H e a d n o t e s

to the Order of the Second Senate of 16 December 2020

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1. Parliamentary oversight of the intelligence services is of paramount importance given the covert way in which the intelligence services usually operate and the resulting risks of irregularities. In principle, this also applies with regard to the use of confidential informants.

2. Regardless of any risks to specific fundamental rights interests, the Federal Government may invoke the assurances of confidentiality giv- en to confidential informants as grounds for refusing to allow the ex- amination of an informant’s handler as a witness before a parliamen- tary committee of inquiry if this is required by imperative reasons, in the individual case, that arise from the security interests of the state. This may be the case in special circumstances where the proper func- tioning of the intelligence services in a certain milieu can only be guar- anteed by providing assurances of unconditional confidentiality and honouring those assurances. Specific reasons must be provided be- forehand, substantiating the existence of special circumstances capa- ble of justifying the granting and honouring of such assurances of un- conditional confidentiality.

1/34 FEDERAL CONSTITUTIONAL COURT

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IN THE NAME OF THE PEOPLE

In the proceedings on the application to declare that

the respondents violated the rights of applicants nos. 1 to 3 and the rights of the German Bundestag under Art. 44 of the Basic Law (Grundgesetz) by refusing to comply with the decision to take evidence (BMI-11) issued by the Bundestag’s First Committee of Inquiry of the 19th parliamentary term and to reveal the iden- tity of the staff member (“handler”) at the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) who handled the confidential informant or informants referred to in the letter of 25 April 2018 from state secre- tary Hans-Georg Engelke to the chairperson of the committee of inquiry and in reports in the daily newspaper Die Welt of 17 May 2018.

Applicants: 1. Parliamentary group in the German Bundestag Freie Demokraten, represented by its chairman Christian Lindner, Platz der Republik 1, 11011 Berlin,

2. Parliamentary group in the German Bundestag Die Linke, represented by its chairpersons Dr. Dietmar Bartsch and Amira Mohamed Ali, Platz der Republik 1, 11011 Berlin,

3. Parliamentary group in the German Bundestag Bündnis 90/Die Grünen, represented by its chairpersons Katrin Göring-Eckardt and Dr. An- ton Hofreiter, Platz der Republik 1, 11011 Berlin,

2/34 4. The qualified minority in the Bundestag’s First Committee of In- quiry of the 19th parliamentary term consisting of members of the Bundestag Dr. Irene Mihalic, Martina Renner and Benjamin Strasser, Platz der Republik 1, 11011 Berlin,

- authorised representative: Prof. Dr. Matthias Bäcker, LL.M., Trützschlerstraße 11, 68199 Mannheim,

Respondent: 1. Federal Minister of the Interior, Building and Community –Horst Seehofer – Federal Ministry of the Interior, Building and Community, Alt-Moabit 140, 10557 Berlin,

2. Federal Government, represented by Federal Chancellor Dr. Angela Merkel, Bundeskanzleramt, Willy-Brandt-Straße 1, 10557 Berlin,

- authorised representative: … - the Federal Constitutional Court – Second Senate – with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld held on 16 December 2020:

The application is rejected.

R e a s o n s :

A. The Organstreit proceedings (dispute between constitutional organs) concern the 1 question of whether the Federal Minister of the Interior, Building and Community was entitled to refuse to reveal to the First Committee of Inquiry of the 19th parliamentary term the identity of the staff member (“handler”) at the Federal Office for the Protec-

3/34 tion of the Constitution (Bundesamt für Verfassungsschutz) responsible for handling the informant or informants in an ongoing intelligence operation so as to allow for the handler’s examination as a witness by the committee of inquiry. Applicants nos. 1 to 3 are the parliamentary groups in the German Bundestag Freie Demokraten, Die Linke and Bündnis 90/Die Grünen; the spokespersons of these parliamentary groups on the committee of inquiry act as applicant no. 4.

I. 1. On the evening of 19 December 2016, Anis Amri (the perpetrator) deliberately 2 drove a lorry into a crowd at a Berlin Christmas market. Eleven people died and many others were injured, some of them seriously. Prior to the attack, Amri had shot dead the driver of the stolen lorry.

In the course of the investigation into the attack, indications emerged of possible 3 shortcomings on the part of the security authorities. Shortly after his illegal entry into the Federal Republic of Germany in the summer of 2015, Amri had been designated as a violent Islamist and in February 2016 he was categorised as a person posing a terrorist threat (Gefährder). However, surveillance measures targeting him were sus- pended from mid-September 2016.

In light of this, there was a public discussion about whether the security authorities 4 were responsible for the failure to prevent the attack, and whether the German secu- rity architecture needed to be reformed in order to counter Islamist terrorism more effectively. In this context, the role of the intelligence services of the Federation and the Länder also came under scrutiny and the question was raised as to whether the domestic intelligence service – the Federal Office for the Protection of the Constitu- tion – had cooperated with confidential informants who had connections to Amri ([…]).

[Excerpt from Press Release No. 12/2021 of 3 February 2021

The First Committee of Inquiry of the 19th parliamentary term was established by the Bundestag to investigate what information on Amri and his circle had been avail- able to the security authorities prior to the attack, to evaluate their work and the work of the bodies they report to, and to look into who bears political responsibility for pos- sible shortcomings. Specifically, the committee is to investigate whether and how Am- ri himself, his contacts, potential accomplices, sponsors and supporters cooperated with security or law enforcement authorities by serving as informants or messengers, and whether the authorities for this reason refrained from taking measures against persons who may have been involved in the attack.

When it emerged that the Office for the Protection of the Constitution cooperated with at least one confidential informant at a mosque regularly visited by Amri, the committee of inquiry issued a decision to take evidence, requesting that the Federal Ministry of the Interior, Building and Community reveal the identity of staff members that handled the confidential informant in question, in order to arrange for the taking

4/34 of further evidence. The ministry stated that it could not name the informant’s handler because he was part of an ongoing source operation and revealing his identity would create a considerable risk of exposure for the informant in question. According to the ministry, in the Islamist circles under surveillance, which tend to form clandestine mi- cro groups, exposure might result in danger to the life and limb of the confidential informant and their handler. If the committee were to examine as witness the handler of a confidential informant involved in an ongoing source operation, this would have considerable adverse effects on the work and functioning of the intelligence services. The ministry added that the still active informant trusted that the assurances of con- fidentiality given to them were honoured by the authorities. If these assurances were reneged on, there was a risk that the informant would withdraw from the operation.

Instead of the informant’s handler, the ministry named as witnesses the head of the intelligence gathering division of the Islamism and Islamist Terrorism department of the Federal Office for the Protection of the Constitution and, subsequently, the head of the unit in charge of handling the informant in question.

In their application in Organstreit proceedings, the applicants claim a violation of their rights and of the rights of the Bundestag under Art. 44 of the Basic Law (Grundgesetz – GG).

End of excerpt]

2. […] 5

3. […] 6-7

4. […] 8

5. […] 9

6. […] 10

7. […] 11-13

8. […] 14

II. […] 15-27

III. […] 28-39

IV. […] 40-57

V. […] 58

5/34 B. The application is admissible. 59

[…] 60-79

C. The application is unfounded. The respondents’ refusal to reveal the identity of the 80 handler (staff member responsible for handling the informant) at the Federal Office for the Protection of the Constitution to allow for witness questioning by the commit- tee of inquiry does not violate Art. 44(1) first sentence GG.

I. 1. Under Art. 44(1) first sentence GG, the Bundestag has the right – and, on the 81 motion of one quarter of its members, the duty – to establish a committee of inquiry with the power to take any necessary evidence.

a) The parliamentary system of government is characterised by parliamentary over- 82 sight. Such oversight reflects the accountability of the Government vis-à-vis Parlia- ment, which follows from the principle of democracy. Moreover, parliamentary over- sight of the Government and the executive branch gives effect to the principle of the separation of powers, which is one of the fundamental principles informing the func- tions and order under the Basic Law. The principle of the separation of powers does not serve to achieve an absolute separation of state functions; rather, it governs the distribution of political power, the interaction of the three branches of the state with the resulting mutual checks and balances, and hence leads to a moderation of state power (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bun- desverfassungsgerichts – BVerfGE 3, 225 <247>; 7, 183 <188>; 9, 268 <279>; 22, 106 <111>; 34, 52 <59>; 95, 1 <15>). Especially given the Government’s powerful role – and not least because Parliament lacks the means to intervene in the executive sphere of immediate action and implementation of the law – the separation of powers requires that the Basic Law be interpreted so as to allow for effective parliamentary oversight. Parliament cannot exercise its powers of oversight vis-à-vis the Federal Government if it does not partake in the Federal Government’s knowledge. There- fore, Parliament’s interest in obtaining information is of especially great significance insofar as it relates to uncovering possible unlawful conduct or similar forms of mis- conduct within the Government or the executive branch (cf. BVerfGE 67, 100 <130>; 110, 199 <219, 222>; 124, 78 <121>; 137, 185 <232 f. para. 131>).

b) The parliamentary right of inquiry guaranteed by Art. 44 GG is one of the oldest 83 and most important rights of Parliament. In addition to the right to require the pres- ence of members of the Federal Government under Art. 43(1) GG, and the right to ask questions and obtain information following from Art. 38(1) second sentence and Art. 20(2) second sentence GG, the right of inquiry enables Parliament to investigate and establish the facts it requires as the basis for its decision-making and, above all,

