The BigBrotherAward 2014 in the “Politics” Category goes to the Federal Chancellery (Bundeskanzleramt), represented by its head Chancellor Angela Merkel (CDU1), the Chancellery’s Chief of Staff and commissioner for intelligence agencies, Peter Altmaier (CDU), the State Secretary for intelligence agencies affairs, Klaus-Dieter Fritsche (CSU1) and the Coordinator for the secret services, Günter Heiß, for
1. the German agencies’ close cooperation with US agency NSA, whose actions have violated international and human rights law, and other secret services in the secret “Echelon” alliance, the “Five Eyes”,
2. the fact that the foreign agency, Federal Intelligence Service (Bundesnachrichtendienst, BND), which is supervised by the Chancellery, and the interior intelligence agency, Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) are participating in NSA surveillance measures, spying programmes and infrastructures
3. for the current as well as the previous German government‘s reckless negligence in failing to avert crimes and violations of the German Constitution and of civil rights linked to mass eavesdropping and digital espionage, and failing to protect German citizens and companies affected by industrial espionage from further hostile attacks.
So the core issue is the German entanglement with the NSA surveillance scandal and failure to take defensive and protective measures. The blanket, suspicionless eavesdropping on global telecommunications by the US secret service NSA (National Security Agency) and the British secret service GCHQ (General Communications Headquarters) became public knowledge in mid-2013. The historically unprecedented revelations are based on secret documents leaked by ex NSA contractor and whistleblower Edward Snowden. In his words, this is “the largest program of suspicionless surveillance in human history”. By digitally investigating the private spaces of whole populations, all people that communicate using any electronic medium are placed under suspicion, the presumption of innocence is undermined, personal rights are violated and codified basic rights, even democracy itself is put in doubt.
It has gradually turned out that not just US and UK secret services are involved in the global surveillance scandal, but German agencies – foreign (BND), interior (Verfassungsschutz) and military (Militärischer Abschirmdienst, MAD) – participate in this secret transatlantic alliance, too. They benefit from data that is shared and share millions of telecommunications data records themselves – such as personal call records and data on suspects resulting from blanket surveillance of cross-border phone communications.
“So what”, many people still wonder: “who on earth would be able to sift through all these masses of insignificant data? What could possibly happen to me?” That is a regrettably short-sighted sentiment, because severe consequences are possible and have been documented. What this data registration and evaluation could lead to is refusal of entry to the United States, as in the case of German writer Ilija Trojanow who had publicly criticised the US surveillance frenzy. Or, in extreme cases, a US drone attack on “terror suspects”, like the one in Yemen in December 2013 where 17 people in a wedding convoy were killed. Ranging from inconvenience, harassment to outright ordeal, there’s a wide choice of measures to pick from – such as extended border-crossing interrogation, questioning of neighbours or employers, “state trojans” installed in computers, inclusion in US “no fly” or terror lists, or even arrest and torture in special detention units. Even those who blithely believe that they have nothing to hide could always fall victim to a fatal case of mistaken identity – such as Khaled El-Masri, who was erroneously taken for a terrorist, removed to Afghanistan by CIA agents and tortured for several months. Or you happen to be in the wrong place at the wrong time, such as Murat Kumaz who was alleged to be a “terror suspect” due to information from the interior secret service (whose name Verfassungsschutz ironically translates as “protection of the constitution”) and disappeared in the US torture camp at Guantanamo Bay for four and a half years.
Are these just spectacular exceptions? Sure, but there are many “smaller” examples where the surveillance mania had dire consequences. Through a cover authority for the BND named “Central Office for Questioning” (Hauptstelle für Befragungswesen), agents from German and allied secret services investigate hundreds of refugees every year or recruit them as “sources” or snitches – people seeking protection from acute emergencies are being siphoned off and misused for state purposes.
According to information from Edward Snowden, German and US intelligence agencies not only share information on a mass scale, they also share instruments, joint databases (e.g. “Project 6”), spying software such as XKeyScore and infrastructures – in short, “the German Services and the US Services are in bed together”, as Edward Snowden graphically put it in his German TV interview on 26 January 2014.
This close cooperation and habit of mass-scale data sharing, mostly not checked for adherence to privacy standards, is partly based on secret treaties with the Western Allied Powers after World War II. These treaties grant the partners special privileges, opening up wide-ranging opportunities to take action and restrict the German population’s basic rights – without any parliamentary or democratic attendance or scrutiny. This restricts Germany’s sovereignty to this day.
For years and decades, this has made the responsible German Federal Governments and their secret services into accomplices, helpers, and co-perpetrators – in other words, willing partners in the great, aggressive game played by Western intelligence agencies. The Federal Chancellery has had a crucial role in this, one that deserves to be “honoured” and singled out for a negative award today. For this office is the nerve centre for Germany’s Federal Governments: it is tasked with supervising the foreign intelligence service BND and with coordinating and intensifying cooperation between the three secret services at the federal level and with other institutions in Germany and abroad.
And herein lies a plausible answer for those who may have wondered with desperation in the past months why the German government has denied any kind of protection to citizens and businesses who had been targeted by this mass spying: Their conspicuous hesitation after the Snowden revelations and their almost subservient restraint towards the US can probably be explained with the closeness of German–US cooperation, and most of all with the fact that Germany has long since become an integral part of the US security architecture and the US-led “war against terror”. As they are aware of secret bilateral accords, participation and acquiescence with US structures and activities in Germany that clearly violate international and human rights, the German government seems to prefer to maintain a low profile, appease, and play down – particularly as they, to adapt a quote from CCC spokesperson Constanze Kurz, no longer want to be stuck “at the side table” in “the big data roulette”. So the grand coalition is actually pushing for more centralisation and networking amongst the secret services and between services and police – thereby strengthening secret organisations that go against democratic values and are neither transparent nor subject to democratic scrutiny. And the coalition is steadfastly determined to greatly expand the surveillance cosmos, by legalising suspicionless metadata retention for any telecommunications between all German residents yet again. Whereas it should really be high time to significantly reduce such measures in the light of mass eavesdropping by the NSA.
