Putting the German govt in dock over surveillance may strike back at NSA

Roslyn Fuller
Dr. Roslyn Fuller is a lecturer in International Law based in Ireland. She is the author of Ireland’s leading textbook on International Law ‘Biehler on International Law: An Irish Perspective’ (Round Hall, 2013). In addition to her academic work, she has also writes for the Irish Times, The Irish Independent and The Journal on topics of law, politics and education. Roslyn has been researching democracy for over a decade and is the author of “Beasts and Gods: How Democracy Changed Its Meaning and Lost Its Way” (October 2015, Zed Books). She tweets at @roslynfuller and can be reached at fullerr@tcd.ie.
Putting the German govt in dock over surveillance may strike back at NSA
A criminal case against the German government over spying allegations might shed more light on US spying activities over and beyond Edward Snowden’s revelations.

Founded over thirty years ago in Berlin, the Chaos Computer Club (CCC) is an institution in Europe. The CCC is Europe’s largest association of hackers, known for its annual shindig, the Chaos Communication Congress, as well as its involvement in numerous campaigns to raise awareness of digital security gaps, be these lapses in corporate software development or government-controlled spyware. Always imbued with a strong pro-privacy and anti-censorship orientation (previous members include Wau Holland and former Wikileaks spokesperson Daniel Domscheit-Berg), Edward Snowden’s revelations of mass surveillance in Germany have unsurprisingly proven of pivotal interest to the CCC’s membership.

Thanks to Snowden, Germans have known for several months that their own secret services deliver hundreds of millions of communications records to the NSA for analysis on a monthly basis, with various politicians having thought out loud about the possibility of criminal investigation ever since.

Recently, Justice Minister Heiko Maas (SPD) announced that he would not interfere if a case were to be launched in regards to the NSA spying scandal, adding a few weeks later that in his opinion the mass surveillance was not conducted in a manner that served the interests of security. This statement may have been made in the expectation that cases would be brought against American officials operating in unauthorized fashion on German soil. This would be in a similar vein to the 2009 Italian conviction of 23 CIA agents for kidnapping Muslim cleric, Abu Omar, from the streets of Milan, before subjecting him to rendition in Egypt. After all, it has been the actions of American agents, particularly in bugging European diplomatic missions and Chancellor Angela Merkel’s personal communications that have provoked the most serious outrage within Germany. The news that their own secret services were engaged in similar activity and may, in fact, have cooperated in NSA and GCHQ programs has thus far met with a significantly more subdued reaction.

Whatever his intentions, Maas’s statement has been taken up with alacrity by the Chaos Computer Club which has requested a criminal investigation to be launched against Angela Merkel, the Minister for the Interior, and the heads of Germany’s secret services: the Bundesnachrichtendienst (BND – the CIA/MI6 equivalent), the Militaerische Abschirmdienst (MAD – responsible for detecting “anti-constitutional activities” within the German army, ie a military putsch) and the Bundesverfassungschutz (Bvf – an organization similar to MI5 which works to avert political violence within Germany). The CCC has indicated in its complaint that charges should be brought under three parts of the German Criminal Code: § 99 [Espionage on Behalf of a Foreign Power]; §§201 et seq [Infringement of Privacy]; and § 258 [Thwarting the Course of Justice].

AFP Photo / DPA / Rainer Jensen / Germany out

There is a certain case to be made under all three provisions. One could argue that the heads of the German secret services ensured that their own and NSA employees were never brought to court despite having broken German law (as demanded by § 258), and one could argue that these secret services have aided the NSA and GCHQ in exercising clandestine activities against the German state (as demanded by § 99).

Such a line of argumentation would certainly not be spurious. Most interesting, however, are probably the various provisions of the §§201 et seq, which cover e.g. “unauthorized collection of data,” “creating a computer program that aids in the unauthorized collection of data” and “unauthorized recording of another’s spoken word.”

