A Democratic Scandal is Unfolding in Denmark

The Danish government is currently trying to silence anyone who attempts to share information from the Danish intelligence services that may inconvenience the authorities. This especially applies to mentions of Denmark’s involvement in the American global mass surveillance program.

That is the real democratic scandal in the current Danish cases of alleged leaks, and the Danes should not put up with it, says world-famous activist, whistleblower and former intelligence analyst Edward Snowden.

»The idea that these programs need to be secret is very much an effort by the authorities to avoid accountability. Not to improve the security of a nation or its people«, says Edward Snowden to Politiken.

In 2013, Edward Snowden helped disclose the extent of Western global mass surveillance programmes led by the US National Security Agency, NSA. Significant parts of internet mobile phone and internet data were tapped every single second, but without any kind of democratic debate or public oversight.

This programme is the center of the current Danish scandal, Edward Snowden believes. Five persons have been charged under the extremely severe Section 109 of the Danish Penal Code, which carries a maximum sentence of 12 years in prison.

Among the accused are Claus Hjort Frederiksen, the former defense minister, and Lars Findsen, the suspended head of the Danish Defense Intelligence Service (DDIS). Section 109 has only been used once before in Danish history. It is contained in the chapter of the Penal Code that deals with treason and crimes against the independence and security of the state.

Edward Snowden does not believe that the harsh measures enacted by the Danish authorities stem from a desire to protect state secrets, which, if revealed, could threaten Denmark’s security. Rather, it is a question of avoiding democratic oversight of the secret services.

The former defense minister Claus Hjort Frederiksen is among those currently charged. In December, he confirmed that a partnership exists between the NSA and DDIS about cable tapping in Denmark. Was that a secret?

»Haha - we talked about this years ago, thanks to a whistleblower«, Snowden jokes with reference to his own leaks in 2013.

»And once the cat is out of the bag, you cannot put the cat back in the bag. But it is very interesting. The US have a tendency to do the same thing – maintaining a legal fiction. When someone challenges these mass surveillance programs as a violation of our basic rights, the government says: ‘We never said this is happening. Journalists say it is happening«, Snowden explains via video-call from Moscow.

»Governments, in general, do not really care whether the public knows about something. They care about whether or not the public can challenge things in courts. And if it is universally regarded by even the courts as an established fact, then that is very threatening to them. Because when they are doing something that is very possibly against the law, the last thing they want to do, is end up in court.«

A secret handshake

Edward Snowden is an American citizen, but has spent more than seven years in exile in Moscow, after he leaked the innermost secrets of the NSA to international media in 2013. Critics believe that Snowden is a puppet of the Russian government, perhaps always.

Edward Snowden vehemently denies that. Since his escape in 2013, he has maintained that he never intended to stay in Russia, but tried to attain asylum in Latin America. But when the US government revoked his passport, he was struck for 40 days in transit in Moscow airport, until Russia issued a temporary residence permit.

Snowden says that he neither cooperates with, nor receives funds from, the Russian government. Instead, he earns his own money by giving virtual speeches at events. He believes that some people try to frame him as a Russian agent, in order not to deal with his criticism of the mass surveillance programs of the West.

Edward Snowden became aware of the Danish case, after several Danish media executives in December were summoned to meetings with the heads of the Danish intelligence services, DDIS and The Danish Security and Intelligence Service (PET). Here, they were warned that continued reporting of state secrets could result in journalists being charged under the strict Section 109 in the chapter that deals with treason and crimes against the independence and security of the state.

The intelligence agency heads mentioned three specific cases of recent leaks to the press. The first case was the revelation that the Danish government had held back a confidential intelligence report, which concluded that it would be in the interest of national security to evacuate Danish children trapped in Syrian prison camps to Denmark. The story, as reported by Ekstra Bladet, eventually forced the government to reverse its non-evacuation policy. For this, the paper was recently awarded the most prestigious Danish media award, Cavlingprisen.

The second case was the story of Ahmed Samsam, who according to the newspaper Berlingske were a former secret agent of the Danish intelligence services, but who was nevertheless convicted of terrorism in Spain. According to the newspaper’s sources, the refusal by the Danish state to claim Samsam caused great frustration within the intelligence services.

The third case is the increasingly complicated scandal involving The Danish Defense Intelligence Service (DDIS). In the summer of 2020, the government suspended several leaders of DDIS, including the head of the Service, following severe criticism from the Danish Intelligence Oversight Board.

