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          • Year: 2016
          • In Absence of Oversight, Secret Services are a State within a State

          • 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 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 parliamentary group "The Left", at the moment the largest opposition group in the Bundestag.

           

          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. The interview has been divided into three parts, and in this part the conversation deals with the question how to advance parliamentary oversight practice.

           

          To what degree does the effectiveness of the parliamentary oversight depend on the party affiliation of the Parliamentary Oversight Panel chairperson? In Serbia, there has been a huge debate on this matter, since in the last couple of years it has always been the case that the chairperson is a member of the ruling coalition.

          There are unwritten rules in the Bundestag that, for instance, the chair of the Committee for Budgetary Affairs is elected among the opposition Members of Parliament. When it comes to secret services, up until recently the Law on the Control of the Security Services specified that the position of chairperson of the Parliamentary Oversight Panel is rotated annually between members of the ruling parliamentary group and the largest opposition parliamentary group [this provision was stricken out as the amendments to the Law took effect on the 21st October 2016]. At one point the position of chairperson came to the possession of “The Left”, and I became the chair last year. At the moment I act as the deputy of the chair, and I ought to become the chair next year as well, but the Government is going to prevent this from happening through the new legislative reform.

          Of course, the chair is under a greater public spotlight, since he or she is questioned and frequently interviewed on specific issues, with regard to BfV and the BND. For example, I was invited to all important television talk shows, and the secret services did not like what I was saying. They would rather have someone who will say something on the lines of - yes, there was an incident, that was not alright, but we are keeping the situation under control and everything will be fine. On the other hand, I was clear in my presentations that those who infringed rights have to bear the consequences, and that certain operations have to end immediately. The difference speaks for itself. Further on, the chair is the one who convenes the meetings and can therefore influence the agenda and rearrange it to a certain extent. What is of utmost importance is the fact that the Government is obliged to inform the chair on all of the activities executed abroad by the secret services. The chair of the PKGr is the first one who finds out about these events, three to five days before they make headlines in the newspapers. Exactly this was one of the problems for the Government, when the Office of the Chancellor had to invite a member of the “The Left” and inform him that there was a blunder. Nevertheless, there are rules prescribing who should be informed on these matters: the Chancellor, Chief of the Cabinet, as well as the chair of the PKGr. All of a sudden, that chair was me. For the Government this was a horror story that I was to enter the building and say: "I want to take a look into every single document".

          Of course the chair is equipped with certain powers, but in the end his hands are tied if there is no majority decision in the PKGr. That practically meant that I had to give out statements on things I had a different perspective on, or sign documents which I would formulate differently. However, I could always add to documents adopted by the majority that I did not participate in writing the document and that I have voted against for such and such reasons, and that my stance on that is the following. I took great advantage of this sort of a possibility the chair enjoys.

           

          Generally speaking, what should be the opposition’s role in controlling intelligence services?

          The Parliament should be controlling the Government. When I say Parliament, I mean the members of the ruling parties, too. However, they often tend to protect the Government, rather than control it, therefore even more has to be done by the opposition. We have to use the opportunities that have been provided, for instance inquiry committees, something which we used for the scandals surrounding the NSA. Likewise, we ensured that BND selectors [key words/phrases/E-mail addresses used to search the content of intercepted communication] are subject to review. In the beginning the oversight was focused on the NSA, but as time went on we widened the scope, so that now we could interrogate suspects even on issues such as which international, nongovernmental and foreign government officials exactly were targets of BND surveillance in the latest period. I, as a member of the PKGr, have knowledge on that, but I cannot talk around. I can access this information in the premises of the Government, in a special secret corner of a room, all the time under scrutiny of Government employees, and when I walk out I have to burry that information deep into my memory. But, now, we at least have the opportunity to ask questions at the meetings of the Inquiry Committee, such as the one on who came up with the idea of spying the French minister of foreign affairs. We aim at clearing up this kind of matters, ensuring thus greater transparency. During my tenure as the chair of the PKGr last year, I took care that the PKGr adopts a substantial number of statements that were available to the public. Of course, every single time I needed approval of the PKGr, but in certain situations even the ruling coalition can’t say ‘no’, especially when there is a group of twenty television crews outside the meeting room waiting for a statement, and they could not just tell them "it’s nice that you came here, good bye". This is politically unsustainable in the long term.

