Merkel and the NSA: A Scandal That Just Won't Die

Wednesday, August 21, 2013

Merkel and the NSA: A Scandal That Just Won't Die

DPA

Radar domes at the Bad Aibling station in Bavaria: The Merkel government has made little progress at calming the storm kicked up by the NSA spying scandal.

As the election approaches, Chancellor Angela Merkel is working hard to dissipate anger over controversial surveillance by German and US intelligence agencies. But every time Berlin assures voters that all is well, its claims are discredited.

Monday, August 5, was the day that the German government hoped would finally provide some relief in the ongoing surveillance scandal. That morning, a member of the Bundesnachrichtendienst (BND), Germany's foreign intelligence agency, stationed at the embassy in Washington picked up four German officials at a local hotel. Driving in two dark sedans, they headed for Fort Meade in the state of Maryland, the headquarters of the National Security Agency (NSA), which gathers military intelligence for the US Department of Defense.

The four were part of a high-ranking delegation that had landed in the US capital a day earlier. It included: Gerhard Schindler, the BND chief; Hans-Georg Maassen, his counterpart from the Cologne-based Federal Office for the Protection of the Constitution (BfV), Germany's domestic intelligence agency; Klaus-Dieter Fritsche, a state secretary at the German Interior Ministry; and Günter Heiss, intelligence coordinator for German Chancellor Angela Merkel.
Keith Alexander received his German visitors in a windowless, air-conditioned conference room. He greeted them with a friendly "How are you?" -- as if nothing had transpired over the past few weeks. Alexander, 61, is a graduate of the legendary West Point military academy, a four-star general, the father of four daughters and, for the past eight years, director of the NSA. And he was also the man who was supposed to take the pressure off Merkel's conservative government.
And Alexander delivered. He had his people prepare a paper: a single sheet of white paper, but one without letterhead or a cover letter or a name to indicate that someone could later be held accountable. This impersonal list of facts had been approved, word for word, by the agency's legal department. According to a German translation of the document, it says that the NSA abides by all agreements that have been reached with the German government, represented by the German intelligence agencies, and has always done so in the past.
The general's note was what the Germans have been waiting for all these weeks. It was the document that they had long been hoping would absolve Berlin of all responsibility in the data scandal sparked by the intelligence leaks of former NSA contractor Edward Snowden. This slip of paper is supposedly proof that the Germans -- and, indeed, the NSA -- have done nothing wrong.
Just one week earlier, a second German delegation in London had received a similar statement from the NSA's British counterpart, the Government Communications Headquarters (GCHQ). The key sentence in that document also says that the GCHQ's work is subject to the legal requirements of both countries at all times.
"The allegation of the purported total surveillance in Germany can now be dismissed," German Chancellery Chief of Staff Ronald Pofalla subsequently announced last Monday. "There are not millions of civil rights violations in Germany, as is constantly erroneously maintained," he concluded. Shortly thereafter, German Interior Minister Hans-Peter Friedrich enthusiastically noted that the allegations had "disappeared into thin air."
So, all is well? That was at least the opinion of the Frankfurter Allgemeine, a leading conservative newspaper in Germany, which published a commentary announcing that the "German election chapter 'Worldwide Presence of American Intelligence Agencies' has been closed." But a few pages further on in the same edition was an article by German Justice Minister Sabine Leutheusser-Schnarrenberger that took the opposite position. The minister, who is a member of the business-friendly Free Democratic Party (FDP), the junior partner in Merkel's ruling coalition, wrote: "An honest response to the question of how involved we are in this surveillance can only be: right in the middle."
Indeed, ever since Snowden leaked the first classified documents early last June, the true extent of US data surveillance has remained unclear. Hardly any of the allegations have been credibly refuted -- not even by the Chancellery.
Under the search term "#PofallabeendetDinge" (literally, "#Pofalla puts an end to things"), Tumblr bloggers have been poking fun at the sheer chutzpah of the Merkel aide with quips like "In my view, Schubert's 8th Symphony is now over." They have a point: It's certainly not every day that the government itself officially lays to rest a political scandal.
Pofalla's defense strategy rests on a shaky foundation: The German government is relying on the solemn statements of British and US intelligence agencies. Yet it has turned a blind eye to the fact that spreading disinformation, maintaining secrets, bending the rules and using lies and deception are as integral to the game of espionage as Parmesan cheese is to spaghetti Bolognese -- even among the intelligence agencies of democratic states.
Backtracking
Following their meeting with NSA General Alexander at Fort Meade, the four German officials met in early August in Washington with James Clapper, the US director of national intelligence. He also assured the visitors that everything was done by the book.
