Yesterday it became public that the German Federal Public Prosecutor does not see any reason to start an investigation about foreign and domestic intelligence practices on German soil. It is argued, that there is nothing besides newspaper evidence that suggest that a Nass violation of fundamental rights happened. This is just another failure of he German political establishment and a bad day for the rule of law in general. Since the Snowden leaks the very functioning principles of a democracy, namely the division of power between legislative, executive and judicature and the idea that every citizen enjoys fundamental basic rights which protect him/her against government arbitrariness, do not work anymore. To put it slightly different: the global surveillance machinery cannot be stopped by the very institutions that put it into existence in the first place. Not just in Germany, but also in the US where a similar process can be witnessed. The apprentice cannot control the demons it summoned.
The first failure was that of the executive back in summer 2013 when the German government first chose to ignore the scandal, then downplay the scandal, then declare a premature end to the scandal after some symbolic resolution efforts until reality kicked in and it was revealed that chancellor Merkel’s phone was monitored from the NSA. Since March we have a parliamentary board of inquiry which did not reveal anything useful so far because the actual work was tampered because of several procedural issues. The conservative government does not want to invite Snowden (the primary witness!). Furthermore it hindered an external law firm that produced a semi-legal report that indicated that parliamentarians digging to deep (which also includes reading the leaked materials) might fear repercussions, for example when entering the United States. This is basically an indirect threat and tampering with the work of the control committee. Recently the government seemed to initiate a spin campaign, diverting attention to the big internet companies, scapegoating them as the actual big brothers.
The second failure was that of the legislative branch of government, as the research by historian Forschepoth indicated since summer. He studied the historical roots of surveillance practices in the 1960’s and discovered that the “Fall of man” was the G10 law, established by the very first Grand coalition between CDU and SPD. It allows the BND to monitor a certain percentage of the total volume of external communication, which is a lot compared to the total bandwidth of fibre optic cables. This clause was meant for paper letters, not broadband internet.
Foschepoth’s research was recently validated by three independent law scientists who argued, that the parliamentarian control envisioned in the G10 law does not fit to current realities and that the work of the BND is basically not controlled. The parliamentarians in charge of controlling the BND have to beg for material, they are not equipped to actually understand foreign signal intelligence and they don’t have access to all relevant data. They are no IT-experts either so some of them don’t even have the skills to do their job. Control basically means that the BND claims that everything is alright without further cross checking.
The world of freedom and liberty around us is in flames and the government argues, that there is no fire burning. This is a very dangerous tendency and an “existential threat to the rule of law”, as former constitutional judge Heribert Prantl argues in his op’ed. It pretty much confirms what critics suspected all along: the rule of law is not able to cope with the massive surveillance machinery put into place after 9/11. The democratic control of secret services is a farce. The very core principles of a democracy and of a sovereign state are at risk here.