Democracy Under Pressure

Germany Balances Liberty and Security in Face of Terror

In the wake of the Berlin terror attack, leading German politicians have begun demanding changes to the country's security architecture. With fall elections approaching, the issue is set to dominate the campaign. But there's also a danger of going too far. By SPIEGEL Staff

Photo Gallery: Is the German State Strong Enough?


Twice a year, interior ministers from Germany's 16 states gather for a conference somewhere in Germany, with the most prominent guest being Federal Interior Minister Thomas de Maizière. Before the official discussions begin, de Maizière, a member of Chancellor Angela Merkel's Christian Democratic Union (CDU), meets with those state interior ministers who are likewise members of the CDU. Over wine and beer, they talk about what's on their mind.

In 2016, de Maizière repeatedly brought up his ideas for a new security architecture for Germany, according to meeting participants. Should the federal government be responsible for deporting rejected asylum-seekers instead of the states? Should the Federal Criminal Police Office (BKA) be granted greater powers? Are the structures of the country's domestic intelligence agency still up to date?

He posed his queries carefully and cautiously, as is his style. His counterparts sipped from their wine glasses, some mumbling noncommittally: We'll see, maybe but probably not. They were friendly, but dismissive.

De Maizière, however, was not deterred, continuing to talk about his ideas in the federal cabinet, with parliamentarians and with the heads of security agencies. Some agreed with him, but most were circumspect. And ultimately, his vision was shelved -- until last Tuesday. Finally, he felt the time was ripe to go public.

In a guest editorial for the influential daily Frankfurter Allgemeine Zeitung, the federal interior minister surprised his party and the entire country with his concept of a "strong state." At almost the exact same time, Sigmar Gabriel, the head of the Social Democratic Party (SPD), Merkel's junior coalition partner, presented a paper with his own ideas for a revamped security policy. Gabriel, who is Merkel's vice chancellor, demanded a tougher approach to potentially violent Salafists. "I am in favor of zero tolerance," he told SPIEGEL in an interview this week. Angela Merkel and Horst Seehofer, the powerful governor of Bavaria, have likewise reiterated earlier promises that Germany must demonstrate increased severity.

The leaders of Germany's current governing coalition are all seeking to present themselves as decisive defenders of the country's democracy. And with elections approaching in fall 2017, they are aware that the campaign is likely to focus heavily on security policy. Their proposals are aimed at improving protection against the dangers of terrorism, but they will also go a long way toward determining who will occupy which position following the September general election.

The words they choose to outline their ideas may at times seem reserved, but the policies they envision are radical -- even those from de Maizière, who is otherwise a vocal proponent of prudence.

Germany, de Maizière wrote in his op-ed, is not sufficiently prepared for the crises and catastrophes of our times. The interior minister currently oversees more than 60,000 people working for the Federal Criminal Police Office, the federal police force, the domestic intelligence agency BfV and other agencies, and he believes changes are necessary. The federal government, he now believes, needs greater leverage to control all of the country's security agencies. He says that more video surveillance is needed as is the expanded use of facial recognition technology and beefed-up personnel. The state, he believes, must become stronger.

A Rethinking of German Federalism

Demands such as those now being made by de Maizière haven't been seen in Germany since 2001, when then-Interior Minister Otto Schily presented a list of far-reaching security measures following the attacks in the United States. But de Maizière is also calling for a rethinking of German federalism.

And unsurprisingly, German states, which are afforded a fair degree of autonomy under the current arrangement, are unimpressed. "I don't understand why he has done this," says Peter Beuth, interior minister of the state of Hesse and a member of the CDU. The idea of completely revamping the country's security architecture is "absurd," he says.

Saxony-Anhalt Governor Reiner Haseloff, likewise of the CDU, says: "The federalist system in Germany has proven itself. We should resist the temptation to call it into question in the face of the terrorist threat."

Hamburg Mayor Olaf Scholz of the SPD also rebuffed the initiative from Berlin. "We don't need any short-term security debates," he says. "The police in the states do excellent work. The same is true for the state chapters of the BfV." It is much more important, he says, to finally carry out the deportation of rejected asylum-seekers and negotiate effective repatriation agreements with reluctant countries," he continues. "That is the most important task facing the federal government and, first and foremost, the federal interior minister."

What, then, is correct? Is Germany unprepared? Or do the country's security agencies do "excellent work?"

