The Interior Secret Service, “Protection of the Constitution”

The BigBrotherAward 2016 in the “Lifetime” Category goes to The domestic intelligence agency, “Verfassungsschutz” (“Protection of the Constitution”) – or more precisely, to the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, BfV), represented by its president Dr Hans-Georg Maaßen, and to the Offices for the Protection of the Constitution in the Federal States of Germany and their chief officers.

A question: How often, do you think, have we recognised the “Office for the Protection of the Constitution” with a BigBrotherAward in the 16 years of our existence? Must have been two or three times at least, surely? Not true: surprisingly, this secret service has got away complete unscathed until now. We could hardly believe it ourselves – after all, there is more than enough that they have perpetrated, botched, and covered up in their time. Therefore, finally and just as it reaches the statutory age of retirement, a Lifetime award is due for a 65-year history that has featured manifold instances of scandal, power abuse, violations of privacy and civil rights – always, of course, in the name of security and freedom, constitution and democracy.

Any positive activities and accomplishments we will unfortunately have to leave out today, to safeguard secrecy of course but also due to a lack of verifiability. This also applies to the fact that there are indeed qualitative differences between the various Offices and also some “protectors of the Constitution” that are genuinely making an effort. But today we focus on what’s towering above everything else, namely, the prize-worthy negative achievements of our awardee. These can be summarised as follows:

• the “Office for the Protection of the Constitution” is a domestic intelligence service that is a product of the Cold War, it is anti-communist, scandal-prone, and intransparent;

• it has for much too long denied the “old-Nazi” past that has been its defining and lasting characteristic;

• perhaps for precisely that reason, it has largely failed to combat neo-Nazism and racism;

• with its uncontrollable system of embedded informers, it has become hopelessly entangled in criminal machinations and neo-Nazi circles;

• for years it has culpably neglected protecting the population, businesses and the government from espionage, e.g. from the US intelligence agency NSA, despite this being one of its legal duties;

• it engages in systematic, unscrupulous concealment, it has shredded important evidence and sensitive files, and thus undermined any form of parliamentary scrutiny;

• it is tainted by an interminable history of scandals and keeps violating civil, personal and privacy rights;

• ultimately, instead of protecting, as it is tasked to do, it actually threatens and harms the Constitution, the democracy and the rule of law.

Just reading this summary will surely beg the question: which PR agency actually came up with the glorious idea to call this institution, of all names, “Protection of the Constitution”? What is actually behind this nice-sounding name? Parts of the answer, my dear audience, would only unsettle you.¹ But in contrast to what Interior minister de Maiziére did in a different context, I will spill the beans today: Hiding behind the misleading moniker of “Protection of the Constitution” is a government secret service that is marked by ideology, uses covert means and methods such as informers, undercover investigators, agents provocateurs, eavesdropping and spying, and operates with a licence to infiltrate, deceive, and misinform – means and methods that would generally be regarded as immoral and that mostly escape scrutiny of the law. Ultimately, this is where the democratic sector ends – and that is what makes it so evil.

How the secret services deal with private data

To exemplify what secret service actions can lead to, let’s just remember Murat Kurnaz, who had to endure a true martyrdom in the US torture camp Guantánamo over four years, partly because due to “Protection of the Constitution” information he was deemed a security risk. For a different example, let me quote from some files that emanated from secret service security checks:² “It should be mentioned that a particular hobby of his was to read Karl May’s adventure stories.” – “She smokes a lot (even Tiparillos).” – “He is a thoroughly solid, almost boring person, rather the prototype of a civil servant.” – “Has two children, including an unwanted daughter.” – “Physically somewhat weak with a tendency for self-pity. The younger daughter was born out of wedlock. The father is a good-for-nothing. Clothing style is with a lot of contrast, sometimes too young, but he always buys cheap clothes.”

What reads like extracts from perfidious Stasi informer reports is actually taken from personal dossiers of the “Protection of the Constitution” office of the state of Lower Saxony from the 1990s. They were written during security clearance checks of staff in Lower Saxony companies. What would seem like private oddities was of such interest to the secret service because it might perhaps point to unreliabilities and opportunities for blackmailing – such as evidence of extravagance, debt, amorous affairs, sexual deviancies or perhaps “doubts regarding commitment to the liberal-democratic system”. Such stigmatising details from the private or even intimate sphere were enough for someone to potentially be declared a “security risk” within the workforce. Even “security-relevant information” concerning partners could be enough to make the person being checked a security risk³. Not getting employed or even being made redundant would be the consequences.