Afterwards, public broadcaster DR and other media were able to reveal that the case involved a secret collaboration between Denmark and the US. As originally reported in 2014 by newspaper Dagbladet Information in a large investigation, the two countries had for years collaborated on tapping fiber cables running through Denmark. Simultaneously, the NSA had spied on the COP15-summit in Copenhagen, the newspaper reported.

Former employees of the intelligence agencies have publicly speculated that the harsh reaction by the Danish state, including charging five people and warning media to not report any further details, is motivated by this last revelation. If that is the case, Edward Snowden considers it an overreaction.

Snowden says that he has read confidential documents about the Danish-American partnership which have never been published.

»This is all done secretly – this president writes to this prime minister. They sign some agreement. They show it to their successors who come in behind them. It is all sort of a secret handshake. From the perspective of the agencies, it is wonderful. Nobody knows what they are doing, but they have a very good working relationship. The question for me is, when this is never subject to any kind of public review; when the public must not even know this relationship exists. How can it be said to be a democratic partnership?«, Snowden asks.

»What you have, are basically a series of secret decisions made by figures that are not accountable, because nobody hears about what they did, until years after they are out of office. But we are talking about programs that implicate the rights of hundreds of thousands, possibly even millions of people every day. Questions that are so fundamental should be dealt with by the public at large. Not just a few people who decide for us behind closed doors«.

Politiken has presented the criticism to the Danish Prime Minister’s office, but did not receive a reply. DDIS has no comment, while the Ministry of Defense refers to the Ministry of Justice for comment. Justice Minister Nick Hækkerup writes in an e-mail that »it is no secret that Edward Snowden is highly critical of the work of intelligence services around the world«.

»This does not change the fact that in Denmark, we depend on our intelligence services being able to operate in secret within the law to protect our democracy, our way of life, and our freedom,« writes the Justice Minister.

The paradox of freedom

The Danish government, as we understand it, believes the partnership with the NSA to be of vital importance to the protection and security of Denmark. The Danish Minister of Justice recently talked about the ‘paradox of intelligence’ - »that secrecy is part of the foundation for us to maintain our freedom«. What are your reflections on that statement?

»It is silly. It is really silly. Look, when we talk about real threats to developed democracies, we are not talking about a few guys meeting downstairs in the basement of a kebab stand. They could commit some crime, they could cause some harm to society, but they are not an existential threat. They are not a serious threat. They are a meaningful criminal threat, and they should be countered through traditional police work. The idea that Denmark is in a state of threat, and you desperately need to reduce yourselves to a kind of a colony of the US foreign policy branches, is preposterous«, says Edward Snowden.

»And when you begin to collect communication from everybody outside of Denmark and treat them as second-class human beings, you create enemies. The idea that you just do it secretly, and then no one will know, is a fantasy. That is the big question in the current scandal in Denmark, which to me is surprising, is not being asked«, he says and continues:

»There is a difference between the legality of a thing, and the morality of a thing. Just because you pass a law, it does not make it okay. There should be accountability and a real public discussion, should we do this? Should Denmark basically subordinate itself to be a shoe on the foot of the US? Or should Denmark move closer to Europe and the European concept of human rights?«.

Unlike countries like Sweden, there has been no public debate about cable tapping in Denmark. But could an open debate about these secret programs not damage the spies’ ability to gather information?

»No, not in this particular case. There are cases where it may be true, but they are not about mass surveillance. The term ‘mass surveillance’ says it all. It takes place, whether you know it or not«.

»If we imagine that Denmark is conducting an investigation and have some agent infiltrate a foreign embassy and install surveillance equipment in a fax machine, it has to be a secret operation. But once the mission has been completed, and the suspect has hopefully been arrested, the need for secrecy is no longer necessary«

»But when we are talking about mass surveillance, we are talking about scooping up all the communications that come through subsea fiber optic cables into the territory of Denmark. Whether or not Denmark pretends that this is not taking place, the rest of the world knows that it is. We lived through 2013. We know the capabilities of the US. We read every day about what China is doing in open view domestically. Every major government is pursuing these capabilities in some way or another. The cables are being tapped, everywhere, all the time, by everyone«.

No-Spy Agreement

As previously described by Politiken and other media, the NSA and DDIS cooperate by constantly having the fiber optic cables tapped for data, which is then stored for a certain period of time. Both agencies are able to search for persons and information in the vast data streams that include everything from telephone conversations to internet searches.

But Danish and American data also flow through the cables, and the two countries have therefore made an agreement not to spy against each other’s citizens. In addition, DDIS, as a general rule, is not allowed to spy against Danish citizens.

