Why we need to rebuild the legitimacy of our foreign intelligence services

At the heart of what we call the NSA (National Security Agency) affair - and what has turned into a German intelligence service issue subsequently - is the need to reestablish if not to install a meaningful parliamentary oversight over the relevant agencies. This is where everyone can agree so far. When we look beyond pious platitudes, delivered from politicians across western democracies, common sense comes to quick end. It has become obvious that the executive is neither willing nor able to fully comply with the complex oversight task. When it comes to informing the German parliamentary committee of investigation, the German government is eager to leave as much as possible of the BND’s (Bundesnachrichtendienst, German Foreign Intelligence Agency) activities in the dark by not cooperating or blackening relevant files. But media coverage and revelations keep up the political pressure. Despite all claims that German intelligence agencies do operate only on constitutional ground and that parliamentary oversight is an important good, government representatives insist on extensive classification and fail at the same time to prove its need transparently. The way these people deal with Parliament and sovereign gives reason to believe that there is plenty to cover up. We have apparently lost control over at least the German BND and how it cooperates with other allied states’ intelligence agencies.

Where the crisis of legitimacy of intelligence services originates from

Those who shrug and insist that this is the nature of the beast, are mistaken in three ways:

Firstly, intelligence agencies' field of operation has shifted away from human sources (human intelligence, humINT) to strategic surveillance (signal intelligence, sigINT) of digital communication over the last two decades. Event-driven intelligence has turned into global mass surveillance including all parts of digital life. Everyone who communicates digitally is affected. Parliamentary oversight failed to adapt accordingly.

Secondly, fundamental rights of citizens are therefore intensely affected in general as well as in detail. A potentially monitored society cannot be free and democratic. It should be of great concern to governments to exclude any such suspicion and to rebuild the necessary transparency on its acting.

Thirdly, we can find growing evidence that the way intelligence agencies act undermines foreign policy goals and initiatives, not only in Germany. US president Barack Obama publicly justifying the eavesdropping of closest allied leaders is a massive harm to his foreign policy objectives. Same holds true for Germany and its BND surveillance programmes: how can German diplomats advocate privacy in the digital domain at the United Nations General Assembly when the BND’s interpretation of constitutional law only applies to German citizens in Germany?

Thanks to conferences such as “Privacy and data protection in times of big data, state surveillance and digital globalization”, organised by the Alexander von Humboldt Institute for Internet and Society on 3 December 2014, there is space to inter-disciplinarily discuss the topics in Germany.

Three steps for reforming policy

While decision makers from the executive still practice obstruction, experts from the fields of law, computer science, as well as natural and political science outside the apparatus jointly agree: there is an urgent need to adjust the legal framework. In my mind, we should focus on three steps:

Firstly, the government’s internal rules for document classification have to be revised. Too many documents have been classified too restrictively so far, preventing transparent action on the part of the executive.

Secondly, we need to alter the functioning of parliamentary oversight in order to foster its capabilities and effectiveness. We know how to do this as proposals have been widely discussed in recent years, at least in Germany. Initiatives failed under varying political constellations. It is obvious that both technical and human resources at hand of the Parliamentary Oversight Committee (PKGR) need to be increased dramatically. We need to install a parliamentary representative for intelligence agencies - someone who becomes a focal point for staffers inside the agencies, someone the personnel can turn to in case of personal and functional misuse of competencies or illegal behaviour. In addition, the PKGR should be capable of direct oversight and investigation of relevant divisions in the BND. Furthermore, it is necessary to reform the relevant law (G10 law) - which restricts the intelligence agencies competencies to monitor German citizens - in a way that legal steps against can be taken in cases of contentious or misused monitoring programmes. Also, non-Germans need to be included by the general protection standards.

Thirdly, we need to protect whistleblowers by law. To me, it is a democratic matter of course to disclose unconstitutional behaviour of persons or institutions when internal procedures and external oversight fail to deliver.

Germany’s history including totalitarianism and dictatorship has offered deep insight into the consequences of uncontrolled and unrestricted intelligence activities. Due to these experiences and the way in which German society has dealt with its dark heritage, Germany’s foreign policy has gained international credibility. We are about to lose it if we do not change national intelligence oversight before asking others to shift their behaviour. ​