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        • Dr. André Hahn is the Deputy Chairman of the Parliamentary Oversight Panel (PKGr) of the German Bundestag, as well as a deputy member of the Inquiry Committee in charge of conducting investigation relating to allegations that the American National Security Agency (NSA) intercepted communications of German citizens, including Chancellor Merkel, and a member of the parliamentary group "The Left".

           

          BCSP researcher Katarina Djokic talked to Dr. André Hahn on parliamentary oversight of security services and the most recent reforms of the security-intelligence system in Germany.

           

           

          What is the nature of the parliamentary oversight system over security services in Germany?

          In Germany there are three security services: the Federal Intelligence Service (BND), the Military Counterintelligence Service (MAD), and the Federal Office for the Protection of the Constitution (BfV). They are all under the control of the Cabinet of the Federal Chancellor (German: Bundeskanzleramt). The Parliament is given the task of ensuring whether the Government is fulfilling all of its obligations, which encompasses the oversight over security services. This part of the process is done by three bodies: Parliamentary Oversight Panel (PKGr), the G10 Commission and the Parliamentary Trust Body (German: Vertrauensgremium). The Parliamentary Oversight Panel reviews reports submitted by the Federal Government concerning the work of the security services and can request additional information relating to their conduct, but can also perform oversight through control visits to the premises of these Services. G10 Commission, on the other hand, is comprised of persons who do not necessarily have to be Members of the Bundestag. This body is tasked with approving measures which lead to limiting the right to confidentiality of communication, such as interception of communication, monitoring the process of their implementation and deciding whether the persons who were targets of these measures are to be informed. The Parliamentary Trust Body is in charge for reviewing the budgets of security services.

           

          What are the main challenges to the parliamentary oversight over security services?

          Oversight over services is significantly hampered by the fact that the meetings of these bodies are closed for the public. Moreover, members of the oversight bodies are not allowed to communicate on matters they disclosed in the oversight process. I myself cannot discuss relevant topics with my colleagues who are members of the G10 Commission or the Parliamentary Trust Body. These solutions are to be changed through amending the Law on the Security Services Oversight [a legislative process which has already been conducted, annotation by K. Djokic]. This is a small step forward. At the moment, another great problem is the fact that I as a member of the Parliamentary Oversight Panel cannot talk to anyone, I do not have a deputy with whom I can exchange opinion, nor can I consult colleagues from my own party, not even when some major events occur, such as illegal acts or deaths of agents and informants abroad, etc. New legislative changes which would allow for the chairperson of the parliamentary group to be informed on such issues can be regarded as a step in the right direction. However, it will again work in such way that the majority, i.e. the Government, decides on what I can communicate to the head of my parliamentary group, and what I need to keep a secret.

          Parliamentarians learn about security services faillures from the media

          The key problem in parliamentary oversight is the fact that we can review only those issues which are given to us by the security services, and they do not hand out much. In fact, in my experience approximately 80-85% of all of the scandals, all of the blunders of security services, have not been discovered in the oversight bodies, but have first been published in the media. This kind of a situation is really unbearable since parliamentary oversight is supposed to be a tool applied to timely detect and remove irregularities in the security services work. Nonetheless, the opposite happens, as there are attempts to hide these scandals from the public, until they become visible. Sometimes, scandals reach the media only after a couple of years have elapsed. In these cases, a media outlet submits a catalogue containing some ten questions concerning a real or alleged scandal. The Government, realizing that they reached a dead end, convenes an emergency meeting of the PKGr, where it informs its members about the incident. All of this is done so that in the end they could say that the Parliament was informed. And the exact reason why the Parliament was notified was because the journalists were about to publish the story.

          A prominent example is related to the Chancellor’s declaration that “spying between friends is unacceptable” in the wake of the discovery that American secret services were wiretapping her cell phone. However, it turned out that the BND behaved in a similar fashion, as it spied international organizations, partners from the EU and NATO, governments of friendly and neighboring states. This was widely known in the Chancellor’s Cabinet back in the late 2013 when she said these things about spying between friends. However, we in the PKGr were informed about these issues as late as September 2015 - so, two years later. This stirred huge anger and protest, so that in the end the Director of the BND had to resign. Even though these scandals did produce certain consequences, the crucial problem remains. When the Government keeps silent about something, we do not have any kind of opportunities for review.

          Reviewing random folders on the security services premises is not the same as oversight

          We are, as members of the PKGr, empowered to visit security services and to access various documents. However, I am in the position to search and access only those documents whose existence I am aware of. If, for instance, there is a covert operation code-named “Orion”, in which the BfV surveilled a person or a group of people, I could access the relevant documents only if I am aware of this operation. Admittedly, if this operation is completely unknown to me, so that I do not even know its code name, how could I then request the relevant documents? I cannot enter the premises and just like that say “please, hand over the sixth folder from the upper left corner or the fourth folder from the bottom right corner" - this is not oversight, this is nonsense!