6/34 to exercise effective oversight vis-à-vis the Federal Government, which is account- able to Parliament. This function of the right of inquiry must be accommodated when interpreting Art. 44 GG and the provisions of the Committees of Inquiry Act that spec- ify the applicable law. It must be taken into account, especially with regard to de- termining the powers afforded to a committee of inquiry, that these provisions serve to create the framework for effective parliamentary oversight (cf. BVerfGE 124, 78 <114>; 143, 101 <133 para. 107 f.>).

c) Under Art. 44(1) first sentence GG, a committee of inquiry has the right, within 84 the scope of its mandate, to take any evidence it considers necessary. This includes not just the taking of evidence in the strict sense (§ 244(1) of the Code of Criminal Procedure, Strafprozessordnung – StPO), but refers to the entire process of obtain- ing, securing and analysing evidence. Therefore, the parliamentary right of inquiry covers not just access to files and their analysis, it also includes requesting the sub- mission of such files; it encompasses not only the questioning of witnesses, it also includes summoning them (cf. BVerfGE 67, 100 <128>; 77, 1 <49>; 124, 78 <115>; 143, 101 <134 para. 109>).

d) Bundestag committees of inquiry may question witnesses and, where necessary, 85 compel them to give evidence using the coercive measures provided for in the Code of Criminal Procedure. It is a civic duty for witnesses to give information and evidence if they are summoned by a committee of inquiry, unless they have a right to refuse to give information or evidence (cf. BVerfGE 76, 363 <383>; 124, 78 <117 f.>) A com- mittee of inquiry may also conduct witness examinations of Government members as well as civil servants and employees from the Government’s sphere of responsibility in order to obtain information available to the authorities that is relevant to the parlia- mentary investigation (cf. BVerfGE 124, 78 <118>). However, as this group of per- sons is subject to special confidentiality obligations, individual officials can only fulfil their duty to serve as witnesses if and to the extent that they have permission to give evidence in exemption from their confidentiality obligations (§ 23(1) PUAG in con- junction with § 54(1) to (3) StPO). Yet the Federal Government is obliged to grant these persons permission to give evidence, unless limitations arising from the Con- stitution apply (§ 23(2) first half-sentence in conjunction with § 18(1) PUAG).

2. The parliamentary right of inquiry is subject to limitations, which must themselves 86 be rooted in constitutional law, including where they are set out in ordinary legislation (cf. BVerfGE 124, 78 <118>; 143, 101 <135 para. 111>). These limitations follow from the mandate of the committee of inquiry (see a) below), the principle of the separation of powers (see b) below), the security interests of the state (Staatswohl) (see c) be- low) and fundamental rights (see d) below).

a) Firstly, it follows from Art. 44(1) GG that the right of a parliamentary committee of 87 inquiry to take evidence is limited by its mandate as defined in the parliamentary de- cision establishing the committee. This mandate must remain within the scope of Par- liament’s oversight powers, and it must be sufficiently specific (cf. BVerfGE 124, 78

7/34 <118 f.>; 143, 101 <136 para. 116>).

b) Moreover, limitations arise from the principle of the separation of powers (Art. 88 20(2) second sentence GG). In its constitutional manifestation as a requirement that legislative, executive and judicial power be exercised by distinct organs, this principle also serves to ensure the adequate functional allocation of sovereign powers to dif- ferent public authorities, each of which is organised in a manner suited to their re- spective tasks; in addition, it ensures that all state authority is bound by the law (Art. 20(3) GG) (cf. BVerfGE 124, 78 <120>). The different branches of state power are interrelated and intertwined, yet they may not be deprived of their distinctiveness and their specific tasks and competences (cf. BVerfGE 9, 288 <279 f.>; established case-law). Therefore, the principle of the separation of powers provides the basis of Parliament’s right to obtain information from the Federal Government and at the same time serves as a limitation to this right (cf. BVerfGE 110, 199 <219>; 124, 78 <122>; 143, 101 <136 f. para. 118>; 146, 1 <41 f. para. 91>; 147, 50 <138 para. 228>).

Government’s responsibility towards Parliament and the people necessarily re- 89 quires a core of autonomous executive decision-making, which encompasses a sphere in which the Government is free to launch initiatives, to deliberate and to take action – this sphere is in principle not open to investigation. Thus, the Federal Gov- ernment is generally not required to comply with parliamentary information requests where the relevant information could result in co-governing by third parties with re- gard to decisions that fall within the exclusive competence of the Federal Govern- ment. The Bundestag’s oversight powers in principle only concern matters that have already been concluded. They do not entail the power to intervene in ongoing delib- erations or in the preparing of decisions (cf. BVerfGE 67, 100 <139>; 110, 199 <214 f.>; 124, 78 <120 f.>; 131, 152 <206>; 143, 101 <137 para. 119 f.>; 146, 1 <42 para. 92 f.>; 147, 50 <138 f. para. 229>).

c) The Bundestag’s right to take evidence is furthermore limited by the security in- 90 terests of the Federation or a Land that could be jeopardised if classified information were to be disclosed (cf. BVerfGE 67, 100 <134 ff.>; 124, 78 <123>; 143, 101 <142 para. 137>).

Yet it must be taken into account that within the parliamentary system of govern- 91 ment under the Basic Law, the Federal Government is not the sole guardian of state interests; rather, the Bundestag and the Federal Government are jointly entrusted with safeguarding the security interests of the state. Parliament and its organs cannot be treated the same as external parties from whom certain information must be with- held in order to protect the state’s security interests. Thus, the Federal Government cannot generally invoke security interests of the state vis-à-vis the Bundestag if ef- fective safeguards for preventing the disclosure of official secrets have been put in place on both sides. While adherence to provisions for the protection of official se- crets does not completely rule out that such secrets might become known, this does

8/34 not stand in the way [of providing such information to the Bundestag] given that this risk affects all three branches of state power alike (cf. BVerfGE 67, 100 <136>; 124, 78 <124>; 137, 185 <241 para. 149>; 143, 101 <143 para. 138>).

In its Rules on Document Security (Geheimschutzordnung), the Bundestag sets out 92 detailed directions for the protection of official secrets when performing its tasks. The duty to maintain secrecy arising from parliamentary rules is affirmed by the penal sanctions set out in § 353b(2) no. 1 of the Criminal Code (Strafgesetzbuch – StGB). In addition, the Committees of Inquiry Act provides for rules to protect state secrets. These rules protecting the security of information reflect the fact that Parliament can- not exercise its legislative and budgetary powers, nor its parliamentary oversight powers vis-à-vis the Federal Government if it does not partake in the Government’s secret knowledge (cf. BVerfGE 67, 100 <135>; 137, 185 <240 f. para. 149>; 143, 101 <143 para. 139>).

However, this does not diminish the Federal Government’s own responsibility for ef- 93 fectively organising and directing the domestic intelligence services and, in this con- text, for protecting official secrets − a responsibility derived from the governmental powers with which it has been entrusted. In particular, the Federal Government is not obliged to hand over to the Bundestag classified documents containing official se- crets if the Bundestag fails to guarantee the security of information to the extent con- sidered necessary by the Federal Government (cf. BVerfGE 67, 100 <137>; 137, 185 <241 para. 150>; 143, 101 <143 f. para. 140>) or if handing over the requested doc- uments could impair the proper functioning of the intelligence services.

d) Furthermore, pursuant to Art. 1(3) GG, parliamentary committees of inquiry have 94 the duty to respect fundamental rights. Fundamental rights may give rise to restric- tions of the right to take evidence (cf. BVerfGE 67, 100 <142>; 124, 78 <128>; 143, 101 <144 para. 141>). The opposing interests must be reconciled on the basis of the principle of maximum equilibrium between conflicting interests of equal weight (prak- tische Konkordanz) (cf. BVerfGE 146, 1 <45 para. 100> regarding the parliamentary right to ask questions).

The significance of the parliamentary rights to obtain information and to conduct 95 oversight vis-à-vis the Federal Government – both for parliamentary democracy and for the standing and acceptance of the state – does not generally permit a curtailing of these rights in order to protect the fundamental rights of private actors if Parliament and the Federal Government have put in place sufficient safeguards to protect the security of information, ensuring that both constitutional organs can work together without outside interference, and if the principle of proportionality is observed (cf. BVerfGE 67, 100 <144>; 146, 1 <47 f. para. 105>).

3. If the Federal Government invokes its right to refuse to hand over evidence to a 96 committee of inquiry for reasons of constitutional law, it has a constitutional duty to state its reasons (cf. BVerfGE 124, 78 <128>; 143, 101 <144 para. 143>). The Fed- eral Government must enable the Bundestag to effectively exercise its function of

9/34 overseeing government action. This requires that refusal to provide information be substantiated in detail with reasons that reflect the issues at stake, thereby allowing the Bundestag to assess and determine whether to accept this refusal or what further steps to take in order to enforce its request for information. To that end, the Bun- destag must be able to review whether the Government’s balancing of the affected interests, which resulted in the refusal to provide information, is plausible and com- prehensible. The requirement to state reasons can only be set aside if the need for secrecy is evident (cf. BVerfGE 143, 101 <144 para. 143> with further references).

