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A new supervisory council will supervise BND wiretapping around the world. That sounds strong WDR, NDR and “SZ” of a bill with which the Foreign Ministry reacts to a ruling of the Federal Constitutional Court.
By Florian Flade, WDR and Georg Mascolo, NDR / WDR
The Federal Intelligence Service (BND) will be supervised in the future with its electronic surveillance actions by a new authority – the “Independent Control Council”. This supervisory authority should be able to see everything that the German foreign secret service is doing around the world in its strategic investigation, including search terms such as email addresses or phone numbers with which data flows are recorded.
According to research, this is possible WDR, NDR and “Süddeutscher Zeitung” grew out of a 111-page Foreign Ministry bill, which will now be voted on by departments and then presented to parliament.
Reaction to a constitutional court ruling
The paper is the reaction of the federal government to a ruling of the Federal Constitutional Court in May this year on the surveillance practices of the BND. The Karlsruhe judges had ruled that the current BND practice of being able to spy on foreigners abroad without restrictions was not compatible with the German Basic Law. They also criticized the constitutional control of the secret service. The BND often erroneously points out that agreements with other services are too secret to present to judges or other supervisory bodies.
Therefore, in its ruling, the court demanded understandable justifications for the secrecy and wiretapping. The rule of law of espionage activities must also be monitored by an independent body.
Powerful controls should be possible
An amendment to the law has now been drawn up at the Chancellery, which should meet Karlsruhe’s requirements and provide for the creation of the new supervisory body by January 2022. This “Independent Control Council” should be constituted and be able to see everything that does the BND in terms of follow-up measures. The intended supervisory authority, a “supreme federal authority”, consisting of two chambers, should be able to inspect all search terms, the so-called selectors, with which the BND searches the data streams regardless of suspicion. Even those from partner services like the US NSA.
Six-member control council
Six lawyers will belong to the planned control council: a president and five other members. Everyone should be kept in absolute secrecy and subjected to a thorough security check.
Anyone who is an active judge or federal prosecutor in the Federal Court of Justice may belong to the council, in accordance with the BND’s foreseen law. The headquarters of the office should be Berlin and Pullach.
The members must be proposed by the Federal Attorney General or the President of the Federal Court of Justice; they must be elected for a period of up to six years by the Parliamentary Oversight Committee, which is supposed to control the work of the German secret services. The BND’s Independent Control Board must also have 25 employees to be able to carry out the powerful tasks thoroughly.
Karlsruhe’s “independent committee”, which has previously overseen the service’s strategic intelligence, will be abolished. It consisted of only three lawyers and they only worked part time.
Monitoring in strict rules
The constitutional court had also shown the BND clear limits regarding the surveillance measures themselves, for example when it came to the question of whether journalists could be spied on. Freedom of the press can hardly be guaranteed without the protection of whistleblowers, the judges wrote, so “selective penetration into such confidential relationships worthy of protection” should only be possible for very valid reasons. This is taken into account in the new BND law, although with important restrictions. Confidential communication between “clergymen, lawyers and journalists”, according to the draft, may be investigated in the future in exceptional cases to avoid “serious dangers” for the foreign policy interests of the Federal Republic.
However, the special protection only applies to journalists who work freely and independently, and not to representatives of the media who disseminate selective state propaganda and “fake news” or who are in fact active for the services of foreign intelligence.
The control council must also be controlled
If the BND will also adhere in the future to the requirements of the new “Independent Control Council”, it will in turn be verified in the future, not only by lawyers, but also by technicians. The constitutional judges in Karlsruhe had given the Federal Data Protection Commissioner an important role and titled her work as “administrative judicial control”.
At the Chancellery, however, people are skeptical about whether another authority should be involved in this sensitive area. In the case of foreign partner services, it is said, this is likely to generate more mistrust. You have to be able to assure them that no secrets of the cooperation will be leaked to the public. Therefore, the proposal of the federal government is: The new control council must have trained technicians so that they themselves can verify the surveillance practice.
