November 23, 2014

German investigation of the cooperation between NSA and BND (I)

(Updated: December 5, 2014)

In Germany, a parliamentary commission is currently investigating the relationship between the National Security Agency (NSA) and the German foreign intelligence service Bundesnachrichtendienst (BND).

Initially the hearings were about the main accusations made by Edward Snowden about NSA spying on countries like Germany and the experts only provided the usual statements that were already heard oftentimes since last year.

But recently the commission focussed on the cooperation between NSA and BND and a number of officials of the German agency were heard. Their statements provided very interesting details about how BND is operating and how they were cooperating with NSA. As all this is only in German, we will start providing summaries in English of the most interesting parts of these hearings.

The room where the hearings of the parliamentary committee take place
(photo: DPA)

The committee of inquiry (in German: NSA-Untersuchungsausschuss, twitter hashtag: #NSAUA) was installed on March 20, 2014. It consists of eight members of parliament and is now led by professor Patrick Sensburg from the christian democrat party CDU/CSU. He succeeded Christian Binninger, who resigned after just 6 days because the opposition parties seemed only interested in hearing Edward Snowden.

The goal of the committee is to investigate the extent and the backgrounds of espionage in Germany conducted by foreign agencies. A detailed listing of all the tasks of the committee in English is in this document (pdf).

Time path

The committee wants to hear over one hundred witnesses and experts, including CEOs of US internet companies like Mark Zuckerberg (Facebook), Eric Schmidt (Google) and Tim Cook (Apple). Also German chancellor Merkel, former and current federal ministers and the directors of German intelligence agencies are invited to appear before the committee.

Because of this, the hearings will last throughout the next year and the final report with the recommendations is expected late 2016. According to an explanation by chairman Sensburg, the current hearings about the NSA-BND cooperation will continue at least until early 2015, then the investigation will shift to the Five Eyes. The exact schedule will be decided upon by all committee members.

The witnesses are not under oath, but if they lie or give a false testimony, that's a criminal offence for which they can be prosecuted.

Edward Snowden

Right from the beginning, opposition members of the committee made a big point of inviting Edward Snowden for a hearing, but the German government refused to provide a visum and guarantees for his security.

Chairman Sensburg however was skeptical about how useful a hearing of Snowden could be, given the fact that he was never tasked with spying on Germany and so far hadn't provided any new information that was not already on the internet (he probably meant that Snowden only speaks about things as far as they have been published by media outlets and almost never goes beyond that on his own).

Then in June 2014, Snowden let his lawyer say that there was no opportunity for him to meet a delegation of the committee in Moscow.

Glenn Greenwald

A hearing of Glenn Greenwald was scheduled for September 11, 2014, but in August he refused the invitation, because he thinks the committee isn't interested in a serious investigation of NSA spying on German citizens. With Snowden not being heard, the whole inquiry became a ritual, according to Greenwald.

Greenwald's refusal might also have to do with his misinterpretation of the BOUNDLESSINFORMANT charts. Last year he published them as proof of NSA's spying on the citizens of various European countries, including Germany, but afterwards it came out that the charts were actually about data collected by European military intelligence agencies, who shared them with NSA.

Apparently the committee didn't asked access to the Snowden-documents itself, which is strange, as one full copy is in the hands of filmmaker Laura Poitras who lives in Berlin. It's not known whether Poitras was also invited for a hearing.

Security measures

Besides public hearings, the committee also conducts hearings behind closed doors, so witnesses can be questioned about sensitive and classified topics. These hearings take place in a highly secured room (Geheimschutzstelle), where the committee members can also access the over 800 file folders with both classified and unclassified documents provided by the government. When witnesses are heard, all attendants have to put their phones and tablets into a metal box, and classical music is played in order to prevent any kind of eavesdropping.*

Despite these security measures, some weird espionage cases happened already: early July 2014, a low-level employee of the BND was arrested, as he was suspected of collecting information about the investigation commission for the CIA. Also some members of parliament had indications that communications from their mobile phones had been intercepted. After this, the senior members of the committee were provided with secure mobile phones.

Sign outside the highly secured room where the
hearings behind closed doors take place
(photo: Konstantin von Notz @ Twitter)

Public hearings

The public hearings of experts can be recorded, but when witnesses, like BND officials, are heard, it's not allowed to make video or audio recordings or take pictures. Therefore, some people from the visitor's bench reported via Twitter, and at every meeting there was also a volunteer from the German digital civil rights website who kept a live blog.

Here we will start listing all the committee meetings with a public hearing, including a summary of the most interesting information from the testimonies:

5th Meeting, May 22, 2014 (Transcript - Statements):

- Hearing of experts in constitutional law: Wolfgang Hoffmann-Riem, Matthias Bäcker, Hans-Jürgen Papier

(It was not the best choice to ask the opinion of these legal experts first, before all other witnesses, including BND-employees, were heard. They could therefore only testify in a very general way, based on the media stories, which, as we have seen in multiple cases, were often exaggerated and not always correct. Legal opinions only make sense when all the relevant facts are known, because every detail can make a difference.

The reason for this was apparently that the commission started quite unsystematic, in part because the members had to work into the complex topic, but also because they were divided and focussed only on Snowden. At some point they realized that this went to nowhere, and changed their method. They decided to first focus on BND, because here they had some power to demand witnesses and documents from the German government. And the hope was to "incidentally" get some insight into the foreign agencies as well)

- . - . - . - . -

7th Meeting, June 5, 2014 (Transcript - Video-stream - Statements)

- Hearing of experts in international law: Stefan Talmon, Helmut Philipp Aust, Douwe Korff, Russell A. Miller (Washington), Ian Brown (Oxford)

- . - . - . - . -

?th Meeting, June 26, 2014 (Transcript - Statements)

- Hearing of technical experts: Michael Waidner (Fraunhofer Institut), Sandro Gaycken, Christopher Soghoian (ACLU). The latter wasn't able to be there in time, so in his place Frank Rieger (Chaos Computer Club) was heard

- . - . - . - . -

11th Meeting, July 3, 2014 (Transcript)

- Hearing of former NSA whistleblowers: William Binney, Thomas Drake

Binney presented himself as a technical director at NSA, although other sources say he was just a crypto-mathematician. He left the agency in 2001, so about everything that happened after that year, he only speculates. It also seems that he mixed up some things. His main point was that NSA wants to collect everything, for example, NSA needed the huge Utah Data Center because they are eavesdropping on the "whole of humanity".

Thomas Drake said he worked as a security engineer for NSA from 2001 until 2008. He stated that we are standing before the abyss of a panoptical surveillance state. The BND has become a mere vermiform appendix of NSA and is also conducting mass surveillance, both nationally and internationally.

(As we will see later on, this accusation is strongly denied by BND officials, who, unlike Binney and Drake, also provided some relevant technical insights)

Links and Sources
- Offical page of the committee: 1. Untersuchungsausschuss ("NSA")
- Wikipedia-article: NSA-Untersuchungsausschuss
- Internal NSA presentation: Structure of the BND (pdf)
- Bundesnachrichtendienst unter Beobachtung: Erste Erkenntnisse aus eineinhalb Jahren Überwachungsdebatte

> See also: BND Codewords and Abbreviations

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