In the particular case of NSA selector lists the Government’s interest in non-disclosure outweighs the Committee of Inquiry’s interest in receiving them

Press Release No. 84/2016 of 15 November 2016

Order of 13 October 2016
2 BvE 2/15

In an order published today, the Second Senate of the Federal Constitutional Court decided that the Federal Government does not have to submit the NSA Selector Lists to the Bundestag Committee of Inquiry into NSA Activities. In principle, the Committee of Inquiry’s right to collect evidence also comprises the NSA Selector Lists. However, at the same time the Selector Lists also concern secrecy interests of the United States of America and are thus not subject to the Federal Government’s exclusive power of disposal. Constitutionally, there are no objections to the Federal Government’s assessment according to which handing over the lists in disregard of assured confidentiality and without the approval of the United States of America would significantly undermine the functioning of the German intelligence services as well as their ability to cooperate and thus also impair the government’s capacity to act in matters of a foreign and security policy nature. In that regard, the government’s interest in non-disclosure outweighs the parliamentary interest in information - particularly as the Federal Government, in consultation with the Committee of Inquiry into NSA Activities, took account of the request for submission as specifically as it could have done without disclosing secrets. Notably, the government provided information as to the focal points of the cooperation between the Federal Intelligence Service (Bundesnachrichtendienst - BND) and the National Security Agency (NSA), concerning the content and compilation of selectors, on the filtering of selectors through the BND, and on the number of rejected selectors. Insofar there is no risk of creating an area that is not subject to control and thus no risk that relevant information is largely withheld from Parliament.

Facts of the Case:

The US-American NSA and the BND were cooperating for the purpose of signals intelligence. Within this cooperation, the BND searched data diverted from an Internet hub, assessing the data in the light of criteria that had been determined by the NSA - the so-called selectors. After the press had reported in the summer of 2013 that EU representations as well as German holders of fundamental rights had been affected by the joint signals intelligence by the BND and the NSA, the German Bundestag established the so-called Committee of Inquiry into NSA Activities (NSA-Untersuchungsausschuss) in March 2014. The Committee of Inquiry requested from the Federal Government to hand over any evidence that would provide information as to the BND’s knowledge of whether and to what extent the NSA within the scope of cooperation had pursued intelligence activities with regard to German targets or German interests. Subsequently, the Federal Government provided pieces of evidence; however, with regard to the NSA Selector Lists, the Federal Government came to the conclusion that a submission to the Committee of Inquiry without the approval of the United States of America would amount to a breach of the mutually assured confidentiality and undermine Germany’s ability to cooperate at an international level.

With their applications in the Organstreit proceedings (dispute between highest federal organs), the parliamentary group of DIE LINKE in the German Bundestag  and the parliamentary group of BÜNDNIS 90/DIE GRÜNEN in the German Bundestag  and two members of the Committee of Inquiry into NSA Activities who are also members of the aforementioned parliamentary groups request the finding that the Federal Government and the Head of the Federal Chancellery Office violated the Bundestag’s right to collect evidence under to Article 44 of the Basic Law (Grundgesetz - GG) by refusing to hand over the requested information.

Key Considerations of the Senate:

Insofar as the application is admissible it is unfounded.

1. The German Bundestag has the right - and on the motion of one quarter of its members the duty - to establish a committee of inquiry (Art. 44 sec. 1 sentence 1 GG). A committee of inquiry, as an investigative means in the context of political controversy, is a specific instrument of parliamentary oversight. As a subsidiary organ of the German Bundestag, such a committee has the right pursuant to Art. 44 sec. 1 sentence 1 GG to take any evidence it deems necessary with regard to its investigation mandate. The right to receive files belongs to the core of the  right of inquiry.

2. Nonetheless, the right of a parliamentary committee of inquiry to take evidence is subject to limitations which, however, must be rooted in constitutional law.

a) Obligations arising under public international law cannot provide a limit to the parliamentary right to take evidence given that they have not as such acquired constitutional rank.

b) Reasons to withhold information from a committee of inquiry may result from the principle of separation of powers. As a principle that requires that legislative, executive and judicial power be distinguished, it also contributes to a functional and duty-oriented assignment of sovereign powers to different public authorities.

The constitutional order, the existence and the security of the Federation and of the Laender (federal states), and life, limb and the freedom of the person are legally protected interests of exceptionally significant constitutional weight. Thus the state is under a constitutional obligation to protect the life, the physical integrity and the freedom of the individual. The state complies with this duty by countering threats stemming from terrorist endeavours, for example. Crimes of a terrorist nature are directed against the pillars of the constitutional order and society in its entirety. The provision of effective means of investigation for the purposes of averting such crimes is a legitimate aim and of great importance for the democratic and free order.

To ensure the effectiveness of the procurement and evaluation of information of foreign and security policy significance, German intelligence services cooperate with foreign intelligence agencies. Adherence to confidentiality provides the basis for this cooperation. This requires entering into commitments under public international law which are subject to the government’s power of initiative and power to design as part of its foreign and security policy.

3. According to these standards, refusal to hand over the NSA Selector Lists does not violate the German Bundestag’s right to take evidence under Art. 44 GG.

a) The parliamentary interest in information also comprises the NSA Selector Lists. This right to receive information has neither been met by appointing an expert person of trust nor by that person’s expert opinion.

b) The Committee of Inquiry’s right to take evidence conflicts with the government’s interest in a functional and duty-oriented performance of duties. In the context of a consultation procedure, the United States of America made it clear that the Committee of Inquiry should be viewed as an external observer and that handing over the NSA Selector Lists to the committee is not covered by the purpose of the transfer. On the basis of further position statements given by the United States of America the Federal Government is convinced that handing over the NSA Selector Lists without the approval of the United States of America would significantly undermine the intelligence services’ functioning as well as their ability to cooperate and thus also impair the Federal Government’s capacity to act in matters of a foreign and security policy nature. Considering the thus rather specific threats to Federal Republic of Germany’s external and internal security, the government assumes that secrecy interests rooted  in the welfare of the state are affected, too. Given the Federal Government’s margin of appreciation and latitude for prognosis, this factual and legal assessment of the relationship with foreign intelligence services and partner states is only subject to limited review by the Federal Constitutional Court; furthermore, as a result, it is not objectionable under constitutional law. Even a relativizing assumption in the sense that handing over the Selector Lists to the Committee of Inquiry might only temporarily affect the degree of international information exchange would entail the likelihood of an intolerable temporary impairment of the functioning of the intelligence services and thus a security gap.

c) The Federal Government’s interest in maintaining its capacity to act in matters of a foreign and security policy nature outweighs the Committee of Inquiry’s right to be given the NSA Selector Lists. With regard to a balancing of interests, it also needs to be taken into account that the request to receive the NSA Selector Lists substantially affects the United States of America’s fundamental concerns and secrecy interests. Furthermore, the Federal Government provided the Committee of Inquiry with information; thus, it was not the case that the circumstances of the intelligence cooperation between NSA and BND were withheld from the committee entirely. Insofar as the handing over of the Selector Lists as such is concerned, and thus also the specific designation, i.e. the mentioning by name of the natural and legal persons as well as institutions or governmental facilities that are affected as targets of intelligence activities, it can be held that having knowledge of such facts is more a matter of general and political interest. However, as far as the Committee of Inquiry’s performance of its duties and thus parliamentary oversight over governmental activities is concerned, knowledge of the content of the Selector Lists is not pivotal to an extent that it could actually claim priority over interests relating to the welfare of the state and over the government’s functioning.