Examines German courts' protection of civil liberties in response to terrorism

...They can be activated by each individual in each instance when they are en­dangered...

...in 2006, they blocked prepa­rations for an attack on an E1 A1 airplane in Frankfurt...

...Even though the agencies wrote the report themselves and largely limited it to sta­tistical information on the frequency of the use of different instruments by different agencies, it created some kind of transparency...

...A real price is being paid while the political pub­lic deliberates, and the price is paid by real people in real pain, real suffering, and really destroyed bodies and lives...

...In more than a dozen rulings, the German Court has struck down or corrected security laws and measures and made itself a major player in the legal reaction to the terror­ist threat...

...Third, the absolute and material stan­dards are accompanied by procedural safeguards that ensure a prior check and later public or judicial control...

...Notify us via our Web site (www.dissentmagazine.org) or send both old and new addresses to DISSENT c/o The Sheridan Press, Attra : Penn Press Journals PO.Box 465, Hanover, PA 17331 Phone: 717-632-3535, ask for subscriber services . Fax: 717-633-8920 . Email : pubsvc@tsp.sheridan.com . DISSENT I Winter 2009 . 1 7 that in Weimar politics led into an abyss out of which Germany did not free itself-out of which it had to be bombed by the combined military power of Western nations and the Red Army...

...It has to be shown that there is a likelihood of a certain kind of injury, at a certain time or place or by a certain person...

...The police officer was brought to trial and condemned to a (mild) sentence...

...The criminal court that sentenced the police officer did not accept any legal justification or excuse for his torture threat...

...A brief account of some major deci­sions handed down by the German Court can suggest one way of approaching this challenge . T HE SERIES of decisions starts with a 2004 ruling that overturned criminal procedure laws allowing the police to use technical equipment to observe private homes and offices . The legislators had amended the Constitution to provide for mea­sures of this sort...

...Even though there would be substantial political interest in accusing the courts of reducing the effective­ness of the security agencies, it isn't apparent, so far, that the constitutional restraint of anti­terror measures has led to any significant in­capacity...

...But it declared the criminal procedure rules unconstitutional because they did not provide safeguards against violations of the dignity provision...

...Although the competence ob­stacle could be overcome by a constitutional amendment, the dignity clause is not open for revision...

...RALF POSCHER holds the Chair for Public Law, Sociology, and Philosophy of Law at Ruhr University Bochum...

...But after this de­cision, surveillance activities required more manpower-the tapes cannot just be left run­ning-which forced a more selective use of surveillance by the police and the prosecutors . In 2005, the Court agreed to hear a case against the new police code of Lower Saxony brought by a citizen who worked as a judge in one of the state courts...

...The Court has put restrictions on DNA testing, video surveillance of public spaces, automated license plate screenings on high­ways, and automated random screening of tele­communications with foreign countries . The legislature has also developed new-especially proceduralsafeguards...

...For intensive measures such as the surveillance of telecommunications, the Court required concrete evidence of an involvement in criminal activities...

...In this respect, there is a significant dif­ference between the correction of repressive and abusive practices via the political process and via a legal approach . Many people, the guilty as well as the simply unlucky, wí11 be humiliated, tormented, and tortured before the political process can correct interrogation and detention practices that have gone wrong-many more than if courts offer each detained person effective legal protection...

...Much can be said for societies like the Amen­can, where trust in the democratic political process is more deeply rooted, where people believe that the political process itself wí11 take care of errors made, even if those errors involve the violation of the most fundamental rights . The trust in democratic political processes in Germany is still overshadowed by the sense ARE YOU MOVING...

...A concrete danger demands that there be at least some temporal, local, or per­sonal concretization of the crimes that the measure aims to prevent...

