tion in general is accorded “paramount importance” (cf. 2015 Report on the Protection of the Constitution, Verfassungsschutzbericht, p. 18; 2014 Report on the Protection of the Constitution, p. 16), while the partnership with the United States of America in particular is qualified as “indispensable” (cf. Final Report of the Committee of
Inquiry into BND Activities, BTDrucks 16/13400, pp. 58 and 59, 351 and 352).
Such cooperation is impaired in the event that intelligence is disclosed to third parties in violation of assured or expected confidentiality, for example, if the term “third
party“ were construed contrary to the standpoint of the originating agency (cf. BVerwG, Order of the 20 July 2015 – 6 VR 1.15 –, juris, para. 11).
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This position is criticised for placing undue emphasis on the need for protecting confidentiality, and for exaggerating the scope of such need. It is contended that where
cooperation with foreign services is considered an integral part of the work of intelligence services, the same holds true for parliamentary oversight […]. It is further argued that cooperation with foreign services does not, under all circumstances, outweigh parliamentary oversight. According to this view, cases of conflict may require
that the terms of the cooperation be modified, or the cooperation as such be terminated […].
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The foregoing view, however, fails to consider that this can entail a long-term loss of
essential knowledge in foreign and security policy matters; without such information,
it would no longer be possible to ensure that anti-constitutional or terrorist activities,
as well as those posing a threat to security, were investigated to the same extent (cf.
Final Report of the Joint Commission of the Federation and the Laender on RightWing Terrorism of 30 April 2013, para. 712). […] [T]he applicants [have] comprehensibly argued that the United States of America have already taken steps [in response
to the current events] and have announced further consequences should the NSA
Selector Lists be handed over. Considering such rather specific threats to the Federal
Republic of Germany’s external and internal security, the secrecy interests rooted in
the welfare of the state are affected as well.
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[…]
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3. The Federal Government’s interest in maintaining its capacity to act in matters of
a foreign and security policy nature outweighs the Committee of Inquiry’s right to be
given the NSA Selector Lists.
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a) With regard to the balancing of the conflicting interests, it needs to be taken into
account that the request to receive the NSA Selector Lists concerns a multilateral legal relationship. This is due to the fact that the Committee of Inquiry’s request also affects the United States of America’s fundamental concerns and secrecy interests. In
light of the principle of the Constitution’s openness to international law (cf. BVerfGE
111, 307 <317 and 318>; 112, 1 <26>; 123, 267 <344, 347>) and openness to the international community of states (internationale Offenheit) (cf. BVerfGE 92, 26 <48>),
the Basic Law does not content itself with defining the domestic order of the German
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