Ex-BND President Gerhard Schindler has warned of a security threat if the Federal Constitutional Court restricts the work of the Federal Intelligence Service. If the judges curtail BND powers in foreign surveillance, the protection of the Bundeswehr in the operational areas can no longer be guaranteed as well as before, Schindler told the German Press Agency. "The protection of our citizens abroad against terrorist threats would be directly affected because the BND would be deprived of an important source of information."
Complaint sees international research at risk
The Federal Constitutional Court will hear a constitutional complaint from media organizations and journalists on January 14 and 15. According to the plaintiffs, the new BND law that came into force in 2017 legalizes global mass surveillance. The BND can listen to calls abroad and evaluate Internet traffic practically without restrictions. Experience has shown that the verdict will be announced a few months later.
Behind the lawsuit is an alliance around the organization Reporters Without Borders and several foreign journalists. They fear that grievances will go undetected worldwide because contact persons can no longer turn to the media with confidence. German editorial secrecy would also be eroded if, for example, partner media could be intercepted during major international research.
Schindler: Article 10 must not protect Taliban communication
Schindler, who was President of the German foreign intelligence service from late 2011 to summer 2016, told the dpa that many attacks on the Bundeswehr in Afghanistan had been prevented thanks to the BND's technical intelligence. "The fathers of the Basic Law would turn around in the grave if they knew that Taliban communications that are currently attacking German soldiers in Afghanistan should be protected by Article 10," said Schindler. "Or that the Arab IS fighter in Syria, who uses the cell phone to order the decapitation of hostages, should come under the protection of Article 10. That cannot be wanted."
Article 10 of the Basic Law protects the confidentiality of letters and telecommunications. If a security agency wants to intercept suspects, there are considerable hurdles. In simple terms, the plaintiffs' goal in Karlsruhe is to apply this fundamental right, which is valid in Germany, worldwide.
Protecting the world population would be "legal imperialism"
Schindler said that fundamental rights are "subjective rights of defense against one's own sovereignty" in Germany. But they are not there to put the entire world population under their protection. "That would be presumptuous and a questionable absolutization of German legal principles, that would be legal imperialism."
The then Vice-President of the Constitutional Court, Ferdinand Kirchhof, had already pointed out in 2014 that this was a political issue and not a constitutional one, said Schindler. Such a legal interpretation does not even exist in countries such as Scandinavia, which are often emphasized as particularly democratic or under the rule of law.
German citizens abroad protected against registration
Article 10 of the Basic Law also applies abroad if German citizens are affected. "The BND's registration machines are set up in such a way that German telephone numbers or German e-mail addresses are removed immediately and do not even get into further registration," said Schindler. If such a conversation was nevertheless recorded because the data did not make it clear that it was a German, this information would be deleted in the BND systems as soon as this was recognized.
Schindler warned that if the court were to protect foreign journalists abroad, many terrorists, murderers and torturers could call themselves journalists. Neither in Germany nor worldwide is a journalist a protected job title. The leadership of the terrorist militia Islamic State (IS) could, for example, have journalist ID cards printed and distributed. And operators of a terrorist website in Syria, for example, could then rightly rely on Article 10 protection. "Nobody can seriously want that."