Currently, the intelligence activities of the Bundeswehr (German armed forces) remain excluded from all political and legal oversight (Photo: Bundeswehr.de)
When the German chancellor Olaf Scholz delivered his famous "Zeitenwende" [Turning Point] speech in February 2022, he placed the German armed forces (Bundeswehr) at the centre of the public attention.
Since then, the procurement and readiness of tanks, weapon systems, and radios have been discussed in detail over the media.
Less discussed, despite their growing importance, are the intelligence capabilities of the Bundeswehr. Policy debates in Germany are not only disregarding the current intelligence capabilities of the armed forces and their future aspirations, but also how these activities are democratically limited and controlled.
This became clear during the annual public hearing of the intelligence services by the parliamentary control committee of the German parliament on 16 October. The MPs were particularly interested in how Scholz's "Zeitenwende" affected the services in their work.
However, they could not inquire about how these changes would impact the surveillance activities of Bundeswehr's intelligence activities. The reason for this: the committee's mandate does not include these activities.
Therefore, no representative of the German armed forces was present to answer the MPs' questions. Yet, democratic oversight is urgently needed here.
As we demonstrated in a study published in October, the Bundeswehr is already running substantial intelligence gathering: it intercepts conversations over radios and mobiles, it recruits informants abroad, and it systematically analyses information from the internet.
Many of these activities interfere with different human rights such as the secrecy of telecommunication or the freedom of press.
Domestic surveillance
Moreover, one would think that the Bundeswehr would be primarily interested in possible threats outside Germany. However, a case involving a group of German activists demonstrates that this is not always true.Indeed, the Zentrum für Politische Schönheit [Centre for Political Beauty] is well-known in Germany for their disruptive artistic activities.
Following a campaign where they denounced some stocks of weapons that went missing in the military, the collective shortly became a focus of surveillance.
Soon, all the publicly available information about the activist group was automatically collected and analysed by the Bundeswehr. The organisation only became aware of being targeted through investigative media reports.
Legally, it is irrelevant whether individuals abroad or in Germany are the targets of intelligence surveillance: Germany's top court, the Federal Constitutional Court, clarified in its May 2020 ruling that such intrusions into fundamental rights can only be lawful with a legal basis and effective control in every case.
According to our estimates, there are 7,000 members of the Bundeswehr contributing to intelligence activities. In terms of human resources, the Bundeswehr is on a par with the largest service in Germany, the foreign intelligence service (BND).
The main difference is that any other intelligence-gathering services in Germany (e.g. the BND, the Verfassungsschutz and the MAD) has their own legal act. These acts determine the conditions under which the services can use their surveillance powers, how these powers are limited, and which institution control the services.
Legal loophole?
Even though the oversight and legal framework for these intelligence services is far from perfect, its existence is a large advantage. It prevents the abuse of surveillance powers, enables the prosecution of wrongdoing, and provides legal certainty to intelligence services' employees.There is nothing comparable for the surveillance activities of the German armed forces. Provisions for interferences in fundamental rights carried out within this framework exist, if at all, only in internal service regulations. However, as the Federal Constitutional Court has stipulated in recent decisions the infringements on fundamental rights associated with this type of surveillance activity require a legal basis in simple law.
This not only ensures the foreseeability of these activities for individuals, but also allows for public scrutiny and enhances the democratic legitimacy. There is also much to do when it comes to oversight. Since those affected are usually unaware that they are being surveilled, they cannot legally defend themselves.
To compensate for this lack of access to legal remedy, effective control is needed. The only independent oversight body currently available, the Federal Commissioner for Data Protection and Freedom of Information, can certainly point out abuses or shortcomings. But it cannot enforce corrective actions. Hence, oversight gaps should be closed, and the powers of oversight authorities strengthened.
The German government is not completely unaware of existent shortcomings in intelligence law. Currently, a first reform step is being discussed in the Bundestag; and the government is preparing a second one for next summer, which is announced by heated debates about what the legal framework and the oversight architecture of the intelligence services should look like in the future.
However, at this stage, the intelligence activities of the Bundeswehr remain excluded from all these conversations.
So, what should the German government do to address these deficits in accountability and rule of law?
First, it should extend the oversight mandates of existing oversight bodies to include the surveillance activities of the Bundeswehr. More specifically, it should expand the mandates of the Parliamentary Control Committee and the Independent Control Council, whose oversight mandate is currently limited only to the foreign intelligence service (BND).
When rethinking the oversight structure, the government should also have in mind that when there are too many oversight bodies with partly overlapping mandates, the effectiveness of oversight overall suffers. Hence, the German government should reduce the fragmentation of the oversight landscape by making the Independent Control Council the central actor for legal oversight of all intelligence surveillance activities.
In the medium term the government should also ensure that similar legal standards apply to all surveillance activities.
The current wide discrepancies between similar activities of different institutions creates incentives to evade stricter provisions and oversight through cooperation. Therefore, the German government should also establish a holistic framework for all federal intelligence activities.
In our view, with these proposed measures Germany will better meet its own aspirations to consistently regulate surveillance activities. Moreover, it can enhance its credibility when advocating for the adherence to the rule of law, domestically and internationally. In times of geopolitical upheaval when democracies are under pressure from various sides, this is more important than ever.
[Opinion] Why are German armed forces spying on domestic citizens?
It is not widely-known that the German armed forces carry out reconnaissance activities. Despite involving around 7,000 personnel, the German government does not consider the Bundeswehr is running an intelligence service, thus there is barely any control ...
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