German Counter-Terrorism Post Sept 11

Transcription

1 German Counter-Terrorism Post Sept 11 Page 1 German Counter-Terrorism Post Sept 11 by Cenap ÇAKMAK The September 11 attacks served as a basis for motivating a bold and visible legislative activism in Germany in order to address the perceived Islamist threat. A major factor was the worldwide perception of global Islamist terrorism and the need to respond to it by collective action. However, Germany also had a specific reason for its decisive action in that terrorists had used German territory to hatch the 9/11 plot. Three of the hijackers lived and plotted in Hamburg and other parts of Germany for several years, taking advantage of the liberal asylum policies and the low levels of surveillance. 1 As a result it was argued that terrorists were able to take advantage of Germany s liberal asylum laws, strong privacy protections and rights of religious expression which shielded activities in mosques from surveillance by the authorities. 2 As one scholar notes; The attacks on the United States of America in September 2001 have spurred a rapid implementation of new anti-terrorism legislation around the world. In an effort to, ostensibly, safeguard against the repetition of similar events on their own territories, many democracies have taken far-reaching 1 Germany s Role in Fighting Terrorism: Implications for U.S. Policy, CRS Report for Congress, 27 December 2004, p Ibid, p. 2. legislative steps that might threaten the ideal of liberty on which their societies have traditionally been built. 3 Germany was one of the democracies to introduce new legislation without significantly compromising fundamental rights and freedoms. A brief description of Germany s counter-terrorism strategy suggests that Islam-based threats constitute the main focus of the policies and legislation made in this field. Noting that Islamist-motivated international terrorism is and will for the foreseeable future remain the greatest threat to the security of the Federal Republic of Germany and the West, and one of the greatest challenges for the security authorities, Germany s interior ministry refers to September 11 as a turning point, defines Islamist threats as the greatest challenges to its security and underlines the importance 3 Dirk Haubrich, September 11, Anti-Terror Laws and Civil Liberties: Britain, France and Germany Compared, Government and Opposition, v. 38, n. 1 (2003): Wise Men Center for Strategic Studies (BILGESAM) Mecidiyeköy Yolu Caddesi, No:10, Şişli -İSTANBUL bilgesam@bilgesam.org Phone: Fax: All rights reserved. No portion of this publication may be reproduced, copied, transmitted without the written permission of BILGESAM.

2 German Counter-Terrorism Post Sept 11 Page 2 and eagerness to align its policies and practices with the EU counter-terrorism strategy. 4 An overview of the policies of the German authorities in the form of legislation drafted and institutions they have created since the Sept 11 attacks reveals that Germany has been consistent in its counter-terrorism strategy, which identifies Islamists and Islamist groups as the main security threat. This is particularly interesting because the US has moved away from this position whilst Germany has intensified its efforts to deal with radical Islam. As part of its counter terrorism strategy, Germany introduced strong legislation to criminalize radical Islamist activities. The efforts included measures against suspected activities that could lead to prospective terrorist actions. Germany s first response was to introduce major improvements to existing legislation. This could be attributed to the fact that intelligence reports indicated that some of the Sept 11 perpetrators were concealed as terror cells in Germany prior to the attacks and due to the considerable number of extremist militants identified in Germany. The changes made to the existing laws and the new legislation constituted a comprehensive framework of anti-terrorism measures. To address the weaknesses, they adopted two major anti-terrorism packages. The first, in November 2001, addressed the flaws in German law that allowed the terrorists to live and raise 4 Federal Ministry of the Interior of Germany, Security: Counter-terrorism, Security/Counter-terrorism/counter-terrorism_node.html. Accessed 20 May funds for their activities. The changes in this initial package included the following: (1) The immunity of religious groups and charities from investigation or surveillance by authorities was revoked, as were their special privileges under the right of assembly, allowing the government greater freedom to act against extremist groups; (2) terrorists could now be prosecuted in Germany, even if they belonged to foreign terrorist organizations acting abroad; (3) the ability of terrorists to enter and reside in Germany was curtailed; and 4) border and air traffic security were strengthened. 5 The second package was introduced to improve the effectiveness and communication of the intelligence and law enforcement agencies for enhanced cooperation and collaboration in the field of combating terrorism. The new laws appear to have provided German intelligence and law enforcement agencies greater latitude to gather and evaluate information, as well as to communicate and share information with each other and with law enforcement authorities at the state level. 6 Prior to September 11, religious associations were immune from surveillance and investigation under the legislation. But this protection was lifted by anti-terror laws passed in late 2001 which permitted the state authorities to investigate groups with terrorist ties. As part of the initial measures, major changes were also made to the penal code, which expanded the jurisdiction of the national courts to cover terror offenses even if perpetrated outside of German territory. 5 Germany s Role in Fighting Terrorism, p Ibid., p. 4.