For its part, the BND (the most publicly acknowledged of the three agencies in question) has maintained that all of its actions were legal, as the information it delivered consisted of metadata – details of when and between which numbers telephone conversations and internet access occurred, but without details of the communication contents. It is further contended that the data shared with the NSA originates not in Germany, but in Afghanistan, as part of NATO security operations there. Since Germany generates about 50 billion communications records a month, the proportion that is sent on to the NSA represents only a fraction of the total and is scrubbed of all personalized data (at least as pertains to German citizens) prior to transmission.

This is important, because the laws governing secret service activity in Germany (the BND-Law and the G-10 Law) demand that all covertly-obtained information may only be shared with foreign authorities in anonymized form, unless sharing in non-anonymized form is absolutely necessary for the security of Germany or another State. The data is shared with the permission of the Office of the Chancellor, and the State which receives the data acts according to the principles of the rule of law – not necessarily a given considering the USA’s record on rendition, Guantanamo Bay and drone strikes, a point that the CCC’s complaint capitalizes on.

Protestors hold up placards featuring a picture of former NSA contractor Edward Snowden and with the world Asylum on it during a march against the spying methods of the US in Hamburg, northern Germany on December 28, 2013. (AFP Photo / DPA / Bodo Marks)

Nonetheless, criminal conviction of the heads of secret services would be unprecedented in modern times, so it is possible that the real goal of the CCC’s case may be to kickstart an official investigation. Such an investigation would not only determine the legality of secret service actions, but also shed light on just what these activities precisely consisted of. Since some of the mooted charges, e.g. thwarting the course of justice, can only be committed in relation to another crime, investigating the German secret services will also necessitate investigating the NSA’s actions. Although several legal and material obstacles present themselves here, there is still the possibility of information pertaining to American and British secret services activities being revealed that has not yet come to light via Snowden’s revelations.

Moreover, the complaint has once again raised the possibility of inviting Edward Snowden to travel to Germany to testify in an investigation or even trial, a point those sympathetic to his cause often return to.

Snowden’s presence on German territory would certainly ease any claim for political asylum on his part. However, despite being a constitutionally-granted basic right in Germany, asylum remains a rarely granted privilege. (Afghani applicants, for example, were routinely turned away from Germany prior to 9/11 on the flimsy pretext that the Taliban was not the recognized government of Afghanistan and therefore no one there could be said to be the victim of government persecution.)

The US has already gone to some lengths to break down an asylum bid by declaring that they will not seek the death penalty in Snowden’s case, a point which would have been highly contentious for most European nations, including Germany. However, with or without asylum, Snowden’s mere presence in Germany at such a pivotal juncture would certainly help to force a number of issues to a head: the extent of NSA spying in Germany, the extent of German co-operation with that spying, the interplay between a fairly robust asylum claim and an international arrest warrant issued by a powerful NATO State, as well as the power politics between Germany’s parties, who it should be presumed would come under intense pressure from the United States to hand Snowden over regardless of consequences. It’s all potentially fascinating, but not necessarily in the best interests of Mr. Snowden, unless such an invitation to enter German territory were to be extended along with robust guarantees of personal safety.

The CCC and other groups are now embarking on the only logical reaction to Snowden’s revelations and that is to seek lawful resolution: Will the person who revealed this pivotal public information continue to live in an insecure limbo? Will mass surveillance continue in the same manner as it has over the past few years? Will Germany and other European nations adopt more robust protection for their own citizens? Or will these countries manage to pass the buck as efficiently as they have passed telecommunications data around? Lodging an official complaint with Germany’s Federal Prosecutor represents an attempt to finally join battle on these issues in a court of law, in the hopes that the third arm of government will genuinely prove a check and a balance to the other two.

Roslyn Fuller for RT

Dr. Roslyn Fuller is the author of Ireland’s leading textbook on international law. She was educated at the University of Goettingen in Germany.