          The government will amend legislation only if it feels pressure

          We strive for greater transparency. This also means that we are against hiding things from the public this much. Some of the documents I have accessed, either in the premises of the Government, or in the BND, are partially blocked until 2076. Sixty years! National security is the official reason for this, since if now we discover that not only the French foreign minister, but also other ministers and presidents, were wiretapped, then they have all the right to be angry, which could likely deteriorate German relationships with these respective countries. On the other hand, if these things are discovered sixty years later, nobody will care anymore, nobody will get annoyed, and those responsible will not be there anymore. This means nobody can be punished - an absurd situation. It is therefore necessary to write about these issues in all of the reports we have at our disposal, including the Yearly Report of the Bundestag. Further on, we submit proposals for legislative amendments which would set clear limits for the activities of secret services. If these limits are breached, then those responsible have to face consequences, including prosecution. In this area the opposition will not easily give up, but will continue to work on uncovering issues and calling for stricter consequences. Nonetheless, it is important to keep in mind that we do not have a majority, which means that we cannot change laws on our own. Only if the ruling coalition perceives that the pressure is mounting, they will take action.

           

          You described inquiry committee as an instrument of the opposition. In Serbia it has been barely used thus far, and never in regard to failures in the security sector. How would you grade the importance of such an instrument?

          That is difficult to say. Officially, the inquiry committee is regarded as the most powerful weapon of the opposition. Legally speaking this is correct, one of the reasons being that the minority can take actions against the majority’s will. Also, the inquiry committee enjoys quasi-judicial competences, as it can request documents and call upon witnesses to testify. If at some later stage it turns out that a person was not telling the truth before the inquiry committee, they could end up in court and be liable for giving false statements under oath. In this sense, the inquiry committee possesses some instruments that resemble the ones held by the judiciary and which make the inquiry committee especially appealing for members of the opposition. Furthermore, these kind of parliamentary bodies earn great attention from the public. For example, journalists regularly sit in meetings of the Inquiry Committee on the NSA. We can call witnesses even if the ruling coalition is against it. In such a way we were successful in calling for the Chief of the Chancellor’s Cabinet, the Minister of Interior, and the Foreign Minister. In February the Federal Chancellor will be testifying and we will be able to interrogate her for hours, as much as we want, and she needs to stay there. Here the majority cannot simply say "we don’t have any more questions, Madam Chancellor, you are free to go home". She will go home when we decide! This situation is not pleasant for the Government, and the opposition has got the opportunity to investigate certain things at public sessions.

          Inquiry Committees on secret services are a bit more complex, because witnesses can always say that by answering a question they would take on too much risk: for example, by providing information on some extreme or Nazi groups, they could get threatened or worse, or their informants could be jeopardized. In these circumstances the meetings are interrupted and continued in the evening, but this time closed for the public. Key findings that were reached during the meeting are not disclosed to the journalists and the public. This creates problems in drafting the final report.

          For example, at a public meeting the witness answers questions regarding his presence during decision-making which led to an incident when two persons were killed. He states that he was not present at that particular occasion, and then the public meeting is closed and the journalists go home. However, we continue with the meeting, this time closed for the public, and I show him a document confirming that he was indeed present. And after seeing that document in front of him, he says: “Oh, God, now when I see the document, I reckon I must have been present after all”. And this statement acquired during the closed meeting does not in any way comply with what was said during the meeting where journalists were present. Nothing can be changed afterwards, I cannot publically state that we have a document that confirms his presence, because the document is highly confidential and revealing the information is punishable with up to three years imprisonment.

