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SPIEGEL ONLINE

11/04/2013 05:32 PM

Germany's Quandary

The Debate over Asylum for Snowden

There are growing calls in Germany not only to question Edward Snowden in connection with the ongoing NSA scandal, but also to offer him safe passage and asylum. Yet the heads of the two major political camps fear the wrath of the United States. By SPIEGEL STAFF

Hans-Christian Ströbele, a lawyer and parliamentarian for Germany's Green Party, turned 74 this year. He has devoted more than 50 of those years to the political struggle for justice and for what is good in the world - or at least that's how he sees it. "Have you ever been on the wrong side of things?" Ströbele was asked in a recent television interview.

"Politically speaking?" he asked the interviewer, glancing at the ceiling. For two seconds, it seemed as if he had to consider the question, but he quickly regained his composure and emphatically replied: "No."

Now Ströbele is waging another political battle, probably the most noteworthy one of his life. Last Thursday, he went to Moscow and spent three hours speaking with Edward Snowden, the man whose revelations about the spying activities of the United States have both captivated the world for months and deeply changed its perceptions.

Ströbele, a lawmaker from the Friedrichshain-Kreuzberg election district in Berlin, was the first politician in the world to meet with Snowden in his Moscow exile. Snowden's mission is now Ströbele's mission. He wants to bring the American whistleblower to Germany to testify before an investigative committee of the German parliament, the Bundestag, and in doing so provide him with a secured right of residence in Germany.

Ströbele knows that granting Snowden the right to stay in Germany would create problems for German-American relations. The Americans have already submitted an extradition request, just in case Snowden ever sets foot on German soil. But Ströbele doesn't care. He sets his own priorities and, once again, he believes himself to be on the right side of history, notwithstanding Germany's trans-Atlantic partnership with the United States. "If the political will exists, as well as the courage, including the courage to stand up to presidents, then it's possible," Ströbele said after returning from Moscow.

A Test for Berlin

Germany now faces a test of courage, one that affects the German parliament, the heads of the two major parties, the conservatives and the center-left Social Democratic Party (SPD), who are currently hammering out the details of a grand coalition government in negotiations set to conclude by Christmas. Most of all, it affects Chancellor Angela Merkel.

So should the Bundestag hear Snowden's testimony before an investigative committee? The answer seems straightforward. Why shouldn't German lawmakers hear what he has to say, the man on whose revelations the entire NSA scandal is based and who has already told Ströbele that he is willing to come to Germany?

The second, more fundamental question is harder to answer: whether Snowden should be granted the right to live in Germany or a comparable country, and therefore protection from the Americans. This is precisely the condition Snowden has set for his willingness to testify. He knows that his asylum in Russia is limited to one year, which means that it expires in nine months. He is testing the waters to see where he could live safely in the future. Germany appears to be his top choice.

At the same time, the question arises as to whether it is advisable to snub the United States, given that Germany benefits more than most other countries from the intelligence it receives from Washington.

If a Bundestag committee wanted to hear Snowden's testimony, the German government would be obligated to provide him with safe domicile in Germany and even the opportunity for regular employment. This is the conclusion reached in a report by the Academic Office of the Bundestag commissioned by members of the Left Party's parliamentary group. According to the assessment, there is only one reason to oppose the wishes of the parliament: "Serious foreign policy concerns that endanger the welfare of the state."

In the end, is the fear of America's rage over giving Snowden a home worse than the urgent desire for answers, which the Bundestag, the body that represents the German people, has expressed? Germany could hardly reconcile this with its national identity as a modern, enlightened and sovereign constitutional state. And if Berlin's outrage over the surveillance of German citizens and their political leadership isn't feigned, it can hardly turn away the man whose actions were critical to exposing the NSA scandal in the first place.

On Monday, Merkel's spokesman Steffen Seibert did his best to cool down the domestic debate over offering Snowden asylum. "The chancellor believes she has an obligation to protect the data and privacy of German citizens from illegal monitoring and she is working to re-establish trust with the United States, and put in place clear rules for future cooperation," he told reporters.

"That said, however, this is also about our security and our interests as partners. The trans-Atlantic alliance remains of paramount importance. There is hardly a country that has profited as much from this partnership and friendship as Germany," Seibert added. But when asked whether Snowden might offer testimony in a German inquiry, Merkel's spokesman deflected, saying that would be up to parliament and the relevant committees.

Which Interest Is More Important?

Ultimately Merkel will have to make a decision and take a stand. Is she willing to risk conflict with US President Barack Obama and his administration to achieve a different goal: a comprehensive investigation of American espionage activity in Germany by the German Bundestag?

