Germany: Minister and judge: "Anti-terrorism goes too far"
01 January 2008
After 11 September 2001, anti-terror laws granting far-reaching and unchecked powers to police and security services were introduced or extended in Germany and elsewhere without much public resistance and even less parliamentary scrutiny. Seven years after Europe and the US were hit by an unprecedented wave of terrorism hysteria, voices are finally rising in Germany not only from civil liberties organisations but also from within the judiciary. The public debate on terrorism powers has became a regular feature in daily newspapers since the government's and police's dealings with the political activist movement in the run-up to the G8 Summit which took place in Heiligendamm in June 2007. Police raided dozens of homes, work places and social centres using anti-terrorism powers, and rounded up hundreds of peaceful protesters during the Summit. False media reports about the number of injured policemen and the erroneous claim that the "clown's army" sprayed officers with acid, the deployment of low-flying army fighter jets over a protest camp, far-reaching demonstration bans granted by the constitutional court, the use of
agent provocateurs and the hindering legal defence work were only some of the incidents collated by the legal defence teams during the Summit.
These practices, most of which were retrospectively ruled unlawful by the courts, have been paralleled by a stream of authoritarian demands by Interior Minister Wolfgang Schäuble (
Christlich Demokratische Union Deutschlands - CDU). He believes that the army should be given powers to shoot down hijacked passenger planes; that law enforcement officers should be able to carry out online searches of private computers without bureaucratic - or democratic - hindrances; that the application of the presumption of innocence should be discarded for the authorisation of counter-terrorist operations; that detention without trial at Guantánamo Bay is a necessary instrument in the fight against terrorism and that the government should be able to assassinate terrorist suspects.
However, despite these protracted demands for ever more state powers and ever less democratic control of the same, the G8 summit policing practices and the public prosecution's efforts to construct a terrorist threat against the German state by a "militant group", have suffered a series of blows in the Federal Constitutional Court recently and public opinion on the logic of anti-terrorism seems to be changing.
On 4 January 2008, the Federal High Court (
Bundesgerichtshof) ruled unlawful the police raids from 9 May 2007 against activists, some of whom were organising the G8 summit protests. The court decided that the investigation had not been within the remit of the Federal Public Prosecution (
Bundesanwaltschaft) because the activists had not formed a terrorist organisation, a claim which the police and prosecution had used to subject activists to disproportionate surveillance measures, interception of telecommunications and - one month before the summit - a large-scale raid on 40 private homes, offices and social centres in various regional states (see
Statewatch Vol. 17 no 2).
This was the third time that the High Court has reprimanded German law enforcement and the public prosecutor's office in its application of anti-terrorist powers since October 2007, when the High Court overturned an arrest warrant against a Berlin activist and sociologist who had been accused - in an investigation into the "militant group" - of membership of a terrorist organisation. A month later, it ruled unlawful the indiscriminate interception of letters from 100 mailboxes in an alternative district in Hamburg on 22 May 2007 as part of the G8 investigations.
Wary judges have also started voicing their concerns for the democratic legal order more publicly. In an interview in the weekly newspaper
Der Spiegel, the president of the Federal Constitutional Court, Hans-Jürgen Pa