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Security and Liberty, Transparency and Secrecy, Parliamentary Control Osgoode Hall Law School of York University Osgoode Digital Commons LLM Theses Theses and Dissertations 10-11-2017 Security and Liberty, Transparency and Secrecy, Parliamentary Control of the Secret Services in Canada and Germany: A Comparative Approach Sophie Christine Barbara Wiesehofer Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/llm Part of the International Law Commons Security and Liberty, Transparency and Secrecy. Parliamentary Control of the Secret Services in Canada and Germany: A Comparative Approach Sophie Christine Barbara Wiesehöfer A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW Graduate Program in Law Osgoode Hall Law School York University Toronto, Ontario October 2017 © Sophie Christine Barbara Wiesehöfer, 2017 ii Abstract After an ongoing 40-year debate, Canada is going to institutionalise its first Committee of Parliamentarians that is meant to control the federal agencies’ and departments’ activities in the realm of national security. In contrast, post- war democratic Germany discussed that kind of control early on, not least because of its totalitarian past, and had already established its first parliamentary control body as of 1949; its last major reform was in 2016. Adopting a com- bined historical and comparative legal perspective, the thesis aims at analysing and comparing the constitutional frameworks and the respective debates and institutions in both countries, inter alia, with the help of scholarly works and official documents. It poses the question: can Canada make use of the German experience? It concludes that the final answer depends on an appreciation of the legitimate constitutional limits that differ between the two countries as well as on the reader’s own political philosophy of the relationship between security and liberty, transparency and secrecy. iii Acknowledgements Since spending my high school year in Canada ten years ago, it had been my constant wish to come back to Canada for a short time. This last year at Osgoode Hall Law School has not in any way fallen short of my expectations. I was allowed to spend a year filled with fruitful discussions and with many wonderful people who have helped me through the process of writing this thesis. I therefore in particular want to thank my supervisor Professor Craig Scott for his ongoing support throughout the last year and his thoughtful insights and invaluable contributions to the development and completion of my research. I also want to thank my second reader Professor Gus van Harten who gave me wonderful and helpful feedback. I am also very grateful for the contributions of my committee members Professor Bruce Ryder and Professor James Shep- tycki. For all the insightful inside stories he shared with me, I will always remember the late Ron Atkey, PC, QC and be grateful for his willingness to work with me. Additionally, I want to thank Professor Sonia Lawrence for the won- derful discussions we shared throughout the year. I am and will always be enormously thankful for the generous scholarship and funding York University and the Os- goode Hall Law School have offered me, which made my year here in Toronto and my research possible. I was and am incredibly grateful that I was allowed to be part of the community I found at Osgoode. I also want to thank my wonderful friends I got to know here at Osgoode for all the stories and all the laughter we shared: Sarah-Jane Nussbaum, Dana Phillips, Rahina Zarma and Haniehalsadat Aboutorabifard. I cannot wait to see where your research will bring you and (I hope) to share many more moments with you. Thanks also to my friends back home in Europe as well as to my Canadian host family from my exchange year. At last, I want to thank my family for all their ongoing support and help. I particularly want to thank my father Josef for the endless phone conversations and his continuous optimism that I so needed. The same is true for my mother Ursula, my brother Thomas, my sister Judith and my sister-in-law Jessica. Without my family, this thesis would not have been possible. Their support has been my motivation throughout this year. I was furthermore incredibly fortu- nate that my partner was willing to put his life back home on hold to accompany me to Canada. As I could write a book on all the funny, strange, wonderful and also difficult moments we shared here throughout the year, I want to keep it simple. Max, thank you! iv Table of Contents Abstract .......................................................................................................................................................................... ii Acknowledgements ....................................................................................................................................................... iii Table of Contents .......................................................................................................................................................... iv Introduction ................................................................................................................................................................... 1 Chapter I: Germany: A Story of Scandals and Reforms. Parliamentary Control and National Security Matters between 1949 and 2017 ................................................................................................................................................................ 4 I. Legal Concepts ...................................................................................................................................................... 4 II. National Security .................................................................................................................................................. 7 1. National Security vs. Liberty? .......................................................................................................................... 7 2. German Intelligence Agencies ........................................................................................................................ 9 a) Federal Intelligence Service (Bundesnachrichtendienst, “BND”) .......................................................... 10 b) Military Counterintelligence Service (Militärischer Abschirmdienst, “MAD”) ........................................ 13 c) Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, “BfV”) ........ 13 d) GETZ, GTAZ, GIZ ................................................................................................................................... 14 3. Control Mechanisms ..................................................................................................................................... 16 a) Different Mechanisms of Executive Control ........................................................................................... 17 Legal, Administrative and Subject-specific Supervision ......................................................................... 17 Federal Audit Office (Bundesrechnungshof) ........................................................................................ 18 Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragte(r) für den Datenschutz und die Informationsfreiheit) .......................................................................................... 18 The Commissioner for the Federal Intelligence Services (Beauftragter für die Nachrichtendienste) .. 19 b) Parliamentary Control Mechanisms ........................................................................................................ 19 Parliamentary Claims to Information ..................................................................................................... 19 The Defence Committee, the Committee on Internal Affairs, the Budget Committee of the Bundestag (Verteidigungsausschuss, Innenausschuss, Haushaltsausschuss des Bundestages) ............................ 21 v Committee on Petitions (Petitionsausschuss)....................................................................................... 21 Committee of Inquiry (Untersuchungsausschuss) ................................................................................ 22 Parliamentary Trust Body (Vertrauensgremium) .................................................................................. 23 The Art. 13 IV-Panel (Gremium nach Art. 13 VI GG) ............................................................................. 24 c) Control sui generis .................................................................................................................................. 24 The G10 Commission (G 10-Kommission) ........................................................................................... 24 Independent Body (Unabhängiges Gremium) ..................................................................................... 26 d) Control by the Media and Civil Society .................................................................................................. 27 e) Judicial Control ....................................................................................................................................... 28 III. The Role of the Federal Constitutional Court .................................................................................................. 29 1. Constitutional Guarantee of Judicial Review ...............................................................................................
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