...Second, legal stan­ dards also give some constitutional structure to the multitude of anti-terror measures that otherwise-at least in the German case-tend to become wholesale and undifferentiated . Now there are different categories of mea­sures with different material thresholds and procedural protections that force the agencies to consider means more carefully and with more sensitivity to different factual circum­stances . It would be easier, perhaps, simply to tap the phones of anyone that the police consider likely to commit crimes or to be in contact with someone likely to commit crimes . But such a wiretapping practice would be rad­ically unstructured and maybe also ineffec­tive, whereas the constitutional structure forces the agencies to distinguish more care­fully between what is and isn't important . The example of the German Constitutional Court cannot serve as a blueprint for other ju­risdictions...

...On this view, the best way for con­stitutional courts to deal with anti-terror mea­sures is to look the other way...

...Unlike the United States, it doesn't have to come up with a way of dealing with hundreds of non-traditional enemies seized across the globe in military operations it carries out­ rightly or wrongly-as the leader of the West­ern world . Still the German example shows that, given doctrinal effort and creativity, con­stitutional law does not have to take a back seat when confronted with the dynamics of terror­ism and the fight against it...

...The Court interpreted the constitutional amend­ment in a way that would not infringe on this core of privacy...

...Some courts figured that times are now so dangerous that there is a general concrete danger of a future attack . They licensed the dragnet investigations by rec­ognizing this general threat level . The Consti­tutional Court considered this to be a false application of the concrete-danger provision and also interpreted the proportionality prin­ciple to include a concrete-danger threshold . Again, it did not follow the dynamic of preemp­tive, anti-terror measures, which only compare the intrusion into informational privacy to the immense damages that are to be averted . It added the degree of probability and the actual concreteness of the danger to the proportion­ality rationale...

...Dragnet investigations, which might have serious effects on people's lives (in the case of false positives, for example) and on society's openness to nonconformist lifestyles, require more than an appeal to the general threat level...

...M ANY of THESE decisions are controver­sial, and some-like the one on the hijacked plane-may even appear un­acceptable in their consequences from an out­side perspective...

...In the public debate about the legitimacy of the torture threat, it became ap­parent that the Federal Constitutional Court would not tolerate a violation of the dignity pro­vision of the German Basic Law even in such a case...

...Doctrinally, the online search was difficult to analyze because it was unclear if it would be governed by the material and pro­cedural safeguards for the privacy of the home under the German Basic Law...

...After a police martial arts expert was flown in to inflict excruciating pain, but before he actually did anything, the kidnapper disclosed the hiding place of the body of the little boy he had killed right after the abduction...

...in 2003, they seized three Pales­tinians who planned an attack on Jewish insti­tutions in Düsseldorfand Berlin...

...After the decision, even a constitu­tional amendment could not legally enable the military to shoot down a hijacked plane . The absolute character of the decision has already led the minister of defense to discuss an open violation of the Constitution...

...This does not prevent the surveillance of criminal activities, which is intrinsically di­rected against third parties and thus not part of the core sphere of privacy...

...Information obtained from this sphere cannot be used in any circumstance and is not allowed as evidence in any court proce­dure...

...Procedural safeguards like these compensate for the deficiencies of the relative standards when overwhelming damage is to be feared...

...The court did not take the Masri case-of a German citizen ab­ducted by the CIA and tortured in Afghani­stan-or, so far, any other rendition case . There have been no decisions on wiretapping issues or other surveillance questions . When the Court issued its latest ruling on the Guantánamo detainees, in favor of habeas cor­pus rights, it revealed a deep internal cleavage . In one of the minority opinions, the justices supporting the ruling were accused of contrib­uting to the killing of Americans...

...The legal problem lay in the threshold 'con­crete danger...

...The most intrusive measures demand a judicial warrant ; some of the secret measures have to be reported to a special parliamentary commission ; in general, secret measures have to be laid open to the person concerned as soon as the purpose of the operation allows it...

...On the contrary, German agencies have been fairly efficient in intercepting ter­rorist plots . In 2002, they uncovered a major plot against American military bases near Heidelberg...

...and in September2008,they arrested two suspected terrorists whom they had watched for months . Among anti-terror experts the German security agencies are genT EACHIvc THE world lessons about the rule of law from Germany of all places is a delicate matter, to say the least . That the rule of law approach is so strong in Ger­many has historical reasons, which lie even deeper than a compensation for the total break­down of legal, humanitarian, and human stan­dards during the Nazi era . Germany is a latecomer to democracy...