Like the U.S. following 9/11, France after the attacks in Paris and Belgium after the attacks in Brussels, Germany must now find a response to the Dec. 19, 2016, Christmas market attack. It must analyze the mistakes that made the attack possible and draw the correct consequences.

But which ones are they? War, imprisonment without trial, torture and a monstrous Homeland Security ministry like in the U.S.? Bombing campaigns against Islamic State, a semi-permanent state of emergency and house searches without a warrant as in France? Heavily armed soldiers in pedestrian zones like in Belgium? Likely not, but what should be the response? What should the German answer be? What works best for the country? Radical restructuring or minor fixes in many áreas?

The Correct Equilibrium

The image of the gray semi-truck in the middle of an idyllically decorated square marks a turning point for Germany. Islamist terror has arrived in full force. It is no longer merely apparent in the form of arrests and investigations, no longer present in speeches about "abstract threats" and the serious expressions on the faces of security agency heads following the comparatively minor attacks of last summer. Islamist terror has now struck at the heart of German culture -- a Christmas market shortly before Christmas Eve.

And the facts speak for themselves: German security agencies were unable to prevent the attack despite the fact that its perpetrator, Anis Amri, had been known for months to be an Islamist threat. Numerous agencies had files on him, they were aware of his contacts to Islamic State and they knew that he had searched the internet for bomb-building instructions.

It is never easy for a democracy to find the correct equilibrium between freedom and security, but Germany thus far has done an adequate job of balancing out political reflexes. Often in recent years, security has had the upper hand, but freedom has also come out ahead in some areas. Germany's Constitutional Court has frequently served as a corrective in the ongoing duel.

The question regarding German democracy's ability to defend itself is one that has faced the country since democracy was reestablished following World War II. An early debate took place in 1967, when the country passed the Emergency Acts, enabling the federal government to take action in crises ranging from natural disasters to internal uprisings. A decade later, a series of attacks committed by the leftist Red Army Faction terrorized the country, leading to investigators resorting to widespread dragnet investigations and proposing the adoption of comprehensive surveillance.

Now, such issues are back, following several relaxed years during which Germans preferred a weak state, privatized state facilities, expressed skepticism regarding the expansion of security agencies and supported the vision of a cosmopolitan, pluralistic society that allowed substantial freedoms to all lifestyles and mindsets, even those that were extreme. It was a country that didn't need to defend itself because nobody was seriously threatening it.

A Humanitarian Gesture

The country could also afford to be lackadaisical in the enforcement of its own laws. The country, for example, was not particularly vigilant when it came to enforcing its asylum and deportation laws.

Rejected asylum-seekers were only rarely returned to their home countries against their will and many were allowed to remain. As long as the numbers of migrants coming to the country was low, such patience was not particularly controversial: It was seen as a humanitarian gesture.

The state's more forceful side was rarely visible, and when it did make an appearance, it was seen as sinister. Examples include the annual demonstrations against radioactive waste deliveries to the Gorleben depot, the police response to the often violent May 1 demonstrations in Berlin and the authorities' reaction to protests against the new train station in Stuttgart. The water cannon became the strongest symbol of the state's strength.

There were, of course, other instances when the state flexed its muscles, but they were largely invisible. It was active in its surveillance of our society's data networks, for example, as the revelations of NSA whistleblower Edward Snowden demonstrated.

There have long been two types of fear characterizing Germany, each holding the other in check: The fear of the state and the fear of external enemies and terrorists. One can accurately say that it has been best for the country when neither the one nor the other got the upper hand.

Now, however, the pendulum is swinging towards the fear of external enemies. The discussion is focusing on the threat facing the state and its citizens and not the threat represented by the state itself. Even the Green Party is calling for more security and police presence, something unthinkable just a few years ago. Party co-chair Cem Özdemir has said that his party will play a constructive role in the discussion over Interior Minister de Maizière's proposals.

The shift was also noticeable in the relative lack of criticism aimed at Cologne police for resorting to racial profiling to prevent a repeat of last new year's eve sexual assaults. The debate's paradigm has shifted.

Desire for a Stronger State

Another contributor to that shift is that the societal framework is no longer as stable as it once was. Germany's economy may be doing well, its unemployment rate low and crime sinking, but cracks in the idyllic facade are forming. The gulf between those in favor of welcoming refugees and those who follow the Islamophobic Pegida movement cannot be overcome and the glue holding society together seems to be weakening. Furthermore, many countries and regions surrounding Germany are likewise showing signs of instability: Authoritarianism is taking hold to Germany's east and allies to the west are turning away. The European Union's weakness is also fueling the desire for a stronger state.

