This article is a response to the following discussion prompt: 
To what extent does Germany's new BND draft bill provide a rights-based and modern framework for foreign intelligence?

A number of different contributions have addressed this 
question or will do so soon. See all of them here.

After the German Constitutional Court demanded changes to the German foreign intelligence law in May 2020, a new draft bill has come out of the Federal Chancellery that would expand fundamental rights protections to foreigners, establish a more complex system of reporting obligations, as well as an independent Oversight Council. However, the conceived oversight structure, as well as the strong regulations resulting from the application of constitutional rights abroad, could curtail the BND’s effectiveness and hurt its ability to share information with intelligence services of other countries. In striking a compromise between fundamental rights protection and the interests of the BND, the latter’s capacity to keep Germany safe should not be undermined.

Following the constitutional complaint filed by Reporters without Borders and others, the Federal Constitutional Court (BVerfG) had to decide whether the Federal Intelligence Service (BND) was also obliged to observe the fundamental rights of the German constitution abroad. In its ruling of 19 May 2020, the BVerfG declared that the obligation of German state authority to observe the fundamental rights under Article 1 (3) of the Basic Law “is not restricted to the German territory”. It specified that §§ 6, 7, 13 to 15 of the Law on Foreign Intelligence Abroad are not compatible with Article 10 and Article 5 of the Basic Law.

The BVerfG called on the legislator to pass a new law in this regard by 31 December 2021, which would guarantee the protection of fundamental rights. In the judgement, the BVerfG also made some very concrete suggestions as to how it imagines the oversight of foreign intelligence activities abroad.

The Federal Chancellery has therefore presented a preliminary draft bill. According to the bill, among other things, a more complex system of reporting obligations (see for example § 11 (7) and §§ 41 to 44 of the draft bill) and an independent Oversight Council consisting of four federal judges and two federal prosecutors is to be established. What this may mean for the work of the BND, and for intelligence oversight in the future, will be discussed in this article. It should be taken into account that this is an early phase of the legislative procedure and that parliamentary deliberations are still pending.


The role of telecommunications intelligence

The BND is the foreign intelligence service of the Federal Republic of Germany. The main component of its activities is the collection of signals intelligence (SIGINT). This also includes foreign-foreign communications surveillance. The BND searches wide-ranging and automated foreign communication flows for specific selectors a.k.a search terms. German citizens must be exempted from these searches due to the protection of Article 10 of the Basic Law if their surveillance has not been specifically approved by the G10 Commission. The information obtained through telecommunications surveillance abroad is of great value for the work of the federal government and the Bundestag. Therefore, SIGINT is an activity of paramount public interest, the fulfillment of which is elementary for ensuring the security of our country. The BVerfG clearly states that this instrument can be given to the BND for this purpose.

Unfortunately, in the discourse which has now begun and which is now also reflected in the legislative process, the necessity of these tasks of the BND is increasingly being pushed into the background. In some cases it is even completely called into question. What is not taken into account is that the BVerfG clearly emphasises the necessity and legitimacy of strategic telecommunications surveillance in its judgement and states that “strategic foreign communications surveillance […] is not fundamentally incompatible with [the Basic Law]”. Nevertheless, precisely this core competence of the BND is dangerously curtailed by the current draft bill.


High hurdles for the BND

In § 21 of the draft bill, high hurdles are set for foreign surveillance compared to other European countries. They are, however, unusually high for information gathering by an intelligence service and are rather comparable to the regulations for police authorities. The BVerfG draws a parallel to the police, since both state institutions are under certain conditions authorised to intervene profoundly in the fundamental rights of individuals. It is then only logical that similar rules apply here. It should be noted, however, that the investigative work of the police is supposed to serve to initiate legal proceedings, at the end of which the evidence should lead to an unquestionable conviction of the perpetrator’s guilt. The detailed legal rules thus protect the citizen from a wrongful conviction by the state. The counterpart is the strong presumption of innocence, which is valid until the ruling. Where the transfer of data to public prosecution offices and police authorities is concerned, this must of course be given special consideration.

The work of a foreign intelligence service is in complete contrast to this. Its sole purpose is to gain security-relevant information abroad and thereby protect the state and its citizens from danger. This is also a reason why “[…] the domestic intelligence services, the police and other state security agencies are separated from each other”. Since the BND has no police functions either at home or abroad, its work can only be compared to that of police authorities to a very limited extent. It is therefore unnecessary to apply a similar standard to the work of these two institutions, because to do so would be comparing apples to oranges.