II. Where intelligence services use human intelligence sources, committees of inquiry 97 have a significant interest in obtaining information and conducting oversight (see 1. below). This interest is subject to limits derived from the interest in the proper func- tioning of the intelligence services, for which protecting the identity of their informants and keeping their mode of operation secret may be of paramount importance; further limits arise from the fundamental rights of informants (see 2. below). Where constitu- tionally protected secrecy interests oppose Parliament’s interest in obtaining informa- tion, a balance must be struck that gives the greatest possible effect to the conflicting interests on both sides (see 3. below).

1. Parliamentary oversight of the intelligence services is of paramount importance 98 given the covert way in which the intelligence services usually operate and the result- ing risks of irregularities. In principle, this also applies to the use of confidential infor- mants.

a) The Bundestag therefore has the right and the duty to exercise its powers of 99 oversight vis-à-vis the Federal Government with regard to the intelligence services by making use of all available oversight mechanisms, ranging from the right of individual members of the Bundestag to ask questions, through to the establishment of commit- tees of inquiry (cf. BVerfGE 143, 101 <146 f. para. 149>; 146, 1 <53 para. 116>). The various parliamentary oversight mechanisms are not mutually exclusive, nor does the most specific mechanism supplant the others. With regard to the intelligence ser- vices, in particular, the work of the Parliamentary Oversight Body (Parlamentarisches Kontrollgremium) does not supplant investigations conducted by committees of in- quiry. The Parliamentary Oversight Body is merely an additional mechanism for par- liamentary oversight (cf. BVerfGE 124, 161 <190> with reference to § 1(2) of the Act on Parliamentary Oversight of Federal Intelligence Activities, Gesetz über die parla- mentarische Kontrolle nachrichtendienstlicher Tätigkeit des Bundes – PKGrG, and to Bundestag document, Bundestagsdrucksache – BTDrucks 8/1599, p. 6). On the con- trary, committees of inquiry are of paramount importance in this context. They are the most stringent oversight mechanism available to Parliament ([…]).

b) The parliamentary interest in effective oversight of the use of intelligence service 100 resources, in particular confidential informants, follows, firstly, from the severity of the resulting interferences with fundamental rights (cf. BVerfGE 143, 101 <147 para.

10/34 151>; 146, 1 <53 f. para. 118>). The use of confidential informants is among the most serious informational interferences that exist. The more an informant is used against a specific individual, and thus targets that individual in order to determine their role or connections within the group under surveillance, the greater the severity of inter- ference. By relying on the informant, intelligence services can target a considerable part of the life of affected persons and highly sensitive information ([…]).

c) Secondly, the use of informants entails a high risk of errors, conflicts of interests 101 and abuse. Where information is sought on extremist or criminal circles, it may be necessary to use persons from these circles as confidential informants. Such persons could take advantage of their position to deliberately manipulate the authority han- dling them and to obstruct its investigations or to commit criminal offences that they would otherwise not be able to commit. Where public authorities cooperate with an informant who is suspected of having committed considerable criminal offences, pos- sibly of an extremist nature, Parliament’s interest in conducting oversight and investi- gating such cases is particularly significant if it concerns the uncovering of possible unlawful conduct or other forms of misconduct within Government or the executive branch (cf. BVerfGE 146, 1 <53 para. 117> with further references).

With regard to assurances of confidentiality, which are common practice when work- 102 ing with covert human intelligence sources (see para. 105 f. below), the providing of such assurances and their scope must therefore give effect to the great significance accorded to the parliamentary interest in conducting oversight and obtaining informa- tion. The parliamentary right of inquiry must not be circumvented by the routine pro- viding of assurances of confidentiality to informants. Otherwise the authorities giving such assurances of confidentiality would be in a position to control the committee of inquiry’s right to take evidence.

2. Parliament’s right of inquiry is limited, firstly, by the interest in the proper function- 103 ing of the intelligence services, for which protecting the identity of their informants and keeping their mode of operation secret may be of paramount importance; sec- ondly, it is limited by the fundamental rights of the informants.

a) In order to maintain the internal and external security of the Federal Republic of 104 Germany, the Basic Law (Art. 45d, Art. 73(1) no. 1(b) and Art. 87(1) second sentence GG) expressly permits the establishment of agencies for the protection of the Consti- tution (Verfassungsschutzbehörden) [domestic intelligence services] and of [foreign] intelligence services. Intelligence services reflect the Basic Law’s fundamental notion of a fortified democracy (wehrhafte Demokratie) and the willingness of the state un- der the rule of law to assert its authority; they are part of the security architecture of the Federal Republic of Germany (cf. BVerfGE 143, 101 <139 para. 126>; 146, 1 <49 f. para. 110>). Intelligence services’ use of informants – private individuals whose systematic and long-term cooperation with the intelligence services is unknown to third parties (cf. the statutory definition in § 9b(1) first sentence of the Federal Protec- tion of the Constitution Act, Bundesverfassungsschutzgesetz – BVerfSchG) – is a

11/34 method of covert intelligence-gathering endorsed by the legislator (cf. § 8(2) first sen- tence BVerfSchG). This is based on the recognition that endeavours and activities directed against the constitutional order or the security and existence of the state are mostly carried out by groups conspiring against the state, and that the intelli- gence services can therefore only perform their tasks effectively if they can use in- telligence service resources such as confidential informants (cf. BVerfGE 146, 1 <50 para. 110>; […]). The legislator considers the organised and systematic gathering of information, in particular through informants, as indispensable for investigating ex- tremist endeavours (cf. the explanatory memorandum to the Act to Improve Cooper- ation Regarding the Protection of the Constitution of 17 November 2015, BTDrucks 18/4654, p. 25). Often, this is the only way to obtain information from within criminal and extremist organisations regarding their structure, their leaders, their actual aims and the planning and execution of specific acts (cf. BVerfGE 38 <60 f.>; 109, 13 <34 f.>; 146, 1 <50 para. 110>).

b) The use of confidential informants by the intelligence services may require com- 105 prehensive assurances of confidentiality that must be honoured by the authorities (see aa) below). Protecting one’s sources by honouring assurances of confidentiality not only serves to protect the fundamental rights of the affected informants (see bb) below), but is also significant for the work and proper functioning of the intelligence services (see cc) below).

aa) Recruiting and handling informants would in some cases be virtually impossible 106 without comprehensive assurances from the Office for the Protection of the Constitu- tion that their work for the intelligence service will be kept secret. Confidential infor- mants are often used in extremist, terrorist or violent circles. They gain access to the innermost parts of organisations under surveillance and gather intelligence regarding their structure, leaders, aims and plans − information which these organisations wish to keep concealed from state authorities. In doing so, informants are typically ex- posed to considerable personal risks that they are only willing to take if they can trust that their identity will not be revealed. In principle, this protection also means that such informants, unlike informants or handlers working for law enforcement authori- ties, do not expect to be directly questioned in public proceedings with the aim of us- ing the information thus obtained, because such informants were given comprehen- sive assurances of confidentiality and can therefore assume that the information they provide will only be accessed via the communication channels commonly used by the intelligence services.

bb) Human sources who work for state authorities have a claim to protection that 107 follows from their fundamental rights, in particular from the right to life and physical integrity under Art. 2(2) first sentence GG.

If, contrary to the assurances of confidentiality given, an informant’s identity is re- 108 vealed or if information is disclosed that allows conclusions to be drawn about their identity, this not only amounts to an interference with the legitimate expectations cre-

12/34 ated prior to disclosure and protected by Art. 2(1) in conjunction with Art. 20(3) GG (cf. BVerfGE 146, 1 <47 para. 104>). Such disclosures may also lead the circles un- der surveillance to carry out retaliatory action that may jeopardise the life and limb of affected persons (cf. BVerfGE 146, 1 <45 f. para. 101>; […]).

cc) The proper functioning of the intelligence services could also be severely im- 109 paired if the protection of informants were no longer guaranteed because the author- ities are unable to keep their assurances of confidentiality.

(1) If an informant is exposed, ongoing operations cannot typically be continued and 110 the informant can no longer be used in future operations. In many cases, it is difficult or even impossible to compensate for the resulting loss of intelligence because re- cruiting confidential informants is not simple; their recruitment is often the result of a lengthy and arduous process (cf. BVerfGE 146, 1 <51 para. 113>; […]). The more isolated the anti-constitutional groups under surveillance are, and the more they op- erate in secret, the more difficult the recruitment of a new informant will be. If infor- mants are exposed, intelligence services may no longer have access to information from extremist circles for a longer time period, which might have profound implica- tions for public security.

(2) Informants themselves may choose to terminate their cooperation with the au- 111 thorities as soon as assurances of confidentiality given to them are not being hon- oured. If assurances of confidentiality are undermined because the authority’s actions appear unpredictable or prompt informants to fear that their identity may be revealed, there is a risk that informants will not continue their operation.