Still, even as Germany focuses on becoming tougher and strengthening its security apparatus, it should not ignore other factors that have likewise made the country strong. German history is full of strong, self-confident principalities that have limited the power of the central state, even as far back as the Holy Roman Empire. And the country's darkest hours have always come when that central state has made a grab for more power. At the outbreak of World War I, German Emperor Wilhelm II announced that he no longer recognized any political parties: "Today we are all German brothers and only German brothers." Not long later came Adolf Hitler, who, shortly before launching World War II, proclaimed: "In this moment, the entire German Volk will unite with me." Germany must remain vigilant to the dangers from within because its first experiment with democracy during the Weimar Republic was destroyed from within. Social scientists Karl Loewenstein and Karl Mannheim knew what they were talking about when they developed the term "militant democracy" while in exile during World War II.

The true meaning of that term for the present day, however, can only be determined once the mistakes made in the case of Anis Amri have been fully analyzed. Last year, several officials gathered in the offices of North Rhine-Westphalia's State Criminal Police Office in Düsseldorf to collect what they knew about Anis Amri and to produce a profile. It included information such as his date and place of birth, how he arrived to Germany, where he lived, with whom he had contact, where he traveled in the country and what he might be planning. As of Feb. 17, 2016, he was officially considered to be someone who might seek to carry out an Islamist terror attack.
Where Did German Security Agencies Go Wrong?

Five-hundred kilometers away from Düsseldorf, in the Berlin State Criminal Police Office, officials were asking similar questions. They became responsible for Amri's file on March 10 and they too put together a profile of Anis Amri and, like their counterparts in North Rhine-Westphalia, continually updated it. The two offices took turns keeping track of the potential terrorist, depending on his location. But they didn't always know exactly where to find him nor did they always have sufficient personnel to monitor him.

Two agencies, two profiles, two suspect files: At first glance, it would appear that security officials were particularly vigilant when it came to Amri. But this doubling up could also be the ultimate source of their failings. To be sure, the two state criminal police offices regularly shared information on Amri and also presented their results on several occasions to the Joint Counter-Terrorism Center (GTAZ), which is comprised of all 40 German security agencies.

But Amri managed to give them the slip nonetheless.

Two state interior ministers in particular are now in the position of having to explain what went wrong: Andreas Geisel of Berlin and Ralf Jäger of North Rhine-Westphalia. As initial analysis has shown, far from all information pertaining to Amri was shared between the two states and some of it was only shared with significant delay. The two profiles, at least, were not identical.

When several different agencies work on the same case, there are bound to be communications shortcomings and misunderstandings. Bad intentions aren't a necessary ingredient.

It also isn't always clear which agency is in charge. Amri's case wasn't just being pursued by two state criminal police offices, after all. There were almost a dozen other agencies involved, from the federal prosecutor's office to the local migration office in the small North Rhine-Westphalian town of Kleve. How could anyone possibly have maintained an adequate overview?

The investigators involved, in any case, were unable to. Recent conversations with state security personnel have not been particularly encouraging regarding the state's ability to carry out such a complicated investigation. One official spoke of "reciprocal information segregation" and another mentioned the "security agencies' partial blindness." A third presented the situation as follows: "We are demanding mass access to the data of upstanding citizens but the security agencies approach each other with extreme suspicion." In Germany, the third official continued, there is no single decision-making authority. "There are at least 16 of them."

'Rather Unlikely'

Between February and November 2016, Anis Amri was discussed on seven separate occasions by the GTAZ in Berlin. Meeting participants evaluated on a scale from one to eight how likely it was that Amri was really planning a terror attack. Today, they say that they couldn't have assembled sufficient evidence that would have stood up in court. That is also the reason, they say, that the Berlin State Criminal Police Office didn't apply for authorization to continue active surveillance of Amri after Sept. 21. And that, in turn, hindered Berlin prosecutors from making further progress in their investigation into Amri for attempted participation in a homicide.

Officials were unable to determine whether Anis Amri was more than just a big mouth, as are so many of those Islamists under surveillance. But it was known that he had contact with members of Islamic State. It was known that he had frequently spoken of carrying out an attack and that he actively sought accomplices from the Islamist community. In GTAZ, though, he was only rated a five on the scale, meaning that officials felt it was "rather unlikely" that he would actually carry out an attack.