On the biography of the “Protection of the Constitution”

Since we are presenting a Lifetime award, we cannot avoid reviewing (briefly, at least) the history of our awardee: founded in 1950, established and shaped by several old Nazis, it played a key role in excessive communist hunts in the 1950s and 60s, and in the policy of intimidating professional bans in the 70s and 80s, it was indirectly involved in weapons acquisitions for militant groups. Its CV also contains: secret investigation of political-social movements, of groups and individuals critical of the state and society, systematic collection of personal data on politically “suspect” trade union members and nuclear power opponents, on members of parliament and journalists, lawyers and civil rights activists – without much regard for the freedom of speech, of the press, and of choice of profession. We should also mention scandalous security checks, illegal telephone eavesdropping (in the Traube case, for example), manipulation and cover-ups in the Schmücker murder case, and even the fake bomb attack that entered history books under the name of the “Celle hole [blasted into a prison wall in the town of Celle]”. We are looking at an endless chronicle that found an only temporary climax in the informers affair that scuppered the 2003 case to ban the neo-Nazi party NPD. The case collapsed because too many informers in leading party positions had had an influence on the party’s policies and racist character. The NPD executive in Berlin is said to have been infiltrated so much that through its informers, the “Protection of the Constitution” office could have carried through a resolution to dissolve the NPD branch in the Federal State of Berlin. That would have been easier than the complicated procedure required for a party ban, which has just been initiated at the Federal Constitutional Court for a second time.

Hopelessly mixed up in neo-Nazi circles

But it gets much worse:

• Since the early 1990s the “Protection of the Constitution” has installed an outright network of paid informers – which led the political satirist Jürgen Becker into the rather bitter quip that seeing Nazi rallies often made him wonder whether he was seeing real Nazis or “The ‘Protection of the Constitution’ on their office outing”.

• The “Protection of the Constitution” was actively involved in establishing and operating the extreme right “Thule” network in the 1990s. Thule was used for networking, communicating and coordinating between neo-Nazis all over Germany. One of the main operators was a paid informer of the “Protection of the Constitution” of Bavaria, who was inserted into neo-Nazi circles just for that purpose. He is said to have received a monthly salary of 800 DM plus expenses for technology and operations. Overall, more than 150,000 DM of taxpayers’ money is said to have been poured into this Nazi development and Nazi networking project.⁴

• In the last few years we had to take note how hopelessly “Protection of the Constition” offices, particularly in the Federal State of Thuringia, had let their informers system get involved in murderous neo-Nazi circles. Despite of – or should we say due to? – the presence of numerous informers close to the Nazi terrorist organisation NSU (National-Socialist Underground), the series of racist murders committed by this group could neither be prevented nor investigated for several years.

• It is shocking to see how the “Protection of the Constitution” too often protects its criminal informers or suspect informer handlers against police investigations, in order to prevent them being uncovered (“protecting sources”) and continue to “harvest” them – instead of withdrawing them immediately. That is obstruction of justice by government officials, or psychological support and aiding and abetting criminal acts – but those responsible have never been called to account, even when uninvolved, innocent persons were gravely harmed in the process.

• When parliament committees of enquiry made attempts to throw light on such cases, they had to deal with massive information blockades and suppression of documents – we only need to remember how files were shredded at the Federal “Protection of the Constitution” shortly after the NSU murders became known, or at the Berlin office. Investigators had a glimpse at an incredible abyss of organised irresponsibility, and the cross-party verdict was appropriately damning: “an unprecedented failure of the state and government”.

• In summary, it can be said that the “Protection of the Constitution” has co-financed neo-Nazi circles through paid and sometimes criminally active informers, it has shaped these groups’ racist views, fairly often protected them against police investigations, and strengthened instead of weakened them. In this way it has itself become a part of the neo-Nazi problem.⁵ In the current NSU case at the Higher Regional Court of Munich, there should be far more people in the dock than the well-known actors Zschäpe, Wohlleben et al.: missing are several involved informers and their handlers, and all those responsible for failures and cover-ups in the security executive and in politics.

The laudator’s “bias” and the awardee’s system of secrecy and cover-ups

It is high time to mention that I as the laudator might be “biased” towards our awardee. Why? Because it has put me under continuous secret observation and investigation over four decades, precisely because of my vocal critique of the “Protection of the Constitution” – I was observed like an enemy of the state and the constitution, in all my professional activities as a lawyer, publicist and civil rights activist, with no regard to client and source secrecy. One of the absurd allegations is this: with my public criticism of the security apparatus and security policies, I would defame German security agencies and make the state defenceless against its enemies. I took court action against this inquisitorial snooping on my convictions, on the grounds of massive violation of my fundamental rights to freedom of speech, publication, profession, and to informational self-determination. After a five-year process, in early 2011, the Administrative Court of Cologne indeed declared the potentially record-breaking permanent surveillance to have been unconstitutional from the start.⁶ After almost five further years, in late 2015, the Higher Administrative Court of the state of North Rhine-Westphalia allowed the Federal government’s appeal against this ruling.⁷ So after almost 40 years of surveillance and 10 years of court proceedings, we are going into the next round – with neither the end nor the outcome in sight. It should really be investigated by the Federal Court of Auditors, as a case of wasted public money.

Today’s laudation is probably capable of enriching my sin list at the Federal Office for the Protection of the Constitution yet again. Although my personal file that the office has collected in all those decades is already 2,000 pages strong. This file had to be presented in court – but lo and behold, due to a comprehensive blocking order from the Interior ministry in order to maintain secrecy, 80 percent of it were made unreadable. Removed or blacked out pages dominate the file – a very odd take on data protection. I started parallel legal proceedings at the Federal Administrative Court against this refusal to disclose the file, called “in camera” proceedings, a kind of secret trial where I as the plaintiff had no influence, while the defending Federal Office did. Not surprising, then, what the verdict said: all blocked items in the file had to remain blocked – for “the good of the state”, due to “threat of scrutiny” and for “source protection”.⁸ If it became known who had put me under scrutiny and denounced me, these people’s well-being and life would be threatened, as the caring argument goes.

