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An insufficient reform

July 3, 2015

A law to reform Germany's domestic security agency aims to shore up spies' ability to operate. At least that's the idea, but the changes don't go far enough, says DW's Marcel Fürstenau.

SYMBOLBILD zum Thema MAD Verfassungsschutz
Image: picture-alliance/dpa

It is and it always will be a dirty business, but a necessary one. Intelligence agents who act in secret are needed to ensure the best possible protection of a country's free democratic order. The state wouldn't have a clue about the threats the country and its citizens face without them. The threats have many different faces: that of the religious fanatic, the political extremist and the organized crime boss.

All are a potential threat to the peaceful coexistence of people in Germany. It's the state's duty to defend against them. To that end, the state has a monopoly on the use of force.

The reforms of the Federal Office for the Protection of the Constitution (BfV), Germany's domestic intelligence service, which passed Germany's lower house of parliament, would hardly have been necessary if federal and state authorities had done their job in a responsible way.

Their negligence became particularly clear in the case of the National Socialist Underground (NSU). The far-right terrorist cell is suspected of being behind 10 murders the occurred under the eyes of the BfV.

Parliamentary investigative committees have attested the state's total failure, and rightly so. Luckily, their criticism didn't infer direct participation in the acts.

Tenacious inquiries

But the findings were shocking enough: severe deficits and mistakes concerning the exchange of information, analysis skills, choice of staff and setting priorities were all criticized.

Now, the situation is supposed to change for the better, thanks to the NSU parliamentary committee that relentlessly uncovered many of the agency's weaknesses. The committee's work is impressive proof that parliamentary supervision can be quite effective.

The reforms are aimed at allowing federal and state authorities to work together more closely while regulating the use of paid informants who regularly report to handlers at the security agency.

Germany's lawmakers, however, haven't come up with a masterstroke.

Deutsche Welle Marcel Fürstenau Kommentarbild ohne Mikrofon
DW's Marcel FürstenauImage: DW

The obligation to immediately exchange relevant information "including the outcome of the analysis" is a good thing. The Federal Office for the Protection of the Constitution has been given the role of central office, which is a good choice in hopes that awful glitches like those that happened in connection with the NSU can be avoided.

Back then, authorities did in fact have some knowledge about the murderous trio, but this knowledge wasn't shared by all the agencies - each of Germany's 16 states maintains its own domestic spies and they haven't always proven willing to share information. That allowed the alleged trio of NSU murders to remain undetected for 13 years as police poked around in the dark. Access to common data files will also probably prove to be useful - which also wasn't a given in the past.

Regulations on the handling of files have also been reworked. Files had been handled in a relaxed manner that sometimes bordered on scandalous. In 2013, a few files with some bearing on the NSU were shredded just days after the terrorist group was busted - raising suspicions of an attempted cover-up. There can hardly be a worse suspicion for an agency responsible for preventing threats.

Weak spot: Paid informants

Doubts concerning the agency's credibility are bound to linger for another reason: when files stay under tight wraps due to source protection. That is still an option even when serious crimes are being investigated. For the past two years, we have been able to observe the disastrous effects put in practice at the NSU trial in Munich. Terrible rumors about the role of dubious intelligence agents and their informants make the rounds - unbearable in particular for the victims' relatives.

The relatives accuse the state of protecting the criminals. Only the state interior ministries can supply proof to the contrary as they legally oversee the individual intelligence agencies. Unfortunately, the new law, however, does not call for this.

But at least, they will no longer employ ex-convicts as informers.

Informers like "Piatto," a man the state of Brandenburg's Office for the Protection of the Constitution planted in the far-right scene for six years beginning in 1994. He was sentenced to eight years in prison for attempted manslaughter, but as a day release prisoner, he was expected to supply information from the neo-Nazi scene to the intelligence agency. Hopes to track down the elusive NSU trio with his help remained unfulfilled. Why the mission failed is one of the most fascinating questions in the NSU trial - and it will remain unanswered.

More clarification would have been possible with a more far-reaching reform of the domestic intelligence service - and not only in the "Piatto" case.

Marcel Fürstenau
Marcel Fürstenau Berlin author and reporter on current politics and society.