Given the facts currently known, it is hardly possible to determine who exactly was responsible for this miscalculation. Participants to the meetings say that six agencies unanimously agreed with the evaluation. That, too, is a problem of having too many agencies: Individual responsibility becomes watered down in the maze of institutions and GTAZ becomes a facility without a leader. Would it not have made more sense for a federal agency with clear responsibility to have taken the lead in the investigation?

Nikolaos Gazeas, a Cologne-based expert for criminal law as it pertains to terrorism, says there are measures available to limit the mobility of potentially dangerous Islamists. A deportation order with strict reporting requirements is one example. "Why the authorities didn't issue one is incomprehensible," he says.

Asylum law expert Daniel Thym, a professor at the University of Constance, also believes that a "courageous agency" could have applied for Anis Amri to be placed in pre-deportation detention due to his use of multiple aliases and constantly changing places of residence. Amri was, in fact, briefly imprisoned in Ravensburg, but was released after just two days.

Were there, then, sufficient rules and laws that were simply not adequately applied? The case of Amri, says one high-ranking security official, was primarily an enforcement problem. Like Thym, he also points to Amri's use of at least 14 aliases, of which the authorities were aware.

Hiding one's identity as an asylum-seeker is punishable in Germany, but police say that this infraction is almost never enforced. But why not? Why didn't any agency file charges against Amri?

Lowering the Hurdles

Would stricter laws have helped to capture Anis Amri in time?

German security agencies currently list 548 Islamists as representing a potential danger. Only about half of them are currently in Germany, or around 270 people. Eighty of them are currently behind bars. Just over 50 of those thought to be a danger are rejected asylum-seekers who could be deported -- a significant number.

An additional category of Islamists thought to be less dangerous is known as "relevant persons." This group too includes almost 50 rejected asylum-seekers who are eligible for deportation.

Such deportation is not possible in all cases -- in instances where their home country refuses to deliver the requisite documentation, for example, or when their home country is engulfed in war. Or in cases where the agencies don't know where to find the Islamist in question.

German state interior ministers are now discussing ways to lower the hurdles to pre-deportation detention. Currently, it is only possible when the person in question is considered a flight risk.

Criminal law expert Gazeas therefor believes that a legal reform is "absolutely reasonable." He says that uniform, country-wide criteria for identifying potentially dangerous Islamists are necessary.

These are minor changes that could be made -- small adjustments -- to stabilize German security architecture.

One such change was recently made to telecommunication surveillance practices. In early November 2016, all state prosecutor generals and the federal prosecutor general agreed to a joint resolution allowing investigators to listen in on encrypted communication in the same way they are allowed to perform surveillance on unencrypted telecommunications, such as regular calls or text messages. In "less than 15 percent of the cases" is unencrypted telecommunication used exclusively, investigators say. In all other cases, suspects at least occasionally used encrypted communication channels such as WhatsApp. Officials can only break such encryption by deploying a Trojan and they are demanding a legal basis for doing so.

Thus far, though, they have been denied such a law. Now, though, domestic policy experts from the SPD, for example, want to include such demands in their party's position paper.

Tracking dogs belonging to the federal police force are another example. Due to budgetary constraints, the force does not have as many dogs as planned for. For the last 10 years, they haven't had the full allotment of 635 dogs, which are able to track one of the explosives commonly used by IS attackers, and plans are currently afoot to reduce that number. In 2008, the federal police force ceased training dogs due to a lack of need and it was only resumed in 2016. The result is that Germany has too few dogs that are able to find hidden explosives.

Three Approaches for Revamping Security

Merkel's grand coalition government is currently considering at least three different approaches to revamping the country's security policy -- the CDU's paper by de Maizière, the SPD analysis by Gabriel and calls made by the Christian Social Union (CSU), the Bavarian sister party to Merkel's CDU. It's no exaggeration to say that none of them is tailor-made to address the mistakes made in the Amri case.

De Maizière nonetheless does pose legitimate questions in his op-ed. Why, for example, is the federal government responsible for processing asylum applications but not for deportation when an application is rejected? The states handle that, but De Maizière wants to change the system. Many experts agree with him and also support his idea of creating deportation centers at airports.

