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Morlok: Information rights conflict with foreign policy considerations

Germany's Greens are taking the issue of interrogating Edward Snowden on the NSA surveillance of German citizens to the Constitutional Court. The outcome is uncertain, warns legal expert Martin Morlok.

DW: The opposition parties in the German Bundestag are determined to question whistleblower Edward Snowden in Germany, something the government wants to prevent. Now the Greens have announced they are taking the issue to the Constitutional Court. What would such a lawsuit look like?

Martin Morlok: The parliamentary committee looking into NSA surveillance practices would have to open what is called a "dispute between bodies of the state" against the federal government with the aim of determining that the government has violated one of the committee's rights. Basically, the government is obliged to do everything in its power to meet the committee's information needs. Usually we face the problem that the committee asks for government files, and the government will say: No, you can't have those, they're confidential. Or they can't get permission for certain officials to testify. These cases are relatively clear; the investigative committee has strong rights where the government is concerned.

What is the likelihood of a lawsuit succeeding in this case? Is it really conceivable that the Constitutional Court might force the government to summon Snowden?

This case is a bit different. Of course the committee can summon Snowden, but the question is: How will he get here, to Germany? As a US citizen, he doesn't need a visa. But the Americans have an arrest warrant out for Snowden, and since Germany has an extradition agreement with the US, of course he won't come to Germany if he faces extraction to the US.

Edward Snowden and Green politician Hans-Christian Ströbele in Moskau

The German Green Party, including politician Hans-Christian Ströbele (r.) want to find out what whistleblower Edward Snowden (l.) knows about the NSA's surveillance activities in Germany

However, the accord does have exemption clauses, and one of them says extradition does not apply for political offenses. Of course, that gives you broad scope for interpretation. Is Snowden being accused of a political crime? Americans will say not. But of course you can also take the point of view that his revelations constitute a conscious political act aimed at fighting US surveillance practices, especially as he made the whole thing public.

The German government will certainly also take into account whether summoning Snowden to testify before the committee might strain relations with the United States. That gives rise to another problem: Who is responsible for maintaining foreign relations? As a rule, you would say that's the government's prerogative. But on the other hand, there's been a tendency in the recent past to push back this government monopoly in foreign policy areas.

This means that parliament also plays an increasing role in foreign policy. Just think of the Constitutional Court's rulings in connection with the euro bailout. Clarifying the situation is in the interest of the German Bundestag, in particular because the public is justifiably upset about the US intelligence services' activities in Germany.

If you ask me whether the lawsuit has a chance of success, I'd say it's completely open how the Constitutional Court will judge a situation where the interest in clarification conflicts with foreign policy considerations. This is a completely new constellation - but that's what the Constitutional Court is for, to rule on new legal questions when they arise.

Are there any comparable cases from the past that would set a precedent for the present case?

We've seen quite a few actions involving committees of inquiry. I even instigated some of them. Most cases concerned the goverment's right to confidentiality. As far as I know, there haven't yet been any cases involving the government's scope on defining foreign policy interests – possibly because we have this decades-old tradition that says: Let the government take care of it. For the past few years, though, we've been working on giving parliament a greater role.

Professor Martin Morlok teaches law, the theory of law and the sociology of law at Heinrich Heine University in Düsseldorf. Morlok is also Vice-President of the university's Institute for German and International Party Law and Research.

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