In Pofalla's eyes, this also makes him a key witness for the government's defense. But Clapper may not be the most reliable source. Last March, he told the US Senate Select Committee on Intelligence that the NSA did "not wittingly" snoop on the communications of American citizens -- a statement that was shortly thereafter exposed as a lie.
When Snowden leaked the first classified NSA documents, Clapper had to make a swift retraction. He said that the response that he gave the committee, under oath, was "the least untruthful" testimony, but soon admitted that his statement was "clearly erroneous."
As part of a rare act of collaboration, a bipartisan group of 26 US senators sent a written complaint to Clapper maintaining that his statements, and those of other officials, were "misleading the public" and "will unfortunately undermine trust in government more broadly."
The credibility of other key witnesses for Pofalla has also been shaken. Alexander and his NSA have come under increasing pressure for deceiving the public on a number of occasions. The NSA initially reacted to the Snowden leaks with a "fact sheet." Two influential senators from the intelligence committee later criticized this document as "inaccurate" and "misleading" on the issue of whether American citizens could be affected by the NSA's Prism surveillance program.
Now it seems clear that the NSA can search through its database of American citizens' phone calls and emails, even without a warrant, thanks to a legal loophole dating back to 2011. Furthermore, the intelligence agency has the authority to collect the communications of Americans who are in direct contact with "foreign targets," as the NSA calls them.
Last week, Pofalla saw how little credence could be given to official American statements -- only days after US President Barack Obama publicly insisted that NSA surveillance programs were exclusively used to prevent terrorist attacks, and that the agency was complying with all laws and regulations. Earlier, NSA head Alexander went even further out on a limb when he made assurances that reviews of his agency's activities over four years detected "no willful or knowledgeable violations of the law or the intent of the law in this program," adding: "That's the fact."
Last Thursday, however, the Washington Post revealed that the NSA has violated the privacy of US citizens and overstepped its authority thousands of times every year. For instance, the Snowden documents reveal that, due to a programming error, phones calls in Washington (area code 202) were intercepted because of confusion with Egypt (area code 20), the actual target of the surveillance. It comes as little surprise, though, that this escaped the attention of the branches of the government charged with overseeing NSA activity. The most recently disclosed documents reveal that the NSA instructs its analysts not to provide too much detail in their reports to the US Department of Justice and Clapper's Office of the Director of National Intelligence.
The NSA's Not-So-Light Touch
The NSA analysts apparently feel that the illegal surveillance of US citizens presents no serious consequences. This is indicated by a document seen by SPIEGEL which states that, if Americans inadvertently fall under the scope of surveillance, it has to be reported internally, but otherwise there is "nothing to worry about."
The public justifications made by the NSA bear a startling resemblance to the fine semantics of statements that have been made by German officials, which must be read very carefully. One example of this is the most comprehensive press release in the history of the NSA, which the intelligence agency released on Friday, August 9.
In one shaded section of its seven-page declaration, the NSA vaguely writes that it "touches" only about 1.6 percent of worldwide Internet traffic every day -- without providing any further explanation of its unusual use of the word "touch" in this context.
It may not sound like much, but this is actually an enormous amount of data. In effect, 1.6 percent of one day's global Internet traffic means that the NSA "touches" or "collects" some 29 petabytes per day. This would be roughly three times as much data as is contained in the Internet Archive, a nonprofit digital library whose stated mission is to provide "universal access to all knowledge." The archive has stored, among other things, 150 billion websites.

But the figure "1.6 percent" is misleading for another reason. Only a fraction of global Internet traffic is interesting for intelligence agencies. Emails and chats are targeted, for instance, but not necessarily the millions of videos that are sent or uploaded every day online.
Writing for London's Guardian newspaper, Internet expert Jeff Jarvis, a professor of journalism at City University of New York (CUNY), said that all pertinent communications in the US amount to just 2.9 percent of Internet traffic. This sheds a totally new light on the purportedly small figure of 1.6 percent. It means that the NSA "touches" roughly half of all communications on the Web -- or, as Jarvis writes, "practically everything that matters."
In view of all this, it would be grossly negligent to rely on the NSA as a key source of information. Not much value can arguably be placed on the assurances made by an agency that has demonstrably deceived and lied to the public -- an agency that Senator Wyden accuses of cultivating a "culture of misinformation."

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