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Derechos | Equipo Nizkor
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07Aug15
Plugging Leaks: Merkel's War on Germany's Press and Parliament
When former German Federal Prosecutor Harald Range greeted SPIEGEL journalists for an interview at the end of July, he seemed combative. The 67-year-old recalled his oath of office as a young public prosecutor in the university town of Göttingen, to investigate "independent of a person's standing."
He also said he refused to allow his position to be influenced by politics in any way, adding that he "had so far" not been given any orders by the government. "I am free in my decisions," he said. But did he already suspect at that point that an investigation into two journalists would soon rock both his office and the government in Berlin?
Two weeks after the interview, Range stood in front of his admiring staff in Karlsruhe, where the federal prosecutor's office is headquartered. It was the day after he had challenged the federal government, which he accused of an "intolerable intervention" into his work. And it was a few hours after he had been terminated. He said it was more important to him to be able to look in the mirror than in a newspaper. "I did it for myself and I did it for the agency," he said. His staff showered him with applause.
The mood in Berlin was quite a bit different. In an almost unprecedented show of unity, Chancellor Angela Merkel and her cabinet distanced themselves from Range. They acted as though they had nothing at all to do with the investigation that cost Range his job -- an investigation that marked the first time the state had probed journalists for treason since the government of West Germany sought to prosecute DER SPIEGEL journalists 53 years ago.
Range is now gone, but what remains is a mess that could still lead to other politicians, ministers or agency chiefs getting pushed out. Within the course of just a few days, questions have arisen in Berlin that are fundamental to the meaning of democracy. And so far, the answers to those questions have been insufficient. How do prosecutors and members of Germany's domestic intelligence agency, the Office for the Protection of the Constitution (BfV), perceive freedom of the press? How independent is Germany's judiciary system? And are parliamentarians charged with oversight of the country's intelligence agencies able to do their jobs?
Intimidating Journalists and their Sources
In recent days, the chancellor, Justice Minister Heiko Maas and Interior Minister Thomas de Maizière have santimoniously thrown their support behind freedom of the press. But reality often looks different. In reality, senior government officials and intelligence agency heads in Germany have long been pursuing a policy of intimidating and deterring journalists and their sources.
Leaks and whistleblowers are being hunted down and criminalized. Treason, a word that had hardly been heard for decades, is once again being used as part of the repertoire of politicians in Berlin -- and all in the alleged name of protecting the common good. Security is to be increased in order to better protect the country from terrorism. At the same time, however, the balance between the executive, legislative, judiciary and the press as the Fourth Estate is being thrown off.
Range's fall is the culmination of events that have been developing since American whistleblower Edward Snowden went public in 2013 with his revelations about the global spying activities of the National Security Agency.
Ever since, the German government and its security agencies have made every attempt possible to ensure that they control what information becomes public. It is Merkel's cabinet alone that determines what is defined as a state secret. And any person who casts doubt on that right, even if it is for good reason, runs the risk of being pursued with the full force of the law.
The extreme sensitivity appears to be a reaction to a long string of leaks and investigative stories in the media as well as the work of the parliamentary investigative committee that is probing NSA spying in Germany. The tactics used by the government -- a mix of sealing itself off from the outside world and lashing out -- shows just how edgy Merkel and her people have become. They are increasingly dogged in their efforts to protect what they allege to be state secrets. The result is that they don't even trust their own parliamentarians any longer.
That has been particularly clear in the approach the Merkel administration has taken to the NSA investigative committee in parliament. Whenever the committee requests files from the government, they receive incomplete documentation with a grotesque amount of redacted passages. Even the wives' program during a visit by an NSA director to Germany was considered too sensitive to share with the investigative committee.
As hard as the government is trying to plug the leaks, new revelations are continuing to make their way to the public. And it has become clear that the "classified" stamp is often used to cover up problematic intelligence operations. For example, when Germany's foreign intelligence agency, the BND, tapped a data cable in Frankfurt for the NSA and then tried to deceive the parliamentary committee about the true scale of the operation. Or when the domestic intelligence agency set up a fake apartment together with the CIA in the Rhineland region in order to combat terrorism, but in the process undermined privacy protection laws. At times German spy agencies undertook operations without even informing the Chancellery, which is responsible for their oversight. The government would like to have kept all of this hushed up. But it was unable to.
Indignant in Berlin
Indignation among senior officials has become a common response. Hans-Georg Maassen, for example, the head of the BfV domestic intelligence agency responsible for monitoring extremism, has repeatedly threatened to issue a criminal complaint against the Parliamentary Control Panel, which meets in secret and is responsible for scrutinizing the intelligence agencies, for betrayal of state secrets. In conversations with those close to him, he has said he believes the panel should be dismantled because, as he put it, even journalists are more discreet.
Together with Klaus-Dieter Fritsche, Merkel's intelligence services coordinator in the Chancellery, Maassen has warned members of parliament that if the Americans discontinue intelligence cooperation in the war on terror, and if an attack is subsequently perpetrated in Germany, then parliamentarians will have the victims on their consciences.