Play down, appease, ignore – there is a name for this official pseudo reaction to the worrying NSA scandal by the German government: Ronald Pofalla (CDU), Chief of Staff at the Chancellery until December 2013 and thus commissioner for intelligence agencies and top supervisor of the foreign intelligence agency, the BND.
When the NSA scandal came to attention in June 2013, Pofalla, the responsible government member, first simply ducked out of sight and kept quiet. Nobody has ever heard any elucidating comment from him on the legality of million-fold processing of telecommunications data by the US services, or about the BND’s role. On the contrary: He quantified the sharing of German citizen’s personal data with US services to be as little as two records, although there was proof of hundreds of cases at the time. Later, despite ongoing revelations, he declared the NSA scandal to be over: all accusations against secret services, he said, had been resolved and there had never been millions of basic rights violations in Germany. The services involved had assured him in writing that they were adhering to German law. A satire TV programme, Extra3 of the North German regional public broadcaster NDR, awarded Pofalla its negative award “Silver Deputy Sheriff Star” for these outstanding “services to fiddling”, which Pofalla declined to accept on camera – maybe he had secretly expected a “Golden Deputy Agent Medal” instead. Or he was looking towards the BigBrotherAwards already … After his resignation from front-line politics, he is obviously seen as an asset by his next employer: German Railways (Deutsche Bahn), who famously received a BigBrotherAward themselves (in 2007) …
And Pofalla’s superior, landlady of the Chancellery? What did Mrs Merkel actually do about the escalating surveillance affair? To put it shortly – as good as nothing! This despite her emphatic oath, sworn three times already, to “dedicate her efforts to the well-being of the German people, promote their welfare, protect them from harm, uphold and defend the Basic Law and the laws of the Federation, perform my duties conscientiously”.
But instead, she tucked her head between her shoulders and deferred to the profound Pofalla, who declared the affair to be over in August 2013; then she pointed towards her then Interior Minister Hans-Peter Friedrich (CSU), who also said the affair was over just a few days later. Friedrich’s sound bite: “all suspicions that were raised have been cleared.” Again, he saw no reason to doubt that the US agencies adhered to the law. He returned from a short trip to the US, happily spreading the tale that he had personally settled the issue. He said that the Snowden revelations had always been “fallacious claims and suspicions that have dissolved into thin air (…) We can be very satisfied and indeed very proud that our intelligence agencies are regarded by our allies as capable, proven and trustworthy partners” (16 Aug 2013). And to round it off, Friedrich attests NSA critics “a mixture of Anti-Americanism and naïvety” that “hugely gets on [his] wick”. That feeling is certainly reciprocated: we gave Friedrich a BigBrotherAward in 2012. That did not help, unfortunately. Then Interior Minister, which includes responsibility to protect constitutional rights, he justified the NSA’s mass surveillance by freely inventing a so-called “super basic right” to security, and believing that his invention could overrule encoded basic rights and liberties in one fell swoop.
Only when it was revealed in October 2013 that Chancellor Merkel’s mobile phone had been specifically targeted for eavesdropping over many years did Ronald Pofalla suddenly raise his voice again, and this time it was in anger – suddenly he spoke of a “severe breach of trust” by the US. The Chancellor had her spokesperson voice additional disgust by maundering about “a completely new quality”, because “eavesdropping among friends, that just won’t do”. So now we know – it’s not mass spying on the population, not concern about their protection, it takes an unfriendly incursion on the Chancellor’s mobile to finally yield a sharper response towards the initiators in the White House. And, just in passing, our interior secret service, the Office for the Protection of the Constitution, was put under pressure once again, as its core tasks include counter-intelligence. It had apparently been completely unaware of the spying activities against the Chancellor, let alone prevented the eavesdropping.
We don’t want to hear anyone say that the German government could do nothing against these hostile attacks on privacy, industry, and government activity, after the publicly celebrated “no spy agreement” with the US was doomed to fail from the start. But the government could expel spying agents in US and other embassies once they are identified by interior intelligence agencies, and declare them personae non gratae. If German citizens’ basic rights are violated, US military installations could be inspected by German authorities – for example the ongoing construction in Wiesbaden of the Consolidated Intelligence Center, in which the NSA is said to be involved, or the United States Africa Command (AFRICOM) regional military headquarters in Stuttgart, which plans or planned air raids, drone missions, renditions, and extralegal executions of terror suspects in Africa. And the government could publish and revise secret treaties. Why the government or investigative authorities failed to act in these regards is not evident, and this could be bordering on a breach of the Constitution.
Due to these circumstances, the three NGOs International League for Human Rights, Digitalcourage and Chaos Computer Club felt that they had to file penal charges with the Federal Prosecutor General against the government and the involved secret services, to finally hold them to account over their share of legal and political responsibility. This was an act of self-defence and of help in need, and it became an outlet for thousands that wrote to us and supported the charges. And today, to seek another outlet:
Congratulations on the 2014 BigBrotherAward, Federal Chancellery.
1 The CDU and CSU (Christian Democratic Union and Christian Social Union) are Germany’s major conservative parties. They are “sister” parties, with the CSU operating in the Federal State of Bavaria and the CDU in the other 15 Federal States.