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-- AliceBertram? - 14 Feb 2015
The German Supreme Court on hearing Snowden in the Parliament's NSA-investigation committee |
| | -- By AliceBertram? - 14 Feb 2015
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< | Ping-pong between factions - Will Snowden be a heard in Berlin and protected against extradition? |
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< | About a month after the NSA-investigation committee was set up on March 20th 2014, the Members of the committee unanimously decided to request Edward Snowden to be a witness in the investigations. The decision had been postponed once before and even now, the committee did not decide on which terms he was to come to Berlin to be heard. |
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> | Opposition's try to un-void the German parliament's "NSA" investigation committee |
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< | Coalition's statement: "Our hands are tied" |
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> | Back when Edward Snowden's revelations were still a scandal rather than commonly ignored knowledge, the German Parliament installed an investigation committee titles "NSA". The committee's objective is to shed light on the practices of the German Secret Service (Bundesnachrichtendienst "BND") regarding mass surveillance. Setting up a committee served both, the government's interest in silencing public outrage and the opposition's aim to uncover civil right violations. For the same reasons, the members of the committee unanimously decided to request Edward Snowden to be a witness in the investigations about a month after the NSA-investigation committee was set up on March 20th 2014. This decision had already been postponed once before and even then, the committee did not decide on which terms he was to come to Berlin to be heard preventing the hearing from happening. The opposition ultimately brought this issue before the Supreme Court. |
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< | The parties forming the opposition (Alliance 90/The Greens and Left Party) in essence held Edward Snowden should be offered political asylum with a permanent residence permit before coming to Berlin to be heard. The coalition (Christian Democratic Union = CDU and Social Democratic Party = SPD) felt it was out of their power to decide on which terms Snowden could come to Berlin or alternatively be interviewed in Moscow. |
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> | This is a replica of the investigation committee's overall mechanisms: While loudly voicing their support for civil rights against mass surveillance, the government coalition really relies on subtly manipulating the details to obstruct any progress in revealing, terminating or restricting the BND's practices infringing civil rights. Because this miniature involves the German Supreme Court - which is the most trusted state organ in Germany - and because the government gave some explanations as to why they are obstructing the investigation committee's progress, it is worth while to look at this case to learn about the respective attitudes towards the BND's activities. |
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< | In a statement issued after the vote on summoning Edward Snowden was postponed, the coalition claims various decisions by judges and authorities in Germany would be necessary to determine if he could be granted asylum and/or protection from extradition. Also if he should be interviewed in Moscow, the conditions would depend upon decisions by the Russian judiciary and administration. Alongside with this surrender-like explanation, the coalition also stated that in any event a hearing in Moscow would be preferable over a hearing in Berlin to not overly burden the German-American relations, thereby endangering the cooperations between German and American authorities which are considered to be essential for security in Germany. |
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> | Coalition claims their hands are tied - opposition sues in Supreme Court |
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< | Snowden is not satisfied by the conditions |
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> | The coalition claimed that giving political asylum to Edward Snowden, which the opposition requested as prerequisite for Snowden's hearing, was beyond their power for administrative reasons. This is clearly not true. A second reason the coalition gave in a formless public statement appears to be much more apt: the refusal to burden the German-American relationship by supporting the "hero and/or traitor" Edward Snowden. The opposition failed to challenge this reasoning and instead settled on a continuous forth and back regarding the details on which hearing Edward Snowden before the committee could or could not be organized, the reasons for which other than plain incompetence are hard to fathom. |
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< | The committee decided, as mentioned above, to make Edward Snowden a witness without specifying the circumstances of his hearing. He was free to chose if he would like to come to Berlin or be interviewed in Moscow in person or digitally - but no protection was offered. Snowden rejected this set up, because a hearing in Berlin put him at risk of being extradited to the US whereas a hearing in Moscow could likewise worsen his residence situation unforeseeably. |
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> | Finally, the opposition reached out the the German Supreme Court to settle the dispute, claiming its right to appoint a investigation committee as a qualified minority was infringed, Art. 44 of the German Constitution, if they could not - as the same minority - nominate witnesses; due to firstly the coalition refusing (in the statement and ever since) to create the necessary prerequisites and due to secondly the coalition continually preventing the hearing Snowden. |
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< | The opposition parties then proposed appointing Snowden as a witness while providing a guarantee for his safety. The coalition voted successfully against this proposal and for asking Mr. Snowden about his availability for an informal interview in Moscow. |
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> | Supreme Court makes Snowden's dissatisfaction with the investigation committee's conditions of the hearing the centerpiece of its decision |
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< | Snowden rejected again, for the same reasons as before. |
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> | This petty back and forth between Berlin and Moscow is what the Supreme Court focused on in its decision, writing it out in more than 2,000 words - about half of the decision's length: |
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< | The opposition then drafted a new proposal asking for the same thing only in a much sharper tone. The coalition turned the proposal down voting for an audio-visual hearing instead of a in person hearing. |
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> | After the committee first settled on hearing Edward Snowden without specifying the circumstances of his hearing, a ping pong between the committee and Edward Snowden began. He was free to chose if he would like to come to Berlin or be interviewed in Moscow in person or digitally - but no protection was offered. Snowden rejected this set up, because a hearing in Berlin put him at risk of being extradited to the US whereas a hearing in Moscow could likewise worsen his residence situation unforeseeably. |
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< | Snowden again turned down, putting forth the same reasons once more. |
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> | The opposition parties then proposed appointing Snowden as a witness while providing a guarantee for his safety. The coalition voted successfully against this proposal and for asking Mr. Snowden about his availability for an informal interview in Moscow. |
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< | A third proposition by the opposition was turned down by the coalition without a coming up new "alternative". |