The BVerfG’s view that German fundamental rights should also apply to foreigners abroad can be questioned. They are still primarily rights of defense of the citizen against the state. Even if one regards these rights as objectively inalienable, the question arises whether one can also use them to assess interferences that happen to foreigners abroad – and also to then potentially justify said interferences on the basis of national legal standards. Will a tapped person abroad accept that the German state has decided that to tap their communications, as proportionate with Article 10 of the German Basic Law and the legal justification to interfere with a foreigner’s rights? It is more likely that intelligence activities abroad — in the country of espionage — will always be illegal and prohibited.

As I have shown elsewhere, this is also the case in Germany and even punishable by law. Foreign-foreign telecommunications surveillance has therefore already been subjected to meaningful barriers, namely universal human dignity, the prohibition of excessive measures, and proportionality. In my view, this would certainly have been sufficient and also coincides with the requirements of the BVerfG, according to which strategic telecommunications surveillance serves a legitimate purpose and is suitable and necessary, according to the standard of the principle of proportionality.

The discussion remains suspenseful whether the application of fundamental rights will in the future also lead to obligations to inform and, in the case of violations, possibly obligations to pay damages. If this is denied, the further question arises whether fundamental rights — or at least Article 10 — are guaranteed in different degrees. Probably only the BVerfG will be able to give an answer to this question. However, for the extraction of relevant information this will result in numerous problem areas for the BND.


Oversight

The draft bill provides for an independent Oversight Council, which would be responsible for monitoring the intelligence service. For this purpose, it should, among other things, approve actions of the BND and be able to analyse and investigate the exact procedures. The competencies of the Oversight Council are thus very broad and profound. However, I believe this represents a danger to the effective work of the BND, because the Oversight Council would intervene heavily in the daily business of the BND and bias its work”. For example, § 11 (3) no. 3 of the draft bill represents a very narrow regulation on standard force protection by the BND.

Furthermore, the Oversight Council would be an addition to the already existing responsible bodies (i.e. Parliamentary Oversight Committee, Permanent Representative, G-10 Commission, and oversight bodies of the German states). There is thus a danger of conflating oversight competencies, which would make orderly parliamentary oversight more difficult. Since the BND is a legitimate and essentially important instrument of state power however, orderly legal and parliamentary oversight is indispensable. It is therefore necessary to slim down the oversight system in the future, and thus distribute the burden of oversight to only a few shoulders, while at the same time guaranteeing the full functionality of the BND. This includes, among other things, that consideration should be given to merging the G10 Commission with the Oversight Council.

In conclusion, the question arises whether the Oversight Council really has to consist of active judges or federal prosecutors at the Federal Court of Justice, who are nominated by the Federal Prosecutor General or the President of the Federal Court of Justice. Regarding the qualification of members, the BVerfG only requires that it “must be proven by many years of judicial experience for a significant number of the members”. The judgement does not speak of Federal Court of Justice judges or federal attorneys, however. The facts to be decided will often not have a legal emphasis, but rather deal with practical and technical aspects that must be understood and illuminated. Experienced judges at an Oberlandesgericht (Higher Regional Court) or a Landesgericht (Regional Court) have a much closer connection to the possible activity of such an Oversight Council. Ultimately, this would also ease the discussion about B9/R9 salaries or B6/R6 salaries and the recruitment of motivated members of the Oversight Council, which is already underway.


Endangered international cooperation

The conceived oversight structure, as well as the strong regulations resulting from the (full or partial) application of constitutional rights abroad, could limit the BND’s cooperation with intelligence services of other countries. This is because the effectiveness of the BND would be curtailed and foreign partners might be less inclined to share data if they know that a looser interpretation of the Third Party Rule means that sensitive information is also handed over to oversight bodies. This cooperation is however, absolutely necessary, since no intelligence service can manage its tasks alone. Even intelligence services of comparable size depend on the exchange of information. This becomes strikingly apparent in the case of force protection within the framework of NATO or the EU. In addition, in times of international threats of various kinds, the exchange between intelligence services is more important than ever. However, if the BND should no longer be able to work with foreign agencies due to stricter regulations and inflexible bureaucracy, precisely this cooperation will become increasingly difficult and in certain individual cases even impossible in the future. The question of oversight on the one hand, and operationality and the ability to cooperate on the other, must therefore ultimately be answered by the new BND law.


Conclusion

In order to maintain or enable both the effectiveness, competence, and alliance capability of the BND as well as systematic, transparent, and competent parliamentary and judicial oversight, it is necessary to fundamentally review the current draft law and to revise it at some points. Since the constitutional judges emphasised in their ruling that they consider the interests of the Basic Law and the BND — and thus of civil liberties and security — to be compatible, I am optimistic that a suitable compromise can be found. However, it is the legislature who must find this compromise, not the Federal Government or the Federal Constitutional Court. If this does not succeed, it will only be more difficult for the BND to reliably protect the state and its citizens in the future. Therefore, both must now be achieved: Protection of fundamental rights and effectiveness of the BND.