Unsuccessful application in Organstreit proceedings against ministry’s refusal to name handler of confidential informant to allow for witness examination by parliamentary committee of inquiry

Press Release No. 12/2021 of 03 February 2021

Order of 16 December 2020
2 BvE 4/18

In an order published today, the Second Senate of the Federal Constitutional Court rejected an application in Organstreit proceedings (dispute between constitutional organs) lodged by the parliamentary groups Freie Demokraten, Die Linke and Bündnis 90/Die Grünen in the German Bundestag and by the spokespersons of these parliamentary groups on the committee of inquiry regarding the Berlin Christmas market attack on 19 December 2016.

The committee of inquiry had been established by the Bundestag to conduct a background investigation into the attack, including with regard to possible shortcomings on the part of the authorities. According to media reports, the domestic intelligence service – the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) – had at least one informant with connections to a mosque regularly visited by the perpetrator of the attack. After these reports surfaced, the committee of inquiry requested that the competent federal ministry reveal the identity of the informant’s handler. The ministry refused to provide this information, citing in particular considerable adverse effects on the functioning and work of the Federal Office for the Protection of the Constitution in the event that the handler were questioned as witness by the committee. The Court held that this refusal does not violate the committee’s right to take evidence under Art. 44(1) first sentence of the Basic Law (Grundgesetz – GG), given that Parliament’s interest in obtaining information must exceptionally stand back behind the security interests of the state (Staatswohl) in light of the special circumstances regarding the use of informants as intelligence sources in the present case.

Facts of the case:

On the evening of 19 December 2016, the perpetrator of the attack, Anis Amri, deliberately 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.

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 available 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 possible shortcomings. Specifically, the committee is to investigate whether and how Amri 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 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 micro 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 confidentiality 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 GG.

Key considerations of the Senate:

The application is admissible but unfounded. The refusal to reveal the identity of the informant’s handler at the Office for the Protection of the Constitution to allow for witness questioning by the committee of inquiry does not violate Art. 44(1) first sentence GG.

1. The right of inquiry afforded in Art. 44 GG enables Parliament to investigate and establish the facts it requires as the basis for its decision-making and, above all, to exercise effective oversight vis-à-vis the government, which is accountable to Parliament.

Where intelligence services use confidential informants, committees of inquiry have a significant interest in obtaining information and overseeing the intelligence services’ actions. Parliamentary oversight of the intelligence services is of paramount importance given the intelligence services’ covert mode of operation and the resulting risks of irregularities.

Under Art. 44(1) first sentence GG, a committee of inquiry in principle has the right, within the scope of its mandate, to take any evidence it considers necessary. In particular, a committee of inquiry may summon and examine as witnesses civil servants from the Federal Government’s sphere of responsibility in order to discover information available to the authorities that is relevant to the parliamentary investigation.

2. However, the parliamentary right of inquiry is subject to limitations. These limitations, including the ones set out in ordinary legislation, must themselves be rooted in constitutional law.

a) One such limitation to the committee’s right to take evidence results from the security interests of the Federation or a Land, which could be jeopardised if classified information were disclosed. Yet it must be taken into account that within the parliamentary system of government 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 which certain information must be withheld in order to protect the security interests of the state. Thus, the Federal Government can generally not invoke security interests of the state vis-à-vis the Bundestag if effective safeguards for preventing the disclosure of official secrets have been put in place on both sides.

b) Under Art. 1(3) GG, parliamentary committees of inquiry are bound by fundamental rights, which may also limit their right to take evidence.

c) Specifically, with regard to the use of confidential informants, Parliament’s right of inquiry is limited by the interest in maintaining the proper functioning of the intelligence services, as a security interest of the state, and by the fundamental rights of the confidential informants concerned.

aa) The use of confidential informants by the intelligence services may require comprehensive confidentiality, including assurances to this effect vis-à-vis the persons concerned, given that recruiting and handling informants would in some cases be virtually impossible without an assurance by the competent authority that their identity will be kept secret. Informants are typically exposed to considerable personal risks that they are only willing to take if they can trust that their identity will not be revealed.

bb) The proper functioning of the intelligence services would be severely impaired if the protection of informants were no longer guaranteed because the authorities are unable to keep their assurances of confidentiality. If an informant is exposed, the ongoing operation can typically not be continued and 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. Moreover, informants themselves may already choose to terminate their cooperation with the authorities as soon as assurances of confidentiality given to them are not being honoured. If assurances of confidentiality are called into question by the authority’s conduct, because its actions appear unpredictable or prompt informants to fear that their identity may be revealed, there is a risk that informants will not continue their cooperation. Even the mere subjective perception that confidentiality may be compromised could prompt other active informants to stop cooperating with the authority or make recruitment of new informants more difficult.

