Executive Privilege in Response to a Demand for Documents by the Legislature in Germany
King's Law Journal, Vol. 21, p. 399, 2010
18 Pages Posted: 11 Oct 2011
Date Written: 2010
In June 2009, the German Federal Constitutional Court published a decision on the question of executive privilege in response to a demand by the legislature for information connected with anti-terrorism measures in the Middle East and elsewhere. Investigatory committees of the Bundestag have, under German law, a right to call for documents and witnesses as similar committees would in common-law countries. Unlike in common-law countries, however, the exercise of the right is not complicated by interference from concepts of privilege in litigation. Nevertheless, there are exemptions, partly borrowed from the law of criminal procedure, for state secrets and the like, and also a further exemption covering internal government decision-making. This article explains how those exemptions applied in the particular case. It also analyses a significant legal innovation emerging from the case under discussion: the duty on the executive, implied by the Court, to justify in detail the claiming of an exception. This would be a useful innovation in common-law countries, too.
Keywords: executive privilege, anti-terrorism measures, common law counties, privilege in litigation, state secrets, duty on executive
JEL Classification: K00, K10, K19, K20, K23, K29, K30, K33, K39
Suggested Citation: Suggested Citation