas de Maizière (CDU) buried the project. Hanning remains adamant that it was a mistake: "I still believe that it was a sound project. We should be less dependent on America," he argues.

Today many politicians and officials in Berlin are harkening back to Hanning's idea. A project like that could be "the nucleus for independence," says a high-ranking German security official. And even in the Interior Ministry there is speculation over how Germany could acquire sovereignty in the world of espionage. A roundtable discussion group has been meeting since April to discuss upgrading Germany's technical facilities.

Following her initial dismay, the chancellor has come to terms with the fact that painful sanctions imposed on the Americans would be counterproductive for Germany. Instead, she can console herself with practical thoughts. Merkel has just won an election victory, and she can look forward to at least another four years as chancellor. Obama, on the other hand, is already one year into his last term in office. In two years, at the latest, he will be a lame duck president at major international summits, whereas Merkel will be received as Europe's most powerful woman.

BY RALF NEUKIRCH, RENÉ PFISTER, LAURA POITRAS, MARCEL ROSENBACH, JÖRG SCHINDLER, FIDELIUS SCHMID AND HOLGER STARK.

Translated from the German by Paul Cohen

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