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Germany's Grundgesetz and the NSA

In July, a 31-year old member of the German BND (foreign intelligence service) was arrested under suspicion of offering secret information to Russian intelligence services.  However, the suspect later revealed that he also had received money in exchange for passing information to an American contact.  The suspected double agent received €25,000 in exchange for information regarding a German parliamentary committee investigating the National Security Agency’s mass surveillance of Germany.  Relations between the United States and Germany had already been strained since last summer over the discovery that the NSA had been monitoring German Chancellor Angela Merkel’s cell phone.  On July 9th, U.S. Ambassador John Emerson attempted to ameliorate the situation by offering Germany an intelligence sharing agreement similar to the Five Eyes alliance between the United States, the United Kingdom, Canada, Australia, and New Zealand.  Chancellor Merkel instead chose to expel the CIA’s station chief.

Even if Chancellor Merkel had chosen to enter into a closer intelligence-sharing agreement with the United States, Germany’s Grundgesetz (Basic Law or Constitution) might have proven a significant barrier.  The Five Eyes agreement may enable members to circumvent restrictions on domestic intelligence gathering by allowing another Five Eyes member to gather and then share the information.  Since the 9/11 attacks, the German Federal Constitutional Court has favored preserving the Basic Law’s strong protection of privacy rights and would oppose an agreement that might violate these rights.

The Basic Law of 1949 can be seen as a reaction to abuse of fundamental human rights by the Nazi regime.  In order to emphasize the constitutional safeguards of civil liberties and ensure that the crimes of Nazi Germany would not be repeated, the Basic Law begins with a comprehensive list of the rights of individuals.  Article 1 of the Basic Law sets forth that, “Human dignity shall be inviolable.  To respect and protect it shall be the duty of all state authority.”  Article 1 is intended to prevent a person from being made into a “mere object” of the state and cannot be amended or removed.  Article 2 of the Basic Law guarantees the right to free development of personality as well as the right to life and physical integrity.  Article 10 protects the privacy of postal and telecommunications.  Article 13 safeguards the privacy of the home.

Since its inception in 1949, the Federal Republic of Germany has amended some of the Basic Law’s originally unqualified individual rights in order to address threats to national security, such as domestic terrorist groups and organized crime.  Article 10 was amended in 1968 to permit wiretaps and other interferences with private communications as long as these measures were pursuant to a law.  Later, the G10 Act of 1994 expanded the power of the BND to conduct surveillance of individuals if there were grounds to suspect that they were planning or had committed a crime that posed a threat to national security.  The sacrosanct protection of the private sphere in the home under Article 13 was amended in 1998 to permit electronic monitoring when a person is suspected of an especially serious crime.

After the 9/11 terrorist attacks, the German Constitutional Court began to focus on the preservation of liberty over security measures.  In 2006, the Constitutional Court held that the Aviation Security Act, which authorized the German military to shoot down hijacked civilian aircraft, was incompatible with the right to life guaranteed in Article 2(2) in addition to the protection of human dignity under Article 1(1).  In 2005, the Court upheld the use of electronic devices to detect the location of suspected criminals traveling in cars or other moveable objects, but required that any round-the-clock use of such technology (in addition to other observation methods) must not result in a detailed profile of the suspect’s personality.

In 2007, Germany included a data storage obligation in the New Regulation of Telecommunications Surveillance.  The statute, which required suppliers of telecommunication services to store certain kinds of traffic and location data for six months, was compulsory under the European Union’s Data Retention Directive.  The Constitutional Court issued a temporary injunction which suspended parts of the statute in 2008 and struck down the statute in 2010.  The Court held that the storage of telecommunications data constituted an encroachment on individual rights because it was possible to use the data to produce personality profiles of citizens.

Although Chancellor Merkel rejected the offer of an intelligence-sharing agreement similar to Five Eyes, she has indicated that .  Chancellor Merkel, who grew up in Soviet-allied East Germany, reportedly compared American intelligence operations in Germany to the Stasi (East German secret police).  In addition to political opposition to entering an agreement similar to Five Eyes with the United States, German constitutional experts have already raised questions about the legality of current German intelligence cooperation with the NSA.  As Germany’s present relationship with American intelligence services is under intense public scrutiny, it is unlikely that the German government will enter into an agreement that could result in further encroachment on fundamental privacy rights.


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