rather, it is regarded as the self-evident basis of transfers in the field of securitycritical or intelligence cooperation and therefore observed de facto due to the mutual
interest in confidentiality and institutional reliability […].
cc) According to the position of the United States of America, which respondent no.
1 did not contest in its submissions during or prior to the present proceedings, the
Committee of Inquiry should be viewed as a “third party” and the handing over of the
NSA Selector Lists was not covered by the intended purpose of the transfer; consequently, handing over of files was contingent upon consent by the United States of
America. An interpretation [of the parties’ intentions] to the effect that intelligence services of both the United States of America and the Federal Republic of Germany
were understood as being subject to oversight by superordinate authorities as well as
special oversight organs sanctioned by Parliament, and that therefore such oversight
bodies would generally not be considered “third parties”, is incompatible with the position expressly stated by the United States of America. Respondent no. 1 made efforts to obtain the United States’ consent to the handing over of the NSA Selector
Lists to the Committee of Inquiry, but did not obtain such consent.
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b) The assessment of respondent no. 1 that handing over [the lists] without consent
would significantly undermine the functioning of the German intelligence services as
well as their ability to cooperate, and thus also impair the capacity to act in matters of
a security of foreign policy nature, is not objectionable under constitutional law.
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aa) Respondent no. 1’s view that handing over the NSA Selector Lists could result in
threats to state institutions and functions is based on a factual and legal assessment
that amounts to a political appraisal of the relations with foreign intelligence services
and cooperating states; given the Federal Government’s margin of appreciation and
latitude for prognosis, such assessment is only subject to limited review by the Federal Constitutional Court.
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The broad scope of discretion in the field of foreign policy is based on the consideration that the nature and characteristics of foreign relations and the relevant course of
events cannot be unilaterally determined by the Federal Republic of Germany; rather,
numerous circumstances outside its control are at play in this regard. To enable the
Federal Republic of Germany to enforce, within the limits set by international and
constitutional law, its respective political objectives, the Basic Law grants organs
vested with sovereign authority in foreign affairs wide discretion in matters of foreign
policy significance; such discretion extends to assessing the expediency of possible
courses of action (cf. BVerfGE 55, 349 <365>; cf. also BVerfGE 40, 141 <178 and
179>).
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bb) Respondent no. 1 has plausibly argued that intelligence services are dependent
on cooperation in order to ensure effective protection of the state and the constitution.
In terms of their intelligence capacities, the German and the US intelligence services
are mutually dependent […]. On the part of Germany, and against the backdrop of international terrorism and threats resulting from cyberattacks, international coopera-
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