The German Supreme Court on hearing Snowden in the Parliament's NSA-investigation committee

-- By AliceBertram? - 14 Feb 2015

Ping-pong between factions - Will Snowden be a heard in Berlin and protected against extradition?

About a month after the NSA-investigation committee was set up on March 20th 2014, the Members of the committee unanimously decided to request Edward Snowden to be a witness in the investigations. The decision had been postponed once before and even now, the committee did not decide on which terms he was to come to Berlin to be heard.

Coalition's statement: "Our hands are tied"

The parties forming the opposition (Alliance 90/The Greens and Left Party) in essence held Edward Snowden should be offered political asylum with a permanent residence permit before coming to Berlin to be heard. The coalition (Christian Democratic Union = CDU and Social Democratic Party = SPD) felt it was out of their power to decide on which terms Snowden could come to Berlin or alternatively be interviewed in Moscow.

In a statement issued after the vote on summoning Edward Snowden was postponed, the coalition claims various decisions by judges and authorities in Germany would be necessary to determine if he could be granted asylum and/or protection from extradition. Also if he should be interviewed in Moscow, the conditions would depend upon decisions by the Russian judiciary and administration. Alongside with this surrender-like explanation, the coalition also stated that in any event a hearing in Moscow would be preferable over a hearing in Berlin to not overly burden the German-American relations, thereby endangering the cooperations between German and American authorities which are considered to be essential for security in Germany.

Snowden is not satisfied by the conditions

The committee decided, as mentioned above, to make Edward Snowden a witness without specifying the circumstances of his hearing. He was free to chose if he would like to come to Berlin or be interviewed in Moscow in person or digitally - but no protection was offered. Snowden rejected this set up, because a hearing in Berlin put him at risk of being extradited to the US whereas a hearing in Moscow could likewise worsen his residence situation unforeseeably.

The opposition parties then proposed appointing Snowden as a witness while providing a guarantee for his safety. The coalition voted successfully against this proposal and for asking Mr. Snowden about his availability for an informal interview in Moscow.

Snowden rejected again, for the same reasons as before.

The opposition then drafted a new proposal asking for the same thing only in a much sharper tone. The coalition turned the proposal down voting for an audio-visual hearing instead of a in person hearing.

Snowden again turned down, putting forth the same reasons once more.

A third proposition by the opposition was turned down by the coalition without a coming up new "alternative".

The opposition's claims before the Supreme Court

The opposition claimed it's right to appoint a investigation committee as a qualified minority was infringed, Art. 44 of the German Constitution, if they could not - as the same minority - nominate witnesses; due to (1. Claim) the coalition refusing (in the Statement and ever since) to create the necessary prerequisites (protection against extradition) and due to (2. Claim) the coalition continually preventing the hearing Snowden.

The Supreme Court's decision

The Supreme Court decided that Claim 1 referring to the statement was inadmissible (which means the subject matter will not be decided, much like not having standing). This is, because the statement did not have any effect, especially not any legal effect abridging the opposition's rights.

As for the second Claim the Supreme Court held the opposition did not claim sufficiently precisely which questions they planned to ask Edward Snowden. Thus their proposals did not formally qualify as proposing a witness and could not be seen as an extension of the right stemming from Art. 44 of the Constitution. Rather their proposals fall under the procedural rules for investigation committees, under which not the Supreme court but the German Federal Court has jurisdiction, section 36 Investigation-Committee-Law.

What happens if the opposition formally proposes a witness?

Should the opposition file a formally correct proposal to hear Edward Snowden as a witness, this would actually be covered by Art. 44 of the German Constitution. While the Supreme Court does not state this expressly in its comparably short decision, most larger commentaries include this problem and reference earlier jurisdiction. Thus, Claim 2 can be fairly easily achieved.

However, when it comes to Claim 1 it remains unclear which measures (temporary protection against extradition up to permanent Asylum, which Snowden is clearly seeking) the Supreme Court would deem necessary to hear Edward Snowden. With the judges on the Supreme Court being nominated for office by a specific party (mostly CDU and SPD, one by Alliance90/Green), it seems highly unlikely that they would actually decide against the coalition (and its chancellor) on such a sensitive topic.

Other thoughts on this decision

The opposition does not seem to have thought the claim trough before bringing it to court. From the perspective of German public law, the statement the government made could never be a valid object to bring a case against. There needs to be an effect otherwise it cannot be challenged before courts.

Other than that, it seems an odd choice to only address the Supreme Court in this matter and not, on basis of section 36 Investigation-Committee-Law, also the German Federal Court which holds jurisdiction over all procedural matters.

In total, this claim might have been a outreach towards the generally most trusted state organ, the Supreme Court, asking for support in an uphill battle against a coalition which seems to be opposing progress in the committee. But because the claim was inadmissible, it went by mostly unnoticed by the public.