But in practice it is impossible to tell whether a telephone conversation involves a Danish company or a Danish citizen. Because of this, DDIS try to automatically filter out Danish data. But these filters are imperfect, which has time and again elicited criticism from the Danish Intelligence Oversight Board.

According to Edward Snowden, it would be naïve to think that the NSA refrains from peeking.

»In US confidential documents there is usually a headline that reads something like, ‘We abide by these restrictions … But there are exceptions«, says Edward Snowden with reference to an internal NSA document made public in 2013.

»When you are dealing with surveillance of the entire internet, the amount of data is so vast that something will slip through. There will be Danish, Israeli or German communications that end up at a desk at the NSA,« says Edward Snowden.

»Is the NSA going to sift through, what you accidentally handed over, to see how they can use it to screw the Danes? There is somebody in some office that is doing that, right now. Not because they see Denmark as an adversary, but simply because the NSA, as an extension of the US Executive Branch, wants to maximize its power and influence over all corners of the world. It is also their job to understand Denmark, the Danish government, your military chain of command, and so on.«

The current Danish scandal began to unravel in the summer of 2020, when the Danish Intelligence Oversight Board publicly criticized DDIS. The oversight board warned that central parts of the DDIS’s systems of collection involved ’risks of unjustified collection of data about Danish citizens’.

Do you share this concern?

»As long as Denmark is involved in mass surveillance, whether it is intentional or not, Danish communications will be intercepted by these programs. No country is able to filter out all information about their citizens. And if they did, the programs would become useless, because they need as much data as possible«, says Edward Snowden.

»These systems are like using Google, only it covers everybody’s phone calls, e-mails, all the links that we have ever clicked on. This is what these intelligence agencies are trying to comb through, and it is not working. That is the problem.«

The Danish Whistleblower

The intelligence oversight board began their investigation, after a whistleblower in the intelligence service had provided it with extensive material. Several media outlets reported that the DDIS employee had - in violation of the rules - secretly recorded his colleagues and superiors at the spy agency. He later provided the oversight board with his recordings.

It is not known to what degree the Danish whistleblower was inspired by Edward Snowden’s actions in 2013. But Snowden is impressed.

»I do not know this person, his political beliefs or whether this person is for or against what I did. But it is difficult not to be inspired by this person’s boldness and capability to do this. This person investigated the investigators and caught them violating the laws and rights of everybody in Denmark and the rest of the world,« says Edward Snowden.

Snowden hopes it will inspire the Danes to take democratic action and demand answers from the government, rather than just accepting that the case is currently being mired in secrecy.

»I think Danish society has a duty to support this person and take a look at the concerns that were raised, and whether something needs to be changed. This is not only about the government sending people to prison right now. This is really about what kind of society the citizens of Denmark want to have.«

What Is a Traitor?

Five people have currently been charged in Denmark with leaking information. The charges are based on a law originating in 1866, which has not been significantly altered since then. What they are charged with baiscally amounts to treason.

How does it feel to be accused of treason?

»I am not charged with treason, formally. I am charged under the Espionage Act. But it is basically the same thing. The frustrating thing about these laws is that they were enacted to prohibit the passing of information to a foreign adversary, which is what we classically think of as espionage. But that is not how these laws currently are being applied. It should not be possible for any government to charge anybody under these laws, until the government has established a clear motive. Intent is important. If somebody decides to share confidential information, it makes a difference if it is done in the interest of the public. Because in that case, it simply cannot be treason,« says Edward Snowden.

»Just because some official declares something a secret, it should not necessarily make a fact unutterable. Because how do you then ever challenge it? If the government declared something criminal, they had done, a secret, and it was treason to tell anybody about it, that raises the question: Who exactly is the real enemy?« he asks before answering the question himself:

»In that case, the enemy is now the public, because it is treason to tell them that the government is violating their rights. But it is difficult to convince the public that speaking to a journalist amounts to treason. Because the press is the intelligence service for a free society. I think that these charges were basically brought for political reasons, in order to show and perhaps repair the Danish-US relationship. For this purpose, they use a law that apparently is from 1866 and has only been invoked once before.«

»Look, to everybody that should be a screaming red alarm. That something is wrong. I think it is not just up to the Justice Minister or the courts to adjudicate this. I think it is up to the public and the political representation of Denmark more broadly. Even if it pertains to people we do not like or agree with«.

Nick Hækkerup, Minister for Justice, rejects the criticism:

»Fortunately, we live in a country where the authorities, i.e. the police and the intelligence agencies, are in charge of investigating specific cases. I am continuously briefed about important cases under the ministry of justice, but as justice minister I – as justice ministers before me – generally show great restraint in meddling in how police and prosecutors handle specific criminal cases. I think most people would agree that that is how it should be,« Nick Hækkerup writes.

