Netzpolitik — once on the receiving end of treason charges for reporting on leaked documents — is marking the end of the so-called “inquiry” into the BND-NSA partnership with a post discussing the inquiry’s multiple failures. The German government’s investigation into Five Eyes spy efforts was a direct result of leaked Snowden documents, which showed the NSA had spied on the German chancellor.
It failed to uncover much about that particular allegation. By the time this part of the investigation had been dropped, President Obama had already apologized for the NSA doing perfectly normal NSA-type stuff: spying on foreign officials. The committee turned to a broader discussion of surveillance best practices, including the propriety of spying on friends and neighbors. In doing so, it uncovered plenty of illicit and ill-advised spying by its NSA equivalent, BND.
Netzpolitik has a full list of BND’s questionable surveillance targets, including friendly foreign officials, journalists, EU officials, the UN, human aid organizations, banks, rating agencies, and a number of American companies. (Do unto others, etc.)
But when it came to actually examining BND’s tactics and programs, the committee opted to dwell on legal minutia.
Quite some time was spent on the question of when which sub-division manager in BND knew of which selector and to whom he reported it or why he didn’t and whether someone was present at a meeting in the chancellery on 24th of October 2013 or not or was it the 28th… No wonder sometimes only a dozen people witnessed the public hearings until late at night.
It’s a great way to talk around the issues, rather than addressing them. Netzpolitik felt the pain personally, as its reporters attended the public hearings and transcribed all 5.6 million characters of undisturbed bushes idly observing nearby beatings.
This was not entirely the tribunal’s fault, however. As soon as it became apparent surveillance partnerships were going to be discussed, BND’s Five Eyes partners began issuing ultimatums.
The committee was only allowed to investigate a few discontinued and outdated joint operations between the German spy agency BND and the Five Eyes: Eikonal in Frankfurt and Glotaic. But the name “Glotaic” could not even be spoken, because it includes the partner’s name “CIA”. Just like operation “Monkeyshoulder”, which was planned with British GCHQ. This could not be mentioned at all, as the UK threatened to end any spy cooperation. The committee would be responsible for terrorist attacks, they said.
The committee is now in the process of writing a report that few will see, much less read. A public version will likely be presented, short on specifics and long on assertions of lawful authority and rigorous oversight. It’s basically up to leakers to provide the public with the reality of the situation. And much of what the committee managed to uncover has been glossed over… or codified.
The consequences to those revelations amount to the next scandal. Instead of adjusting the spying to the law, the laws are adjusted to the spying. One year before the end of the committee, the grand coalition passed a reform of the BND law. With this change, everything that the BND is doing, is legalized – and even expanded.
The committee found that the NSA spies on its “friends” just as often as BND does. The examination of 14 million shared intercepts turned up 40,000 “friendlies.” Notably, the committee was not allowed to review these intercepts. It was just supposed to take the single reviewer’s word on the percentage of “friendly” NSA targets.
Taking a look at its own intercepts, BND found 3,300 “participants” linked to 15,000 “selectors” in its “friendlies” file. This means German officials like Merkel will find it difficult to feign anger at the NSA’s friendly spy targets.
Not that any of this matters, at least not in the short run. As Netzpolitik points out, while the committee was busy discussing the few things it could discuss, the German parliament was expanding BND’s legal authorities.
German citizens — along with everyone the government spies on — can rest assured nothing has changed. It’s only gotten worse. The final report may provide more examples of BND’s misconduct, but the agency has already been rewarded for its misbehavior by the same officials charged with holding the agency accountable for its abuses.