...Furthermore, different societies face different challenges . Germany is not a global power...

...Worth mentioning is the obligation to monitor and report publicly to the Parliament on the employment of anti­terror measures . The first report was released in 2005...

...In light of this American reaction, the re­cent judgments of the German Federal Con­stitutional Court seem to come from a different legal planet...

...military institu­tions in Germany...

...Bourgeois society was not created in Germany by a democratic revo­lution, but by the Rechtsstaat...

...Screening the 14 . DISSENT I Winter 2009 population for the ordinary is self-defeating...

...But for more intrusive measures the Court stuck to the tra­ditional threshold in its tripolar reconstruction of the proportionality principle : only if the threat can be temporally, locally, or personally described wí11 dragnet investigations be con­sidered proportional . There has not been much news of dragnet investigations since these de­cisions, though this is more likely due to their inefficiency than to the heightened threshold . In the winter of 2002, a high-ranking po­lice officer threatened a captured kidnapper with torture if he would not disclose the where­abouts of his victim, whom the police thought still alive and in danger...

...Please notify us one month in advance of your change of address...

...in2007,they arrested two Germans and a Turk who had stored several barrels of explosives for attacks on U.S...

...The rule of law and the courts are-in the collective memory, not necessarily historically-the least compromised German institutions, and so they have often played a compensatory role in German history...

...The fairly moderate practices of the agencies that the re­port revealed also tempered some of the worst fears of civil rights activists-fear is easily ex­aggerated in the shadows cast by the secrecy of the operations . The obligation to report was later reinforced : the next report has to be drafted by the agencies together with an inde­pendent expert...

...Similar questions can be asked about the principle of proportionality, which is a standard central to German constitutional law and also-with nuanced differences-to many other constitutional systems...

...After the September 11 attacks, the police in a number of states relied on the drag­net provision to screen the population for Is­lamist sleepers, who might live in Germany and wait to execute the next attack . The technical problem that made the recent screenings inef­ficient lay in the fact that the screening pro­cesses rely on identifying extraordinary profiles among the ordinary...

...In other decisions, the Court did not rule out the use of less intrusive and less wide-ranging measures based on a general threat level or an abstract danger...

...In German constitutional scholarship, it has already been suggested that preemptive measures should be considered unconstitu­tional precisely because they are always pro­portional, and the proportionality principle cannot perform its limiting function . Argu­ments like this illustrate the sort of doctrinal challenges that confront any constitutional ju­risdiction committed to a constitutional check DISSENT I Winter 2009 . I3 on anti-terror measures . The dynamic of the fight against terrorism tends to undermine doc­trinal standards fundamental to constitutional law...

...But besides these individual controversies, the decisions reveal a pattern of how the Court designed a doctrinal framework that can give constitutional structure even to operations that aim to prevent the most hor­rific terrorist attacks . First, the Court set some absolute standards, as it did in the surveillance case with regard to the protection of the most private sphere and in the hijacking and threat­of-torture cases . It underlined that there are absolute limits, which the state has to respect even in the fight against terrorism . Second, the Court formulated different thresholds with re­gard to different kinds of operations depend­ing on the degree of intrusion into the sphere of rights...

...These constitutional restraints rarely de­prive the agencies of their capacity to act...

...The lesson to be learned from the excur­sion to the German constitutional planet is not the bold one, that the German courts got the rule of law right...

...As a result, the criminal procedure laws and the police laws of the states were redesigned . They now include provisions that require the agencies to interrupt a surveillance activity if the core of privacy is involved and to delete in­stantly all records that relate to this most inti­mate sphere...

...The core of privacy comprises, inter alía, communications of inner feelings, in­timate family life, and sexual relations...

