Discussion Prompt: Which of the many deficits should German legislators tackle in the pending reform to ensure the effective implementation of human rights as well as the principles of the rule of law and democracy?
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The intelligence activities of the German armed forces currently lack a sufficient legal framework and comprehensive oversight. This gap poses significant risks to civil liberties, as various covert surveillance activities interfere with fundamental rights without proper legal safeguards. The minimum standards for a legal basis and oversight for such interferences, as defined by the German Federal Constitutional Court and the European Court of Human Rights, are not even partially met. To address these issues and mitigate the risk of abuses, the German Parliament ought to expand the mandates of existing oversight bodies and create a comprehensive and enforceable legal framework for these intelligence activities.
Russia’s war in Ukraine has emphasised the crucial role of military intelligence in modern warfare. These surveillance capabilities receive minimal attention in the German defence and security debate. Discussions on future aspirations of the armed forces tend to neglect how these activities are governed and overseen. This poses a threat to civil liberties and democratic standards, and at the same time creates legal uncertainties for the Bundeswehr itself.
This blind spot in democratic control is no longer tenable. More than 7,000 members of the Bundeswehr are involved in intelligence activities. In terms of personnel, this places the Bundeswehr on par with the largest intelligence service in Germany, the foreign intelligence service (BND). The armed forces carry out a broad range of intelligence activities, including intercepting conversations over radios and mobile phones, recruiting informants abroad, and systematically analysing information from the internet.
Many of these activities interfere with various human rights recognized in the German jurisdiction, such as the secrecy of telecommunication and informational self-determination. The secret and covert operations of the German armed forces further intensify these encroachments. Just as with other intelligence services, these interferences can be lawful. To be considered lawful, however, they must adhere to legal frameworks and oversight standards set by European law and the German constitution.
Current regulation and oversight fail to meet minimum standards
Most intelligence services in Germany have their own statutory footing. These laws define the conditions under which the services can use their surveillance powers, how these powers are limited, and which institutions oversee them. Although the oversight and legal framework for these intelligence services is far from perfect, its very existence is of fundamental importance: It can prevent the abuse of surveillance powers; it provides benchmarks for the practice of oversight; it enables the prosecution of misconduct; and it provides legal certainty for intelligence service employees. In contrast, there is no comparable framework for the surveillance activities of the German armed forces. Provisions for interferences with fundamental rights exist, if at all, only in internal service regulations.
However, as the Federal Constitutional Court has stipulated in recent decisions, surveillance activities that interfere with fundamental rights require a sufficiently precise legal basis in primary legislation to be lawful. The European Court of Human Rights (ECHR) also set out minimum requirements for legal frameworks that should regulate the targeted interception of electronic communications in the context of state surveillance. It stipulated, for example, in a 2018 ruling that the legal framework must include “the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their communications intercepted; a limit on the duration of interception; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which intercepted data may or must be erased or destroyed”. There is no public law that contains these norms and standards for the interferences through the intelligence activities of the Bundeswehr.
There is also much to be done when it comes to independent and effective oversight. Since those affected by government surveillance are usually unaware that they are being monitored, they cannot legally defend themselves. To compensate for this lack of access to legal remedy, effective oversight is needed. The Federal Constitutional Court has emphasized the importance of comprehensive, independent, and continuous monitoring of intelligence services’ strategic telecommunications surveillance abroad. It has further stressed, in alignment with the European Court of Human Rights, that this is of fundamental importance, particularly when access to legal protection for affected individuals is obstructed by covert action and must therefore be compensated for. However, individuals subject to military surveillance are not granted effective legal protection against state measures. Where the BND has to obtain the prior approval of the Independent Control Council for SIGINT operations, there is no such independent ex-ante control for the military intelligence. It is of course worth discussing how such controls could be implemented and or adapted for different military contexts, especially during peacetime.
At present, the Federal Commissioner for Data Protection and Freedom of Information serves as the sole independent oversight body with genuine competence to review data processing by the intelligence divisions of the German armed forces. While it can identify abuses or shortcomings, it lacks the authority to enforce corrective actions. And although the Parliamentary Intelligence Oversight Panel is mandated to oversee all federal intelligence services, it cannot control the intelligence activities of the Bundeswehr. Only the Defence Committee of the German Bundestag possesses this authority. However, the committee lacks sufficient resources and access to relevant information to exercise effective control in this regard. These oversight gaps must be closed, and the powers of oversight authorities strengthened.
