The German Supreme Court on hearing Snowden in the Parliament's NSA-investigation committee

Opposition's try to un-void the German parliament's "NSA" investigation committee

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.

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.

Coalition claims their hands are tied - opposition sues in Supreme Court

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.

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.

Supreme Court makes Snowden's dissatisfaction with the investigation committee's conditions of the hearing the centerpiece of its decision

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:

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.

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.

Snowden rejected again, for the same reasons as before.

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.

Snowden again turned down, putting forth the same reasons once more.

A third proposition by the opposition was turned down by the coalition without a coming up new "alternative".

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.

The Supreme Court - the government's accomplice in "sitting it out"

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.

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.

Conclusions

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.