3 German Counter-Terrorism Post Sept 11 Page 3 The measures further included aliens seeking to enter Germany. The new legislation introduced significant restrictions on attempts to enter by people who present a danger to the democratic order in Germany, and who are engaged or encourage others to engage in terrorist organizations. Stricter measures were also introduced in the process of admitting asylum seekers. Fingerprinting applicants was made compulsory and the security authorities were authorized to hold all the relevant records for a period of 10 years. The broader authorizations bestowed on the security forces included automated access to the information filed in the Central Alien Register. Under changes to the Security Oversight Law, officers working in the fields of counterterrorism and other relevant professions were required to receive security screening. New air traffic legislation restricted the use of firearms to air marshals only. The law also stipulates that all airport and flight workers and officers are required to have security clearance. Changes in the laws governing passport and ID-related matters were meant to prevent the use of fake identification. Suspected extremists and Islamic militants were placed under strict surveillance. The Federal Bureau for the Protection of the Constitution (BfV) was empowered to track the activities of extremist groups. This is a bold step given that even relatively insignificant terror activities were considered as threats to the constitution and to the survival of the state. Changes to the law on the protection of the constitution merged several databases to make computerized searches more effective. More importantly, the Federal Bureau for Criminal Investigation (FBCI) recognized the right to lead its own investigations. Before this change, the Bureau needed a formal request by the BfV in order to initiate a probe into a suspected terrorist or criminal activity. Under the Federal Border Guard Act, armed officers of the Federal Border Guard (BGS) were assigned to take measures aboard German aircrafts. The BGS was also under a duty to conduct the screening of border traffic. German authorities have not only passed bold legislations for more effective counterterrorism strategy but also implemented these laws without any serious compromises. For instance, placing armed security personnel and installing bulletand entry-proof cockpit doors on German planes have increased aviation security. Full inspection of all luggage is now mandatory at German airports. As elsewhere in Europe, the presence of Germany s large Muslim population also influences anti-terror policies. Germany has a strong record of tolerance and protecting Muslim religious freedoms. However, the government is determined to go after Muslim extremists. Profiling is considered an acceptable means for identifying likely terrorists under German law. 7 Additionally, the BKA, which was authorized after the legislative reforms and tasked to lead its own independent investigations through increased law enforcement capacity, has taken swift action to go after Islamist militants suspected of having ties with international terror networks. These activities and efforts have included the surveillance of a large number of suspects previously identified as potential threats to national security. Relying on profiling tactics and other counterterrorism methods that helped dismant- 7 Ibid., p. 5.

4 German Counter-Terrorism Post Sept 11 Page 4 le the Red Army Faction in the 1990s, German authorities conducted a computer-based identity search. Reports indicate that these methods and tactics have worked well and aided the authorities to uncover a considerable number of radical Islamist sleepers in Germany. 8 Despite these legislative measures and reforms, the institutional changes and improvements have failed to meet desired standards. The main problem in the institutional setting remains the lack of integrity in the organizational framework for fighting terrorism. Above all, there is no central agency or person in charge of coordinating anti-terrorism and counterterrorism efforts. This has resulted in the lack of resolve and concerted action in addition to suggestions that such a central institution, agency or person should be identified. The institutional deficiencies are most clearly visible in the lack of unity and coordination between different security and intelligence authorities mandated to deal with terrorism. The BKA and BfV are divided into one federal and 16 state offices and work independently of each other and of the federal unit as well, making cooperation and coordination an impossibility. Additionally, under German law, executive agencies are to be separated in terms of organizational ties and structures. Automatic cooperation and coordination is not thus possible for the relevant institutions and agencies. Consequently, even useful information gathered and collected by different agencies cannot be properly used in a concert. 9 With these shortcomings in mind as well as the 8 Ibid., p Ibid., p. 8. terror acts by ISIL, German authorities implemented further legislative and executive measures by expanding the scope of anti-terror legislation. Such measures include the promulgation of an anti-terror law, described as one of the harshest tin order to monitor preparation for acts of violence. The German Justice Minister argued that this law would make Germany safer, admitting the bill was one of the harshest in Europe. According to the draft, traveling to a place where a terrorist training camp is located will be punishable by state authorities. Even though the prescribed criminal offense is of general character, the rational for making the law indicates that Islamists are the main targets. German Minister said on this matter; We must do everything we can to prevent Islamists from becoming more strongly radicalized in training camps. Furthermore, according to reports, the German government also wants to proscribe terrorism financing as an independent criminal offense in an attempt to effectively deal with radical Islamist activities, particularly those performed by Islamic State in Iraq and Levant (ISIL). The government s initiative has been welcomed welcomed by the police authorities. The scope of the anti-terror legislations has been expanded further, mostly because of the growing threat of ISIL in the Middle East. Germany has been responsive to this threat because of perceived sleeper cells in the country and the huge number of ISIL militants who were naturalized Germans. Another reason for the tighter measures is the German state s willingness to cooperate with the international institutions, particularly the UN Security Council, which in a resolution, urged states to take measures to cut the logistical support for ISIL.