In particular, revealing information about the informant, other informants or the spe- 112 cific use of informants may be perceived by affected persons as reneging on assur- ances of confidentiality. Even the subjective perception that confidentiality may be compromised could prompt other active informants, whose operation is not directly affected by the revealed information, to stop cooperating with the authority or make recruitment of new informants more difficult (cf. BVerfGE 146, 1 <51 ff. para. 113 f.>; […]). This may then jeopardise the performance of the tasks of the intelligence ser- vices, which are reliant on the long-term use of confidential informants in the circles concerned.

(3) The performance of the intelligence services’ tasks may also be impaired by the 113 leaking of information about operations involving informants. Ongoing intelligence op- erations involving informants could thereby be jeopardised ([…]). But even beyond specific intelligence operations involving informants, information may become known that significantly affects the work and proper functioning of the intelligence services. In particular, this concerns strategic processes, the manner in which authorities re- cruit and handle informants, and communication with informants and other sources. If such information became known, the groups under surveillance might be able to develop mechanisms to defend themselves against infiltration and surveillance (cf. BVerfGE 146, 1 <52 para. 114>).

13/34 3. Where constitutionally protected secrecy interests oppose Parliament’s interest 114 in obtaining information, a balance must be struck that gives the greatest possible effect to the conflicting interests on both sides (cf. BVerfGE 146, 1 <54 para. 119> regarding Parliament’s right to ask questions).

a) The taking of evidence in relation to covert intelligence sources does not impair 115 legitimate secrecy interests in every case, nor is there always a risk of such impair- ment. There are so many different constellations with regard to covert intelligence sources that the interest in secrecy does not take absolute precedence in a balancing of interests (cf. BVerfGE 143, 101 <155 ff. para. 176 ff.>; 146, 1 <54 f. para. 120 f.>).

aa) When determining the weight of the secrecy interest, the measures protecting the security of information available to committees of inquiry must be taken into ac- count. Firstly, it is possible to limit the number of persons who obtain knowledge of the secret information to a much greater extent when sharing information with a com- mittee of inquiry than is the case when answering parliamentary interpellations put to the Government by members of the Bundestag. The Committees of Inquiry Act in conjunction with the Bundestag Rules on Document Security provides for various safeguards to maintain secrecy. These include the possibility of taking evidence in closed session, pursuant to § 14 PUAG, if the life, limb or liberty of a witness or of another person are jeopardised or if the public taking of evidence would impair spe- cific security interests of the Federation or a Land. Moreover, the group of persons allowed to participate in closed committee meetings can be restricted further ([…]). Thus, with regard to information that is particularly confidential, the number of per- sons who obtain knowledge of such information can be limited to the minimum nec- essary to fulfil the committee’s mandate.

Secondly, the taking of evidence can receive a security classification pursuant to § 117 15(1) first sentence PUAG. Such classification is made on the basis of the Bundestag Rules on Document Security and has implications for access to classified information (§ 16(1) PUAG) and for the taking of minutes on the committee (cf. § 7(2) and (3) of the Bundestag Rules on Document Security). Further possibilities of maintaining se- crecy exist with regard to the conditions under which witness examinations take place. For example, witnesses can give evidence via audio-visual means (cf. § 247a StPO in conjunction with Art. 44(2) first sentence GG), with voice distortion and alter- ation of appearance. Where necessary, further measures can be taken to protect the secrecy of information that is especially likely to reveal the identity of informants, in- cluding by restricting the permission to give evidence accordingly, or by providing the witness with a legal counsel (cf. § 20(2) PUAG) or a staff member of the Federal Of- fice for the Protection of the Constitution who can intervene where necessary to pre- vent disclosure of classified information. The final report that the committee of inquiry provides for the (parliamentary) public, or parts thereof, can also be classified on the basis of the Bundestag Rules on Document Security ([…]). In view of the committee of inquiry’s responsibility for the fundamental rights of others and the security inter- ests of the state, the committee must take into account secrecy interests when draw-

14/34 ing up its final report.

bb) Assurances of unconditional confidentiality are not capable of justifying restric- 118 tions of the parliamentary right to take evidence in cases where the fundamental rights of informants or their handlers would not be jeopardised by the planned taking of evidence on a committee of inquiry, or where such risk appears remote at best, and no concerns arise regarding the proper functioning of the intelligence services. Otherwise, assurances of confidentiality could be invoked as a blanket argument to almost entirely shield the work of the intelligence services from scrutiny by a commit- tee of inquiry, at least in relation to dealing with informants. This would fail to give effect to the great importance committees of inquiry have for parliamentary oversight.

b) Therefore, regardless of any risks to specific fundamental rights interests, the 119 Federal Government may only invoke assurances of confidentiality as grounds for refusing to cooperate with the committee in the planned examination of witnesses on the committee of inquiry if this is required by imperative reasons, in the individual case, that arise from the security interests of the state. This exception may be in- voked in special circumstances if the proper functioning of the intelligence services in certain circles can only be guaranteed by assurances of unconditional confidentiality that must be honoured by the authorities. It is incumbent upon the Federal Govern- ment to provide specific reasons beforehand, substantiating the existence of such special circumstances that are capable of justifying assurances of unconditional con- fidentiality that must be honoured by the authorities.

III. On the basis of these standards, the respondents were entitled to refuse to reveal 120 the identity of the staff member responsible for handling the informant or informants with connections to Amri at the Federal Office for the Protection of the Constitution for the purposes of witness examination by the committee of inquiry. This does not violate the rights of the applicants and of the Bundestag following from Art. 44(1) first sentence GG.

Both the wording of the decision to take evidence (BMI-11) and the applicants’ sub- 121 missions indicate that the purpose of revealing the handler’s identity was to allow for his examination as a witness. When determining whether the respondents were enti- tled to refuse to reveal the handler’s identity, it is therefore also necessary to take into account the disadvantages and risks that could arise from his summoning and exam- ination for the fundamental rights of the informant and their handler and for the work and proper functioning of the Federal Office for the Protection of the Constitution.

In the present case, the committee of inquiry has a significant interest in questioning 122 the informant’s handler (see 1. below). Moreover, in view of the means available for ensuring the security of information, it can be largely ruled out that the fundamental rights of the informant and of the handler as well as the interest in the functioning of the Federal Office for the Protection of the Constitution would be jeopardised by the

15/34 disclosure of classified information (see 2. below). However, the respondents have invoked special circumstances which make it appear imperative that the assurances of unconditional confidentiality given to the informant must be honoured to ensure that the Office for the Protection of the Constitution can perform its tasks in the milieu concerned here (see 3. below). In light of this, when it comes to revealing the identity of the handler to allow for his examination as a witness, the committee of inquiry’s interest in obtaining information must stand back behind the security interests of the state (see 4. below). The respondents have sufficiently communicated the reasons for their refusal to the committee of inquiry (see 5. below).

1. The planned questioning of the handler is aimed at obtaining information that is 123 significant for fulfilling the specific mandate of the committee of inquiry. The appli- cants submit that the taking of evidence carried out so far by the committee has raised questions that must be addressed concerning the intelligence operation at is- sue. In particular, this applies to the question of whether shortcomings in the handling of sources by the Federal Office for the Protection of the Constitution and a lack of coordination between the different authorities conducting covert source operations had made it impossible to obtain systematic and comprehensive information on Amri and his plans. The applicants assert that only the informant’s handler has the direct insights to answer these questions and that his knowledge is indispensable for ap- praising the facts. Moreover, the applicants hope to obtain information from him re- garding his cooperation with the informant. The applicants claim that the handler, as the informant’s direct contact, could give a first-hand account of the information pro- vided by the informant, as well as of the way they delivered this information and their credibility. The committee of inquiry does not merely wish to generally appraise the use of covert intelligence sources by the Federal Office for the Protection of the Con- stitution. Rather, the committee wants to find out whether there were shortcomings relating to the gathering, processing and analysis of intelligence at the Federal Office for the Protection of the Constitution or relating to cooperation between the intelli- gence services and the federal and Land security authorities in the present case; from this information, the committee wants to draw its own conclusions and share them with the public. This is the central mandate given to the committee of inquiry.

2. If – as requested by the applicants – the informant’s handler is questioned on the 124 committee of inquiry regarding the details of the intelligence operation in connection with the Fussilet Mosque and his cooperation with the informant, then the handler’s appearance, the way he delivers his reports and the actual information he provides might allow persons from within the milieu under surveillance to discern information relating to the handler’s identity and the informant’s identity. However, the means for ensuring the security of information available to committees of inquiry (see para. 116 f.) largely rule out the risk that the handler’s questioning will disclose identifying infor- mation that could expose the handler or the informant.

For the reasons set out above, there is no justified concern that the questioning of 125 the handler will lead to classified information about the way the intelligence services

16/34 operate being disclosed to the milieu under surveillance. The means available for en- suring the security of information are sufficiently capable of countering this risk.

3. However, this does not overcome the respondents’ objection that the special cir- 126 cumstances in the present case give rise to serious concerns that the informant in question, and possibly other sources as well, could perceive the questioning of the handler as a reneging on the assurances of confidentiality on the part of the authori- ties; they might then no longer trust that their identity will be kept secret, and termi- nate their cooperation with the Federal Office for the Protection of the Constitution.