And that is exactly why I do not feel “biased” as a laudator for the “Protection of the Constitution”, but rather acquainted with the subject quite intimately. Because I know from personal experience, insight and pertinent research how this secret service thinks and operates.

This is what the rule of law turns into when applied to this secret service: the system of secrecy of the “Protection of the Constitution” that is there to protect its contacts, informers and practices is put above everything else – possibly even above preventing and clarifying criminal acts, as the case of Andreas Temme a.k.a. “Little Adolf” showed. This agent handler of the Hessian “Protection of the Constitution” was present at the scene of one of the NSU murders in Kassel, and subsequently he was rigorously shielded against police investigations. This system of obfuscation has extended far into the judiciary and parliaments, whose supposed role of supervising secret services mostly ends in failure. The process of parliamentary supervision is itself secret – and therefore not very democratic. And court cases in which e.g. informers are involved become secret cases in which files are manipulated and witnesses are barred or only given restrictive permissions to testify.

It has to be said clearly and unequivocally: the secrecy of this secret service is what makes it alien to democracy. Why? Because it contradicts fundamental concepts of democracy and therefore, even within a democracy, tends towards developing a life of its own and abusing its powers – ultimately, becoming a state within the state. Taken strictly, it becomes a case for the “Protection of the Constitution”, which would have to monitor itself due to a deficit in democracy.

Hardened after the disaster – and no serious consequences

Rather than undergoing serious legal and structural consequences after this career of scandals and manifold disasters, our anti-awardee is even being upgraded in terms of staff, finance and technology, through budget grants and legal changes, it is increasingly being centralised and interconnected with police forces. Legally, it is now completely free to use criminal informers, and it is set to be given powers to investigate social networks like Facebook, Twitter & co. without concrete suspicion.

The technical capability for this exists because the “Protection of the Constitution” received a test version of the infamous spying software XKeyScore from the US agency NSA as early as 2013. This facilitates monitoring and processing of phone, email and internet communications at a large scale. In return, the service promised to provide the “big brother” NSA with German meta data and surveillance data evaluated by XKeyScore – data that could be distilled into movement, contact, and behavioural profiles of the users affected. This deal of data against software was contrived and executed outside any parliamentary control.⁹

The secret plans to systematically monitor social networks, which are gradually being implemented, were revealed by the Internet publication “netzpolitik.org” in 2015.¹⁰ The Federal Prosecutor General reacted by subjecting the journalists behind the leak to an investigation for alleged treason – initiated by a criminal complaint from the president of the Federal “Protection of the Constitution” office, Hans-Georg Maaßen, who was piqued that his precarious armament plans were now known to democratic society. After severe protests against this attack on press freedom, the criminal investigation had to be squashed and the Federal Prosecutor General, Harald Range had to resign.¹¹ But the person that incited it all, Mr Maaßen, is not facing any consequences.

Socially responsible dissolution in the interests of democracy and civil rights

These plans for upgrading the “Protection of the Constitution”’s capabilities in no way solve the problems posed by secret services in a democracy. With the wider technological capabilities in the digital age, such anti-democratic systems have the means to pervade and undermine society and democracy in increasingly aggressive ways. Since no reform of the “Protection of the Constitution” can solve the problem of secret services in a democracy if it leaves the substance of secrecy and the mess of uncontrollable informers untouched, all that is left to achieve functioning democratic scrutiny of secret services is to put a stop to these clandestine, intransparent and intrusive surveillance and data leeches.

Notable civil rights organisations such as the Humanist Union and the International League for Human Rights have consequently called for the “Protection of the Constitution” as a secret service to be dissolved in a socially responsible way. This call goes not against the Constitution itself, because the law does in no way require that the “Protection of the Constitution” need to take the shape of a secret service. Cases of violent orientations, concrete threats or crimes need to be handled by the police and the judiciary anyway.

We will finish with a revealing quote that shows what seedy promises the Federal Office for the Protection of the Constitution makes to lure new recruits, which it needs to cope with the requirements of its upgrade: When working for the “Protection of the Constitution”, people can do “what you always wanted to do – and get off scot-free”. This is how the self-styled “service provider for the democracy”, Hans-Georg Maaßen, tried to win new personnel of the more unscrupulous kind in a radio interview on MDR (the public broadcaster for the Federal States of Saxony Anhalt, Thuringia, and Saxony).¹² As an example he named “telecommunications surveillance” – or, as one could elaborate: snitching, infiltrating, deceiving, and cover-ups, and all of these without fear of punishment or control of any kind.

Instead of that, our recommendation for the “Protection of the Constitution” is to take an undeserved retirement, in the interest of civil rights, democracy and the Constitution. Meanwhile, our congratulations for the BigBrotherAward 2016.