5 German Counter-Terrorism Post Sept 11 Page 5 The new provisions of the anti-terror law allow the authorities to ban passport holders identified as threats from leaving Germany. Those who are identified in this category may also be subjected to further measures including their passports being stamped. For security reasons, the authorities may even recall the passports and retain them for a certain amount of time. The measures go as far as criminalizing even the attempts to leave the country. 10 Not unexpectedly, the new initiative has raised serious concerns as regards the enjoyment of fundamental rights and freedoms. Some critics have argued that restricting the right to travel is a clear violation of the constitution. The Green and Left Parties have criticized the move and arguing that the legislation would exacerbate the situation and would lead to the constitutional court being over burdened due to the increased number of individual petitions and applications over violation of rights. A representative from the Left Party, in criticizing the restrictions stated: The constitutional principle that citizens be able to clearly differentiate between punitive and legal behavior is being damaged. Initial suspicion regarding a criminal offence as a precondition to intervention from security forces, should be adhered with absolutely. Anyone who wants to interfere with this is holding an axe to the foundations of our society. In response to these concerns, German authorities justified the measure arguing that the very foundations of democracy and freedoms would be jeopardized by the Islamist threat, unless such harsh measures are not introduced. The Justice Minister s statement that The answer to terror should never lead to us making long-term cuts to our fundamental rights and our rule of law indicates an ambivalence from the German government between effective fight against terror and preservation of the democratic commitments that serve as the basis of the EU and Germany. It appears that Germany has taken such extreme and controversial measures in an attempt to align with the global community s fight against terror; particularly those concerns raised by the US to which Germany has become most responsive. The decisiveness of the global institutions also serves as a basis for the German authorities for taking such bold measures. Most importantly, Germany seems to be vulnerable because of the inclination in a growing number of young people towards radical views and interpretations of Islam. Germany s measures however have the potential to exacerbate the situation given that the radicalization of Muslim youth is also rooted in the discriminatory practices and discourse towards the Muslim community, which has been occurring for decades. These policies and practices have contributed to extremism and radicalism. The solution the German authorities developed to address this problem in the form of further security measures and strong anti-terror institutions as well as deeper cooperation with the international institutions, can potentially provoke the radical Muslims in the country. This is why German decision makers and institutions seem to have been careful to maintain a balance between security measures and the protection of fundamental rights and freedoms. 10 Bundestag verabschiedet neue Anti-Terror-Gesetze, Zeit, 23 April 2015.

6 German Counter-Terrorism Post Sept 11 Page 6 About BILGESAM Established in 2008, the Wise Men Center for Strategic Studies (BILGESAM) is one of the leading think tanks in Turkey. As a non-profit, non-partisan organization BILGESAM operates under the guidance of a group of well-respected academics from different disciplines, retired military generals and diplomats; and aims to contribute regional and global peace and prosperity. Closely following the domestic and international developments, BILGESAM conducts research on Turkey s domestic problems, foreign policy and security strategies, and the developments in the neighbouring regions to provide the Turkish decision-makers with practical policy recommendations and policy options. About Author Cenap Çakmak is associate professor of international law and head of international relations Department at Osmangazi University. He is a visiting researcher at T.M.C. Asser Institute: Center for Int l and European Law and international law fellow at the Wise Men Center for Strategic Studies (BILGESAM). He has published numerous articles and books on international law and international relations at home and abroad.