3. Where constitutionally protected confidentiality interests oppose Parliament’s interest in obtaining information, a balance must be struck that gives effect to the conflicting interests on both sides to the greatest possible extent.

a) Assurances of unconditional confidentiality are not capable of justifying a restriction of the parliamentary right to take evidence in cases where the fundamental rights of informants or their handlers would not be jeopardised by the intended taking of evidence on a committee of inquiry, or where such risk appears far-fetched 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 completely shield the work of the intelligence services, at least in the context of handling informants, from scrutiny by a committee of inquiry. Therefore, in cases where no risks to specific fundamental rights interests arise, the 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, to protect the security interests of the state. This exception may be invoked in special circumstances, where the proper functioning of the intelligence services in a certain environment can only be guaranteed by assurances of unconditional confidentiality that must be honoured by the authorities. It is incumbent upon the Federal Government to provide specific reasons, prior to the refusal, substantiating the existence of such special circumstances.

b) In the present case, the committee of inquiry has a significant interest in questioning the informant’s handler. Moreover, by applying the Bundestag rules on the security of information in the work of the committee of inquiry, the disclosure of classified information, and the associated risks to the fundamental rights of the informant and of the handler as well as to the functioning of the Office for the Protection of the Constitution, can be largely ruled out. However, in the present case, the special circumstances of the use of informants as human intelligence sources 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 authorities; they might then no longer trust that their identity will be kept secret, and terminate their cooperation with the Office for the Protection of the Constitution.

aa) According to the information available to the intelligence services, the Islamist terrorist circles in which the informant in question operates are organised in extremely isolated micro groups. Communication within these circles is characterised by a high degree of mistrust, and the groups are known to use systematic counter-intelligence to expose potential traitors. Members of these circles show a high propensity for violence, especially against those who cooperate with the state whose liberal order the group seeks to abolish. Betraying one’s group is seen as treason against religion. Traitors are considered infidels and enemies to be fought by all available means. Therefore, informants recruited by intelligence services in Islamist terrorist circles take high personal risks. If exposed, they face immediate dangers to their life, limb and liberty. For this reason, human sources in Islamist terrorist circles must be considered particularly vulnerable, meriting a need for unconditional confidentiality.

bb) In light of the foregoing, the Federal Government and the competent ministry (the respondents) contended that even if the Bundestag rules on the security of information were applied in the committee of inquiry, the informant in question would perceive the examination of their handler on the committee of inquiry as an unacceptable compromising of confidentiality, or even as a reneging on the assurances given to them, and would therefore no longer cooperate with the Office for the Protection of the Constitution. This was comprehensibly demonstrated by the respondents. Moreover, there is reason to fear that other sources will also 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. The loss of one or several sources in such circles could make it considerably harder for intelligence services to gather intelligence that is of great importance to national security, to a point where, at least for a while, the gathering of such intelligence might become virtually impossible.

c) Given the significant risks to the functioning and work of the Office for the Protection of the Constitution, on which the ministry had provided information prior to the Organstreit proceedings, Parliament’s interest in obtaining information must stand back behind overriding security interests of the state in the present case. Furthermore, it must be taken into account that the respondents allowed the examination of direct superiors of the informant’s handler, giving effect to the committee’s interest in obtaining information to a certain extent at least.

Dissenting opinion of Justice Müller:

In my view, the Senate majority’s decision accords insufficient weight to Parliament’s right of inquiry under Art. 44 GG, while according too much significance to (not sufficiently demonstrated) confidentiality interests on the part of the executive that have no basis in constitutional law.

1. The use of confidential informants, i.e. persons who are themselves part of the anti-constitutional endeavours under surveillance, is an ambivalent element of the intelligence services’ work. This gives rise to 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, committees of inquiry play a pivotal role.

2. I concur with the Senate majority’s assessment that the protection of others’ fundamental rights cannot be invoked in the present case to justify the refusal to reveal the identity of the informant’s handler for the purpose of witness examination. The committee of inquiry does indeed have means to ensure the security of information, which makes it unlikely that the identity of the informant or their handler will be revealed to the public.

