Breach of Trust: Part 2

Continued from Part 1

4. The Chancellor’s Office Most Likely Knew About It

For Michael Hayden, the espionage business is a pure cost-benefit analysis. “I don’t apologize for spying on the Germans – if it happened,” he laughs. “But I do apologize that it wasn’t kept secret and that we didn’t include the political costs of a leak into our calculations.”*

In his opinion, this cost-benefit analysis occurred in the period before Snowden. Hayden always had a good relationship with the Germans, particularly with the former BND head August Hanning, he reckons. To this day, Hayden daydreams about Bavaria. There, in the foothills of the Alps, lies Bad Aibling. The place has become a symbol of cooperation between the secret service agencies. “Everyone wanted to serve there. The view, the weather, the people, it was a community that really took us in with kindness.”*

In Bad Aibling, the BND and NSA Agreed To Cooperate

The NSA had typically been orienting its spy antennas to the east of Bad Aibling. After the fall of the Berlin Wall, targets changed; now the NSA has interests in all global crisis regions. But wouldn’t an American intelligence base on German soil be a source of constant irritation in the bilateral relationship? August Hanning was open to Hayden’s idea to hand over the base to the Germans. It was politically acceptable. Bad Aibling was ultimately closed, according to Hayden.

Not entirely. A small troop of American espionage specialists continued to enjoy the view of the mountains. A Memorandum of Agreement in 2002 regulated the cooperation between the services. At its core: No German citizens could be spied on from Bad Aibling— and it was informally agreed that no German interests would be negatively affected. What exactly was meant by that is unclear to this day. In any case, from the Germans’ perspective, the Americans massively violated the spirit and letter of the agreement in the following years.

In Bad Aibling the BND and NSA formed a so-called Joint Sigint Unit, together intercepting transmitted signals from space by satellite. One can practically imagine the current ongoing cooperation: Multiple times daily the NSA sends new search terms, so-called selectors, to Bad Aibling. There they are loaded by American liaison officers into a special server. BND officers then forward the data to Pullach, where the technical reconnaissance division remained after the BND moved to the capital city. In Pullach, the tech specialists now test the American selectors; the search terms are “sanitized,” as the BND puts it, in a three-level filter program, in other words tested for legality. The selectors can include email addresses, telephone numbers or IP addresses. Sometimes they contain real names, sometimes it is hardly understandable even by experts who or what the Americans want to spy on.

Over the years, the search profile developed in Bad Aibling, or, in other words, the entirety of all NSA selectors, has grown to about 8.2 million terms, estimates Green Party Chair Konstantin von Notz, on the Bundestag’s NSA investigation committee.

As the most recent leaks show, the Americans have not held themselves to the 2002 promises; they have spied not only on the agreed-upon terrorists in Afghanistan or in the Middle East, but also on European politicians, top officials and businesses. With that, they have broken the Memorandum of Agreement. Again and again old demons would return: The Germans insisting on adherence to the rules, the Americans largely stepping over them when they stand in the way.

The treaty was also to be a foundation for further cooperation. Between 2004 and 2008, the BND tapped the German cable network for the Americans, too, at the “Frankfurt node” no less, one of the most important Internet connection points in the world. The NSA delivered mass numbers of search terms for that purpose.

“The Americans showed us how to tap the cables; in return, we delivered data to them,” says Ernst Uhrlau, at that time the director of Division VI in the chancellery and then, from 2005 to the end of 2011, head of the BND. The Frankfurt operation was called “Eikonal,” the term physicists use to describe light wave propagation. As the Internet provider, German Telekom raised questions about rights; consequently, Uhrlau wrote a letter in December 2003 to the telecommunications corporation, stating that the chancellor’s office believed the operations to be legally permissible. The head of the chancellor’s office at the time, Frank Steinmeier, told Die Zeit that Uhrlau, had been “substantially cognizant there had been a letter to German Telekom.” Konstantin von Notz speaks of a “charter.” “This letter is a huge scandal, because in sending it, the chancellor’s office ignored accepted rights and the constitution,” accuses the representative.

What German Telekom obviously did not know was that the BND was supposed to spy on contract with the NSA. And what the BND in turn withheld from the Americans was that the Europeans were not supposed to be spied on, as that would go against German interests. As a result, the BND withheld all corresponding search terms from the Americans. Sometime thereafter, however, the NSA noticed that they were not being served to the fullest extent, and asked for unfiltered access to the cable network. The former head of the chancellor’s office Thomas de Maiziere denied the request.

The NSA was not amused. In 2008, the Americans returned frustrated from the Frankfurt node. Once again German insistence on laws was stronger than their common interest.

And yet the BND and NSA need each other. Financially and technologically the American secret service is far superior to the Germans. “After 9/11 the USA had so armed their agencies with technology that they were able to remain in step with the digitalization of society,” says Christian Flisek, SPD chairman in the NSA investigation committee. Today, technically adept employees travel back and forth between IT firms and secret services. The Germans have two things to offer: the most geographically appropriate location for spying in the heart of Europe and connections in many countries where the Americans are hardly or not at all present. The NSA particularly benefits from the BND’s knowledge about Russia.

5. In Germany, No Secret Remains Secret

For both governments, close cooperation of their secret services is important. For this reason they would gladly put the NSA affair behind them. If it were that easy.

At the G-7 summit in Bavarian Elmau in June, the subject was ignored. Instead, Obama and Merkel demonstrated they were in pure harmony. Then a new spy scandal erupted and anger flared once again.

The spring of 2015 rolled around. At that point we learned that for years, the BND has most likely also been spying on European targets for the NSA in Bad Aibling. Moreover, the list of forbidden search terms that the BND had already gathered from its own filters encompasses almost 40,000 selectors.

The Bundestag now wants clarity. The NSA investigation committee is demanding to see the list. The government declares that this will only occur with permission from the Americans.

The NSA Investigation Committee Digs Through 2500 Folders

In reality, as Die Zeit has learned, the White House has handed the decision over to the Bundestag as to whether the investigation committee will be able to obtain the selector list with the forbidden search terms.

The old suspicion that Berlin is often lax with confidential information remains, however. According to an Obama advisor: “If we could assume that everything that should remain secret will remain secret, then we would have fewer concerns. The experience we have seen from you all, however, is that everything turns up in the newspaper the next day.”*

The German government’s belief that the Americans would have threatened to restrict secret service cooperation in the case of the selector list being published, the Obama adviser calls “an absolute fairy tale.”*

For 15 months now the Bundestag’s investigation committee has attempted to shed light on procedures in the NSA, BND and chancellery. The representatives have to dig through 2500 folders with 400,000 pages. That alone would already be cumbersome enough. But what additionally complicates the work is the government’s confidentiality provisos. “We have a hundred thousand censored lines,” Green Party representative Konstantin von Notz reports. “Thousands of pages are missing that had been taken out of the folders because they come from the NSA.”

The committee remains at the beginning of its research. The dreariest chapters come first — such as the “secret war,” the deadly implementation of drones in the war on terror. Or British global espionage, which, in the opinion of a former high diplomat, is “much more unrestrained than that of the Americans.”

The German government must prepare itself — and the White House as well. “The chancellor’s office is seeing many of these documents for the first time,” says von Notz. “Everything must first be examined carefully to see what kind of bombshells still sleep beneath the surface.”

*Editor’s note: Although accurately translated, these quotes could not be sourced.