Risks of inadequate democratic control
The lack of a clear legal basis and oversight regarding military intelligence activities poses significant risks to basic rights and freedoms. A key concern is the potential for unchecked and disproportionate surveillance. A legal framework is needed because it would enable individuals to understand the legal context of what is permissible, to anticipate consequences, and to adjust their behaviour accordingly. It also allows courts and oversight bodies to review and ensure compliance with legal standards, particularly in relation to the collection and processing of personal data, which is often conducted covertly in intelligence operations. However, a sufficient legal basis is not enough to ensure compliance with the rule of law. Effective oversight institutions must ensure that the intelligence services act in accordance with the legal framework. As discussed above, the existing oversight mechanisms for the Bundeswehr’s intelligence activities are inadequate and create significant accountability gaps.
Exhibits from the grey zone
One example demonstrating the need for effective oversight is the case involving the German activist group Zentrum für Politische Schönheit. In response to a campaign by the group denouncing irregularities in weapon stocks, the Bundeswehr automatically collected and analysed all publicly available information about the activist group. The group only discovered they were being targeted through investigative media reports. Just one day before these reports were published, all data linked to the dossier was deleted – leaving far too many questions unanswered to this day.
Furthermore, the blurred lines between military and civilian intelligence activities complicate the establishment of appropriate legal and oversight frameworks. The overlapping functions and methods of military intelligence and other national intelligence services suggest that similar regulatory standards should apply to both. However, the current disparity in legal and oversight provisions creates opportunities to exploit these differences, potentially circumventing established restrictions and safeguards designed to protect civil liberties.
While the absence of a clear legal framework and weak oversight mechanisms for the Bundeswehr’s intelligence activities are problems in and by themselves, they are further exacerbated by the potential for other intelligence services to exploit these gaps. Due to the close cooperation between the Bundeswehr and the BND, there is a significant risk that the differences in regulatory density could be used to circumvent restrictions applicable to BND. Weak rules and less stringent oversight provide the BND with an incentive to bypass its own legal constraints by way of collaborating with the Bundeswehr. As long as only the BND is subject to more dense regulation, the cooperation between the BND and the armed forces raises significant concerns about accountability shirking and the potential misuse of surveillance capabilities.
A way forward
So, what should the German parliament do to address these deficits in accountability and the rule of law? As explored further in our paper, we believe that several key steps are necessary:
First, the German parliament should extend the review mandates of existing oversight bodies to include the surveillance activities of the Bundeswehr. More specifically, it should expand the mandates of the Parliamentary Intelligence Oversight Panel and the Independent Control Council. The oversight mandate of the latter, for example, is currently limited only to the foreign intelligence service.
Second, when rethinking the oversight framework, the government should also bear in mind that having too many oversight bodies will reduce the overall effectiveness of oversight. Thus, it should reduce the fragmentation of the oversight landscape by making the Independent Control Council the central actor for legal oversight of all intelligence surveillance activities.
Third, and for the medium term, the parliament should ensure consistent legal standards for all surveillance activities. The current substantial discrepancies in legal standards for similar activities across various institutions incentivise evasion of stricter regulations and oversight through cooperation. Thus, the German government should establish a holistic framework for all federal intelligence activities.
Conclusion
The German government is aware of existing shortcomings in intelligence law. With the reform planned for summer 2024, the governing coalition intends to address significant deficits and fulfil the objective outlined in its coalition agreement: strengthening democratic oversight of all federal intelligence activities. However, at this stage, it appears that the intelligence activities of the Bundeswehr remain excluded from these conversations. Maintaining the status quo is no longer tenable and undermines essential principles of democracy and the rule of law.
Overcoming these deficits, by contrast, will enhance Germany’s credibility when advocating for the adherence to the rule of law, both domestically and internationally. In times of geopolitical upheaval, when democracies face pressure from various sides, this is more important than ever.