German security laws

Times of terror
Sep 27th 2007 | BERLIN
From The Economist print edition

Trying to cope with future threats but burdened by the past


THE German people have been spared a direct attack by Islamist terrorists. But the interior minister, Wolfgang Schäuble, himself a victim of an assassination attempt, has raised fears by saying that a nuclear attack by terrorists is only a matter of time. Franz Josef Jung, the defence minister, has added that, if terrorists used a passenger plane as a missile, he would have it shot down, contradicting a ruling by the constitutional court. Among those denouncing the two Christian Democratic ministers as scaremongers are their coalition partners, the Social Democrats. Mr Jung crossed a “demarcation line”, said the vice-chancellor, Franz Müntefering.

In Germany, the debate over the trade-off between security and liberty has two twists. The first, which may be healthy, is that it is being conducted within the tense “grand coalition” government, in which both sides of the argument are represented. The second, which is less so, is Germany's 60-year tradition of deep mistrust of the state. Other countries also face trade-offs; Germany is grappling with its historical taboos as well.

The constitutional court's overturning last year of parts of a “flight security law” simply reflects German legal doctrine. The duty to respect human dignity is absolute, so the state may not kill some to protect others, said the court. Nor may it deploy the armed forces at home except to repel foreign attacks or deal with catastrophes. Since soldiers cannot disobey the law, Mr Jung can have no confidence that the air force would shoot down a plane if he gave the order.

In fact, even the most zealous defenders of the court's ruling consider it impracticable. The argument is over whether Mr Jung should have said as much; and whether, as he insists, a new law is needed to sanction the shooting down of a passenger aircraft. His critics say he is playing politics with a remote possibility. If such a hijacking ever happened, it might be impossible to confirm the hijackers' intent in time to down the plane. But in such a situation, few doubt that the defence minister would give the order. “In that case it is wise to act and not to publish ideas and thoughts in advance,” comments Michael Hartmann, the Social Democratic spokesman for internal security.

The constitutional court may even agree. It avoided saying that any minister who issues a shoot-down order would be subject to criminal prosecution, notes Dietrich Murswiek, director of the Institute of Public Law at Freiburg University.

What Mr Jung and Mr Schäuble are really trying to do, their critics fear, is to replace Germany's “legal state” with a “preventive state”. Mr Schäuble, the supposed ringleader, sees the distinction between foreign and domestic security as false and is given to provocative suggestions (perhaps known terrorists should be targeted for assassination, he mused recently). His security wish-list includes such controversial proposals as letting the security services install spy software on suspects' computers. Although Mr Hartmann supports on-line snooping, he worries that “step by step Germany could become an only security-oriented state.”

Despite these disputes Germany is updating its anti-terrorism laws. The grand coalition has passed 13 measures, such as authorising police and the secret services to share data on terrorist suspects. The spat over Messrs Jung and Schäuble's remarks has not stopped the government from negotiating over new laws to expand the powers of the federal police. The difference, says Mr Hartmann, is that “now we don't smile when we see each other.”