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Dubious cooperation between European secret services in The Hague

By Andrej Hunko

The German secret service is since 1 July 2016 cooperating with other secret services in The Hague. The various services operate a joint file (CTG database) on an “operative platform” and also second liaison officers.

This “operative platform” belongs to the Counter Terrorism Group (CTG), founded in 2001, of what is known as the Club de Berne, an informal alliance of an undisclosed number of secret services of the EU member states as well as Norway and Switzerland. This cooperation is currently limited to the field of “Islamist terrorism”. The Dutch General Intelligence and Security Service (AIVD) has been tasked with the logistical implementation of this “joint file”.

The German Federal Office for the Protection of the Constitution’s involvement in the CTG database is governed by the hastily adopted extension of Sections 22b and 22c of the Federal Act on the Protection of the Constitution, an amendment which came in for heavy criticism. These provisions allow the German national secret service to establish joint files with foreign partner services, provided that the cooperation or the activities undertaken in this regard are of substantial security interest for the Federal Republic of Germany and the respective participating state.

For the purpose of investigating punishable efforts and activities which, in accordance with Section 3 paragraph 1 of the Article 10 law (G-10), are targeted against the existence or security of a state or an international organisation, the Federal Office for the Protection of the Constitution may cooperate with states that neither border the European Union or NATO nor which are member states of the same.

No further information regarding this new cooperation, including tasks undertaken, fields addressed and the internal organisation structure, has been disclosed by the Federal Government for the sake of “the public good”. As a justification for this, the Federal Government cites what is known as the “third party rule”, according to which this information “would necessarily contain findings of the secret services falling under the remit of the CTG”. The participating secret services are therefore neither disclosed nor are questioners supplied with details regarding the centre’s working groups, personnel and costs.

The specific location, the technical nature of the CTG database, the data fields it stores and its search and analysis tools are likewise not divulged. It is therefore impossible to ascertain whether the Federal Office for the Protection of the Constitution is pursuing this cooperation in a manner that is commensurate with the Federal Act on the Protection of the Constitution or whether it is sharing information with secret services exercising police powers and which draw on these powers in order to implement coercive measures.

Furthermore, the Federal Office for the Protection of the Constitution is given access to data that it would otherwise not be able to or permitted to collect in Germany. This becomes apparent, for example, in the planned amendment to the federal police cooperation law in Austria, which would allow the criminal police to process data in that country. However, the Federal Ministry of the Interior had declared that the data stored in the CTG by the Federal Office for the Protection of the Constitution was only used for purposes. Besides the Austrian Federal Office for the Protection of the Constitution and Counterterrorism (Bundesamt für Verfassungsschutz und Terrorismusbekämpfung or BVT), there are further authorities in the European Union whose secret services exercise police powers.

The CTG is now set to be brought closer into line with the structures of the European Union. The establishment of the CTG database was adopted by the Heads of Service of the secret services united under the umbrella of the CTG, whose meetings have been attended by the EU Counter-Terrorism Coordinator for the past three years. The secret service database CTG is now set to cooperate more intensively with police authorities in the European Union via the EU police agency Europol. The CTG has been invited to selected meetings of the Justice and Home Affairs Council since June 2016.

There has been “contact and consultations” between the CTG and Europol for a number of months. According to the Federal Ministry of the Interior, these discussions pertain to “matters of a strategic nature”. EU documents contain references to the assessment of mechanisms vis-à-vis “structural cooperation” with Europol, however.

On 11 November 2016, the EU Counter-Terrorism Coordinator reported “further progress” and “a number of positive developments” regarding the planned cooperation, which had emerged following a “fact finding” session on 11 October 2016. Moreover, further steps had been discussed at the meeting of the Heads of Service (see Council documents 14260/16 and 13627/16).

Among other things, the CTG is to be consulted for the purposes of formulating Common Risk Indicators, which are used by Europol to analyse the data of asylum-seekers residing in hotspots. Last but not least, police and secret services ooperation was also discussed at the meeting of the G11 in Berlin and the G6 in Rome. According to the EU Counter-Terrorism Coordinator, the initiative for this was taken by Italian and German secret service coordinators. The EU Intelligence and Situation Centre (IntCen) was also consulted.

The European Commission has now proposed that a “hub for information exchange” among European police and secret services be established. According to the proposal by the Commission, a “Fusion Centre” could be set up within the remit of the CTG with Europol as a partner. This “more systematic interaction between these authorities” will not be restricted to terrorism, but could also encompass serious cross-border crime. The Federal Government has stated that it has “yet to adopt a conclusive position” on this extension. However, the Federal Ministry of the Interior had relayed its positive experiences of this police and secret services cooperation at the Joint Counter-Terrorism Centre in its briefing to the EU Counter-Terrorism Coordinator.

It is already virtually impossible to keep tabs on the cooperation between secret services at the European level. No information pertaining to the Club de Berne or to its informal alliance the Counter Terrorism Group has been disclosed to German parliamentarians. With the new “operative platform” in The Hague, the web of secret services is sinking even further into the mire of secrecy.

The secret services are thus being handed even greater untrammelled power. This sends a fatal signal to the population and to the parliaments of the crisis-stricken European Union. The interests of foreign secret services with third party rule in mind must not be accorded greater priority than the rights of parliamentarians to hold them accountable. It is also for this reason that our parliamentary group is committed to the abolition of secret services – in Germany and the rest of Europe alike. Secret services do not protect democracy, but imperil it.

In addition to the reinforcement of secret services, I also fear that police work may become increasingly at the beck and call of secret service agencies. A number of the secret services involved in the new exchange of information via this “operative platform” have police powers and/or other executive competencies. This is true, for example, of the Austrian Federal Office for the Protection of the Constitution and Counterterrorism (BVT), the Swedish Security Service (SÄPO), the French Direction central du renseignement intérieur and Poland’s Internal Security Agency.

The German Federal Ministry of the Interior has assured us that the information supplied by the Federal Office for the Protection of the Constitution may only be used for the purpose of gathering intelligence. The criminal police in these countries are also able to access this information, however. We consider this to be illegal and to be an infringement of the separation of the police and secret services, which stems from Germany’s historic experience of the Gestapo.

The matter is rendered all the more serious by the fact that the CTG has commenced cooperation with Europol, including in the context of “consultations”. The Federal Government and the European Commission must therefore disclose the information that we parliamentarians are calling for.

Translation of the original (with many links) by the German Bundestag.

Andrej Hunko, MdB 2017