Blog of the International Journal of Constitutional Law

Constitutional Court Censors German Government

It’s been a tough week for the German government. It was handed defeats by the constitutional court (Bundesverfassungsgericht) in two separate cases touching on the government’s authority to withhold information from parliament.
In 2006, the German parliament — on an initiative by opposition parties — constituted a parliamentary commission to investigate allegations that the German government and intelligence services had cooperated with US intelligence services in conducting “renditions” using German airports, and in the kidnapping and interrogation of German nationals in connection with the war on terror. The federal government — citing national security concerns — refused full cooperation with the committee’s investigation, instructing high level officials to limit their testimony, and refusing to hand over documents that had been requested by the committee. The government’s decision was challenged before the Constitutional Court by opposition parties.
The second case involved a similar issue. In 2006, several Green members of parliament had made use of the right of parliamentary deputies to question the federal government to ask whether German intelligence services were collecting information on members of the federal parliament (the question was inspired by a similar incident in Sweden). The federal government refused to answer, arguing that to do so would undermine national security by exposing the strategies and operations of the intelligence services. The members of parliament challenged the government’s position before the Constitutional Court.
In two separate decisions handed down this week, the Constitutional Court largely ruled in favor of the opposition challenges. In each decision (2 BvE 3/07 and 2 BvE 5/06), the court asserted that the separation of powers inherent in the Basic Law requires that a non-specific, blanket assertion of the need to protect national security cannot be used to limit the right of parliamentary inquiry. The Court argued that while the executive has a general right (and duty) to protect national security, which may require secrecy, it had failed to plausibly establish that secrecy was necessary in the current cases, in particular because some of the information could have been provided without exposing the inner workings of the intelligence services.

It is hard to say at this point what impact these decisions will have. On the one hand, the Court has handed an unambiguous victory to opposition parties, and the decisions clearly challenge broad claims of executive privilege. Moreover, the decisions are likely to be greeted with considerable popular support. At the same time, the Court was careful not to demand specific action on the part of the executive, nor did it provide very clear guidelines on the conditions under which the executive can (and cannot) assert executive privilege. As a result, their practical effect may be limited.


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