Some former intelligence officers believe that these people who are charged – if found guilty – have betrayed Denmark by disclosing secrets. Likewise, some people would say that you, through your leaks, betrayed Western intelligence collaboration. What is your response to that?

»It is laughable to me to equate whistleblowing to treason. It is laughable to me that speaking to a journalist is the equivalent of betraying your country. What was the intention of these persons? How were they aiding Xi Jinping or Vladimir Putin or whoever the boogeyman of the day is, when they tell the newspaper that Denmark is doing something that so many other countries are already doing?« asks Edward Snowden.

No matter what the intention is, is there not a risk that every time you shine a light on these collaborations, they lose value? And that the Danish-US relationship could deteriorate, and other countries will stop sharing intelligence with Denmark?

»Any degradation in the Danish-US intelligence relationship will only be replaced with a corresponding increase with the Danish-European intelligence relationship, which I actually think is a better strategy in the long term.«

»If we talk about mass surveillance losing its value, I ask, how? We are talking about mass surveillance, not targeted surveillance against individuals. If somebody wants to avoid that, they need to not use telephones or the internet at all. This will hamper their efficiency and opportunities for action enormously, and that would be a win for the intelligence agencies. You want terrorists to be concerned about communicating. You want them to be reluctant to engage«.

Afpresning af pressen

After a career as a computer analyst in the intelligence world, Edward Snowden says that his primary job today is giving talks to audiences all over the world. This happens through video link from the family home, since he risks extradition for prosecution in the US, if he leaves Russia.

Snowden is now also president of the Freedom of the Press Foundation, which fights for press freedom in the US and the West. He finds it highly problematic that Danish intelligence chiefs have warned Danish media that they also could risk long stints in prison for reporting on state secrets.

»I think quite frankly it’s blackmail. If the government interferes in any way with the freedom of the press in Denmark or any other country, that should meet civil resistance. I do not think those people should be in a position of government, whether it is in Denmark, US, or especially a place like Russia. These people, who spend so much time saying: ‘We are defending the country’, are in fact hollowing it out from the inside.«

Nick Hækkerup rejects the criticism:

»Regarding the criticism of the intelligence agencies’ dialogue with the media, I would like to emphasize that it falls naturally within the remit of PET, if PET finds a concrete reason to discuss issues with various media outlets regarding state security and the limits of passing on classified information.«

Edward Snowden recognize that some classified information should be kept secret.

»Yes, definitely. But those secrets are very easy to identify. And they have a shelf life. If you are engaged in a military campaign, you need the secrecy, as your troops approach the hill, as they climb the hill, as they mount the attack at the peak of the hill and take over the objective on the other side of the hill. But once they are past the hill, everyone knows it, and the need for secrecy is gone.«

»But now you have these intelligence agencies, who are proposing a new, open-ended kind of secrecy. A permanent state of secrecy. They have some program, some new technology that means they can spy on everyone, everywhere, all the time. And it is just so important that not even the political branches of government can know about it. Oversight bodies cannot know about it. The public cannot know about it, and especially journalists cannot know about it. I think we need to challenge that claim.«

Eight journalists, including the author of this article, have been asked to give testimony to the police in the Danish leak case. Snowden thinks that that approach is unacceptable.

»The idea that they can push the obligation for protecting intelligence secrets on to journalists, I think is tremendously mistaken. Frankly, it is an authoritarian direction that we do not want to head in. If the government is foolish enough to demand that journalists show up to testify in this kind of case, it should very much be seen as the government being put on trial, not the journalists and not their sources.«

It may take years before the five persons, who are charged in this case, are either convicted or acquitted. It has been eight years since you left the US. What is the status of your own case?

»I am now a parent, so I do not have time to think about it. That is the status,« says Snowden and laughs.

»This is tremendously gratifying. Do not shed tears for me, I am happy. For everybody else, particularly in this case in Denmark, I will say this: When you see the government dusting off a law that has only been used once in history, that is 150 years old and is intended to target actual traitors, not people talking to journalists, that should create a presumption of political misconduct«.

»I do not know enough about the Danish government to say where that misconduct originates. I do not know who asked for these charges, who approves of these charges, and who is continuing these charges. But the government should have an extraordinary burden of evidence to display, and I think to display immediately, that this is not what it looks like. Because it looks like punishing people for telling the truth to a public that needed to know.«

Edited in English by Mette Skodborg and Tonny Pedersen