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Wednesday, May 25, 2022

Even in the secret services, not everything has to be secret

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The attack on Ukraine came so suddenly that even the chairman of the Federal Intelligence Service (BND), Bruno Kahl, was surprised. Escorted by a special squad, the head of the secret service had to be taken out of kyiv by land. What was he doing there? Who did he meet?

FDP member of the Bundestag Konstantin Kuhle used this case before the Federal Constitutional Court on Tuesday as an example of the questions the government would never have to answer to Parliament as a whole. At most, the Parliamentary Control Committee (PKGr), a top-secret circle with few members, created specifically for such purposes, should be informed. Such knowledge about the operational activities of the BND in a current event is too explosive to spread to the public.

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But Kuhle’s case is different: In 2020, he wanted to know how many employees of another secret service, the Federal Office for the Protection of the Constitution (BfV), had been sent abroad in previous years to carry out their surveillance work there. The government also rejected this information, for public welfare reasons, as stated. As a result, the politician started an organ dispute procedure in Karlsruhe, which was negotiated on Tuesday.

Requests are rejected too often

As a parliamentarian who has to control the government, he has a right to information. He wanted nothing more than a mere number, Kuhle declared during the hearing of his lawsuit before the Second Senate. It is important for him to recognize the structures of the security architecture and, in case of doubt, to be able to improve them through legislation.

After the NSU murders and the Breitscheidplatz attack, there was a lot of discussion about the failure of the secret services. Therefore, it makes sense to look at the scale of the reconnaissance activities of the BfV national secret service abroad, actually plus the field of activity of the BND foreign secret service.

It is doubtful that the number really helps the politician in his evaluation. He is clearly concerned that the executive should not make it too easy for the executive to get rid of the Bundestag’s queries. Because that often happens in practice.

Not everyone has the same right to information about secret services

In the past legislative period, more than 4,000 questions from the Bundestag were addressed to the government, Mahmut Özdemir, parliamentary State Secretary of the Federal Ministry of the Interior, informed the judges. Even when it comes to secret services, what can be disclosed is weighed on a case-by-case basis.

The possibilities for this are staggered. The responses that the Bundestag takes note of as a whole on the published forms, and thus the interested public, including the media, are common. Articles worthy of protection are deposited with the secret protection agency of the Bundestag. MEPs can view documents here, but can be prosecuted if they transmit content from them. Top secret matters are reserved for the watchdog which, according to Özdemir, aims to close the control gap in the operational activities of the secret services.

From the statements made by the court of judges, it became clear that secrecy must be well justified. Otherwise, you end up, intentionally or unintentionally, with an “area exemption” for matters related to the secret services. There shouldn’t be, even if Senate President Doris König were to speak shortly after in her opening statement.

Intelligence services argue with the “mosaic theory”

However, a verdict in the process could be significant beyond the case. According to König, the court wants to take a closer look at the “mosaic theory”. This consists of a pattern of argumentation known not only to parliamentarians but also to journalists, with which public authorities evade their duty to inform. Because here it is often said that individual information about a fact does not have to be protected in principle.

[Lesen Sie auch: 968-Seiten-Gutachten über den BND: Das Geheimnis um das geschwärzte Land aus Kapitel 6 (T+)]

However, in combination with other facts, the revelation of a single piece of the puzzle could give the enemy powers a general picture of the situation and the work of the German secret services. The judges fear that the government could use this tactic to condition practically all the data of the intelligence services.

It should also be interesting how the court assesses Kuhle’s form of non-information on the number demanded. The politician only recognizes empty phrases and standard formulations, such as those often found as text modules in government responses. On the other hand, the executive is in the dilemma of having to use more arguments to provide more possibilities for conclusions. The Second Senate will decide in a few months whether it can be dissolved and, if so, how.


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