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          • Year: 2016
          • The police should be strengthened instead of secret services

          • Belgrade Centre for Security Policy (BCSP) presents an interview with a member of the German Bundestag André Hahn which was led by BCSP Researcher Katarina Djokic.

        • 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.

           

          Could you tell us more about the ongoing BND reform?

          The current reform of the BND is a natural consequence of the work done by the Inquiry Committee on the NSA. Edward Snowden has revealed the activities of the American secret services the world over, including Europe and Germany. It was found out that there was long term mass surveillance (which has maybe not even been suspended in the meantime), of citizens, institutions, members of governments, which occurred not only in Germany, but in many other countries. The American philosophy in this regard, which can be read on the NSA’s website, is “We must know everything”. The methods for achieving this are of course very questionable for a democracy. If there is no private sphere, if there are no guarded spaces, if everything and everyone can be wiretapped without a reason and suspicion, then democracy is endangered in the long term. This is why it is necessary to have clear rules.

          We, the members of the German Bundestag, have formed an inquiry committee with the aim of finding out what exactly happened over there - what happened in Germany, what was the BND doing, and whether it conducted its activities in cooperation with the NSA. It turned out in fact that the BND was entangled into many affairs. We wanted to find out what the Government knew, who within the Government knew what, who approved what, and of course we wanted to establish what measures could be introduced in order to prevent or at least limit such mass surveillance done by foreign services on the German soil. Meanwhile, we learnt that the BND conducted similar activities as the NSA, of course not as successfully as the NSA, as it has less resources and is not as technically equipped as the NSA.

          BND used to set its own rules

          During the hearings it became clear, and this was confirmed to us by the former and current judges of the Constitutional Court and law professors, that a significant portion of BND’s activities did not have legal provisions supporting them. The relevant Law was outdated, as it was adopted in times when the most important information was transmitted by telephone or fax, and when there were no electronic communications, no Internet, no Facebook, no WhatsApp, etc. That means that the Law could not be applied to all of the today’s social networks. Hence, BND got creative and composed its own rules which never passed through Parliament. Those rules extensively violated the Constitution, laws and regulations concerning the personal data protection. I would not go into detail, but in time it became obvious to the very people working in Government that they were walking a thin line.

           

          Could you give an example of such practice?

          For example, the BND is not allowed to monitor German citizens. However, when we asked how this was attainable when it came to electronic communication, they responded:  "Whenever a number starts with a +49, we delete it, because that means it is a German number. Or if an E-mail address ends with .de, we erase this data because it is a German domain." We pressed on asking what happened with those German nationals whose E-mail addresses ended with .net or googlemail or similar. They simply said "well, tough luck for them" and afterwards added: "We just have a peek inside this communication, detect whether the German language is being used, and if so we can then delete it." Nonetheless, this could be an Austrian or Swiss national, not necessarily a German. How do they know for sure that this is a German? If there are millions of such messages and phone calls, then it is quite clear that it is impossible to pay further attention whether German is used. All of these data are collected and saved beforehand.

          This was all criticized by leading legal experts and researchers. However, instead of this practice being completely dissolved, in the current draft of the Law on the BND [in the meantime been adopted] all of these illegal and irregular measures have been legalized. Now it is stipulated - BND can do this, BND can do that, BND can access telecommunications infrastructure in Germany. Extraordinary situations are step by step being legitimized. There are no sanctions anymore. Now all of these measures which were not allowed in the past are matched with a legal provision allowing them. So, instead of these irregularities being suspended or stopped, they are finding their places in the statute. Of course, here and there you can find some beneficial framework provisions, but all in all this draft can be regarded as unconstitutional, at least according to the experts’ statements. Hence, it is certain that the Law will end up in the German Constitutional Court where it will be annulled. However, this process could last for years, since the opposition in this situation does not have sufficient number of votes for triggering a procedure of constitutional review. Naturally, for us this is unacceptable, especially because of the stipulation to form a committee for oversight of the BND the activities abroad, an independent jurist committee. The funny thing is that the Government is electing this body, and not the Parliament, which means that the Government itself picks those who will oversee its work, which contradicts the very concept of democratic control.

           

          Will the BND reform also advance parliamentary oversight in this regard?

          At the moment, there is also a legislative initiative for improving parliamentary oversight of security services. I have already mentioned that there are a few good solutions. Now we can communicate with the members of the G10 Commission, we can inform the chairperson of our respective parliamentary groups on issues discussed in the PKGr, but only if there is an approval made by the majority of members. We are going to have hearings with chiefs of services, even though they would not be public, nor will the meetings be recorded. Neither will the Parliament approve agreements with foreign services. Additionally, the PKGr will not be allowed to scrutinize BND search items, i.e. the key words they enter while skimming through electronic communications, what data they search for, which telephone numbers and e-mails are under surveillance, etc. That means that still we are not in a position to get all the necessary information. We can only review operations that have been finalized, but not ongoing ones as well, which further on means that they can always deny us information with the excuse that the operation is still ongoing.

