Sunday, May 15, 2016

Insiders finally speak out: German oversight of intelligence agencies is a farce

If you believe the proclamations of successive German government ministers and the leaders of the major parties, you might think that the German parliament exercises useful oversight over the country's intelligence services, the biggest and most influential of which are BND (external) and BfV (federal domestic).

There is indeed a standing intelligence oversight commission made up of members of parties represented in the Berlin federal parliament. The commission does publish unclassified reports on its work, and it makes sure the public knows there is much more oversight work being done that is - unfortunately - classified.

Despite all the supposedly great democratic oversight, literally not a year goes by without scandal in one of the agencies. Some of the most egregious ones by the BND included full-on Hoover style spying on German politicians well into the 1960s, spying on journalists, covering up (some claim facilitating) Saddam Hussein's use of chemical weapons against Iran in the 1980s, as well Snowden's "in bed with the NSA" issue. The domestic agency has been similarly plagued by an inability to get a handle on neo-Nazi murders and, more recently, by initiating a treason probe for, gasp, a document classified as "Confidential". Of course, the kind of individual at the helm of German intelligence agencies has been almost stereotypical since their inception, with the first BND chief Gehlen an unapologetic torturer and Nazi, the later chiefs much blander, but somehow lacking empathy.

While there was a short period after the Snowden revelations that brought out some issues and talk of reform, this window was closed by the Charlie Hebdo attack in Paris and bolted shut by the Brussels terror attacks.

Nevertheless, "IC and Friends" continue to claim that the agencies are under greater scrutiny and things can only get better.

With all the scandals debated in the media over the decades, no member of the parliamentary oversight commission spoke up about the nature and extent of their oversight.
The best you got from former committee members was a hint or two, generic calls for better processes and legal improvements.

But a former member and ex judge of the country's highest court spoke at a recent conference and talked shop, according to this article.

First and foremost, he said, it is a myth that the committee looks at the actual activities of the agencies. We look at the oversight exercised by the administration.

In addition, "60% - 70%" of the totality of material the BND has is completely out of reach of the committee because the material relates to foreign intelligence agencies, an automatic exclusion.

Further, the BND is only required to report "particularly significant events", which, at the end of the day, gives the agents free choice over what they submit.

Another former official, a federal data protection commissioner, pointed out that "huge areas without any oversight exist". Neither a parliamentary commission that oversees the use of clandestine measures against German citizens (the so-called G-10 commission) nor the intelligence oversight commission have any powers over "operations affecting foreign countries only".

Two constitutional lawyers stated that the BND acted in a largely "legally unregulated space" regarding foreign collection, and that there were no data retention or deletion time limits for this. No one outside the agency knows how long data collected "outside" of Germany are stored, it could be "forever".
They stated that the agency's construct of "the space theory", described in our post In space, no one can hear you laugh - German physics, had effectively put the agency out of the reach of any constitutional constraints.

The shorthand description of the BND as "Germany's foreign intelligence service" is so frequently - and incorrectly - stated as the BND being active only in foreign countries. The law governing the service, however, reads differently. Section 1 of the law states the agency collects information "about foreign countries" and explicitly allows it to collect data "within the geographic area in which the law applies" with some limitations.
So, as long as intelligence is "about foreign countries", the BND feels it can collect this type of intelligence in Germany, too.

The BND is active in Germany, as the current parliamentary investigative committee NSAUA has shown. It collects data from foreign traffic that transits Germany, for example by hooking in to the world's largest internet data hub in Frankfurt, it interviews refugees and has recruited informants among refugees as well as ensured some people were given refugee status as a reward for cooperation.

Days ago, media reports informed the public that consulting firm Roland Berger had been hired to probe the SIGINT division of the BND and recommend changes. This approach has been heavily criticized because the government repeatedly refused to make information available to the parliamentary investigative committee NSAUA citing security concerns. Observers are upset that a private outside firm now gets to see these and more data and processes.
Contracting this consultant shop can be seen as more confirmation that parliamentary oversight is a farce because the reports state the work by Berger is to be finished by fall and that the consultants underwent a security clearance. The latter is a time consuming process, meaning it must have started at the beginning of 2016, with some more lead time before that to award the contract. If this is not a "particularly significant event", what is?

Regarding any proposed reforms, it is noteworthy that finance minister Schaeuble's view that "politics should not be over eager" in its over sight may well have carried the day with the nomination of one of Mr. Schaeuble's assistant secretaries as the new head of the BND.

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