REUTERS
Cooperation between Germany's
foreign intelligence service, the BND, and America's NSA is deeper than
previously believed. German agents appear to have crossed into
constitutionally questionable territory.
Three months before Edward Snowden shocked the world with his
revelations, members of NSA's "Special Source Operations department" sat
down for a weekly meeting at their headquarters in the US state of
Maryland. The group, considered internally to be particularly efficient,
has several tasks, one of which is overseeing the intelligence agency's
delicate relationship with large telecommunications firms. It is the
department that Snowden referred to as the "crown jewels" of the NSA.
At this particular meeting, one significant slip-up was on the meeting
agenda. On March 14, 2013, an SSO member had reported a potentially
damaging incident. "Commercial consortium personnel" had apparently
discovered the program "Wharpdrive," for which SSO had tapped a
fiber-optic cable. "Witting partner personnel have removed the
evidence," he explained further, "and a plausible cover story was
provided." According to an internal NSA document to which SPIEGEL has
access, a team was quietly put together to to reinstall the program.
The NSA, apparently, did not perform the highly sensitive operation
on its own. All signs indicate that the agency had help from Germany's
Bundesnachrichtendienst (BND), the country's foreign intelligence
agency. The code name Wharpdrive appears in a paper drafted in
preparation for a BND delegation's visit to NSA headquarters in Fort
Meade, and which instructs NSA leaders to "thank the BND for their
assistance with the trilateral program." It also makes clear that the
German agency plays a leadership role in the Wharpdrive program, with
the NSA providing only technical assistance.
It isn't clear from the document exactly where the BND and NSA
accessed the fiber-optic cable nor is there any indication of the
operation's target. Neither agency responded to questions about
Wharpdrive. What appears obvious, however, is that the BND cooperates
closely with NSA in one of its most sensitive areas of operation.
Germany's collaboration with US intelligence, which Berlin officials
agreed to in the wake of the Sept. 11, 2001 terror attacks, is opaque
and convoluted: opaque because the German parliament and public are
unable to review most of what is delivered to the United States;
convoluted because there are questions about its legality.
Constitutionally Unacceptable
Leading constitutional law experts have their doubts. In testimony
before the NSA investigation committee in the Bundestag, Germany's
parliament, heavyweight constitutional law experts Hans-Jürgen Papier,
Wolfgang Hoffmann-Riem and Matthias Bäcker stated that the BND is
potentially violating the German constitution by working with data
received from the NSA. Furthermore, they argued that basic
constitutional rights such as the privacy of correspondence, post and
telecommunications apply to Germans abroad and to foreigners in Germany.
That would mean that surveillance performed by the BND and NSA is
constitutionally unacceptable.
German intelligence agencies, for their part, consider their
cooperation with the NSA to be indispensable -- for counter-terrorism
efforts, for the fight against the proliferation of weapons of mass
destruction and for the battle against organized crime. According to a
classified paper created by the government in response to a query from
the opposition, the BND does not keep official statistics on the amount
of telephone, email and text message metadata that is shuttled to
American agencies. "All metadata" collected at the NSA site in Bad
Aibling in Bavaria "is made available," the response states. In 2012 and
2013, some 3 million items of content data, or intercepted
conversations and messages, were sent to the United States each month.
These facts and figures, until now available only to select
parliamentarians, offer a window into German-American intelligence
cooperation. Documents SPIEGEL has seen from the archive of
whistleblower Edward Snowden, when combined with SPIEGEL's own
reporting, open up
a much broader panorama.
They show that the exchange of data, spying tools and know-how is
much more intense than previously thought. Given this close partnership,
BND statements claiming they knew little about the programs and methods
used by the NSA are, at minimum, startling.
One location in Germany is particularly illustrative of the
trans-Atlantic pact. It is located in the Alpine foothills, in the
beautiful valley of Mangfalltal. For decades, the NSA maintained its
largest listening post in Germany in Bad Aibling, population 18,000. The
agency once had up to 1,800 workers stationed here: They frequented
Chicken Joe, a bar near the American base, and Johnny's Bowling. And
they cruised through town in American off-road vehicles sporting US
license plates.