It is clear that Merkel's preferred method of taking a wait-and-see approach isn't going to yield any results in the Snowden case. Her government has to decide which interest is more important: The relationship with the United States or learning the truth about its spying activities to protect the rights of German citizens?

So far, the German government has demonstrated moral cowardice in its interactions with Washington. As recently as this summer, politicians in Merkel's Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU), still viewed Snowden as a troublemaker and traitor, and as a nuisance factor in the German-American relationship. And it isn't long ago that Ronald Pofalla, Merkel's chief of staff, declared the NSA scandal to be over, and that Interior Minister Hans-Peter Friedrich said: "This combination of anti-Americanism and naïveté really gets on my nerves!"

SPIEGEL's report that the NSA monitored the chancellor's mobile phone and Ströbele's visit to Moscow have left many in Berlin feeling embarrassed. Suddenly those who had viewed Snowden as little more than an annoyance are expressing themselves in thoughtful and even self-critical ways. And now even Friedrich himself is saying that perhaps Berlin should make it possible to question the American whistleblower. But the leaders of the CDU/CSU and the SPD are still dodging the asylum question.

Germany's Snowden Supporters

On the other side of the issue is a broad social alliance of citizens, celebrities and small opposition parties, who respect Snowden for his courage and are demanding that he be brought to Germany.

"The courage he has shown in defying a seemingly superior adversary makes him a role model," says Frank Bsirske, the head of the Ver.di service workers' union. "It has to be in everyone's interest to proceed with this investigation. That's why I would always support Snowden's application for asylum in Germany."

Author Hans Magnus Enzensberger is outraged over the fact that no one has done anything for Snowden. "Many admire him, but no one lifts a finger for him." And Green Party co-Chairman Simone Peter says: "The federal government would be well advised to offer a man like this protection and residency."

"I would like to see Snowden receive asylum in a democratic country that places democracy before all other interests and alliances," says film star Daniel Brühl.

Secret Meeting in Moscow

It is Thursday afternoon, and the man who is dividing public opinion in Germany is sitting in a room where the walls are covered with pictures in gold-colored frames. To ensure that the location of the meeting remains a secret, he has had Ströbele and his entourage picked up in a car with darkened windows. There are bodyguards outside the door for his protection. Snowden is wearing a light-blue shirt with the top two buttons open, along with a black suit. He has a three-day beard. He greets his visitors at the door and invites them to sit down at a table with cheese, fruit and fish, along with white wine, red wine and vodka. No one has any alcohol, and the conversation begins.

Since Russia offered him temporary asylum, Snowden has been living in a so-called safe house in Moscow. Not even his closest associates know the exact location of the building, where Russian security forces provide him with 24-hour protection. He can do as he pleases, and he can leave the building, but never alone and never without bodyguards. "The Russians seem concerned that the Americans wouldn't even shy away from trying to apprehend him in downtown Moscow," says someone who has been in touch with the confidants of the whistleblower for months.

After he had seemingly disappeared for weeks, current pictures of Snowden surfaced for the first time in October. They showed him with a shopping cart in front of a Russian supermarket, as well as with a group of other American whistleblowers who presented him with an award at a banquet. The 30-year-old looked relaxed.

All appearances aside, his new life represents a huge adjustment. In April, he was still living with his girlfriend, a dancer, in a wooden house in Hawaii. Now he lives in the enormous city of Moscow, with the knowledge that his temporary asylum is limited to one year. The question of what happens after that worries him and is a constant subject of conversation with his confidants.

A Buddhist and a Teetotaler

Snowden is a practicing Buddhist. He is said to be a vegetarian, doesn't drink alcohol or coffee, reads books about Russian history and spends endless hours in front of the computer, his link to the outside world. He is apparently in close contact with the journalists to whom he entrusted some of his material.

Through his computer, Snowden also keeps track of the debate he has unleashed worldwide. In his first extensive interview, which he gave to the British Guardian newspaper this summer, he said that his biggest fear was that his revelations would have no effect and would come to nothing. That fear, as it turns out, seems to have been unfounded.

So far, Snowden has turned down interviews and offers of book contracts. His reasoning has consistently been the same: that he doesn't want to put himself in the spotlight of media reports. Instead, he says, he is more interested in the material he spent months gathering and then spirited out of the inner sanctum of the American intelligence system.

People who have had discussions with him say that Snowden, in his Russian exile, has not developed any animosity whatsoever to his former home. On the contrary, he apparently still sees himself as an American patriot, believes in his country's ability to heal itself, and is even convinced that he will be able to return home one day.