          As I said, in theory the inquiry committee is a very important instrument, both because of its connection with the public, and because it can subjugate Government officials to make an appearance before the committee and give out statements. At the end, a report is to be written, and it has to be adopted by the majority, and it usually says that despite some irregularities, things are fine on a whole. There is also a report submitted by the minority, where all irregularities are on display, with the exception of those contained in documents marked as secret or confidential. Based on this, every reader - be it Member of Parliament, journalist, researcher - has to for himself of herself, paint the entire picture of the situation, and conclude what corresponds most to the truth. Even though there is an obligation for the Final Report to be written, it is not complete as the Government does not always submit every single piece of information. Officially, they do have to provide any kind of document request. Nonetheless, it happens that we receive folders where 350 out of 400 pages are basically missing. Then the Government says that the missing parts are not eligible material for an inquiry committee, or that they needed to protect rights of third persons, or business interest, or something else, and as a consequence they blank out a large portion of the document. Again, I am able to sue them, since they are actually obliged to provide all materials, but this procedure could last for two, two and a half years. In this period, the Government’s mandate could end. We had cases such as this. The opposition sued the Government since it did not submit the requested documents, and the Federal Constitutional Court adjudicated in favor of the plaintiff and issued an order for the documents to be published. But, in the meantime elections were held, and the Government stated that it would consider that the obligation to publish the documents expired, since it was in force for the previous Bundestag. Therefore, even the efforts of the inquiry committee can be foiled by the Government, which relies on all available means to do that, especially when scandals with secret services occur.

           

          What do you think would be the right path for Serbia to take if it wants to develop the culture of parliamentary oversight over security services?

          First of all, I do not think it is a good idea to enforce solutions from the outside, including Germany. Decisions have to be made by the Serbian people through their elected representatives. Second of all, the German system should not be regarded as exemplary and should not be copied to other countries just like that. Moreover, during the interview I have tried to present it with all of its flaws. Likewise, Serbia possesses a different kind of a mentality and a differently structured security-intelligence system. I myself do not know this system sufficiently, so I would not dare to comment on what should be changed and what should be done. In any case, I do believe that the priority should be to solve the conflict between parliamentary oversight which further promotes transparency, on one hand, and the efforts of secret services to work behind closed doors, on the other. If secret services do not have anything to hide, then they would not have a problem with speaking publicly about their work - of course, not to reveal every single time when they apply special measures for secret data gathering, or the content of intercepted communication, but to explain their work in essence. It is exactly the Parliament’s task to exert pressure on secret services. In this vein, it is necessary for the committees to be filled with people who want to get to the bottom of things, and not to be comprised of apologists of secret services. Likewise, secret services ought to behave in accordance with the law and this is why a sound legal system has to exist. A statute needs to explicitly state what the services can do and what they cannot do. In addition, there need to be clear provisions on what happens when the boundaries are overstepped. When such a thing occurs, it is important that both the parliament and the prosecution are activated, so that it is ensured that adequate consequences exist.

          It is important to ensure transparency and to put an end to hidden mischief. We need a clear legal framework which provides elected representatives as much power of oversight as possible. We in Germany have a lot of work to do if we want to reach this goal, so I could only wish my colleagues in Serbia the best of luck in establishing this branch of parliamentary oversight which is of utmost importance. In the light of everything said, we have to recognize that secret services are in fact a foreign body in a democracy, since democracy is nested on transparency, while secret services run away from it. However, if we do not have a choice but to regard them as necessary, which is something the Government is forcing us to believe, in that case they have to be legitimate and subject to democratic control. If such a control does not exist, services are in a way a state within a state and remain outside of the legal order, and this is not something a democracy could tolerate under normal circumstances.

           

          Transcript and translation from German into Serbian by Jelena Pejic.

          Translation from Serbian into English by Andrej Stefanovic.

           

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

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