The significance that unconditional assurances of confidentiality have for human in- 127 telligence sources’ willingness to cooperate and thus for the proper functioning of the intelligence services cannot be determined in absolute terms; their significance de- pends on the context and circumstances of the use of such sources. Relevant factors for determining this significance include, in particular, the structure and nature of the specific milieu under surveillance, the degree of risk for the source and its vulnerabil- ity, timing, and the specific circumstances and difficulties arising in the context of re- cruiting new sources in the circles in question.

a) According to the information available to the intelligence services, the Islamist 128 terrorist circles in which the informant in question operates is organised in extremely isolated micro groups. The actors under surveillance live in constant expectation of what they see as treacherous conduct within their own group. Communication within these groups is characterised by a high degree of mistrust, and the groups are known to use systematic counter-intelligence to expose potential traitors. The question of whether people in the group are loyal members or traitors permeates everything.

According to the available information, members of these groups also show a high 129 propensity for violence, especially against those who cooperate with the very state whose liberal order the group is seeking to dismantle. Betraying one’s group is seen as treason against religion. Traitors are considered infidels and enemies to be fought by all available means.

This means that informants recruited by intelligence services in such circles take 130 high personal risks. If exposed, they and potentially their family members face imme- diate dangers to their life, limb and liberty. They are exposed to a “hunt for the source”. For this reason, human intelligence sources in Islamist terrorist circles must be considered particularly sensitive to any circumstances that could in their view lead to their exposure and are in need of unconditional confidentiality protection. Substan- tiating the security interests of the state, the respondents submitted that the need of informants to constantly make sure that confidentiality is maintained not only requires assurances to this effect by the Federal Office for the Protection of the Constitution when cooperation with an informant begins, but also requires constant confirmation that their identity will be protected without question and that the assurances of confi- dentiality will be honoured; otherwise informants might not continue their cooperation with the intelligence service. In such circumstances, doubts of informants as to the

17/34 reliability of the intelligence service that recruited them must be accorded particular weight. This appears plausible.

b) In light of the foregoing, the respondents demonstrated, in a comprehensible 131 manner, that even if the means available for ensuring the security of information were applied by the committee of inquiry in the present case, the informant in question would perceive the examination of their handler by the committee of inquiry as an unacceptable compromising of confidentiality, or even as a reneging on the assur- ances given to them, and would therefore no longer cooperate with the Federal Office for the Protection of the Constitution. It must also be taken into account that it is not possible for the confidential informant to ascertain which specific security measures the committee of inquiry is planning to take in order to protect the informant’s identity. In any case, the informant themselves cannot make sure that such measures are ac- tually adhered to given that they have no way of observing the examination. From the informant’s perspective, what is relevant is that information on their person leaves the sphere of the Federal Office for the Protection of the Constitution and is shared with a parliamentary committee of inquiry, whose procedures are in principle public (cf. Art. 44(1) GG). From the informant’s point of view, there is always the risk that the need to keep certain information secret is not directly recognisable during the witness examination because it cannot be foreseen with certainty what the circles under sur- veillance know and the extent to which the disclosure of specific information on their operation allows conclusions to be drawn about the informant’s identity. This is espe- cially true in the present case because, according to the respondents’ submissions, the examination concerns an ongoing intelligence operation, in respect of which the informant is still gathering intelligence in the circles under surveillance, and the ex- amination could be noticed by these circles. From the informant’s perspective, it may be an aggravating factor that information on the intelligence operation carried out by them has already become known to the public.

c) The respondents expect that the reneging on assurances of confidentiality given 132 to the informant would have further consequences, which seems plausible. Given the nature of the aforementioned Islamist terrorist circles under surveillance, it must be expected that the informant concerned in the specific case will end their cooperation with the authorities. Furthermore, there is also reason to fear that other sources will likewise terminate their cooperation with the authorities. In the present case, this risk carries significant weight, given that in Islamist circles human intelligence sources are difficult to recruit. There are particular requirements regarding the skills and qualities a person must have in order to join such a group and to work safely there for a con- siderable time period. The loss of one or several sources in such circles could there- fore make it considerably harder for intelligence services to gather intelligence that is of great importance to national security, to a point where the gathering of such intelli- gence might become virtually impossible, at least temporarily. This is also significant because communications within the circles under surveillance have increasingly shift- ed to the digital and encrypted sphere, which is not accessible at all without human

18/34 intelligence sources.

4. In light of the specific circumstances set out above, the guarantee of uncondition- 133 al confidentiality is especially important in the present case. Given the significant risks to the functioning and work of the Federal Office for the Protection of the Constitution which would arise if the respondents cooperated to allow the planned taking of evi- dence, Parliament’s interest in obtaining information must stand back behind overrid- ing security interests of the state.

Furthermore, it must be taken into account that the respondents allowed the exami- 134 nation of direct superiors of the informant’s handler, giving effect to the committee’s interest in obtaining information to a certain extent at least. It is true that, because of the direct contact between the informant and their handler, only the handler himself can give a first-hand account of the informant and their cooperation and thus fully satisfy Parliament’s interest in obtaining information. However, the witnesses offered by the respondents probably knew at least as much as the handler about the strate- gic considerations within the Federal Office for the Protection of the Constitution, its assessment of the danger posed by Amri as well as about the cooperation and coor- dination between the different intelligence services and security authorities. Accord- ing to the respondents’ tenable submissions, it can still be plausibly explained to the informant that the assurances of confidentiality given to them are honoured even though a superior is named as a witness in this case – which would not be possible if the informant’s handler himself had been questioned.

5. Respondent no. 1 sufficiently and plausibly demonstrated the reasons for refus- 135 ing the request for witness examination in its communications of 18 June and 5 July 2018, which also addressed the Federal Constitutional Court’s case-law on the limits to Parliament’s right to ask questions in relation to the intelligence services. In partic- ular, the respondent pointed out the necessity of using informants for intelligence ser- vice investigations relating to Islamist terrorism, the particularly clandestine nature and high propensity for violence in the circles under surveillance and the significance the giving and honouring assurances of confidentiality has for the proper functioning of the intelligence services in these circumstances. According to the respondent, the questioning of the handler responsible for an informant who is part of an ongoing in- telligence operation is already capable of eroding the trust of the informant(s) con- cerned to such a degree that there is reason to fear that informants will terminate their cooperation with the authorities and, as a consequence, intelligence services will no longer have access to information from these circles.

D. […] 136

19/34 E. This decision was taken with 6:1 votes. 137

König Huber Hermanns

Müller Kessal-Wulf Maidowski

Langenfeld

20/34 Dissenting Opinion of Justice Müller

to the Order of the Second Senate

of 16 December 2020

- 2 BvE 4/18 - Unfortunately, I cannot concur with the outcome of the decision rendered by the 1 Senate majority. In my view, the Senate majority’s decision accords insufficient weight to the Bundestag’s right of inquiry under Art. 44 of the Basic Law (Grundge- setz – GG), while according too much significance to (not sufficiently demonstrated) secrecy interests on the part of the executive branch that have no basis in constitu- tional law.

The Senate majority does accord significant weight to the parliamentary right to ob- 2 tain information, and it is right in doing so (see 1. below). The majority also recognis- es that in the present case, the parliamentary right of inquiry can only be limited by the security interests of the state (Staatswohl), in this case the interest in maintaining the proper functioning of the intelligence services (see 2. below). However, there are considerable concerns with regard to the majority’s assumption that the planned questioning of the informant’s handler is indeed capable of impairing the proper func- tioning of the intelligence services to a significant extent, as claimed by respondent no. 1 (see 3. below). In any case, the security interests of the state asserted in the present case would not justify the failure to give effect to the parliamentary right of inquiry (see 4. below). The Senate majority’s opposing view essentially abolishes parliamentary oversight in respect of the use of confidential informants by intelligence services in clandestine and violent extremist circles, and thus leads to the creation of a governmental sphere that is virtually exempt from scrutiny. This contravenes the principle of maximum equilibrium (praktische Konkordanz) between Parliament’s in- terest in conducting oversight and the secrecy interests of the state, which the Sen- ate majority itself emphasises in its decision (see 5. below).

Regardless, the application should in any case have been successful, in my view, 3 given that the respondents did not fulfil their constitutional duty to state reasons vis- à-vis the Bundestag committee of inquiry for their refusal to comply with the commit- tee’s request (see 6. below).

1. The Senate majority points out that the parliamentary interest in obtaining infor- 4 mation is of great significance under constitutional law insofar as it relates to uncov- ering possible unlawful conduct or similar forms of misconduct within government or the executive branch (see para. 82; cf. also Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 146, 1 <39 para. 86> with further references). It also emphasises that parliamentary oversight of the intelligence services is of paramount importance given the covert way in which intelligence services usually operate and the resulting risks of irregularities (see para. 98; cf. also BVerfGE 146, 1 <53 f. para. 118> with further references). According to

21/34 the Senate majority, this also applies with regard to the use of confidential informants, given the severity of the resulting interferences with fundamental rights and the high risk of errors, conflicts of interests and abuse.