Snowden's Entourage

Snowden's Russian guards prohibit him from receiving visitors in the safe house. Anyone who wants to see him has to enter into lengthy negotiations, as Ströbele did. The procedure is always the same: Guests are driven to a secret rendezvous point, where Snowden meets with them. The same protocol applied to his father, who went to Moscow in early October, that applied to Ströbele's delegation last week.

Ströbele, a lawyer who once represented members of the West German militant group Red Army Faction, had already given up hope of meeting Snowden in person. Ströbele managed to contact him through a middleman at the beginning of the NSA scandal, when the former NSA contractor was stranded in the transit area of a Moscow airport. But the contact was lost when Snowden moved to his current location.

Ströbele managed to reestablish the connection after SPIEGEL reported on the surveillance of Merkel's cellphone in its last issue. Ströbele said afterward that Snowden seemed alert and sensible during the three-hour conversation. Also sitting at the table was a young, blonde woman who had recently appeared next to Snowden in almost all photos, and who has been one of his closest companions in recent months. Her name is Sarah Harrison, and she has experience with men the United States views as public enemies. In recent years, she was one of the closest advisers of Julian Assange, the founder of WikiLeaks.

Harrison met Assange when she was working at the Bureau of Investigative Journalism of the City University in London. Before long, she was working full-time for Assange and WikiLeaks. Harrison happened to be in Australia when Snowden decided to leave Hong Kong, where he had first sought refuge. She flew to Hong Kong and has remained with him since then.

'Would You Be Willing to Help Us?'

Ströbele explained to Snowden the possibility of safe passage, should Snowden be prepared to testify before the planned parliamentary committee. He told Snowden that, as a valuable witness, he could elucidate the complex spying activities of US intelligence agencies. "All of this is completely foreign to us. Would you be willing to help us?" he asked.

Snowden left no doubt that he would do so, but only at a price that the German government has so far been unwilling to pay: the right of residence in Germany. Snowden alluded to this condition in a letter he gave Ströbele in the meeting: "I hope that when the difficulties of this humanitarian situation have been resolved," Snowden wrote, "I will be able to cooperate in the responsible finding of fact regarding reports in the media, particularly in regard to the truth and authenticity of documents, as appropriate and in accordance with the law."

Ströbele put it somewhat more clearly in a press conference on Friday in Berlin, where he said that Snowden had "significant reservations" about being questioned as a witness in Moscow by an official representing the Bundestag or a federal prosecutor. However, Ströbele added, "he could imagine coming to Germany if it can be assured that he will subsequently be allowed to remain in Germany or a comparable country, and will be safe there." The offer had been made, Ströbele added, and now it was up to the federal government to act accordingly.

From a legal standpoint, bringing Snowden to Germany does not pose a significant problem. The fact that he does not have a valid passport would not stand in the way of his departure, nor would it prevent the Russians from allowing him to board a flight to Germany. Upon his arrival at a German airport, he could apply for asylum.

Risk of Extradition

But Snowden will be troubled by what could happen next. He would most likely be arrested, because of the extradition request the United States has filed with the German government.

But a German court could quickly secure his release from detention. If there were no risk of flight, there would be no grounds for taking Snowden into custody. Experts are virtually certain in ruling out the possibility of Snowden actually being extradited to the United States, since the German-American extradition treaty does not apply to "political offences."

According to the assessment of the Academic Office of the Bundestag, what this means will depend on how a political offence is defined in the requested country of asylum -- in this case, Germany. The term "political offences" applies here to "all crimes against the state as defined in the German criminal code," says Nikolaos Gazeas, a criminal law expert at the University of Cologne. This would include the betrayal of state secrets, of which the Americans accuse Snowden.

The higher regional court with jurisdiction over the case would have to declare extradition to be inadmissible, and experienced judges on such courts have already indicated that they would not hesitate to oppose the American demand.

Because what must be clear to those familiar with the subject matter is that Berlin could save Snowden a lot of trouble at the airport by promptly giving him its binding commitment that it would refrain from extraditing him to the United States. In that case, Germany's federal police force would have to rescind its warrant for his arrest.

As an applicant for asylum, Snowden would initially have the right to stay in Germany, like any other refugee. But whether his application would be approved is unclear. Not every prosecution of a political offence automatically qualifies as "political persecution" within the meaning of German asylum law. So as not to compromise their own prosecution of crimes against the state, the courts are extremely restrained in recognizing foreign "traitors" as asylum seekers. However, a 2011 ruling by the European Court of Human Rights could play an important role. In their decision, the Strasbourg judges acknowledged that whistleblowing is part of the human right of free expression. They also argued that European legal systems are obligated to protect the human right to whistleblowing from unreasonable persecution.

