Status: 14.10.2022 06:00 a.m
An Independent Control Council has been examining the BND’s electronic surveillance since the beginning of the year. There are plans in the federal government that the Council should also be responsible for the protection of the constitution in the future.
On Monday, the German public will get a rare insight into the work of the secret services. Then the meeting of the Parliamentary Control Committee (PKGr) is to take place in the Bundestag. The heads of the Federal Intelligence Service (BND), the Federal Office for the Protection of the Constitution (BfV) and the Federal Office for the Military Counterintelligence Service (BAMAD) answer questions from MPs. The group normally meets in secret, but spectators and listeners are allowed once a year. A lot has happened in the control of the secret services in recent years. The trigger was the NSA affair ten years ago. In the process, it became clear that the surveillance by the BND had also crossed borders. Stricter rules followed.
The public PKGr hearing was introduced, and a new BND law was passed. This prescribes more precisely what the foreign secret service is allowed to do. In addition, to support the members of the Parliamentary Control Committee (PKGr), the Bundestag has now introduced a “permanent representative” who, with his team, is allowed to control, for example, work with spies. What was particularly drastic, however, was that a new supervisory authority was created. So far, hardly anyone has taken notice of it – but it could soon become even more powerful.
Since the beginning of the year, the Independent Control Council (UK Council), a supreme federal authority, has been controlling the BND’s technical surveillance measures. According to information from WDR and NDR there are now plans in the federal government to have the monitoring measures of the protection of the constitution and the military counter-intelligence service controlled by the new body in the future. This could mean that the G10 Commission would disappear. This is a control body consisting of independent, honorary lawyers who have so far approved the technical interception measures of the secret services in secret meetings.
A total of 60 posts are planned
The UK Council currently resides in a former BND property in Berlin Lichterfelde-West; it does not yet have its own building. The website has only been provisionally launched for the time being. Six judges belong to the control body, the council is headed by Josef Hoch, who worked at the Berlin Superior Court and most recently as a judge at the Federal Court of Justice. A total of 60 posts are planned for the authority, around a quarter of the positions have been filled so far. But according to people who work with the council, it is already clear that the previous tasks do not yet fill the council.
The establishment of the UK Council is a consequence of a judgment by the Federal Constitutional Court on the BND law in spring 2020. In Karlsruhe, it was decided that the government must better monitor the BND’s technical surveillance measures, strategic telecommunications reconnaissance abroad. That is now the job of the UK Council.
The inspectors have far-reaching powers: They may view BND files, have access to the secret service’s offices and computers and servers at any time, may question employees or obtain written information – and decide whether a surveillance measure can take place or not . The new authority could soon also be responsible for the protection of the constitution. The trigger for these considerations is again a decision by the Federal Constitutional Court, this time with reference to the Bavarian Constitutional Protection Act.
Judgment with far-reaching consequences
In April, a decision was made in Karlsruhe that the state must monitor intelligence measures by the Office for the Protection of the Constitution more strictly. This applies, for example, to observations, telephone surveillance, the recruitment of informants, i.e. human sources, or the transmission of data to other authorities. For the authorities for the protection of the constitution, the judgment has far-reaching consequences both in the state authorities and in the federal government. A comprehensive reform including changes to the law is pending.
Up to now, for example, the Office for the Protection of the Constitution has decided for itself when and how long to observe a target person. The Karlsruhe judges, on the other hand, consider it legally imperative that such encroachments on fundamental rights be subject to prior control of the order. In the future, the surveillance will be preceded by the OK of an independent body – similar to the police, where an investigating judge decides how long surveillance or telephone tapping may take place.
Under the auspices of the Federal Ministry of the Interior, a working group has been dealing with the possible consequences of the Karlsruhe judgment on the protection of the constitution in recent months. In its final report, the working group comes to the conclusion that an “institutionalised, independent prior check” must be created for the offices for the protection of the constitution. At the Federal Office for the Protection of the Constitution, this could be taken over by the UK Council, which has been responsible for the BND so far. According to the working group’s final report, the establishment of a “state-owned independent control council” is conceivable for the authorities for the protection of the constitution in the federal states.
Consequences also for parliamentary control
Such a new structure could also have consequences for parliamentary control. This can already be seen in the Bundestag with a view to the BND and the new UK Council. Parliamentarians used to be able to learn the details of electronic surveillance themselves. The UK Council is now taking on this operational insight. The members of the Parliamentary Control Committee can obtain basic information from this body – which has already happened several times this year. However, the deputies can no longer get closer. Their control is becoming more and more political.