Fiercely critical of NSA, Germany now answering for its own spy practices

Germany is embroiled in a spying controversy that is causing political upheaval and sparking a national debate about surveillance. 

German Chancellor Angela Merkel discovered in 2013 that the National Security Agency had been snooping on her countrymen, and even tapping her own cellphone, through the media leaks by former agency contractor Edward Snowden. Soon after, she famously remarked, “Spying between friends, that’s just not done.”

Now, in something of an ironic twist, Germany is coming to terms with its own spy agency's surveillance tactics and cooperation with the NSA.

Recent reports have revealed that Germany's foreign services agency, the Bundesnachrichtendienst – or BND for short – cooperated with the NSA so that it could spy on European Union interests such as the European Commission, the French president, and the French aerospace company Airbus. Last week, a transcript of a parliamentary inquiry leaked through WikiLeaks showed that top German officials are reluctant to divulge details about the alliance, even behind closed doors.

Critics are demanding that Ms. Merkel reveal all of the spying targets the US supplied the BND and who in her coalition government authorized exposing them to the NSA. What's more, there's a growing push here – both from within government and among advocacy groups – for massive structural reforms to the BND. The organization, many say, lacks qualified oversight and a clear public definition of its current role and partnership with the NSA.

"These recent revelations have exposed a lot of hypocrisy in terms of how many leading German politicians have approached the topic [of global surveillance] post-Snowden," says Thorsten Benner, director of the Global Public Policy Institute in Berlin.

While officials were publicly indignant about the NSA's practices, he says, privately they appear to favor of deep cooperation with them. 

“Hopefully in the future we’ll have a more realistic standpoint in Germany with better accountability of our own intelligence services, a clear perspective on the capabilities the BND needs, and transparency on the level of cooperation with US intelligence," he says. 

Inadequate oversight

Currently there's little judicial review when the BND requests to carry out telecommunications surveillance, even though those practices are overseen by an intelligence review committee called the G10 Commission. The commission serves a function similar to the American Foreign Intelligence Surveillance Act Court.

The G10 has only four commissioners – all appointed by a Parliamentary Control Committee – who are all “weakly trained” from a technological standpoint, says Russell Miller, a Washington and Lee University law professor and expert on the German legal system.

“Almost all of them have been former legislators … . They’re trained for the deployment of a complex legal standard but not necessarily for evaluating the high level technology that the BND uses,” says Mr. Miller, who submitted an official report last June to the German parliament, the Bundestag, about intelligence gathering in the US.

The G10 often relies on the BND to explain and justify the technology it uses to receive and process data. “They said, ‘We’re going to oversee you. Please put a PowerPoint slide together there for us, explaining everything,' " says Miller, echoing accounts he has read.

While the G10 Act stipulates that G10 Commission review and approve all of the BND’s strategic telecommunications surveillance activities, it currently only evaluates domestic surveillance operations. Another structural limitation on the G10 Commission's oversight might be its insufficient budget, says Miller. The 2015 one provides 182,000 euros ($203,000), about one-third of which is devoted to reimbursing the commissioners’ travel costs.

“We need to invest more money and be more effective with the money we invested,” said Thomas Oppermann, chair of the Social Democrats parliamentary group, at a talk by the German Marshall Fund on Wednesday. “Germany can never have an intelligence service strong enough to provide us with the relevant information. We need the partnership.”

Yet currently not many members of parliament know what intelligence services do and how they operate. “They only know when we have a problem,” said Mr. Oppermann, adding that there needs to be a clearer definition of the BND-NSA relationship without compromising security.

Cooperation between the NSA and European intelligence agencies is nothing new. Sweden’s signals intelligence agency FRA actively cooperates with the NSA to spy on global targets, particularly Russia, with no domestic backlash. France, capitalizing on public fears in the aftermath of Charlie Hebdo attacks, recently agreed to deepen its NSA surveillance cooperation.

Political crunch time

But in Germany, there is still deep skepticism about the NSA as a result of Snowden's leaks that revealed the scope of its surveillance programs. In the wake of the revelations, Berlin has reportedly blocked additional Internet data transfers to the NSA.

Merkel and her Conservative party are now under growing pressure from the Social Democrats, her junior coalition partner, to divulge the list of so-called selectors – or Internet, website, and e-mail addresses – that the NSA provided the BND.

Yet Merkel is operating with caution.

"It seems that the Conservatives are to a certain degree more willing to be generous on this topic in terms of, 'Do we want to jeopardize our intelligence cooperation with one of the most powerful allies in the world?' " says Nikolas Kessels, a PhD candidate at Free University Berlin who is specializing in US-Germany relations.

Politically, Merkel sits between a rock and a hard place, says Benner of the Global Public Policy Institute. If she goes against the wishes of the Americans and reveals these selectors, she may lose the trust of the US in a critical area of intelligence cooperation. Yet if she decides to go against the wishes of the Social Democrats, and withholds this information, then she will be seen as being subservient to the Americans and not honoring the rights of parliament.

Oppermann from the Social Democrats said he is "optimistic" that there will be an agreement in Parliament about whether the BND will show the government selectors or search terms. “Now we have to investigate and find out what really happened and we will have conclusions, consequences, and a reform of the BND,” he said.
 
 “There’s no doubt that the mood has shifted from pretty profound dismay at the Americans and the NSA, to a focus on the BND,” says Miller. “If there’s a moment for reform, in the German context, this would have to be it.”