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Spying made easy

June 28, 2017

Germany's foreign intelligence service was hardly innocent in the NSA spying scandal. The consequences drawn from that fact are dubious and no guarantee for more security in fighting terrorism, says Marcel Fürstenau.

Deutschland NSA-Untersuchungsausschuss Abschlussbericht
Image: picture-alliance/dpa/K. Nietfeld

Whistleblower Edward Snowden is considered a traitor in intelligence circles and lionized as a hero by civil rights activists. The former National Security Agency (NSA) contractor is accused of having played into the hands of terrorists by revealing the NSA's global telecommunications spying program by the former; and praised by the latter for having shown the world the incredible breadth of state surveillance. For three years, a special investigative committee of the Bundestag, Germany's lower house of parliament, has been analyzing what was the biggest trans-Atlantic spy scandal ever. Now that committee has presented its conclusions, and they are not pretty.

The outcome is - put loosely - nevertheless quite acceptable. But only in the sense that discordant parliamentarians were able to conduct a remarkably well-founded analysis of vulnerabilities. They have shown just how weak the German Chancellery's oversight of the BND, the country's foreign intelligence service, really was. One cannot, however, claim that the administration whole-heartedly supported the investigation. Documents were handed over heavily redacted or denied altogether. It is also very difficult to believe that witnesses, including Chancellor Angela Merkel, knew little or nothing about what was going on.

Legal clarity  

Nonetheless, witness testimonies made clear that the BND led an astonishingly independent existence. And therefore, made liberal use of the freedoms it was afforded in spying on foreign communications. It would be cheap to resent the agency for doing so. The BND is tasked with protecting Germany and its citizens, wherever they may be - for instance soldiers on dangerous foreign deployments. It is a perilous and honorable task - albeit one that was devoid of clear rules for the longest time. So it is no surprise that the BND clearly overshot its target. It took for granted that it was allowed to spy on the citizens and institutions of friendly states. And Germans were also regular targets of such surveillance.

Deutsche Welle Marcel Fürstenau Kommentarbild ohne Mikrofon
DW's Marcel FürstenauImage: DW

Limiting such activities would have been the job of the Chancellery. That is where all intelligence agency threads come together. Yet, instead of clear guidelines, it seems that the Chancellery opted for a long leash policy. The fact that BND President Gerhard Schindler was forced to resign as a result of the affair, yet no one from Chancellor Merkel's circle stepped up to take political responsibility, leaves a bad aftertaste. If there is anything positive to be gleaned from the affair it would be the fact the Bundestag has, in the end, provided a bit of legal clarity. The lesson learned from the NSA/BND scandal has resulted in changes to the law regulating the foreign intelligence service.

New law only partially practicable

The irony, however, is that the reform now legalizes much of what the BND was doing in the field of so-called foreign-signals intelligence anyhow - either in gray zones or in ways that were clearly illegal. German citizens, says the new law, are to go untouched. But that is a promise that no one can keep, because we now live in an increasingly multilingual world. And because internet domains give no reliable information about the nationality of their users.

And what is to become of those people who possess a second passport in addiction to their German document? Are they protected by the one, but not the other?

That alone makes clear just how arbitrary and impracticable the differentiation between German, European Union and third country citizens really is. To say the least, it is nothing less than astonishing that such ambiguities would be written into a bill, let alone passed into law.

Closing loopholes

Those who clamor for - and usually get - stricter laws in the fight against terror are convinced that they will provide more security. Though it must be said that it would often be enough to apply existing law more rigorously. The case of Berlin Christmas market attacker Anis Amri is the most well-known and tragic example thereof. The new BND law, an immediate consequence of the NSA spying scandal committee's investigation, is nevertheless more than a knee-jerk reaction. Legal loopholes were closed where none should have existed in the first place. But they could have been closed in a much better fashion.

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Marcel Fürstenau
Marcel Fürstenau Berlin author and reporter on current politics and society.
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