Editor's Note: Zachary Goldman and Samuel Rascoff recently released Global Intelligence Oversight: Governing Security in the Twenty-First Century. The edited volume “is a comparative investigation of intelligence oversight systems in democratic countries, which focuses on some of the new dynamics shaping and constraining intelligence services, and the range of purposes a holistic approach to oversight should serve.” This week, Lawfare is hosting a mini-forum where contributing authors discuss their chapters.
With all due respect to the CIA’s domestic intelligence operations of the 1960s and ‘70s, which President Nixon merged under the label “Operation CHAOS,” that designation is a more apt description of the state of affairs in the German intelligence community these days.
I am not just referring to the sabotage at the Federal Intelligence Service’s (Bundesnachrichtendienst or BND) new headquarters in Berlin, although that is embarrassing enough. Instead, I am referring to the immense difficulties Germany’s foreign and domestic intelligence services have faced over the last few years. These date back to troubling links between the domestic intelligence services (Verfassungsschutzämter) and a string of xenophobic murders carried out by a cell of neo-Nazis. The trouble now includes fallout from the far-reaching investigation conducted by a specially convened Committee of Inquiry at the Federal Parliament (Bundestag), which was launched in the aftermath of the Snowden leaks. From that inquiry, we have learned, for example, that the CIA was able to turn a BND agent largely because he was bored and not adequately challenged in his work. We have also learned that, despite all the loud protests to the contrary, Germany has been spying on its friends and neighbors for years. The Government has promised comprehensive reform of the foreign and domestic services, but the Chancellor’s Office and Finance Minister Wolfgang Schäuble are putting up some resistance to the BND reform. Things have now gotten even messier. The director of the BND was pushed out of office several weeks ago and the German Federal Constitutional Court (Bundesverfassungsgericht) ruled that many of the surveillance and data-collection provisions of an important new counter-terrorism law were unconstitutional. Chaos indeed.
Those familiar with the law and policy framework within which the German intelligence community operates have been especially put-off by the hypocrisy in Germans’ outrage over the Snowden revelations. On one the hand, it was always clear that the Germans actively aided U.S. intelligence-gathering and hungrily consumed its results. On the other hand, the German intelligence services face nothing like the control and oversight under which the American intelligence community labors. The G10 Commission, Germany’s version of the Foreign Intelligence Surveillance Court, is a glaring example of the latter. That is the story I tell in my contribution to Zachary Goldman and Samuel Rascoff’s important new book, Global Intelligence Oversight: Governing Security in the Twenty-First Century (Oxford University Press 2016).
The G10 Commission bears this curious name because, tautologically, it is a product of the G10 Act. The latter, in part, implements changes made to Article 10 of the German Basic Law (Grundgesetz or constitution) in the late-1960s. Those changes permitted restrictions on the general right to privacy of correspondence and telecommunications as long as the restrictions are authorized by law for the purpose of promoting German security, and as long as the restrictions have been approved “by agencies and auxiliary agencies appointed by the legislature.” The amended constitutional provision is unequivocal: the reviewing entities may not be ordinary courts. Thus, the G10 Act established the G10 Commission as a unique oversight organ that is neither parliamentary fish nor judicial fowl. The G10 Commission is based at the Bundestag, which also provides its budget. But the eight commissioners (four active and four alternate commissioners) need not be sitting members of the parliament. The G10 Commission’s chairperson must be qualified to serve as a judge (having the requisite academic and practical legal training), but the commissioners need not be sitting judges. This arrangement means that the G10 Commission operates in a troubling accountability gap. It does not provide the political legitimacy enjoyed by a normal parliamentary body staffed by elected parliamentarians. At the same time, it does not sanctify the intelligence operations it reviews with the rigors of rational judicial scrutiny.
In other words, the BND can pursue its work free of meddlesome intrusions from political or judicial oversight. In making its decisions, the G10 Commission applies a statutory standard that includes a number of formal requirements for an application’s “admissibility” and a supposedly more probing assessment of the proposed measures’ “necessity”. Unsurprisingly, however, the G10 Commission approves the vast majority of strategic intelligence-gathering operations it reviews. One insider put the success rate of the applications presented by the relevant cabinet ministers at around 90 percent. Another commentator simply concluded that the G10 Commission “waves through everything the intelligence community wants.”
Besides its uniquely impotent structural orientation, there are a number of other reasons for the G10 Commission’s lack of rigor. One reason might be a form of agency capture. The G10 Commission’s hearings, conducted under intense secrecy, are not adversarial. Only the relevant cabinet ministers and intelligence officials are present. There are other less sinister, but no-less fundamental, reasons. The commissioners, for example, are unpaid volunteers who usually possess legal training and political experience, but they lack the technical competence needed to deeply examine the complex technology involved in strategic intelligence operations. The G10 Commission also does not have adequate resources. By my estimate, a third of its small budget is dedicated to covering the commissioners’ travel expenses. Only €120,000 remain from the annual allocation to pay for support staff. The G10 Commission meets just one day each month and during these sessions, it reviews an average of 2,127 monitoring measures. One media report estimated that, at most, the G10 Commission devoted five minutes to its review of each monitoring application.
Whatever the shortcomings of the process and standards the G10 Commission implements, the regime extends some---perhaps purely ritualistic---protection to Germans’ telecommunications privacy. That is more than can be said for the privacy of telecommunications interceptions conducted outside Germany and involving non-Germans. The BND, with the blessing of the federal government, has concluded that the G10 Act does not apply to the surveillance of telecommunications that take place outside Germany and do not involve Germans as one of the parties. This dubious interpretation means that the G10 Commission reviews only a miniscule fraction of the BND’s strategic intelligence measures, which are largely aimed at non-Germans outside German territory. As we now know, these measures include operations aimed at Germany’s European partners carried out on behalf of the U.S. intelligence community. And they include surveillance of high-ranking American officials. None of this is controlled or limited by German law.
To find its way out of the current chaos, the German intelligence community needs to do more than merely replace the parquet flooring damaged by the sabotage at the BND’s new headquarters. Under the guidance of its new director, the BND is going to have to accept and credibly implement the government’s proposed reform, which should include more rigorous oversight and control. Ironically, the Germans could do worse than to model any new reforms on the American regime, especially taking into account the changes and adaptations introduced by the USA FREEDOM Act. But the signs do not look good for such a major cultural shift in the German intelligence community, which increasingly appears to be an “uncontrollable apparatus with a life of its own.” The draft revision of the BND Act would subject intelligence-gathering involving non-Europeans to the review of a parliamentary organ. The proposed reform considers the G10 Commission a viable candidate for this role.