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Who can keep the German secret services in check?

Given the scope of BND-NSA cooperation, the German government can no longer ignore that the supervision of its intelligence services is in dire need of reform.

"Warning: the state reads over your shoulder" - a protest in front of BND HQ. Demotix/Florian Boillot. All rights reserved.

In April 2015, the debate around the close collaboration between the German Federal Intelligence Service (BND) and the US National Security Agency (NSA) reached a new dimension. First, the members of the G10 Commission, a body charged with reviewing and authorizing governmental activities that breach the privacy of correspondence and telecommunications, publicly complained that they felt deceived by the Chancellery. Second, the head of the Chancellery Peter Altmaier notified the Parliamentary Control Panel that the BND might had helped the NSA for years in spying on German and European companies and individuals. Meanwhile, the operator of the Internet exchange point DE-CIX in Frankfurt had announced his intention to take the BND to the Federal Administrative Court over its large-scale spying on foreign Internet users.

The federal government can no longer ignore what experts have known for a long time now: the supervision and control of the federal intelligence service is in dire need of reform. Not only is parliamentarian control in need of further development. The court-like control of the G10 Commission and the supervision in the BND as well as in the Chancellery are equally underwhelming at present. What is necessary is an extensive reform of secret service management in Germany.

The Bundestag’s G10 Commission needs to be supersized

At present, the major predicament is to be found with regard to the judicial control of the secret services’ intrusion into telecommunications. The German Basic Law (Grundgesetz) explicitly protects the confidentiality of telecommunications. However, there is strictly speaking no judicial control to enforce this in Germany. Instead, a court-like control is carried out by the G10 commission of the federal parliament. For months, its members have been criticizing the fact that the core business of the BND’s signals intelligence activities, i.e. the surveillance of non-national data traffic, lies outside their competence. These surveillance activities are being carried out in the absence of clear legal norms and judicial control. Apart from this lacuna, some members of the Commission have also publicly accused the Chancellery of having deceived them with partial or incorrect information in the process of approving surveillance measures that do fall under the current remit of the G10 Commission.

These deficiencies could be rectified by the following reform proposals:

Firstly, the practice of foreign communication surveillance needs to be put on unambiguous legal grounds. Nationals of other EU member states should be treated equally to German citizens when it comes to the protection of their basic rights.

Secondly, all wiretapping measures need to be submitted to the G10 commission for evaluation and approval – regardless of whether they are aimed at Germans or non-Germans and whether they take place outside German territory.

Thirdly, civil rights lawyers should in the future be integrated in the procedure of approving and monitoring the secret services’ activities. Alongside the proposals for an amendment of the legislation, additional qualified personnel with experience in judicial as well as technical matters are required within the Commission.

Better protection for whistleblowers prevents aberrations

For some time now, many in the BND have suspected that the information requested by the NSA should not have been forwarded so readily. But they may have hesitated to come forward with their concerns, fearing personal consequences.

Two years after the disclosures by former NSA contractor Edward Snowden, the BND still fails to attach due importance to protecting whistleblowers and to improving the possibility of internal complaints. This is extremely short-sighted, keeping in mind the financial and political damage that secret services can produce when they make wrong decisions. Therefore, time and money ought to be invested into setting up a modern and all-encompassing infrastructure to factually and legally verify the concerns of staff members. Secret services staff should be given the technical possibility to directly get in touch with all institutions of control (the Control Panel, Confidential Committee, G10 Commission, Federal Court of Audit, Federal Commissioner for Data Protection).

A Federal Commissioner for the Intelligence Services

Thanks to the efforts by the Bundestag’s ad hoc inquiry investigating the NSA spying scandal (and probably also by the newly founded Taskforce within the Parliamentary Control Panel), the head of the Chancellery, Altmaier, finally decided to inform Bundestag members about the ca. 40,000 NSA “selectors” (indexed key words) which have an evident German or European reference. Clearly, there is a need to invest in further personnel with technical and juridical experience to monitor the extensive cooperation between the BND and the NSA.

The federal intelligence services currently employ about 10,500 staff members and can hardly be monitored by nine busy Bundestag members. Control does not only entail supervising intelligence policy but it also implies judicial and efficiency control.

Such control is not realizable with the present oversight and supervision mechanisms. Alongside the investments that have already been made in the administration of the federal parliament, the creation of a federal commissioner for the intelligence services is urgently needed. Similar to the Parliamentary Commissioner for the Armed Forces, it should be an independent personality residing in the Bundestag with the competence to autonomously carry out investigations and inquire into indications coming from within the secret services.

Possibly, such a federal commissioner would also be the right institution to bring together once a year the control instances that tend to work reclusively. So far, the exchanges between these control instances are insufficient to share experiences and deploy synergies. Obviously, a federal commissioner would also need experienced staff to animate the control of the secret services.

The Bundestag needs to act

The federal parliament and the federal government have over the last ten year continuously extended the competences and the budget of the secret services. In order to avoid further political damage whilst supporting secret services in their important work and in order to win back the confidence of the citizens, the federal parliament now has to address the alarmingly wide spectrum of control deficiencies instead of remaining quiet and inactive. Who else can efficiently confront these deficiencies?

A German version of this article was originally published in the Frankfurter Allgemeine Zeitung. Thanks go to Moh Hamdi for the translation.

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