On the paradox of parliamentary control over services operating secretly

A better parliamentary control of intelligence services should be a top priority for states seeking to re-establish their citizens’ trust, which was dramatically damaged by the Snowden revelations. In times of mass surveillance via the internet, states should demonstrate a serious will and sufficient means to control effectively their intelligence and protect citizens’ privacy with democratic means. There is a public consensus on that need, at least on a discursive level, and we hear many suggestions for how to improve the parliamentary control over intelligence services, many of them calling for better resources in terms of time and staff. But how helpful can they be if a central characteristic of parliamentary control of intelligence services - secrecy - remains unchallenged?

Demands for more staff and expertise

In Germany, for example 1 - where the public call for minimum privacy is relatively loud compared to countries such as the USA or the UK, we have a real opportunity for changes in parliamentary control: the NSA affair has moved an experts’ topic to the front pages and as a consequence, it has risen on politicians’ priority lists. In addition, a reform law from 2009 about the parliamentary control of intelligence services (Kontrollgremiumgesetz or PKGrG, for its acronym in German), grants the German Bundestag wide competencies compared to other countries (Krieger, 2014: 763). As a consequence, we have witnessed an increasing institutionalisation of the work of the parliamentary committee in charge of the control of intelligence services, the Parliamentary Control Panel (Parlamentarisches Kontrollgremium or PKGr, for its acronym in German): more frequent and longer meetings, more questionings of employees at these services, more studies of intelligence service files. Despite these developments, the current practice of the PKGr is falling short from fully exploiting its possibilities. Many critics have pointed out suggestions for improvement: the PKGr should meet more often, for a longer duration (should it become a full-time occupation?) and above all, be equipped with more staff and technical expertise. 2

Assuming that the German parliamentarians are genuinely interested in improving the control of intelligence services (some authors state that these claims are mere strategies of blame avoidance (Krieger, 2014: 763ff), the above mentioned suggestions are valuable and should be subject to serious consideration. But we should keep in mind that even if all these suggestions are implemented and the PKGr disposes of abundant staff and expertise, the parliamentary control of the intelligence services is still very limited because of secrecy.

Effective control of what is secret?

A considerable part of the activities of intelligence services are executed in secret. As a consequence, secrecy allows exceptions to the government’s duty to report to the PKGr and puts limits on the committee’s rights to go public (§10 Abs. 2 und 3 PKGrG). 3 As the sessions of the PKGr are closed and their content is secret, their members encounter a structural problem when controlling, just as their colleagues in other countries do (Smidt, 2007). This is due to the fact that members of parliaments generally dispose of two main instruments to exert influence: legislation/resolutions and public debate. Both are beyond reach of the members of the PKGr, as they cannot share the information treated in closed sessions with their party, and only in very limited ways with their staff. 4 To go public with information about the intelligence services is even more difficult: the PKGr can release public statements, but without giving away details and only based upon a two-third-majority decision, thus requiring the consent of the governing parties. 5 The limits imposed by secrecy to the parliamentary control become palpable in the records and annual activity reports of the PKGr. These render a very fragmented picture of its work: instead of giving a detailed account of their activities and discussions, they merely name the broad topics they deal with (see for example Deutscher Bundestag, 2013).

Now, exchange, counsel and deliberation are crucial if parliamentarians are to develop strategies and take action. In the present situation the members of the PKGr are largely isolated. As a consequence, there are many examples in history where they were well aware of deficits of the intelligence services and yet, not able to put them to an end (Waske, 2009: 18). Here, it becomes evident that secrecy makes parliamentary control somehow impossible. The controllers are “blind guardians” “without a sword” (Gusy, 2011: 132), lacking information and sanctioning power.

Suggestions for more transparency

There is no easy solution for the paradox of parliamentary control of services operating secretly; it is located somewhere between the abolition of secrecy (and thereby the abolition of secret services) and a state of ineffective control (which means no control at all). Between these extremes many arrangements are possible.

A first step towards transparency could be to grant the members of the PKGr the right to inform their parliamentary group (or its head) about deficits/malpractice, with the restriction to respect specific conditions and proceedings. A next step could be to pass the issue on to another committee or even to establish a committee of inquiry which typically includes more parliamentarians and holds mostly public meetings (Gusy, 2011: 135). Another suggestion is to challenge the government’s authority to define what has to remain secret: in cases of dissent, the members of the PKGr should have easy access to examination and mediation by an independent authority, such as a court of justice (Heumann & Wetzling, 2014: 24). 6

While all these suggestions would certainly improve the parliamentary control of intelligence services, they entail an expansion of the informed circle and thereby an increased risk of “leaks”. In the end, the design of the parliamentary control of intelligence services is a question of choosing a specific balance between transparency (parliamentary control) and security (secrecy).

Transparency as a threat to security?

Despite the above developed discussion, there is no scientific evidence about the concrete increase in security generated by the German intelligence services (and I doubt that there are respective findings for other countries). We also know very little about which degree of transparency harms our security. There is no surprise in that. Scholars are not exempt from the above mentioned obstacles imposed by secrecy: scant documentation, files closed or made available only decades later (and even then often times not free for citation), and potential experts not willing (and in many cases not allowed) to share their knowledge, even years later (see for example Waske, 2009: 12ff). More scientific evidence would be an important complement to the valuable work of journalists who have been throwing light on the activities of the intelligence services and have been of great importance to the work of the parliamentary controllers. Sound knowledge, produced with scientific rigour, could also improve a debate that is currently dominated by guesses and conspiracy theories. If scholars had better access to relevant information, we might even find out that transparency can have a positive effect on the work of the intelligence services, who knows?

References

Deutscher Bundestag (2013). Unterrichtung durch das Parlamentarische Kontrollgremium Bericht über die Kontrolltätigkeit gemäß § 13 des Gesetzes über die parlamentarische Kontrolle nachrichtendienstlicher Tätigkeit des Bundes (period under report: November 2011 to October 2013). Drucksache 18/217, 18. Wahlperiode, 19.12.2013.

Gusy, Christoph (2011). Grundrechte und Verfassungsschutz. VS Verlag für Sozialwissenschaften, Wiesbaden.

Heumann, Stefan/Wetzling, Thorsten (2014). Strategische Auslandsüberwachung: Technische Möglichkeiten, rechtlicher Rahmen und parlamentarische Kontrolle. Policy Brief der Stiftung Neue Verantwortung, Berlin.

Krieger, Wolfgang (2014). Das Parlament und die Geheimdienste. In: Merkur Deutsche Zeitschrift für Europäisches Denken. Jg. 68, H. 9, September 2014, Stuttgart, S. 757-766.

Smidt, Wolbert K. (2007). Systeme parlamentarischer Kontrolle von Geheimdiensten : Versuch eines Vergleichs. In: Smidt, Wolbert K./Poppe, Ulrike/Krieger, Wolfgang/Müller-Enbergs, Helmut (eds.): Geheimhaltung und Transparenz. Demokratische Kontrolle der Geheimdienste im internationalen Vergleich, Münster: Lit Verlag, S. 235-256.

Waske, Stefanie (2009). Mehr Liaison als Kontrolle. Die Kontrolle des BND durch Parlament und Regierung 1955-1978. VS Verlag für Sozialwissenschaften, Wiesbaden.