...Against the background of attacks like the ones on the World Trade Cen­ter and the Pentagon-and the fear of even more monstrous attacks with biological or nuclear weapons-many traditional constitu­tional standards become elusive . In German police law, the standard threshold was "con­crete danger": the police could intervene only if they could prove that a given situation would lead, with high probability, to damage of legally protected rights or institutions . Starting in the 1990s, police and national security laws shifted from this traditional approach to a more pre­emptive one, a shift reinforced by new secu­rity regulations after September 11 . As a German interior minister said, "The police shall be at the scene of the crime before the deed ." Precautionary measures-especially data min­ing and processing using new informational techniques-were introduced . If attacks of a monstrous size are at issue, it seems irrespon­sible to wait until the danger is upon us . But what threshold could replace the concrete probability of damage...

...Going beyond the formal issue of com­petence, the Court also ruled that shooting down the hijacked plane would violate the dig­nity of its crew and passengers-hence the law could not allow this . The decision relied on two arguments: first, on a Kantian notion of hu­man dignity that, as the court interpreted it, forbids the instrumentalization of human life by the state and therefore forbids any quanti­fying legal perspective (even if the short lifespan of a few is weighed against the much longer lifespan of many others) and second, on the intrinsic uncertainty and error-proneness of an external assessment of the situation on board the hijacked plane made under extreme time pressure...

...First, legal standards protect indi­vidual rights...

...Doctrinal solutions are always spe­cific to the context of a given legal order...

...These decisions highlight only some major cases...

...The consistency and tenacity of its rulings-at times against strong political criti­cism-have surprised many observers...

...The ferocity of the conflict within the Court reveals a strong anxiety about the effects constitutional rights could have on the effectiveness of anti-terror measures...

...Nevertheless, the Court re­lied on an article of the German Constitution that bars constitutional amendments that re­strict the absolute guarantee of human dignity in Article 1 of Germany's Basic Law...

...Is there a threshold for preemptive data mining...

...Two things have been achieved...

...There is still a political debate about some substantive and procedural nuances of the bí11, but as soon as it is passed it wí11 serve as a model for other federal and state police codes...

...This article was written during a sabbatical at the Institute for Advanced Study in Princeton...

...Individual rights empower individ­uals: they are not dependent on public opinion, political rallies, alliances, or majori­ties...

...In the 1970s, dragnet in­vestigations worked because the terrorists dis­played unusual life patterns . Islamist sleepers, in contrast, have made it central to their strat­egy to blend into the ordinary...

...In the course of the nineteenth century, private property and individual freedom could be secured via the rule of law, but active political rights were only poorly developed . The short and ill-fated Weimar Republic was the only democratic gov­ernment for West Germany until 1945, and for East Germany until 1989...

...The Court had already set its sights on the next generation of Internet services . The judges allowed massive governmental intrusion-as in the case of an online search in which every bit of information stored, re­ceived, and sent is under surveillance-only in the case of a "concrete danger" to very impor­tant private or public goods . Additionally, they imposed a series of procedural safeguards, in­cluding a prior judicial warrant and the duty to erase and correct files if illegally obtained, inaccurate, or no longer in use . The federal government has now introduced a bí11 that al­lows the federal Criminal Police Office to op­erate online searches of personal computer systems under the restrictions the Court has outlined...

...The general threat level allows cer­tain moderately intrusive strategic surveillance operations ; mere abstract dangers allow only mildly intrusive measures and require a cor­roboration of the likelihood of damage...

...In its 2008 de­cision, which declared the statute void, the Court left the traditional doctrine behind and created a "right to the integrity of one's per­sonal informational system ." It took notice of the fact that electronic communications and networks have become ever more important for the development of personal and social life . Due to their growing importance, the Court considered them in need of constitutional pro­tection, just as other private spheres have been protected...

...The mere abstract likeli­hood was not only considered an indeterminate but also a disproportional threshold . The po­lice code of Lower Saxony had to be redrafted . After the decision, the telecommunication sur­veillance regulations in other states were care­fully redesigned . During the leftist terror wave in the 1970s, the German police had some success with drag­net investigations-matching housing informa­tion with consumer data from energy suppliers . The terrorists rented apartments as hideouts, but occupied them only for very brief intervals, which kept their energy consumption con­spicuously low...