3. Yet I do not agree with the Senate majority’s finding that, regardless of these considerations, security interests of the state, in this case the maintaining of the proper functioning of the intelligence services, are capable of justifying the refusal to reveal the identity of the informant’s handler to the committee and to cooperate in the intended witness examination.

According to the Senate majority, the present case gives rise to serious concerns that the questioning of the informant’s handler could be subjectively perceived as reneging on assurances of confidentiality. The informant in question and other informants could terminate their cooperation with the Office for the Protection of the Constitution, which might be unable to recruit other sources.

I have considerable objections to this line of argument. The respondent ministry did state, when asked by the Senate, that the mere fact of the handler’s examination as witness would give rise to fears that many active and potential sources would no longer be willing to cooperate. However, to support this assertion, the ministry only provided examples of cases in which informants had expressed general concerns as to whether assurances of confidentiality would be honoured. In none of these cases did such concerns lead to the termination of cooperation on the part of informants.

Ultimately, the Senate therefore relies on mere assumptions. A risk of losing active sources or of not being able to recruit new sources cannot be reliably inferred from the respondents’ submissions. Moreover, the Senate disregards the fact that in the domain of law enforcement, informants must expect that the information they provide will be disclosed at a trial hearing. Yet it is still possible to recruit informants to work with law enforcement authorities, 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.

4. In light of the foregoing, the Senate ought to have found, in the required balancing between Parliament’s right of inquiry and 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 witness.

Apart from cases where fundamental rights of others are at risk, a refusal to cooperate with a committee of inquiry for the examination of witnesses is only permissible – and this is also the Senate majority’s view – if there are imperative reasons in the individual case that arise from security interests of the state. In the present case, however, such “imperative” reasons are not ascertainable. Given the great weight of Parliament’s interest in obtaining information, it was not sufficiently demonstrated that the maintaining of the proper functioning of the Office for the Protection of the Constitution requires that the handler not be questioned on the committee. It would have been incumbent upon the respondents to substantiate, in a tenable and comprehensible manner, that such questioning could bring about a loss of intelligence capable of obstructing the proper functioning of the intelligence services. Such a submission is lacking.

5. The additional considerations made by the Senate majority do not merit a different conclusion.

The Senate majority assumes that, where informants are used in extremist, terrorist and violent circles, “comprehensive assurances of confidentiality” are necessary. 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 certain circles. In my opinion, there is no scope for establishing such a distinct category. The parliamentary right of inquiry cannot be denied from the outset on the grounds of assurances of confidentiality provided by the intelligence services as this would go beyond the intelligence services’ powers.

As regards these “comprehensive assurances of confidentiality”, the Senate majority almost exclusively refers to elements that are not specific to Islamist terrorist groups, but can be found in the entire sphere of violent political extremism. If such “comprehensive assurances of confidentiality” were regarded as sufficient grounds for refusing to provide source-related information to committees of inquiry, this would essentially abolish large parts of 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 terrorism.

In light of the greater need for oversight in this context, and the lack of other mechanisms to effectively scrutinise the use of informants, it is not acceptable under constitutional law to generally dispense with the examination of informants’ handlers as witnesses on committees of inquiry. Instead, the parliamentary right to information must be balanced against the government’s interest in confidentiality in each individual case. The security interests of the state do not generally take precedence over the parliamentary right to information; rather, these interests must be balanced against one another. Even if there were reason to fear that the intelligence services would lose some sources or fail to recruit new ones, it cannot be ruled out from the outset that these consequences must be tolerated in the individual case in light of the paramount importance of parliamentary oversight of the intelligence services exercised by committees of inquiry. Giving precedence to the government’s confidentiality interests is in any case only permissible if setting aside parliamentary oversight rights is absolutely necessary to prevent impairments to the work and proper functioning of the intelligence services. This is not ascertainable in the present case.

6. Regardless, the application lodged in the present proceedings should in any case have been successful, in my view, given that the respondents did not fulfil their constitutional duty to state reasons for their refusal to comply with the committee of inquiry’s request. In two written communications by the reporting Justice, the Senate requested information from the respondent regarding the consequences the questioning of the handler could have for the proper functioning of the intelligence services. Had the reasons provided to the committee of inquiry by the respondent prior to the proceedings been sufficient to substantiate the refusal to reveal the handler’s identity, this request by the Court would not have been necessary. Therefore, the respondents at the very least violated their constitutional duty to state reasons vis-à-vis 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 knowledge of further information that has yet to be disclosed to the members of the Court, for which there are no indications.