It would be even easier to make Snowden a generous offer to stay in Germany, which the German government can make to anyone whose residency it deems desirable. "Where there is a will," says criminal law expert Gazeas, "there is also a legal way."

Questionable Political Will

But so far this will has been absent among the leaders of Germany's two main political groups. It wasn't long ago that the conservatives, in particular, were treating Snowden as a fraud who wasn't to be trusted.

"As yet, I have no indications that German government agencies have been spied on," Interior Minister Friedrich stated in July. The chancellor has also been very restrained on the Snowden issue. "What we know is that he worked for an American intelligence agency and decided to describe his concerns in conversations with the media, and that he did not, for example, reveal them to a member of congress or a senator," she said in an interview. On the Merkel scale of critical remarks, this amounted to a sharp reprimand of Snowden.

A few weeks later, when Merkel's chief of staff, Ronald Pofalla, casually declared the NSA scandal to be over, most conservative politicians hoped that they were finally rid of troublemaker Snowden and his annoying hard drives. All suspicions had "dissipated," Friedrich said. Fellow conservative Hans-Peter Uhl even went so far as to compare the Snowden revelations published in SPIEGEL with the fake Hitler diaries published by the news magazine Stern in 1983.

The situation has become particularly humiliating, now that even the American president has apologized to the chancellor. Pofalla and Friedrich look like amateurs. The heads of the German intelligence community were naïve enough to believe the Americans' reassurances.

Since the most recent revelations appeared in SPIEGEL, Snowden is suddenly no longer seen as a traitor, but as someone who, according to the conservatives' interior policy spokesman, "has opened our eyes." Suddenly politicians are making statements like that of Michael Grosse-Brömer, the secretary of the CDU's parliamentary group, who said, "Snowden has initiated an important debate in Germany."

Testimony in Moscow?

"If the Bundestag wanted to appoint an NSA investigative committee, Snowden would be an especially important witness," says domestic policy expert Wolfgang Bosbach. But most do not envision bringing him to Germany, but prefer sending a few members of the investigative committee to Moscow to question him there. "There is no reason not to take this approach," says Stefan Müller, the parliamentary leader of the CSU national committee in the Bundestag, noting that there have been similar cases in the past. For instance, Karlheinz Schreiber, a Bavaria defense industry lobbyist, was questioned in Toronto in 2002 by members of a committee investigating political donations.

It would be the cowardly approach, a way of avoiding trouble with the Americans, but it is also an option Snowden has apparently ruled out.

The center-left Social Democrats, however appear more open to bringing Snowden to Germany. SPD parliamentary floor leader Frank-Walter Steinmeier is skeptical about the appointment of a committee to investigate the NSA scandal, probably out of concern that his former role heading up the Chancellery and Germany's intelligence services could be scrutinized. But now he has come under growing pressure, including from members of his own party.

There is growing interest in the SPD parliamentary group to finally take a stronger stand on the NSA issue. "It is remarkable that Hans-Christian Ströbele met with Snowden," says foreign policy expert Rolf Mützenich. "An investigative committee can now look into who knew what in the United States." And Mützenich, unlike Steinmeier, isn't afraid of the Americans. "There will be friction, as there was with WikiLeaks," he says, "but we'll just have to deal with it."

Now some Social Democrats are also beginning to take a stand on the asylum issue. "Germany must take steps to bring about a European solution," says Ralf Stegner, head of the SPD in the northern German state of Schleswig-Holstein. His counterpart in the city-state of Bremen, Andreas Bovenschulte, is even demanding that Snowden be granted asylum in Germany. "It's imperative that we give it a try," says Bovenschulte. And Axel Schäfer, deputy chairman of the SPD parliamentary group, speculates that the German government should consider "whether there might be a way to offer Snowden asylum in Germany." He views the former NSA contractor as "a hero, not a traitor." Lars Klingbeil, an expert on foreign and defense policy, agrees. "Germany must look into whether it is possible to grant Edward Snowden asylum."

Ströbele would probably put it differently: Germany needs to be on the right side.

BY MELANIE AMANN, THOMAS DARNSTÄDT, MARKUS FELDENKIRCHEN, PETER MÜLLER, GORDON REPINSKI, MARCEL ROSENBACH AND JÖRG SCHINDLER

Translated from the German by Christopher Sultan

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