Secret service reform: “More effective than court control”

The federal government is planning a major secret service reform: the Federal Intelligence Service (BND) and the Office for the Protection of the Constitution are to be given new tasks and powers. To compensate, intelligence control should be strengthened. The Independent Control Council, which has existed since 2021 and was previously only responsible for the BND's foreign surveillance, will in future comprehensively control the BND and the Office for the Protection of the Constitution.

taz: Mr. Hoch, you are President of the Independent Control Council (UKRats). The tasks of the UKCouncil will approximately quadruple. Has the UKCouncil been underutilized so far or will it be overwhelmed in the future?

is 66 years old and has been President of the Independent Control Council since 2021. He was previously a judge at the Federal Court of Justice.

Josef Hoch: Neither. We were already quite busy in the development phase of our authority from 2021. And in the future, the UKCouncil will be larger in line with the new tasks. The federal government's draft law stipulates that the quasi-judicial control body (GeKon) in the Control Council should increase from six to nine members, seven of whom must have been judges of a federal supreme court. The administrative control body (AdKon) and the administration should also grow. Overall, the number of employee positions is expected to increase from 59 to 96.

taz: The UKRat's task quadruples and you only get 37 new employees. Can this work?

High: Yes, that should work. From the outset, the composition of the quasi-judicial control body was designed by the legislature to take on additional tasks. With almost 100 employees in the future, the UK Council will become one of the most efficient control bodies for the intelligence services, even in an international comparison.

taz: What does the UK Council check during a prior inspection?

High: We first check whether all legal requirements for the respective measure of a service are met. For example, there must be actual indications of impending dangers; mere assumptions or speculations are not enough. We also check whether the measure is proportionate.

taz: Is the UKCouncil a court or an authority?

High: We operate in the shell of an authority, but we work in a quasi-judicial control body like a court. The members are independent and not subject to any instructions; like judges, they are only bound by the law.

taz: But there is a lack of publicity and those affected cannot contribute their point of view.

Hoch: This is basically no different with some preliminary court decisions, for example regarding police telephone surveillance. There is no public information there either and the person concerned initially finds out nothing about it. However, the intelligence service activity means that the person concerned regularly does not find out about the interventions even afterward and that no further judicial review takes place.

taz: In 2020, the Federal Constitutional Court demanded that the UKCouncil must be “at least as effective” as a court. Is that him?

High: I am convinced of that. Our control is even more effective than the control of a court for two reasons. On the one hand, we do not fall under the Third Party Rule, according to which information received from other secret services may not be passed on to third parties. This means that the BND must also give us information that it would refuse to a court or a parliamentary body. We can therefore check more comprehensively. On the other hand, unlike a court with an administrative control body, we have an effective accompanying monitoring system that checks whether the requirements of the quasi-judicial control body are being implemented and adhered to.

taz: Why do foreign secret services accept that the BND also gives sensitive information to the UK Council?

High: Because we are legally obliged to maintain strict secrecy and enjoy trust. The Federal Constitutional Court demanded that legal control must not be hindered by the third party rule - which was accepted by the court. This led to the establishment of our authority, which partly works like a court.

taz: Do you trust the BND and the Office for the Protection of the Constitution? Aren't you worried that illegal actions are being deliberately hidden from you?

High: I can't rule it out 100%, but I don't see any sensible reason for such actions. This would require criminal energy while accepting a high risk of discovery - with the threat of drastic consequences for those responsible. Our controls are designed in such a way that systematic misconduct is highly likely to be discovered and isolated errors are regularly noticed. The powers and access rights of the UKCouncil make this possible.

taz: Let's assume that a tabloid claims that an illegal department for contract killings is being set up at the BND. Can you check this ad hoc?

High: Yes, of course! The AdKon can carry out ad hoc checks. And the draft law states: “The administrative control body can carry out inspections at any time, even without prior notice.”