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Reining in the BND: intel oversight's deficit

Lewis Sanders IVMay 12, 2015

WikiLeaks' publishing of the NSA inquiry transcripts have shown that BND witnesses are using loopholes to avoid answering questions. Experts say the Bundestag's inquiry and oversight committees need structural solutions.

NSA-Untersuchungsausschuss zur BND-Affäre
Image: picture-alliance/dpa/B. von Jutrczenka

WikiLeaks published on Tuesday transcripts of Germany's parliamentary inquiry into the activities of the US intelligence agency NSA on German soil and its collaboration with its German counterpart, the BND. The transcripts show that witnesses, most of them BND personnel, are using loopholes to avoid answering questions from members of parliament. The transcripts also show varying responses to questions during public and private sessions.

However, in multiple instances, the witnesses declined to respond to questions from MPs after legal counsel, beckoning the question: what is the inquiry committee allowed to do and does the government's oversight mechanism have the necessary tools to perform its function?

As the inquiry committee continues to question BND personnel over the extent of the spy agency's collaboration with the NSA, experts question the committee's ability to fulfill its task.

'Transatlantic crisis'

Russell Miller, professor of law at Washington and Lee University in the US, told DW that there is "a structural deficit in technical competences" when it comes to intelligence oversight committees in Germany and the US.

"We ought to be serious about holding executive power accountable. But there is a transatlantic crisis to think this is a distinctive American pathology," Miller told DW.

"German criticism of the weak NSA regulation obscures the fact that the BND is also poorly regulated. One example is the G-10, which is not up to monitoring [the BND's] highly technical practices."

Last June, Miller submitted an official report to the Bundestag's inquiry committee on the legal situation of the American intelligence community, noting that the committee's work "implicates the serious security threat to which democracies are uniquely vulnerable." However, Miller thinks more needs to be done to better implement oversight mechanisms, especially due to the technological nature of the BND's practices.

BdT Deutschland BND Außenstelle Bad Aibling
The BND's field office in Bad Aibling retained NSA staff even after the US handed it over to Germany in 2004Image: picture-alliance/dpa/A. Warmuth

'Structural solutions'

Ralf Poscher, a professor of law and director of the Institute of Government and Legal Philosophy at Freiburg University in Germany, told DW that the focus should not be on finding the person "responsible" for breaking the law, but instead on "structural solutions."

"It is one of the main issues every democracy is concerned with: controlling their intelligence agencies. Personal consequences will be a political decision. But what is important is that these things come to light and that political accountability is established," Poscher said.

Poscher echoed Miller's sentiments with regards to the government's ability to oversee the ways in which intelligence communities operate.

"We have structures but I think everyone agrees they're insufficient. Structural solutions need to focus on strengthening oversight personnel and judicial means, establishing some form of transparency, and providing technical instruments for oversight. You have to develop big data mechanisms for oversight."

Poscher added that it would be naive to think that an intelligence agency would respect national law and that "more realism" needed to be included in the debate.

"Wwe need to have a more realist discussion about our intelligence agencies. It is a rather naive idea that a spy agency would respect national law," Poscher said.