...The task of setting constitutional limits to legislative and administrative anti-terror mea­sures is not only politically delicate but doctri­nally demanding...

...The principle of proportionality loses its grip if the mining of personal data is supposed to prevent massive terrorist attacks . How could the mining of some personal data, which has no visible harmful effect on law-abiding citizens, ever be dispro­portional if it serves to prevent the next atroc­ity...

...Many questions of constitutional law are still unanswered . There have been no rulings on the "special treatment" of detainees in the fight against terrorism...

...SUPREME COURT reacted slowly to the constitutional questions raised by post-September 11, 2001, anti-terror strategies...

...Terrorism and the Constitution Looking at the German Case Ralf Poscher THE U.S...

...They mostly require them to use their powers with consideration for individual rights and for the more global effects on society...

...This strict position was recently supported by a judgment of the Euro­pean Court of Human Rights on the case . T HE SERIOUSNESS with which the Con­stitutional Court takes the protection of human dignity became even clearer in 2006...

...There can be video surveillance of a public place, but the police have to show that there have been l 6 . DISSENT I Winter 2009 more crimes in that place than in others, and erally respected for their reliability and effec­the surveillance activity has to be made public tiveness . to make the intrusion less intense...

...The Court had to decide on a new law that allowed military jets to shoot down planes that were about to be used by hijackers as weapons against targets on the ground . It de­clared the law unconstitutional due to a lack of constitutional competence on the part of the armed forces (the use of the military is very restrictively regulated in the German Consti­tution...

...The provisions were declared unconstitutional on the grounds that they were too indeterminate, failing to specify what circumstances would qualify somebody to be "likely to commit serious crimes...

...Constitutional courts have to elaborate or extend traditional doctrinal standards or design new ones...

...Most police codes now include provisions that allow such dragnet investiga­tions in the case of a concrete danger of seri­ous crimes...

...The right encompasses not only the integrity of personal computers as physical de­vices but also protection against state acquisi­tion of nonpublic personal information stored anywhere in the worldwide network of com­puters...

...18 . DISSENT I Winter 2009...

...More in­ trusive measures require a "concrete danger...

...in2004,they uncovered a plan to assassinate the Iraqi prime minister in Berlin...

...Additionally, the more intrusive the measures become, the more severe the feared damage has to be . An activ­ist spraying graffiti would not warrant an online computer search, even if the danger is con­crete...

...The police code was supposed to serve as a model for a new gener­ation of state codes introducing wide-ranging preemptive powers . It allowed telecommunica­tion surveillance of people "who are likely to commit serious crimes" or who are in contact with such persons . The Court accepted the case on the judge's claim that he himself could not know if such measures were taken against him due to the secret character of the surveil­lance and the broad definition of the "persons" he might be in contact with...

...But what should be said is that the German Federal Constitutional Court spent considerable effort and exhibit­ed doctrinal creativity in developing rule of law standards that cope with the challenges posed by terrorism and the fight against it . The court developed a system of absolute lim­its, relative thresholds, and procedural safe­guards against the dynamics of anti-terrorism . The legislature followed, sometimes more co­erced than inspired, but also with some con­tributions of its own...

...The Court found that the inviolability of human dignity guarantees a core of privacy in one's home that cannot be infringed by the state and must be respected even in investigations of the most hideous crimes...

...The Court itself only pointed out that it did not rule on the criminal responsibility of a military commander who went beyond his legal authority in such a case and shot down the hijacked plane . If the ruling in the hijacked plane case is the most astonishing result of recent German jurisprudence, then the last case to be reported DISSENT I Winter 2009 . l 5 is the most audacious doctrinal innovation . For many years, apparently, secret service agencies infiltrated personal computers to read the con­tent of hard drives and to observe electronic communications running through the system . In 2006, the state of North Rhine-Westphalia tried to legalize this practice by a law that al­lowed the state's secret service to execute online searches of computer systems if they were considered necessary to protect the con­stitutional order...