The Americans' affection for the town can be seen in "A Little Bad
Aibling Nostalgia," a document that NSA employees posted on the agency's
intranet. They reminisced wistfully about "free bier" emails and
leberkäse, a bologna-like substance "made neither of liver nor cheese."
German locals were fond of the agents, in part because they were
reliable tenants. "Two men who specialized in Arabic dialects lived at
my place," recalled jeweler Max Regensburger. "Nice people." Everyone,
from baker to butcher to carpenter, profited from the Americans. When
they left the base in 2004, Bad Aibling residents waved American flags
in farewell.
The Tin Can
But the NSA did not completely abandon Bad Aibling. The BND took over
most of the facilities on site, including nine white Radomes, the
oversized golf ball-like structures crucial to many surveillance
operations. But one small NSA special unit remained active and joined
BND agents in the Mangfall Kaserne. The Americans built a specially
constructed windowless building with an exterior of black-painted metal.
BND agents refer to the American complex, which houses the "Special
US Liaison Activity Germany," or SUSLAG, as the "Tin Can." The unit's
very existence is classified information. But it is clear that the
Germans and Americans who work there know each other and value
one-another's presence.
The official nature of the cooperation between Germany and the US in
Bad Aibling is documented in a contract, written two years prior to the
NSA's official departure, drafted under the auspices of then-Chancellery
Chief of Staff Frank-Walter Steinmeier, now Germany's foreign minister.
The "Memorandum of Agreement," signed on April 28, 2002, is six pages
long and marked Top Secret. It is not from Snowden's material.
Much of the document consists of broad declarations of "good
cooperation," but the important points can be found in the 74-page
appendix. There, the two sides agree on joint espionage areas and
targets, such as counter-terrorism, and the battles against organized
crime and proliferation of weapons of mass destruction.
Surveillance as such isn't mentioned, at least initially. The treaty
signatories, instead, commit to respecting fundamental rights such as
the privacy of correspondence, post and telecommunications and agree not
to conduct surveillance on German or American citizens. The deal is
valid both for "real" and "legal entities," meaning it applies to
companies and associations as well.
But even in this memorandum, the crux is in the small print -- the
addenda and exceptions. In the case of "terrorist activity," the taboos
mentioned earlier no longer apply. Should it become clear that
intercepted information originated from a German citizen, it can still
be used as long as the partner agency is informed and agrees. The same
is true in cases where the end point of monitored communications is
located in a foreign country.
'Exciting Joint Ventures'
According to the German constitution, the BND is not allowed to
perform surveillance on German citizens. But does the memorandum's small
print open up a back door? Does the NSA provide information about
radicals that the German intelligence agency is not permitted to have
access to?
The BND denies the existence of such channels and says, "At no time has there been a deviation from the legal framework."
It seems doubtful that the Germans know exactly what their NSA
colleagues are doing in Bad Aibling. According to the agreement, the NSA
is allowed to carry out its own surveillance operations and only has to
allow the German partners to look at its task assignments and
operational details if asked.
In any case, internal documents indicate that the NSA is pleased with
the Bad Aibling facility. "Two exciting joint ventures" are carried out
there. One involves teams for working on joint surveillance (referred
to as "Joint SIGINT Activity") and the other for the analysis of
captured signals (Joint Analysis Center or JAC). Snowden's documents
hint at what precisely the trans-Atlantic allies were collaborating on.
In 2005, for example, five NSA employees worked "side-by-side" with BND
analysts on a BND operation called Orion. Its targets lay outside NATO's
eastern border.
According to the documents, most of the targets monitored jointly by
the BND and NSA are in Africa and Afghanistan. One document, though,
reveals something else. Stemming from 2009, it includes a list of
companies and organizations with domain endings such as .com, .net and
.org that are explicitly to be removed from the surveillance efforts
because they are German web addresses. Among them are basf.com and
bundeswehr.org, but also such domains as orgelbau.com and
feuerwehr-ingolstadt.org.