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Reason of state and intelligence secrecy: The case of German intelligence legislation

Riese presented on 3 December 2018 the reason of state as the preservation of the state through exceptional measures.

This reason of state can be considered an authoritarian principle. This is illustrated by Machiavelli, for instance, as for him, the ruler’s power and state interest are the same thing. But this distinction is made in modern democracies.

Secrecy has always been a defining element in politics of reasons of state. And secrecy can be seen as an extraordinary measure through which to preserve the state. Intelligence agencies are classic examples of state secrecy.

In order to conduct her research, Riese did an empirical analysis of German plenary legislative debates, from 1998 to 2013. This long time frame was chosen in order to analyse plenary debates when different parties were in power. She also carried out an empirical analysis of interviews with experts, namely past and present Members of Parliament (MP) and executive employees. Each German state has its own “Lander agency”, but this study focuses only on the 3 federal intelligence agencies: domestic (VS), foreign (BND) and armed forces (MAD).

Two conceptions of secrecy

Riese identified two conceptions of secrecy as reason of state:

On the one hand, there is the concept of external integrity, where secrecy is needed to safeguard national security from external threats. On the other hand, there is internal integrity, where secrecy is necessary to safeguard the separation of powers, i.e. safeguard democracy itself.

External Integrity and National Security

Intelligence agencies are framed as needed for the state’s security and to defend against enemies. As such, they perform primarily a security function. The more concrete a threat, the more secrecy is accepted as a means. So terrorism is discussed as a specific danger that entails a need for secrecy.

However, in the plenary debates there is no explicit reference to ‘reason of state’. This concept of security and preserving the state is often framed as ‘public weal’ or ‘common good’.

This is also visible in the German classification rules. “Top secret” refers to secrets that are central to the state’s existence, or its vital interests. “Secret” refers to secrets that could pose a danger for the state or a Lander.

In the German plenary debates there are often references to average people as the justification for secrecy. MPs state that this secrecy is necessary and the average person does not mind it. This is coined as “sachpolitik” (fact-based policy), as they present secrecy as something that transcends politics and that is needed to guarantee security.

While generally agreed on, there are some disagreements in the Bundestag. Firstly, what exactly is public weal/common good? When is it at stake? Is security greater of a common good than other values such as privacy or transparency? Whose security is the common good -the state’s overall, or that of individual citizens? What measures does state security require?

Internal Integrity and Separation of Powers

This refers to secrecy as part of the integrity of the democratic state’s structure.

Kernbereich exekutiver Eigenverantwortung (core area of executive responsibility) – this was established as a constitutional argument by the constitutional court. It reflects certain areas that cannot be ‘intruded on’ by other branches or oversight committees.

The logic is that democracy requires a separation of powers, which means that each power is independent from each other, which in turn requires secret and inscrutable areas.

Limits of oversight committees is part of the kernbereich, and it helps institutions retain their identity. Some even consider kernbereich as a precondition for oversight – institutions need to be able to operate independently. MPs also defend the kernbereich – many stated that they should not gain executive responsibility by knowing certain things. The opposition claims that MPs are just hiding from criticism behind the kernbereich.

In a democratic context, claims for reason of state must be debated and decided upon. It must be procedurally ensured, for example through decision-making in parliament, oversight, legislation. This helps legitimate secrecy.

However, if secrecy is legitimated, and systematically integrated and normalized, then is it still an exceptional measure designed to preserve the state? Can it still be applied for the reason of state?

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