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> | Snowden rejected again, for the same reasons as before. |
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< | The opposition's claims before the Supreme Court |
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> | The opposition then drafted a new proposal asking for the same thing only in a much sharper tone. The coalition turned the proposal down voting for an audio-visual hearing instead of a in person hearing. |
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< | The opposition claimed it's right to appoint a investigation committee as a qualified minority was infringed, Art. 44 of the German Constitution, if they could not - as the same minority - nominate witnesses; due to (1. Claim) the coalition refusing (in the Statement and ever since) to create the necessary prerequisites (protection against extradition) and due to (2. Claim) the coalition continually preventing the hearing Snowden. |
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> | Snowden again turned down, putting forth the same reasons once more. |
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< | The Supreme Court's decision |
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> | A third proposition by the opposition was turned down by the coalition without a coming up new "alternative". |
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< | The Supreme Court decided that Claim 1 referring to the statement was inadmissible (which means the subject matter will not be decided, much like not having standing). This is, because the statement did not have any effect, especially not any legal effect abridging the opposition's rights. |
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> | Sadly, the other half of the decision was not any more revealing about the legal possibilities to hear Edward Snowden in the investigation committee. Both claims were dismissed on procedural grounds. The Supreme Court decided that the first claim referring to the statement was inadmissible. This is, because the statement did not have any legal effect abridging the opposition's rights. As for the second claim, the Supreme Court held the opposition did not claim sufficiently precisely which questions they planned to ask Edward Snowden. Thus their proposals did not formally qualify as proposing a witness and could not be seen as an extension of the right stemming from Art. 44 of the Constitution. Rather their proposals fall under the procedural rules for investigation committees, under which not the Supreme Court but the German Federal Court has jurisdiction, section 36 Investigation-Committee-Law. |
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< | As for the second Claim the Supreme Court held the opposition did not claim sufficiently precisely which questions they planned to ask Edward Snowden. Thus their proposals did not formally qualify as proposing a witness and could not be seen as an extension of the right stemming from Art. 44 of the Constitution. Rather their proposals fall under the procedural rules for investigation committees, under which not the Supreme court but the German Federal Court has jurisdiction, section 36 Investigation-Committee-Law. |
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> | The Supreme Court - the government's accomplice in "sitting it out" |
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< | What happens if the opposition formally proposes a witness? |
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> | The opposition's claims quite obviously did not stand a chance of success before the Supreme Court. From the perspective of German public law, the statement the government made could never be a valid object to bring a case against. There needs to be a legal effect otherwise it cannot be challenged before courts. Had the Court however cared to defend civil rights in this case, it would have explained what the opposition would need to do to achieve hearing Edward Snowden before the investigation committee. If the opposition filed a formally correct proposal to hear Edward Snowden as a witness, this proposal were protected by Art. 44 of the German Constitution. Most larger commentaries include this as the minority's right in investigation committees and cite to earlier Supreme Court jurisdiction. An enforceable nomination of a witness before an investigation committee can be easily achieved - a fact the Supreme Court evidently was not eager to point out. |
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< | Should the opposition file a formally correct proposal to hear Edward Snowden as a witness, this would actually be covered by Art. 44 of the German Constitution. While the Supreme Court does not state this expressly in its comparably short decision, most larger commentaries include this problem and reference earlier jurisdiction. Thus, Claim 2 can be fairly easily achieved. |
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> | This Supreme Court decision should have shaken up the German public in their deep trust in the Supreme Court's virtue as the Constitution's safe-keeper. The Court, or at least the Second Chamber responsible for this decision, rather stands in solidarity with the government's aims when it comes to mass surveillance. This might not be the most surprising finding from a systemic point of view, given that all judges on the Supreme Court but one have been nominated for office by the coalition's parties. But it is certainly contrary to the Supreme Court's image in the public opinion as well as among jurists. |
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< | However, when it comes to Claim 1 it remains unclear which measures (temporary protection against extradition up to permanent Asylum, which Snowden is clearly seeking) the Supreme Court would deem necessary to hear Edward Snowden. With the judges on the Supreme Court being nominated for office by a specific party (mostly CDU and SPD, one by Alliance90/Green), it seems highly unlikely that they would actually decide against the coalition (and its chancellor) on such a sensitive topic. |
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> | Conclusions |
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< | Other thoughts on this decision |
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> | This Supreme Court decision illustrated just how supportive the government and the coalition as well as the Supreme Court are of the BND's practices. Judging from the opposition's blatant incompetence in arguing about hearing Edward Snowden as well as in the court proceedings, the opposition fails to oppose the government in this important question. The suspicion arises that the opposition's interests in opposition might likewise end at making the public believe in their good will towards ending mass surveillance. |
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< | The opposition does not seem to have thought the claim trough before bringing it to court. From the perspective of German public law, the statement the government made could never be a valid object to bring a case against. There needs to be an effect otherwise it cannot be challenged before courts. |
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< | Other than that, it seems an odd choice to only address the Supreme Court in this matter and not, on basis of section 36 Investigation-Committee-Law, also the German Federal Court which holds jurisdiction over all procedural matters. |
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< | In total, this claim might have been a outreach towards the generally most trusted state organ, the Supreme Court, asking for support in an uphill battle against a coalition which seems to be opposing progress in the committee. But because the claim was inadmissible, it went by mostly unnoticed by the public. |
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I rewrote most of this text. I hope I succeeded in clarifying why I find this case at least somewhat important and making the repulsive details less agonizing to read.
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