Constitutional Concerns German Intelligence Under Fire For Spying on Parliamentarians

The revelation that lawmakers for the Left Party are under observation by the German intelligence service has triggered a debate about the agency's powers. The country's highest court is expected to provide much-needed clarification this year. At what point should spies be allowed snoop on elected representatives? By SPIEGEL Staff 

Gregor Gysi, parliamentary group leader of the Left Party. He is on a list of 27 members of parliament for the Left Party who are under observation by the domestic intelligence agency.

Gregor Gysi, parliamentary group leader of the Left Party. He is on a list of 27 members of parliament for the Left Party who are under observation by the domestic intelligence agency.

Klaus Ernst of Germany's Left Party came face to face with his own insignificance last week. At his party's New Year's reception in Berlin, while sitting in a corner eating meatballs, the party's co-chairman cracked a joke. "If I'm not on the list," he said, "it'll damage my reputation." He even had a button pinned to his suit: "Am LEFT. Please observe."

But his wish wasn't granted -- Ernst's name is not on the list of 27 Left Party politicians under observation by the Federal Office for the Protection of the Constitution (BfV), Germany's domestic intelligence agency. The joke was on Ernst, in fact: one of the agency's criteria for selecting MPs that warrant observation is whether they play a "leading role in the party."

Ever since SPIEGEL revealed last week how comprehensively the agency is monitoring Left Party MPs, there's a need for clarification: who should be categorized as an enemy of the constitution these days, and who as a friend? Can a member of parliament be an enemy of the constitution? Should the executive branch of the government be allowed to monitor elected representatives of the people -- when really it should be the other way around?

Now, adding fuel to the debate is a further accusation that the BfV kept tabs on Left Party MPs not just by analyzing harmless, publicly accessible sources such as newspaper articles -- as it claims -- but also applied intelligence methods such as using secret informants.

Nothing Worse than a Laughing Stock

The damage to the agency's image has been enormous. First came the PR debacle surrounding the BfV's failure to track down the neo-Nazi terrorist group known as the Zwickau terror cell. Now the agency is facing a crisis over its overzealous observation of the Left Party. The best the BfV can hope for at this point is to emerge from the whole matter as nothing worse than a laughing stock.

So far, the supposedly dangerous enemies of the state in the Left Party have been basking in their new-found notoriety. The party, riven by internal divisions, has been savoring its status as somehow being unjustly persecuted.

The agency's mania for data collection is missing the point . There are certainly radical splinter groups within the Left Party that call for the overthrow of the political system. And leading members of the party need to be asked whether they entertain similar fantasies. But unlike with the far-right National Democratic Party, there's no need here for the BfV to go digging around in secret. Even the Left Party's most ideologically extreme debates take place in public and are documented extensively in forums such as the Communist Platform.

Even the parliamentary group of the center-right Christian Democratic Union (CDU), which distances itself from the Left Party as much as it can, has voiced its support in this case. If only publicly available sources have been used, says Johannes Singhammer, deputy chair of the CDU parliamentary group, "I have to ask myself what insight this observation is meant to provide."

Criticism from the Right

Stephan Mayer, likewise a member of the CDU's parliamentary group, believes some individual members of the Left Party display tendencies that stand in opposition to the German constitution, but he still "would never go so far as to use intelligence service methods against Left Party parliamentarians."

Even Siegfried Kauder, chair of the Bundestag's Committee on Legal Affairs, voices solidarity with the opposition. "The manner in which the Left Party is being observed is not acceptable," he says. "After all, parliament monitors the constitution -- the Office for the Protection of the Constitution doesn't monitor parliament."

But precisely what the country's domestic intelligence agency is allowed to do still has not been clearly defined. Duties, authority, responsibilities -- all these are open to interpretation, with German law offering only incomplete and inconsistent information. The unclear laws that govern the BfV "do not meet all the requirements of a constitutional state," believes Christoph Gusy, a law professor at Bielefeld University and a leading expert on police and security law. On closer inspection, the BfV is a constitutional monster.

German Interior Minister Hans-Peter Friedrich of the Christian Social Union (CSU), the CDU's Bavarian sister party, isn't afraid of that monster. The controversial observation of Left Party parliamentarians, he reassures himself, is covered by a Federal Administrative Court ruling. He suggested taking a few harmless individuals off the agency's observation list, and replacing them with more radical ones.

'Violation of the Constitution'

A 2010 ruling by the Federal Administrative Court in Leipzig did in fact grant the BfV more or less free rein, including the power to look at the work of elected representatives. That particular case concerned Bodo Ramelow, a moderate leading politician for the Left Party in the state of Thuringia, who had been under observation for years. "This is how protection of the constitution becomes violation of the constitution," comments Christoph Möllers, a constitutional law professor in Berlin, in reference to the ruling.

At its core, the question is whether the BfV has the right to spy only on Left Party members allegedly engaged in unconstitutional behavior, or also on leading party politicians such as Bundestag Vice President Petra Pau, who has never particularly given the impression of being a violence-prone revolutionary.

The laws that govern the BfV provide no answers, no directive on precisely who may be the target of such snooping. Still, the Federal Administrative Court reached a clear conclusion in the Ramelow case, finding that even a harmless politician might come in contact with dubious elements and, subsequently, might "promote unconstitutional aims without realizing it." Such a person, the judges ruled, "who does not notice the way in which he or she is being misused, can be as dangerous to the preservation of a free democratic system as one who acts out of conviction."

It seems this protection of unwitting party leaders by helpful spies can even take place inside parliament, according to the Federal Administrative Court judges. Even these representatives of the German people, the court's ruling suggests, require surveillance just in case they don't know what they're doing. The constitutional passage stating that members of parliament "are subject only to their conscience" made little impression on the judges in Leipzig, who declared that the freedom governing such a mandate was "not unlimited."


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