I concur with this finding. In using confidential informants, the intelligence services 5 to a certain extent seek out persons who are typically themselves part of the circles under surveillance. It is true that this method of covert intelligence-gathering is en- dorsed by the legislator (cf. § 8(2) first sentence of the Federal Protection of the Con- stitution Act, Bundesverfassungsschutzgesetz – BVerfSchG) and necessary to per- form the tasks of the intelligence services (cf. BVerfGE 146, 1 <50 para. 110> with further references). However, the use of informants involves special risks that do not exist with regard to other intelligence resources. This concerns both the knowledge the informant obtains about the intelligence services’ work, which they can exploit in their own interest or in the interest of their group, and the risk of reduced attention and surveillance resources being dedicated to the informant and their environment. The use of confidential informants, who are themselves part of the anti-constitutional endeavours under surveillance, is therefore quite an ambivalent element of the intel- ligence services’ work.

In light of the foregoing, the use of informants by the intelligence services creates 6 an increased need for oversight, which can only be exercised by Parliament as no sufficient judicial ([…]) and executive ([…]) oversight mechanisms are available. In this regard, oversight conducted by the Parliamentary Oversight Body (Parlamen- tarisches Kontrollgremium) pursuant to Art. 45d GG falls significantly short of the oversight a committee of inquiry can conduct ([…]), given the mandate of the Parlia- mentary Oversight Body (cf. § 1(1) of the Act on Parliamentary Oversight of Federal Intelligence Activities, Gesetz über die parlamentarische Kontrolle nachrichtendien- stlicher Tätigkeit des Bundes – PKGrG), its limited possibilities of taking evidence, which require – in some cases qualified – majority decisions (cf. § 7(1) and § 10(2) PKGrG) and the weaker design of minority rights on the Parliamentary Oversight Body (not least with regard to constitutional review of an asserted violation of the Federal Government’s information obligations vis-à-vis Parliament, cf. § 14 PKGrG). The means available to the Parliamentary Oversight Body are ultimately insufficient to ensure the necessary scrutiny of the problems and risks associated with the use of informants by the domestic intelligence services ([…]). Thus, the Senate majority is right in according “paramount importance” to committees of inquiry in this context (see para. 99). Unfortunately, the Senate majority prevents the committee of inquiry from living up to this “paramount importance” on the basis of a flawed balancing [of oversight interests] against (alleged) threats to the proper functioning of the intelli- gence services.

1. I concur with the Senate majority’s assessment that the protection of the funda- 7 mental rights of others cannot be invoked in the present case as grounds justifying the refusal to reveal the identity of the informant’s handler for the purpose of witness examination.

22/34 Pursuant to Art. 1(3) GG, Parliament and its constituent bodies must respect funda- 8 mental rights, and it is true that limitations of the parliamentary right to obtain infor- mation may arise therefrom. In the present case, such limitations might arise from the right to life and physical integrity protected by Art. 2(2) first sentence GG. It is gener- ally assumed that this right is impaired if the identity of someone operating in extrem- ist, terrorist or violent circles is revealed or if information is disclosed that allows con- clusions to be drawn to this effect (cf. BVerfGE 146, 1 <45 f. paras. 100, 101> with further references).

Yet the Senate majority rightly points out that in the interaction between the Federal 9 Government and the Bundestag, the protection of the fundamental rights of others does generally not provide grounds for curtailing parliamentary rights to obtain infor- mation. This holds true at least where Parliament has put in place sufficient safe- guards to protect the security of information (see para. 95, with reference to BVerfGE 67, 100 <144>; 146, 1 <47 f. para. 105>). Given that the Bundestag and the Federal Government are jointly entrusted with safeguarding the security interests of the state within the parliamentary system of government, Parliament and its organs cannot be treated the same as external parties, from which certain information may be withheld regardless of whether they have put in place similar safeguards (see para. 91; BVer- fGE 146, 1 <43 para. 96> with further references).

On the basis of these considerations, the Senate majority finds that the means for 10 ensuring the security of information available to the committee of inquiry in the pre- sent case largely rule out the risk that information identifying the informant or their handler will become known (see para. 124). In this context, the majority refers to the possibility of questioning the handler in closed session while limiting the number of persons allowed to participate in the meeting pursuant to § 14 PUAG. Moreover, the Senate majority states that the handler could be questioned via audio-visual means (cf. Art. 44(2) first sentence GG in conjunction with § 247a of the Code of Criminal Procedure, Strafprozessordnung – StPO), with voice distortion and alteration of ap- pearance. According to the Senate majority, identifying information can also be pro- tected by restricting the permission to give evidence accordingly, by providing the witness with a legal counsel and by classifying the committee’s final report or parts thereof (see para. 116 f.).

I concur with these considerations. What must be further taken into account is that 11 the committee's interest in obtaining information does not concern the identity of the informant or their handler as such. Rather, according to the parliamentary decision to establish the committee of inquiry, the committee’s aim is to assess whether the in- telligence services, security authorities and other authorities adequately worked to- gether and, as the case may be, to derive recommendations and conclusions from this assessment (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/ 943, p. 3 ff.). On the basis of the applicants’ submissions it must furthermore be as- sumed that if the handler were questioned, the resulting risks of exposure would be countered by the implementation of measures to protect the security of information.

23/34 Therefore, the risk of information identifying the handler or the informant becoming known can be ruled out or appears so remote (cf. in this regard BVerfGE 146, 1 <56 para. 124>) that restrictions of the parliamentary right to obtain information cannot be justified on the grounds of a risk to these fundamental rights interests – as the Senate majority rightly finds (see para. 122 f.).

2. Given the absence of relevant risks of exposure in case of the handler’s ques- 12 tioning, I do not agree with the Senate majority’s finding that, regardless of these con- siderations, security interests of the state, in this case the maintaining of the proper functioning of the intelligence services, are nevertheless capable of justifying the re- fusal to reveal the identity of the informant’s handler to the committee and to cooper- ate in the planned witness examination. In this regard, the majority’s assumptions re- garding the actual effects which the committee’s questioning of the handler could have on the work of the domestic intelligence services (see a) below) raise consider- able doubts (see b) below).

a) The Senate majority focuses on the risks of losing active sources and of in- 13 creased difficulties in recruiting future sources. The Senate majority finds that infor- mants that were given unconditional assurances of confidentiality must be able to trust that their identity will be protected and that the information they provide will only be accessed via the communication channels commonly used by the intelligence ser- vices (see para. 106). The proper functioning of the intelligence services may not on- ly be adversely affected by the exposure of informants, the Senate majority claims, but also by informants’ subjective perception that assurances of confidentiality given to them were not honoured (see para. 112 with reference to BVerfGE 146, 1 <51 ff. para. 113 f.>). According to the Senate majority, the present case gives rise to seri- ous concerns that the questioning of the informant’s handler could be subjectively perceived as reneging on assurances of confidentiality, and that the informant in question and other informants could therefore terminate their cooperation with the Federal Office for the Protection of the Constitution, which might be unable to recruit other sources (see para. 130 ff.).

b) I have considerable objections to this line of argument. These objections stem 14 from the fact – acknowledged by the Senate majority – that it is actually possible for the committee of inquiry to question the handler without reneging on assurances of confidentiality given to the informant (see aa) below). Insofar as the Senate majority points out that the questioning of the informant’s handler could at least subjectively be perceived as reneging on assurances of confidentiality, I have considerable con- cerns both with regard to the underlying factual assessment and with regard to the purported consequences for the proper functioning of the intelligence services de- rived from it (see bb) below).

aa) (1) In giving assurances of confidentiality, the intelligence services commit to 15 keeping the informant’s identity secret, but they do not commit to not sharing the in- formation provided by the informant. The use of informants serves precisely to obtain

24/34 information on anti-constitutional groups and to then use this information to counter their endeavours. When given assurances of confidentiality, the informant can objec- tively expect that their work for the intelligence services remains secret so that neither they nor their families are put in danger. When it comes to sharing that information, this means that the information provided must be handled in such a manner that no conclusions can be drawn regarding the informant’s identity and that – wherever pos- sible – they are not put in danger.

(2) What follows from this is that it is possible for the committee in the present case 16 to question the informant’s handler without failing to give effect to the protection that must be provided to the informant. As set out above, the committee’s mandate is not to uncover the informant’s identity. The handler can simply refuse to answer ques- tions to that effect. Remaining risks of exposure resulting from the disclosure of other information from which the identity could be discerned can largely be avoided by im- plementing the measures to protect the security of information set out by the Senate majority. Insofar as the respondents submit that it cannot be ruled out with absolute certainty that such information does become known through a combination of unfor- tunate circumstances, this is a general risk associated with any informant work. Questioning the informant’s handler on the committee of inquiry would neither con- siderably increase this risk, nor could such questioning be considered a reneging on assurances of confidentiality.

(3) That the handler’s questioning would constitute a reneging on assurances of 17 confidentiality also does not follow from a “common practice of the intelligence ser- vices”, as submitted by the respondents’ authorised representative, according to which informants’ cooperation required an express assurance by the authority that their handler would not appear as a witness in court proceedings or on a committee of inquiry; the claim that such a practice exists was made, for the first time, in the representative’s response to the second communication by the reporting Justice of 2 October 2020. The representative did not substantiate this claim with plausible facts even though it would have been necessary to do so. The representative’s submission implies that, when an informant agrees to cooperate with intelligence services, there is an explicit discussion of the question whether the informant’s handler can be ques- tioned on a committee of inquiry – which only ever happens in rare exceptional cases – and that explicit assurances addressing this issue are given; this assumption ap- pears rather far-fetched. The authorised representative also failed to provide any in- formation on how the authorities actually handled this question in the present case. Rather, the authorised representative of the respondents, in a different part of his submission, pointed out that an informant simply expects that their handler will not be questioned on a committee of inquiry, regardless of whether an explicit assurance to this effect has been given.