Interior Minister de Maizière is also exerting pressure on potential leakers. In a letter to the Parliamentary Control Panel, a high-level official in his ministry complained about alleged indiscretions committed by the parliamentarians. The letter helpfully noted that revealing state secrets was punishable by law.
In mid-October 2014, members of the NSA investigative committee received another letter, this time from Peter Altmaier, Merkel's chief of staff. It contained the subject line: "Transfer of classified information from the federal government to the press media." In it, Altmaier listed four cases of alleged leaks, including one to SPIEGEL and another to the blog Netzpolitik.org. He conceded it had been "an outflow of information that had not yet been clarified." But he also issued a threat, saying he would press charges against unknown persons if it were to happen again.
Four weeks later, intelligence coordinator Fritsche announced to the Parliamentary Control Panel that he would undertake measures, saying the betrayal of government secrets had gone too far and that he would pursue a criminal complaint.
At first, nothing happened. Chancellor Merkel herself is reported to have personally intervened and warned against escalation. The word from the Chancellery even today is that "the political message takes precedence." The intelligence coordinator yielded, but he didn't forget.
Anti-Whistleblowing Legislation
In parallel, the government is also taking on whistleblowers by trying to push through legislation criminalizing their activities. The draft legislation is packaged inside a national data retention law and has gone largely unnoticed by the public. Observers expect the legislation will make it harder for journalists and informants to work together. Although it stipulates that the telecommunications data of journalists, among others, would not be exploited, that data would still be saved. The German Journalists' Association has criticized the provisions in the law, saying they will undermine the media's ability to protect sources.
Another paragraph in the draft legislation also seeks to criminalize some aspects of investigative journalism. The provisions deal with the receipt and publication of classified information that has been obtained illegally from a source. It could include things like the CDs of tax evaders that have made their way to the media in recent years. In the future, receiving stolen data from a source could be a prosecutable offense carrying "a sentence of up to three years or a fine." Holders of public office are excluded from the draft law.
Journalist are excluded as well, but only if they have received the data as part of the "preparation for a concrete publication," as the legislation notes. But this is entirely at odds with the reality of everyday journalistic practice, because a journalist is only able to determine whether data is appropriate for publication after he or she has had a chance to see and analyze it.
"The risks pertaining to the work of a journalist will clearly be greater," says Ulrich Schellenberg, president of the German Bar Association. He views the legislation as part of a broader and dangerous development. "The German government is massively increasing its surveillance measures while at the same time going even further to protect its own secrets," he says.
To do so, they have not shied away from tricks and deceit. That, at least, is what members of the NSA investigative committee have believed since Feb. 4, the day Chancellery intelligence coordinator Fritsche and BND President Gerhard Schindler appeared in front of the committee. They said they had sensitive things to tell the committee and brought them to a bug-proof meeting room. They wanted to talk about an issue that, if it became public knowledge, would be very damaging to Germany, they said.
Given that context, the kind of carelessness that ensued at the meeting is astounding. Without even reviewing whether the staff of the committee members present in the room had security clearances to receive top-secret information and without paying attention to the possible presence of mobile phones in the room, the men spoke freely about a sensitive operation carried out by the BND together with Britain's GCHQ intelligence service in 2012 and 2013. The joint endeavor they spoke of, as is known today, bore the codename Monkeyshoulder.
Is Government Sabotaging NSA Investigation?
Such carelessness made members of the committee suspicious. Before Schindler and Fitsche could even finish, they withdrew to consult. In a group that is very often divided, there was unusual agreement that a trap was likely being set. If details of the intelligence operation became public, the government could point to the investigative committee as being the culprit. The committee decided to immediately end the meeting.
Around 12 hours later, the German news site Focus Online posted an article about the top secret operation, also providing details that members of the parliamentary investigative committee said had not been discussed in the previous day's meeting. So who leaked the information to journalists? And what were they trying to accomplish?
Even prior to this incident, members of parliament had begun to suspect that there are people in the government and its agencies who are playing dirty and trying to sabotage efforts to investigate NSA spying on Germany. "People are clearly afraid that more might come out," says André Hahn of the Left Party, who chairs the Parliamentary Control Panel.
"We first find out about a lot of the leaked information we are blamed for when we read the newspaper," says Christian Flisek, the leading official from the center-left Social Democratic Party (SPD) on the NSA Investigative Committee. "The real leaks are in the Chancellery, in the BfV and other agencies."
Well-placed sources in Berlin security agencies say the nervousness is particularly palpable in the Interior Ministry and BfV. And that's no surprise, says Konstantin von Notz, a member of the NSA investigative committee with the Green Party. "The Office for the Protection of the Constitution is only just now becoming a focus of our work on the committee -- and its officials will likely have a lot of explaining to do."
