Features of oversight bodies
The German federal parliament’s NSA
inquiry committee
Following the Snowden revelations, the federal parliament established, on 20 March 2014, an inquiry committee (1. Untersuchungsausschuss „NSA“). The scope of its
work was to investigate among others, these revelations,
the operation of the Five Eyes (USA, UK, Canada, New
Zealand, Australia) in Germany and the cooperation between the BND and the NSA. The committee published its
1,822 page-report on 23 June 2017, after 134 sessions and
more than 90 witnesses (a total of 581 hours and 21 minutes of work). It is by far the most encompassing report
published in the EU following the Snowden revelations.
Faced with a lack of cooperation from the services belonging to the Five Eyes, the inquiry committee focused
its attention on, among others, the German legal framework, the work of the BND and other services, their
surveillance powers, various intelligence programmes
carried out by the BND, cooperation between the BND
and the NSA, and the oversight system in Germany. The
inquiry committee report contributes greatly to a better
understanding of the work of the services in Germany,
its oversight and international cooperation. In reaction
to the Snowden revelations, the inquiry committee highlighted shortcomings, which led to an important reform
of the German legal framework at the end of 2016.
The NSA inquiry committee members were not able to
reach a consensus on the final report and so a separate
opinion drafted by the opposition was added to the report. In particular, while the parties of the ruling coalition
stated that no mass surveillance programme was carried
out by the NSA and the BND (p. 1243), the opposition parties came to the opposite conclusion in their – partly redacted – separate opinion (p. 1323).
The NSA inquiry committee did agree that past serious
grievances and major flaws could be attributed to the
BND, necessitating reform.
Germany, Federal Parliament (Deutscher Bundestag) (2017b)
Members of parliamentary oversight committees tend
to have access to classified information.290 However,
the law always qualifies the right of access, and few
parliamentary committees have unrestricted access.291
The laws of most countries grant parliamentary
committees the authority to request information from
the intelligence services or the executive, but not to
demand it. In the United Kingdom, the ISC may request the
chiefs of any of the three main intelligence and security
services to disclose information, and they must make it
available or inform the ISC that disclosure was vetoed
by the secretary of state.292 The French parliamentary
committee (DPR) does not have access to information
290 Wills, A. et al. (2011), p. 142.
291 See Ibid. p. 117; and Council of Europe Commissioner for
Human Rights (2015), p. 44.
292 United Kingdom, Justice and Security Act 2013, Schedule 1,
S.4. See, United Kingdom, House of Commons (2017), p. 7.
on ongoing operations carried out by the services,
governmental instructions given to them, or surveillance
methods or exchanges with foreign services.293 The DPR
gets its information through hearings, on-site visits
and strategic documents, as well as opinions and
reports by the oversight body.294 The Dutch CIVD has
access to the confidential part of the annual report
of the General Intelligence and Security Service.
The German Parliamentary Control Panel’s access to
files and information may be limited by the “direct
executive responsibility” of the federal government. As
underlined in FRA’s 2015 report, the flipside of powers to
access information also relates to security clearance.295
In Belgium, the parliamentary committee decided on
its own motion not to obtain clearance and thus cannot
access confidential information, but it can turn to the
Standing Committee I to conduct investigations.296
Oversight bodies’ contributions to legislative reform vary
greatly across Member States. Some contributions, in the
form of official mandatory opinions, are prescribed by
law – as is the case, for example, with the French expert
body CNCTR. 297 The French parliamentary oversight
body makes recommendations to the executive
based on the analysis of intelligence policy and the
functioning of the services. These recommendations
are presented in a classified report addressed to the
president, the prime minister and the speakers of both
houses of parliament.298 Once officially presented to the
president, a non-classified report is also published with
the recommendations. In the United Kingdom, the ISC
published its views on the draft Investigatory Powers
Bill.299 In other legislative settings, the contribution can
be published on a voluntary basis – see, for example, The
CTIVD’s Views on the ISS Act 2017300 in the Netherlands,
or Interception of Communication Commissioners
Office (IOCCO) Points to consider on the Investigatory
Powers Bill in the United Kingdom.301 Participation in
hearings and written evidence can also contribute to
the legislative process and enhance transparency.
293 France, Ordinance No. 58-1100 on the functioning of
the parliamentary assemblies, Art. 6 nonies, I 4°. See
also France, Urvoas, J.-J., Parliamentary Delegation on
Intelligence (2014), p. 13 and following and Urvoas,
J.–J (2015), p. 41 and following.
294 France, Adam, P., Parliamentary Delegation on
Intelligence (2017), p. 12 and following.
295 FRA (2015a), p. 42.
296 Belgium, Organic Law on the control of police and
intelligence services and the Coordination Union for Threat
Assessment (Loi organique du contrôle des services de
police et de renseignement et de l’Organe de coordination
pour l’analyse de la menace), 18 July 1991, Arts. 32, 33
and 35 (2).
297 France, Interior Security Code (Code de la sécurité
intérieure), Art. L. 811-4 and L. 833-11.
298 France, Adam, P., Parliamentary Delegation on
Intelligence (2017), p. 7 and 91.
299 United Kingdom, Intelligence and Security Committee of
Parliament (ISC) (2016).
300 The Netherlands, CTIVD (2016b).
301 United Kingdom, IOCCO (2016b).
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