Moreover, even if such an explicit assurance were given in the present case, it 18 would have to be disregarded given that honouring it would impermissibly curtail the parliamentary right of inquiry. The Senate majority rightly points out that with regard

25/34 to assurances of confidentiality, effect must be given to the paramount importance of the parliamentary right to conduct oversight and that it is not for the domestic intelli- gence services to control, at their discretion, the committee’s right to take evidence (see para. 102). Yet this is exactly what would happen if assurances to this effect given by the domestic intelligence services could automatically bar committees of in- quiry from questioning handlers (see also 4. below, para. 27 ff.). Thus, even if such assurances were actually given – as is claimed in the present case –, they would not be capable of extending the scope of the secrecy obligations to be observed by the domestic intelligence services at the expense of the parliamentary right to conduct oversight.

bb) Insofar as the Senate majority, in this context, primarily refers to the informant’s 19 subjective perception that assurances of confidentiality are reneged on (see paras. 126, 131), it is correct that the proper functioning of the intelligence services may be impaired where an informant deems the safeguards put in place to conceal their ac- tivity to be insufficient and therefore decides not to (continue to) cooperate with the domestic intelligence services (cf. BVerfGE 146, 1 <51 para. 113>). However, it ap- pears doubtful in the present case that informants would actually perceive an exami- nation of the handler by the committee of inquiry, conducted in accordance with the safeguards protecting the security of information set out above, as reneging on as- surances of confidentiality and that they then decide not to terminate their coopera- tion with the authorities.

(1) The Senate majority’s finding that there is a real risk of the informant perceiving 20 such a witness examination as reneging on assurances of confidentiality is based, in particular, on the assumption that the informant cannot observe the examination and thus cannot ascertain which questions the committee will ask and which security measures it is planning to take (see para. 131).

In this respect, the Senate majority disregards the respondents’ submission that 21 there is a “special relationship of trust” between an informant and their handler. In response to the communication of 2020 by the reporting Justice, the respondents stated that cooperation between intelligence services and informants was primarily characterised by loyalty and personal respect, rather than informed by financial in- centives. Moreover, the respondents pointed out that working with the intelligence services could “represent a big hurdle for a devout Muslim that requires an unusually high level of trust in their handler. Once such a relationship of trust has been estab- lished, the handler also serves as a link to German society in various matters con- cerning the private life of the informant (and their family, where applicable), advising them and solving specific problems.” This raises the question why it should not be possible in the context of such a special relationship of trust to explain to the infor- mant that their identity will be protected even though their handler is questioned by a committee of inquiry. The Senate majority does not answer this question.

(2) Even if one were to assume that the informant would perceive the questioning of 22

26/34 their handler as reneging on assurances of confidentiality, the consequences follow- ing therefrom must be assessed separately. That is why the Senate, in the second communication by the reporting Justice of 2 October 2020, expressly asked the re- spondents “which specific effects a questioning of the informant’s handler will have on the informant’s expectations of confidentiality and, as a consequence, on the prop- er functioning of the intelligence services”. In its communication of 23 October 2020, the authorised representative of the respondents stated that the mere fact of the han- dler’s questioning would give rise to fears that many active and potential sources would no longer be willing to cooperate. To support this claim, the representative only provided a general description of ten cases in which informants voiced concerns regarding the honouring of assurances of confidentiality. He did not assert, howev- er, that these concerns led to any of the informants terminating their cooperation with the authorities. The respondent only mentioned one case in which the coopera- tion sought did not come to pass because the person concerned had assumed that sources of the Federal Office for the Protection of the Constitution would invariably be “busted” at some point. The respondent did not state, nor can it otherwise be as- certained, that this decision by a potential informant was related to the work of com- mittees of inquiry, let alone the questioning of handlers.

Therefore, the respondents’ submissions do not in any way support the assumption 23 that a considerable number of active informants would terminate their cooperation with the domestic intelligence services or that new sources could no longer be re- cruited simply because one handler was questioned by a committee of inquiry under conditions ensuring the security of information.

In their further submissions made in reply to the applicants’ submission, concerning 24 the consequences of informants’ exposure, the respondents refer to a case of expo- sure that occurred in 2012. These submissions do not merit a different conclusion given that in the present case, the exposure of both the handler and the informant is a remote risk at best.

(3) With regard to the recruitment of future informants, the respondents failed to dis- 25 cuss the practices in the domain of law enforcement. When cooperating with law en- forcement authorities, informants must expect that the information they provide will be disclosed at a trial hearing in which their handler will be questioned ([…]). There- fore, informants cooperating with law enforcement authorities face a significantly higher risk of exposure than informants working for the intelligence services – not least because members of the groups under surveillance will be present at such trial hearings. Yet it is still possible to recruit informants to work with law enforcement au- thorities, for instance in the context of organised crime, which is also characterised by a high propensity for violence and secrecy. It is not clear why this should not also be possible in the domain of the intelligence services, given that handlers will only be questioned by parliamentary committees of inquiry in exceptional cases and under conditions ensuring the security of information. It is irrelevant in this respect that the respondents stated that cooperation of informants with the intelligence services, un-

27/34 like cooperation with law enforcement authorities, was long-term in nature ([…]).

(4) Ultimately, it is true that the possibility that an informant will terminate their co- 26 operation in the individual case or that potential informants cannot be recruited by the intelligence services because of the handler’s questioning by a committee of inquiry cannot be ruled out completely. Yet in its assessment of this risk, the Senate majority relies on mere assumptions. In any case, it cannot be tenably concluded from the re- spondents’ submissions whether and to what extent there is reason to fear that the proper functioning of the intelligence services will be impaired if the handler is ques- tioned by the committee of inquiry.

3. If the required balancing of interests had been based on these considerations, 27 the Senate would surely have found, in balancing Parliament’s right of inquiry against the state’s interest in maintaining the proper functioning of the intelligence services, that the respondents are under an obligation to reveal the identity of the informant’s handler to the committee of inquiry, allowing for their examination as a witness.

The Senate majority does point out that, where secrecy interests of the state oppose 28 Parliament’s interest in obtaining information, a balance must be struck that gives ef- fect to the conflicting interests on both sides to the greatest possible extent (see para. 114 with reference to BVerfGE 146, 1 <54 para. 119>). There are so many different constellations with regard to covert intelligence sources that the interest in secrecy does not take absolute precedence (see para. 115 with reference to BVerfGE 143, 101 <155 ff. para. 176 ff.>; 146, 1 <54 f. para. 120 f.>). The Senate majority states that, apart from cases where fundamental rights of others are at risk, a refusal to co- operate with a committee of inquiry for the examination of witnesses is only permissi- ble if there are imperative reasons in the individual case that arise from security inter- ests of the state (see para. 119).

In the present case, however, such “imperative” reasons are not ascertainable. Giv- 29 en the great weight of Parliament’s interest in obtaining information in the present case (see a) below), the respondents did not sufficiently demonstrate that the main- taining of the proper functioning of the Office for the Protection of the Constitution “imperatively” requires that the handler not be questioned on the committee (see b) below).

a) aa) The committee of inquiry was established to uncover possible shortcomings 30 regarding the cooperation between the intelligence services, security authorities and other authorities in connection with the attack of 19 December 2016 (cf. BTDrucks 19/943, B.I., p. 3). Specifically, the committee is to examine whether the information obtained by the authorities’ contacts were adequately handled and whether the au- thorities refrained from taking measures against persons involved in the attack be- cause these persons worked for the authorities (cf. BTDrucks 19/943, B.II., p. 5). Giv- en that the committee’s mandate is to investigate whether and in what way state bodies cooperated with informants who may themselves be part of extremist circles, the parliamentary right to conduct oversight must be accorded special significance

28/34 (cf. BVerfGE 146, 1 <53 para. 117>). The Senate majority expressly acknowledges this in according “paramount importance” to committees of inquiry (see para. 99) with regard to overseeing the intelligence services’ work and in finding that the planned questioning of the handler concerned the “central mandate given to the committee of inquiry” (see para. 123).

bb) The fact that the committee was able to question other staff of the Federal Office 31 for the Protection of the Constitution does not alter these findings. Insofar as the Sen- ate majority states that the respondents allowed the examination of direct superiors of the informant’s handler and that this served to give effect to the committee’s inter- est in obtaining information “to a certain extent”, it fails to recognise that pursuant to Art. 44(1) first sentence and Art. 44(2) GG, a committee of inquiry has the right to take any evidence it considers necessary within the scope of its mandate (cf. BVer- fGE 67, 100 <127 f.>; 124, 78 <114 f.>; 143, 101 <133 para. 109>). It is not for the respondents to determine the scope of the right to take evidence of the committee of inquiry.

b) In the present case, there are no “imperative reasons” related to maintaining the 32 proper functioning of the intelligence services that outweigh the particularly great sig- nificance of the parliamentary right to conduct oversight. As set out above (see para. 19 ff. above), it is not possible to establish from the respondents’ submissions what consequences the handler’s questioning on the committee of inquiry would have for the cooperation and recruitment of informants. However, if it remains unclear whether and to what extent the questioning of the informant results in a loss of active sources and makes recruiting new sources more difficult, this is not sufficient for establishing imperative reasons on the basis of which the parliamentary right to obtain information must stand back. It would have been incumbent upon the respondents to substanti- ate, in a tenable and comprehensible manner, that such questioning could bring about a loss of intelligence capable of obstructing the proper functioning of the intel- ligence services (cf. BVerfGE 146, 1 <48 para. 107> with further references). Such a submission is lacking.

