Three years NSA inquiry committee: A serious investigation remains an illusion, while the mass surveillance continues.

(This is a translation of the original German article.)

The German parliamentary committee investigating the NSA spying scandal is over. At least the public hearings. Now the final report is being written. A thousand pages documenting why the entire work was done in the first place and which almost nobody will read.

For three years a great deal of effort was expended: 2,400 ring binders were read. The committee met 131 times, 66 times publicly with experts and witnesses. There are no recordings, so we live-transcribed all those hearings – totaling 5.6 million characters. That’s 3,700 standard pages or 34 times the Basic Law for the Federal Republic of Germany. We spent 613 hours in the committee room. That’s almost an entire month.

Goal: Investigate the Snowden Revelations

All of this happened to investigate the global surveillance disclosures of the Snowden revelations, reporting that our entire digital world is under total surveillance. The committee’s founding document defines 31 questions to be answered. The very first: How are the Five Eyes spy agencies „collecting data on communication activities […] from, to and in Germany“?

Despite the founding impulse (the Snowden revelations) and the inquiries goals (the Snowden revelations), the committee hardly uncovered anything of… the Snowden revelations.

At least with William Binney, Thomas Drake and Brandon Bryant, the inquiry heard three whistleblowers from the United States, and a few experts from NGOs and civil society from the US and UK. But the committee was unable to hear even a single politician or spy from the Five Eyes states. A committee delegation visited the USA, but it was careful not to raise any expectations. Rightly so, the results were pitiful. Not even the brazenly announced representatives of the PRISM companies Apple, Facebook, Google and Microsoft felt compelled to accept the committees invitation.

An investigation allegedly causes attacks

Of course this is due to the fact that other countries do not adhere to German law – as the Snowden revelations have shown. But the German government did not support the investigation enough, even actively sabotaging it. The committee was only allowed to investigate a few discontinued and outdated joint operations between the German spy agency BND and the Five Eyes: Eikonal in Frankfurt and Glotaic. But the name „Glotaic“ could not even be spoken, because it includes the partners name „CIA“. Just like operation „Monkeyshoulder“, which was planned with British GCHQ. This could not be mentioned at all, as the UK threatened to end any espionage cooperation. The committee’s work could lead to terrorist attacks, it was purported.

As a result, the Five Eyes states were scarcely investigated. The UK was rarely a topic. The number of mentions of Canada, Australia or New Zealand can be counted on one hand although they played a central role in the most recent mass spying scandal, Echelon. So much for investigating the ever-present Five Eyes surveillance.

Instead of trying to answer the big questions, the committee lost itself in details. Quite some time was spent on the question of when which sub-division manager in the BND knew of which selector and to whom he reported it or why he didn’t and whether someone was present at a meeting in the chancellery on the 24th of October 2013 or not or was it the 28th… No wonder so few people attended the public hearings until late in the night.

The BND breaks the law

Nevertheless, the committee was able to dig up some scandalous information. It has proven that the BND often goes to the limits of the law – and beyond. Sometimes by daring and secret legal constructs (space theory, function theory, theory of virtual foreign countries…), sometimes by open breach of the law. The Federal Data Protection Supervisor found 18 severe legal violations – in a single field office.

Ah, and the spying among friends, famously repudiated by Chancellor Merkels statement. The BND received 14 million selectors from the NSA and scanned its mass surveillance systems for these surveillance targets. When the BND reviewed these surveillance targets after Snowden, it found that 40,000 of them were friends. Only a single government investigator was allowed to review these selectors. The committee was not allowed to see them, the government and the coalition parties prevented this. Because the US did not explicitly allow it.

But the BND itself also listened to thousands of friends in Germany and Europe, on its own. After a request for information of the – scarcely staffed but hard working – opposition, another thousand spied upon friends came to light. Or, in spy agency terms, „3,300 participants with some 15,000 selectors“ with „EU/NATO reference“ were „tasked“ in the BND’s „collection“.

Spying on friends is business-as-usual

Although the BND’s specific surveillance victims are all very top secret, some examples have leaked. The BND has actively monitored:

• Germany: embassies and diplomats,
• France: minister of foreign affairs,
• Israel: parliament Knesset and prime minister Netanyahu,
• USA: secretaries of state Clinton and Kerry, FBI, Air Force One Andrews Field,
• Europe: „almost every European government – sometimes, as in Austria, down to the secretary of agriculture“,
• EU: commission, council, officials,
• UN: International Monetary Fund, World Health Organization, Children’s Fund UNICEF,
• International organizations: International Criminal Court, OPEC, OSCE,
• Aid organizations: Red Cross, Oxfam, World Hunger Aid,
• Economy: banks and rating agencies,
• Company: Eurocopter, EADS, Lockheed,
• Journalists: BBC, New York Times, Reuters.

A crushing list, completely unrelated to the standard targets of surveillance: terrorists. But even this list is just a tiny excerpt of the thousands of alleged friends who the BND spied upon. Until the BND itself decided not to „task“ these „selectors“ any more. Nobody knows how many friends the BND is still spying on today. Because no one outside of the BND has insight into those surveillance targets called „selectors“. Spying among friends is business-as-usual for spy agencies. Including Germany.

Yet the committee began with a bang: „The entire German SIGINT is illegal“, declared the authorities of German constitutional law in unison. Now, three years after Snowden, proof that the BND actively breaks the law is barely enough to elicit a shrug.

Illegal? Legalize it!

The consequences of these revelations are the next scandal. Instead of adjusting the surveillance practices to conform with the law, the laws are molded to suit the spying. One year before the end of the committee, the grand coalition passed a reform of the BND law. With this change, everything that the BND is doing, is legalized – and even expanded in scope and scale.

Just one example: prior to the reform, the BND could only listen to a fifth of a single communication line – and only abroad. Now the BND is allowed to listen to one hundred percent of an entire network – also in Germany. That’s all fiber optic cables from Telekom and DE-CIX. When we asked if that wouldn’t significantly increase the extent of surveillance, the grand coalition replied: „Don’t worry, the BND doesn’t have enough money and technology to actually do that.“

And so, that’s why the BND is also getting more money. In the Snowden year, 2013, the BND received 531 million Euros of tax payer money, this year it’s already at 833 million – an increase by two thirds. It’s investing another 300 million Euros into a „Strategic Initiative Technology“, a program for the massive expansion of its Internet surveillance capabilities.

„Historically, all major spy agency scandals in Germany have gone out in favor of the spy agencies“, knows history professor Josef Foschepoth. History is repeating itself. As farce.

Tragedy and farce

Glenn Greenwald described the committee as „a ritual that is intended to cast the illusion of an investigation“. Because: Without Edward Snowden, there would be no investigative committee. It is logical that all caucuses have decided to hear him as very first witness. But the German government refuses to this day to bring the key witness to Germany. For fear of the US governments‘ reaction. And the coalition committee members have resigned. Supposedly because of a raison d’état.

This is cowardly and at the same time characteristic of a committee which has not even neared the goal of the investigation. Thus, the greatest surveillance scandal in the history of mankind remains unresolved, surveillance remains unchecked, the perpetrators remain unpunished, and the public is left in the dark. Where the committee was able to shed some light on the scandals, the government retaliated – by simply legalizing the illegal wheelings and dealings. There is no harder slap in the face for those who demand transparency and parliamentary control of the surveillance state.