Germany: Prosecution ends investigation of "rendition" journalists
01 October 2007
On 9 August, the Munich public prosecution ended criminal investigations against four of the 17 journalists accused of "breaching secrecy" by publishing information contained in classified documents from the parliamentary investigation committee examining Germany's involvement the US-led "war on terror". The investigation of the journalists in an attempt to find the source of leaks within the parliamentary committee was severely criticised by journalists, trade unions and civil liberties organisations who said that it constituted an undemocratic attack on press freedom. The New York based
Committee to Protect Journalists (CPJ) stated:
With respect to the sensitivity of the information published, whoever leaked the classified documents should be investigated, not the journalists. It is their duty to publish matters of public interest. They should not be criminally charged for doing their job.
The move to investigate the journalists came from Siegfried Kauder, Conservative party member and chair of the parliamentary investigation committee set up with the aim of examining the German government's and secret service involvement in, amongst others, the CIA rendition flights and the Iraq war. As the parliamentary investigation committee had "as many holes as a Swiss cheese", Kauder urged committee members to initiate criminal proceedings to stop the breach of secrecy. It is somewhat ironic that journalists were investigated, however, as the breach of secrecy is committed by the very committee members that have now initiated legal proceedings against those that they leak the documents to.
The ensuing scandal forced many committee members to withdraw their support for the investigation, which is now blamed on Kauder alone. The regional public prosecution offices in Berlin, Munich, Hamburg and Frankfurt are obliged to investigate any complaints lodged, but the Hamburg public prosecutor is already reported to have dismissed the inquiry as "nonsense" (
Spiegel online 2.8.07). In addition to the clearing of four
Suddeutschen Zeitung reporters, editors from the
Spiegel, the
Zeit, the
Frankfurter Rundschau, the
Tagesspiegel, the
Berliner Zeitung, the
taz and the
Welt are still awaiting a decision by the relevant public prosecution offices on the investigation.
There is a good chance that they will be dropped, as the Federal Constitutional Court decided in February this year in the so-called
Cicero case, that the mere publication of classified information is not enough for a criminal investigation of journalists for a breach of secrecy or to uncover their sources; "concrete actual facts" would have to substantiate the allegation that the informant passed on the classified information with the aim of publication (Decision 1 BvR 538/06 and 1 BvR 2045/06).
Committee investigates German role in US anti-terror practices
The parliamentary investigation committee, set up by the Lower House of the German Parliament on 6 April 2006, examines a range of secret service cases. Alongside the kidnapping of Khalid el-Masri in Macedonia in 2003, the committee deals with alleged German involvement in rendition flights and the foreign intelligence service's (
Bundesnachrichtendienst – BND) conduct in Baghdad during the US-led invasion of Iraq in 2003. As well as el-Masri, the committee also heard Murat Kurnaz, who was detained for five years at Guantanamo Bay without any charges being brought against him, whilst German authorities frustrated attempts by Kurnaz' lawyer to get him released. German officers are also said to have engaged in the irregular interrogation of prisoners abroad. Finally, in early June, the Lower House decided to include within the committee's remit the case of Abdul-Halim Khafagy, an Egyptian publisher who had been living with his family in Munich since 1979. Khafagy was brutally arrested in Sarajevo two weeks after 11 Sep