Thus, there is no sufficient basis for balancing the parliamentary right to conduct 33 oversight against the state’s secrecy interests. If the mere assertion that active sources might be lost and that the recruitment of informants might become more dif- ficult for the intelligence services were sufficient grounds for refusing to provide infor- mation to committees of inquiry, this would undermine large parts of the parliamen- tary right to conduct oversight in this respect. It would fail to give any effect whatsoever to the requirement of reconciling the parliamentary right to conduct over- sight and security interests of the state that are also enshrined in the Constitution.

4. The additional considerations made by the Senate majority do not merit a differ- 34 ent conclusion. These considerations refer to [the need for] “comprehensive assur- ances of confidentiality”, which are not clearly defined in terms of their prerequisites and legal consequences (see a) below). This line of argument essentially abolishes

29/34 parliamentary oversight in respect of the use of confidential informants in clandestine and violent extremist circles (see b) below) and thus fails to recognise the necessity and significance of external oversight of the use of informants by the intelligence ser- vices (see c) below).

a) The Senate majority assumes that, where informants operate in extremist, terror- 35 ist and violent circles, “comprehensive assurances of confidentiality” are necessary. The Senate majority finds that in such cases informants should be able to trust that “the information they provide will only be accessed via the communication channels commonly used by the intelligence services” (see para. 106). Given that these “com- munications channels commonly used” are not described in more detail, it is not clear whether, in the view of the Senate majority, these “comprehensive assurances of confidentiality” are meant to form a distinct category of assurances that enable the intelligence services to refuse, from the outset, to share information, including with committees of inquiry, related to the use of informants in a certain milieu.

In my opinion, there is no scope for recognising such a distinct category of assur- 36 ances. The parliamentary right of inquiry cannot be denied from the outset on the grounds of assurances of confidentiality provided by the intelligence services as it is not for the intelligence services to determine the scope of this right. Rather, it must be assessed on the basis of the circumstances of the individual case whether this right must stand back behind fundamental rights interests or constitutionally protect- ed security interests.

b) In light of the above, I cannot concur with the Senate majority insofar as it con- 37 siders the circumstances set out above to be sufficient for generally precluding Par- liament’s right to take evidence regarding the use of informants in certain circles.

aa) As regards “comprehensive assurances of confidentiality”, the Senate majority 38 almost exclusively refers to elements that are not specific to Islamist terrorist groups (see para. 128 ff.). These elements include the organisation in isolated micro groups, the use of systematic counter-intelligence to expose potential traitors and the direct threat to the life and physical integrity of the informant and those close to them if the informant is exposed. All these elements can be found in the entire sphere of violent political extremism. Only the element of seeing betrayal as treason against religion, which is mentioned by the Senate majority in addition to the other elements, (see para. 129) is probably limited to Islamist terrorism. However, this element is not deci- sive in the present case.

If the other elements set out by the Senate majority were regarded as sufficient not 39 only for deriving greater expectations of confidentiality, but also for refusing to pro- vide source-related information to committees of inquiry, irrespective of whether they give rise to risks of exposure or increase existing risks, this would essentially abolish parliamentary oversight in respect of the use of confidential informants in clandestine and violent extremist circles. In addition to Islamist terrorism, the same reasoning would then also have to apply to the entire spectrum of right-wing and left-wing ter-

30/34 rorism. In this respect, too, the questioning of handlers should be considered an es- sential and indispensable element for overseeing the use of informants and the ac- tions of the intelligence services. Generally dispensing with the right to conduct such questioning would therefore substantially undermine the right of committees of inquiry to oversee the use of informants in violent and extremist circles.

bb) The additional consideration of the Senate majority that in the present case, the 40 questioning of the handler concerns an ongoing intelligence operation does not lead to a different result (see para. 131). In this respect, the respondents demonstrated that the use of confidential informants is generally long-term in nature. Even if the parliamentary right to conduct oversight were only denied in cases in which the intel- ligence operation is ongoing at the time of the examination, this would amount to a fundamental restriction of the parliamentary right to take evidence pursuant to Art. 44(1) first sentence and Art. 44(2) GG – even though there is no possibility to verify such a claim.

c) Abolishing the rights to take evidence and to conduct oversight afforded commit- 41 tees of inquiry to such a degree in cases where informants operate in circles of vio- lent political extremism disregards the significance of the parliamentary right to obtain information and the “paramount importance” (see para. 99) to be accorded to these committees, which is also recognised by the Senate majority. Given the lack of other mechanisms to effectively oversee the use of informants (see para. 6 ff. above), it is neither required nor acceptable under constitutional law to generally bar the exami- nation of informants’ handlers as witnesses on committees of inquiry for the purposes of scrutinising the use of informants by the intelligence services in certain circles.

Instead, in such cases, too, the parliamentary right to obtain information must be 42 balanced against the government’s secrecy interests taking into account the circum- stances of the individual case. If, in this context, the taking of evidence by means of questioning a handler leads to an increased risk of exposure and thus jeopardises the fundamental rights interests of the informant or other persons involved, the par- liamentary right to conduct oversight must stand back for this reason alone. Yet in the present case, the Senate majority does not assume that this is the case (see para. 124).

The security interests of the state, in this case the proper functioning of the intelli- 43 gence services, do not generally take precedence over the parliamentary right to ob- tain information; rather, these interests must be balanced against one another. Even if there were reason to fear that the intelligence services would lose some of their sources or fail to recruit new ones, it cannot be ruled out that these consequences must be tolerated in the individual case in light of the “paramount importance” of par- liamentary oversight of the intelligence services exercised by committees of inquiry (see para. 98). Giving precedence to the government’s secrecy interests is in any case only permissible if setting aside parliamentary oversight powers is absolutely necessary to prevent impairments to the work and proper functioning of the intelli-

31/34 gence services. This is not ascertainable in the present case. Therefore, there was no basis for respondent no. 1’s refusal to reveal the identity of the informant’s handler to allow for his questioning regarding the attack of 19 December 2016 by the commit- tee of inquiry.

5. Regardless, the application lodged in the present proceedings should in any case 44 have been successful, in my view, given that the respondents did not fulfil their con- stitutional duty to state reasons for their refusal to comply with the committee of in- quiry’s request (cf. in this regard BVerfGE 143, 101 <144 para. 143>; 146, 1 <48 f. para. 106 ff.> with further references).

In this respect, the Senate majority refers to the communications by respondent no. 45 1 of 18 June and 5 July 2018. In the communication of 18 June 2018, respondent no. 1 refused to provide information on the grounds of the risk of exposure and the asso- ciated dangers to life and limb. However, even the Senate majority is not convinced by these concerns (see para. 124). In the communication of 5 July 2018, the effects the questioning of the handler might have on the work and proper functioning of the intelligence services are discussed in light of the Federal Constitutional Court’s case- law. In that communication, the respondent makes the general statement that such questioning would be perceived as reneging on assurances of confidentiality and that this might lead to active sources terminating their cooperation and to difficulties in re- cruiting new sources. Besides, in substantiating its claim, the respondent merely refers to press reports concerning allegations that there was a source with connec- tions to the attacker.

This does not satisfy the constitutional requirement to state reasons given that it 46 does not enable the committee of inquiry to make an informed decision on whether to accept the refusal to reveal the handler’s identity. To allow for an informed deci- sion, it would have been necessary to enable the committee of inquiry to assess whether the asserted impairments to the functioning of the intelligence services are plausible and comprehensible (cf. BVerfGE 146, 1 <48 para. 107> with further refer- ences). This would have required further explanations, on the basis of which the members of the committee of inquiry could then have used their own judgment re- garding the effects of the handler’s questioning on the proper functioning of the intel- ligence services.

The procedural history confirms that the information provided [by the respondents] 47 to the committee of inquiry must be considered insufficient. In two communications by the reporting Justice, the Senate requested information from respondent no. 1. In particular in the second communication by the reporting Justice of 2 October 2020, the Senate requested information on the specific effects the handler’s questioning would have on the proper functioning of the intelligence services. Had the reasons provided to the committee of inquiry by respondent no. 1 in its communications of 18 June and 5 July 2018 been sufficient, this request by the Court would not have been necessary. It must therefore be assumed that these communications do not provide

32/34 sufficient reasons for the refusal to reveal the handler’s identity to the committee of inquiry. A different conclusion would only be merited if it could be presumed that the members of the committee of inquiry had further information concerning the work of the intelligence services and the effects of specific evidence on this work that has yet to be disclosed to the members of the Court, for which there are no indications.

Müller

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