          Likewise, effective protection of whistleblowers is missing. We know after Edward Snowden what risk, not only to their life and health, but also their families, these people are taking when they expose irregularities. We certainly want to enable civil servants working in security services to turn to the Parliament or the PKGr in order to expose illegal activities or irregularities. That is completely fine. However, the current regulation states they must inform their superiors about the matter they blow whistle on, simultaneously with informing the Parliament. And in cases of whistleblowers, it is exactly their superiors who they want to blow whistle about. As long as the obligation for informing the superiors exists, there will not be any kind of information provided to the PKGr, since civil servants, understandably, are afraid of standing against their superiors since their jobs could be jeopardized. Therefore, this procedure is quite useless.

           

          Does this mean there has not been a single case that an employee of the security services turned to the Parliament?

          No. Occasionally we receive anonymous letters, but the Government is decisive not to react upon them. If a civil servant only approached me with certain complaint, then at the PKGr sessions I could request from the head of the BND information on a certain event, through accessing documents, data of certain persons, and in those kinds of situations I could actually control the services. However, when this civil servant is in danger of being fired, moved to another post, replaced or punished, they would not come to us. This is exactly the kind of protection we are looking for. My political party, "The Left", has submitted a draft law which aims at improving the system of parliamentary oversight, where we have suggested more than 20 amendments to the existing legislation with the purpose of strengthening the effectiveness of this oversight mechanism [the Bundestag voted against this draft in the meantime]. Our positive amendments were completely ignored by the ruling coalition in their respective draft law [which was adopted in the meantime]. Instead, a Commissioner for Secret Services is being established. This person will be appointed by the PKGr, which will also assign their tasks. The Commissioner will be supported by a team of staffers. Currently, there is a suggestion to name the former deputy director of the BND as the Commissioner. This is just another example of turning wolves into herding dogs, as the very actor who has all of these years infringed upon the law is now supposed to be in position to oversee his former colleagues. Nobody believes that such a thing would actually work. Another danger could be that the parliamentarians are told - now that you have the Commissioner, you do not have to review the documents; he has already done it for you and will summarize them in a few sentences. - I would rather read the scandalous documents myself so that I can create my own picture of the practice, and not let somebody, who is probably a member of the CDU [Christian Democratic Union], assure me that the CDU has acted in an orderly manner.

           

          "The Left" is advocating for secret services to be abolished in the long term. How do you think such a thing could be done and what would you replace secret services with, i.e. what other body could take up their competences?

          Well, this is not something which could be done in two or three years. Instead, we face the current establishment with all of its weaknesses, flaws, and maybe even virtues. Therefore, changes are to be introduced step by step and keeping in mind the tasks assigned to services and what other bodies could overtake them. In this sense, I would like to underline that monitoring the opposition is not and should not be among the intelligence functions of the secret services, and tasks such as those should not be delegated to, for instance, the Federal Office for the Protection of the Constitution. "The Left" members were followed by the secret services for years, but this kind of a practice can be suspended swiftly and easily. And at the moment this practice ceased to exist, at least allegedly. Here, pressure created through the Parliament and the PKGr helps a lot.

          On the other hand, intensive discussion could be triggered when it comes to the legal regulation of security clearances. However, these procedures could be given to a special unit within the Ministry of Interior, and not the security services. Likewise, the secret services are also charged with providing advice to the Government on foreign policy issues. In that case, what do we need embassies for? You have an embassy with a number of extremely qualified people, and at the same you employ a BND agent to collect intelligence, who sends his report to the BND headquarters, which is afterwards transferred to the Government. At the same time, a similar report is submitted to the Government by the Ministry of Foreign Affairs, so that the Government compares whether the contents are same. What is the point of all these efforts?

          In the end, there is fight against terrorism. Terrorism is a criminal offence and I do not see why the police should not handle this threat. The same goes for illegal arms trafficking. Law enforcement agencies of different countries cooperate between themselves; there is also Interpol, and other such mechanisms, which act as centers for data exchange. Besides, a good portion of the work on preventing terrorism could be transferred from the security services to research institutes. In my experience, security services employ people whose job is to sit all day and read newspaper articles, and plus they get paid pretty well. These kinds of jobs can easily be performed by researchers. But no, on the contrary, there is a firm belief this line of work belongs exclusively to the secret services. On the other hand, I am in favor of strengthening the police. In the latest period, thousands of policemen and women have been laid off, so much so that people now are flabbergasted that the police has no sufficient to secure even a small public event. The police also have the authority to intercept communication, and what differentiates police from the services is the fact that the police perform these operations purposefully - towards individuals suspected of concrete crimes, and does not conduct mass surveillance. Special police units could also be deployed in rescuing German nationals abroad, if local authorities are unable to do this on their own and authorize such action. There is absolutely no reason for the secret services to be entangled in this as well. All in all, we face the question: do we want to hand out even more money and technical equipment to the services, or do we want to invest these resources into strengthening the police?

           

          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, police, interview, Katarina Djokic
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