The compliance with the parliamentary interest in information is a cornerstone of democracy. On secret services, however, this is too much effort for the German government.
The current federal government in Germany wants to continue to inform parliament only to a limited extent about the foreign work of its secret services. This is the result of an answer to a parliamentary question of the Left Party. The MPs had asked about the implementation of parliamentary information rights and the so-called “Third Party Rule”.
The term is used to justify secrecy if the information sought by parliament comes from a service abroad. According to the argumentation, this authority only transmitted the information on the condition that no third party obtains knowledge of it. This concerns, among other things, the activities of the Federal Intelligence Service, which is responsible for overseas reconnaissance. Since 2001, the Federal Office for the Protection of the Constitution (BfV) has also been working together with all other domestic secret services of the Schengen states in a “Counter Terrorism Group”. It belongs to the informal “Club of Berne”, about which there is also great secrecy vis-à-vis the Bundestag.
Time and again, the Left Party in the Bundestag had inquired about these cooperations, with the focus on the Office for the Protection of the Constitution. The first question, which came to nothing because of the third party rule, dates back to 2012 and was about the cooperation with the EU Intelligence Situation Centre (SitCen) in Brussels. This was followed by dozens of other questions on planned cooperation with the police agency Europol. Later requests concerned the European networking of right-wing groups, about which the BfV is informed from abroad. The passing on of information to foreign intelligence services, if it came from the register of foreigners or from the Federal Office for Migration and Refugees, was also supposed to remain secret according to the Third Party Rule.
In the more than 100 responses with reference to the Third Party Rule, the governments of the last three legislative periods have mostly used similar text modules. According to them, disregarding this rule would lead to “the international exchange of information between intelligence services in this area no longer being possible”. This could lead to a threat to the “well-being of the state”.
However, the requested answers were not always refused on principle. In some cases, they have been deposited with the Secret Protection Unit of the German Bundestag. There, MPs can inspect secret and top-secret classified documents. However, the secrecy regulations that apply to them prohibit discussing them with lawyers or other knowledgeable persons.
The ministries are indeed allowed to weigh up whether the “interest in maintaining the Federal Government’s ability to act in foreign and security policy” outweighs the parliament’s interest in information. This is also confirmed by a ruling of the Constitutional Court in 2016. However, this is not a carte blanche to refuse to provide information, the judges emphasise. Rather, the government must ask the state in question, from which the information originates, for complete or partial permission to disclose it.
However, no cabinet has ever sought such permission abroad since 2012. The ruling coalition wants to do as its predecessors did and decide as it pleases. Thus, even under their responsibility, it had never been “purposeful and expedient” to submit a request for release in the context of answering parliamentary questions.
The government justifies this with the burden of the Bundestag’s right to information. Thus, it was “almost impossible with reasonable effort” to submit a request for disclosure to a partner service within the tight deadlines for answering parliamentary questions.
At times, the questioners of the left-wing parliamentary group had affirmed that they wanted to accept a longer deadline for answering – also without success. In addition, the government could provide certain answers after the deadline. However, this was apparently never considered.
Published in German in „nd“.
Image: Right wing chief of the BfV Hans-Georg Maaßen with then Minister of Interior Horst Seehofer in 2017 (BMI).