Georg Maassen is the man who will have to answer to those questions. A former career civil servant at the Interior Ministry, Maassen rose to become the head of the domestic intelligence agency as a result of his work in handling the scandal surrounding the National Socialist Underground, a neo-Nazi terrorist cell responsible for killing nine immigrants, most men of Turkish origin, between 2000 and 2006. Since taking on his new role, his position has been consumed largely by crisis management, a role that clearly weighs on him. On an increasing number of occasions recently, Maassen seemed to have trouble maintaining his composure in public. On one occasion, he even snapped that it was painful to him to be insulted as the head of some kind of "idiot-filled authority." On another, he stated that the true NSA scandal is the fact that members of parliament and journalists are weakening the intelligence agencies through the constant reporting on internal secrets.
He also called the recent criticism of his boss, Interior Minister de Maizière, "inappropriate." On the sidelines of the same event, he suggested creating a support program for journalists who agree to quit working for SPIEGEL. It was meant as a joke, but it also shows what little regard Maassen has for investigative journalism. "He's very thin-skinned," one security community source says.
The Bombshell
But on March 25, Maassen did something that overshadows anything else he has done up to this point. He filed a criminal complaint with the State Office of Criminal Investigation in Berlin, following it with a second complaint in mid-April. Both related to confidential or top secret budget plans by his agency to increase an online surveillance effort -- plans that had been posted online by journalists at Netzpolitik.org in Berlin.
Maassen had the support of the Interior Ministry, which had followed the developments more closely from the very beginning than it initially wanted to admit. Ministry officials say today that Interior Minister de Maizière sees "no reason to object to the proceedings."
Maassen has sought to convey the impression that he did not intend to accuse anyone directly with his legal complaint, which is directed "at persons unknown." But that is a half-truth at best. The reference in the subject line to the request for criminal prosecution may be "persons unknown," but the substantiation clearly states: "The blog Netzpolitik.org is operated by a person named Markus Beckedahl. The article was written by a person named Andre Meister."
That's not all. In both complaints, Maassen explicitly cites the Bundestag's Parliamentary Control Panel, which decides on the intelligence services' budgets. But there is no mention whatsoever in the complaint of the fact that the budget plans that were ultimately published by Netzpolitik were also broadly disseminated among his own staff.
By doing so, he is trying to shift the focus onto two groups that could potentially betray government secrets: journalists and parliament. Relations between the nine members of the Parliamentary Control Panel and the government intelligence agencies have been tense for months. Members of parliament speak of a "combative atmosphere."
"After the blocking and cover-ups in the NSA and BND scandal, now they are also trying to criminalize those investigating it," grouses Martina Renner of the Left Party.
Diverting Attention
A few weeks later, Maassen filed a third complaint. This time, it had to do with the premature publication of details from a confidential report pertaining to the mysterious death of an intelligence informant. The article was in the Munich-based Süddeutsche Zeitung.
"Mr. Maassen is trying with all means at his disposal to divert attention from his own possible errors," says SPD politician Flisek. Should the recently released WikiLeaks documents about comprehensive NSA monitoring of the German government be substantive, Flisek says, "it would mean a complete failure in this area of the office under Maassen's leadership."
But the diversionary maneuver, if indeed that's what it was, ultimately had consequences that not even Maassen himself had considered. His complaint rapidly found its way to the federal prosecutor's headquarters, where an initial suspicion was confirmed. At the end of last week, Harald Range then notified Netzpolitik.org of the investigation. The move triggered a storm that ultimately cost Range his job.
A scapegoat? Perhaps. From the very beginning, the federal prosecutor was rather half-hearted in his pursuit of the investigation. He seemed driven less by the thrill of the chase than by the fear that he could get in trouble if he did not pursue the case. But he apparently drastically underestimated the political effects of a treason investigation into journalists.
Justice Minister Maas quickly abandoned his noble resolution to allow the prosecutor's office complete independence in all of its decisions. After the investigation was made public, Maas' ministry decided to present Range with a choice: either shut down the investigation, or go.
Publicly, Maas announced that he had doubts about the treason accusation against Netzpolitik.org. Merkel joined him, as did, ultimately, Interior Minister de Maiziére -- who allegedly received advanced notification neither of the initial complaint nor of the steps that followed.
'Significant Threat'
Since then, the word "scandal" has become a popular one in the halls of the public prosecutor's office. Some even believe Minister Maas is guilty of hindering the investigation and Berlin prosecutors are looking into opening an investigation into the SPD cabinet member. The association of judges and state prosecutors at Germany's Federal Court of Justice is furious, and speaks of a "significant threat" to the rule of law.
Maas will still have a lot of explaining to do. On Thursday, lawyers in his ministry came to the unsurprising conclusion that the revelations published by Netzpolitik.org were not state secrets. Meanwhile, after Range left, the public prosecutor's office began making preparations for the discontinuation of the investigation.
That would mark the end of this assault on press freedoms. But the accusations against the justice minister -- of doing nothing for weeks only to suddenly sabotage the investigation for political reasons -- remain pertinent.
Maas is sullied. So too is Maassen. Both attorneys and journalists are in an uproar. Whether in the Justice Ministry, the Interior Ministry or the Chancellery, nobody will emerge unscathed from this scandal. And everyone must be prepared for the question as to how far they are prepared to go to protect even those secrets that belong in the public sphere.
[Source: By Spiegel Staff, Der Spiegel, Berlin, 07Aug15]
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