          An additional problem is that people are asking - what is the PKGr for, what purpose does it serve at all - since no one has a clear idea what it deals with. We can write a yearly report, but the details of all cases are secret or highly confidential. Even when we write, for example, that we have checked the case A and concluded that the BND did not act in accordance with the stated rules, we are not allowed to point out what the concrete irregularity is.

          If a scandal does occur, such as the discoveries of the CIA spy in the BND, then it is necessary for the Parliamentary Oversight Panel to take a stance because of the public pressure created in that kind of circumstances. The PKGr must decide with a two thirds majority whether the public statement will be issued. By a two thirds majority! This means that the Government can always jeopardize the adoption of any kind of decisions, as well as forbid me from making any kind of statements. As a member of an opposition party, I am not allowed to express my opinion on any issues without the authorization by the ruling coalition. This is actually a complete opposite to an effective oversight.

          These are the greatest problems we are facing, and again, they are largely engendered by the stipulation in the Law stating that the Parliament has to be informed on the general state of affairs, as well as on situations of particular importance. For the last 25 years the question was - what are situations of particular importance? Who decides whether a situation is of particular importance? In reality, the decisions on this are made by the Federal Government or the heads of secret services. Therefore, if they agree that something is of particular importance, we are informed, if no such decision was made, the matter is kept secret.

           

          What has PKGr done so far to overcome these difficulties?

          We are pushing for changes in order to improve the oversight conducted by PKGr. Now we have more members, we have a working group, composed of civil servants, that assists us by reading and reviewing documents. Up until now, members of the PKGr had to do everything on their own. A year ago, we had a disturbing death case of a BfV informant under code name Corelli, so we wanted to gain insight into all of the documents surrounding this incident to find out how the fatality happened and the background of the entire case. Then, we discovered that there were as many as 268 folders with 400 pages per folder only on this single informant. It is impossible to read all of these documents on your own. One needs associates who will read and point to the most significant problems. Now, with these changes, we do enjoy such assistance.

          Likewise, we have amended the Rules of Procedure, so that they could not lie to us that easily as before. Now we have the possibility to submit a request for audio recording a statement given by a minister on some point of order, and if in the next two years, for example, it turns out that he or she was not telling the truth, we can always play the audio and allow everyone to listen what the minister was saying back then. And if the person lied, he or she will have to resign, or face other severe political consequences. This was not possible until now. Therefore, we are trying to improve the system, step by step, and even the ruling coalition participated in these reforms. This was also a result of the scandal with the NSU [National Socialist Underground; extreme right group which for years killed citizens of immigrant descent, and was never tracked down], when the Members of the Bundestag got outraged by with the way in which secret services behaved. Furthermore, in the Rules of Procedure we tried to define what exactly the situations of particular importance are. For instance, we prescribed an obligation that the Parliamentary Oversight Panel needs to be informed when a member of security services commits a criminal offence, or if they get arrested abroad. Other points pertain to secret agreements our security services conclude with foreign ones, which groups are under surveillance and why, when and why new rules on handling official document are adopted, etc. This list is not exhaustive, however it is a good basis as the Government was not obliged to inform us on these matters up until recently. When situations like this happen, the Government is not anymore in a position to tell us that they refuse to inform us on a particular matter, claiming that it is not of particular importance. Now we have defined these situations in writing and have specified what we want to know. There will be further discussion on whether these changes are enough, or whether we have forgotten something. In any case, we are narrowing the gap in order to allow us to be informed on the most important issues. These are the current debates.

          Heads of secret services should appear in public hearings

          Also, I wonder why we could not look up to the American model (which has its brighter sides) and introduce annual or biannual public hearings of chiefs of secret services, which would be televised and allow the wider public to get acquainted with what the services do and how the Parliament goes about controlling them. Through introducing various matters into the agenda and asking tough questions, the people could get a glimpse into how the BfV operates. There could possibly be useful findings, just like those with the BND. Someone could naturally be against the deployment of the German military abroad. However, if the Bundestag has already decided on that matter, it is the duty of the Government to provide support to the military, which means that the BND could be assigned to protect soldiers in Afghanistan from assaults, or to participate in freeing German kidnapping victims and hostages, all of these operations are positive. Nevertheless, there are a lot of things in the BND operations that can be questioned. A public discussion on the necessity of intelligence activities is required. And such discussion could only develop if there is knowledge on what the services are doing, which problems arise in the process of control, and what legislative changes could be envisaged. This is what we are currently debating on in the Bundestag.

           

          Transcript and translation from German into Serbian by BCSP associate Jelena Pejic.

          Translation from Serbian into English by BCSP researcher Andrej Stefanovic.

           

          The interview was conducted in the framework of the project “LEGASI - Towards Legislative Reform of Security Intelligence System”.

        • Tags: security services, parliamentary control, Katarina Djokic, interview
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