Understanding the German court decision on Edward Snowden

Did the German Federal Court of Justice decide that the German govt. has to invite Snowden to Germany? So that he can testify at the German parliamentay inquiry on mass surveillance, aka ‚NSA Inquiry‘, sometimes also called the ‚Snowden Inquiry‘ of the German parliament? Many German as well as international media said so in the last two weeks since the decision.

It’s never easy to summarize legal arguments but in this case the decision was slightly different. The court did not decide that Snowden has to be invited and it didn’t decide about anything the German government needs to do. Simply because it wasn’t asked to.

(In German when we say ‚government‘ we talk about the chancellor and her ministers = the executive. Parliament is not considered part of government as it’s the legislative. Different from e.g. the US understanding of ‚government‘.)

I’ll try to explain what was decided but I’m afraid it is a bit complicated.

A little bit of background:

The Inquiry is a temporary committee of the parliament, with the same composition as the current parliament when it comes to the four parties that were elected: we have a 80% majority of conservative and social democrat parties and a minority of 20% (socialist, or ‚left‘ plus Green party). The Inquiry has 8 members: 4 conservative, 2 social democrat (=majority), 1 socialist and 1 green (=opposition).

The Inquiry unanimously decided in the beginning, in 2014, that Snowden should testify as witness in the Inquiry. Ever since the majority in the Inquiry did anything they could to prevent him from actually being invited: a second formal vote by the Inquiry needs to happen for this.

Apart from several other things that happened  – which I won’t get into here – the opposition in October 2015 put forward a motion for the Inquiry as a whole to ask the government to provide whatever necessary for Snowden to come to Berlin to testify. This would be the necessary prerequisite for the testimony in Berlin. The majority in the Inquiry turned down the motion.

(In the meantime the government claimed to not know what Snowden is actually charged with, thus couldn’t say whether Germany would by law be forced to grant him safe stay or else extradite him to the US. Depending on whether the – ‚unknown‘ – charges would have to be considered political persecution or not.)

The opposition asked the Federal Court of Justice to decide whether the majority in the Inquiry actually has the option to deny such a motion and the court said no.

And that’s all the court decided two weeks ago. Everything else in the 28 page long decision (pdf, German) explains the legal details that lead to the decision. That includes minority rights which explain why the court can actually rule for the members of parliament to not deny the motion – granted by the German constitution. And why the government ultimately has to provide for Snowden to come since the Inquiry in May 2014 took the decision to hear him as a witness.

Update: I got several comments (not here) saying that the court didn’t say that the govt. ‚has to provide for Snowden to come‘. First of all: I didn’t write it did, I just pointed out that this is part of the reasoning behind the decision. In any case there’s room for interpretation here since in the decision the court did say that the original motion that Snowden should be witness (2014) can only be enforced by a testimony in Germany and that this is only possible with the assistance by the govt. (#48 in the decision). 

It would probably be helpful to have an English version but so far there is none as far as I know.

However, the decision was an important victory but is still only a small step towards creating to opportunity of Edward Snowden testifying in Berlin. It is possible to appeal the decision and this is what the majority intends to do: this was announced last Thursday. The appearl doesn’t suspend carrying out the decision, but the majority in the Inquiry suspended the vote nonetheless. Because they can.

It’s obvious where this is going: the Inquiry will end by next summer, and each legal battle takes time. It’s not the first time in a German parliamentary Inquiry about intelligence services when the last court decision (in favor of the opposition) comes too late. The German government is a staunch ally to the US and wants to avoid having to deal with Snowden in Germany possibly asking for political asylum at all cost. And that hasn’t changed since Trump was elected as we can see with the latest development in the Inquiry.

 

Disclaimer: Since September 2014 I work fulltime as advisor to the Left party in the inquiry.

I haven’t writtten much about the Inquiry mostly due to lack of time. I hope to have more time when we’re done. There’s other people – mostly journalists and bloggers – who write while I spend my time reading documents or preparing sessions and that seems a good division.

 

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