The fact that the states are free to pick and choose how they work together often means that the fight against terror becomes scattershot. One notable result was that last year the federal office of domestic intelligence agency BfV was unable to name the precise number of "individuals with Islamist-terrorist potential." The figures weren't reliable, one confidential paper noted, because some of the state offices had withdrawn from the relevant working group.

Such examples make calls for centralized control of the security authorities sound quite reasonable. Serious breakdowns in the past have occurred because the authorities weren't coordinating properly with each other, they were working against each other or they were simply overwhelmed.

Would a strong federal police force be the right answer? Does it really make sense for each state to have its own domestic intelligence arm? Could such a system alleviate problems with incompatible databases and could top-down command ensure the speed and efficiency necessary for dealing with extreme situations? Yet even if such ideas seem justified, where would they lead? Would Germany then still need state criminal police offices? Would federalism still make sense? And what about modern-day Germany's historic mandate to avoid a repeat of the Nazi-era police state? Federalism provides a guarantee for mutual checks and balances between the federal government and the states.

This also helps to ensure a healthy democracy. And lest we forget, France provides the example that even a centralized executive is no guarantee for preventing terrorist attacks.
 
An About-Face

Angela Merkel has welcomed her minister's catalogue of demands. Indeed, she has always protected de Mazière from criticism. But she, too, was of the opinion that he hadn't been sufficiently outspoken on security policy to assuage the conservative wing of the CDU and CSU.

Prior to his Frankfurter Allgemeine op-ed, De Maizière had refrained from taking the political risk of making public demands, a reticence that has engendered criticism from both the CSU and elements within his own party. Among conservatives, it is considered certain that CSU chief Horst Seehofer will demand that a member of his party be assigned to head the Interior Ministry following elections this fall. In Bavarian state Interior Minister Joachim Hermann, he could have just the kind of conservative candidate he is seeking.

De Maizière, for his part, knows his post is at stake. He has always said that he doesn't like shooting from the hip and that he would prefer to present his ideas in closed-door discussions with the SPD rather than insisting on maximum demands on which he would later be forced to backtrack.

This time, though, he is taking that risk. He wrote this week's op-ed mostly on his own. He also knew the kind of opposition it would trigger. "He no longer wants to allow himself to be pushed around," says one leading CDU domestic policy expert. The expert said he thought that de Maizière's proposal not only made sense in terms of policy, but also as the right response to public sentiment. He believes the usual step of further tightening laws will not go far enough and that entirely new security architecture is needed.

During the first decade after 9/11, Germany passed a dozen new security laws. They made membership in a foreign terrorist organizations a prosecutable offense, established anti-terrorism databases and also loosened Germany's privacy protection laws. Then came new data retention rules and most recently the ban on being able to buy a SIM card for a mobile phone without presenting an ID. Taken individually, none of these measures has been very earth-shattering. Together, however, a bit of freedom has indeed been taken away.

Are Stricter Laws Truly Effective?

It also remains unclear whether stricter laws are even effective -- whether they serve as a deterrent or help prevent attacks. "After closer inspection, it turns out that some of the things that have been greatly praised, actually haven't delivered all that much," says former Justice Minister Sabine Leutheusser-Schnarrenberger of the business-friendly Free Democrats. She wonders where the developments are leading us. "In the end, all you have left are torture and the baseless surveillance of all people -- and we can't have that. Civil rights activists have almost no role left to play."

During its postwar history, the Federal Republic of Germany has experienced periods of liberalization as well as periods of rolling back liberalization like the one beginning now.

Nevertheless, even in conservative circles, enthusiasm for de Maizière's proposals isn't universal.

Anger is simmering, for example, within the Bavarian Interior Ministry. Some within the CSU are angry that the party's own ideas are being trumped and, under de Maizière's proposals, Bavaria's own state intelligence agency could be eliminated. For the first time in recent memory, CSU head Horst Seehofer and his party have seen their traditional dominance in the security debate eroding.

Nine months ahead of the general election, the parties in Chancellor Merkel's coalition government are faced with some fundamental decisions. They must settle whether they want to fundamentally reform the state, Germany's system of federalism and the security apparatus.

They could also choose to implement a number of small changes and, for a start, provide more money and staff to the often overstrained authorities.

Both variants could potentially improve the country's security, but they cannot provide a 100-percent safety guarantee. The first path would satisfy the need of many people for quick and easy answers.

That's likely to be very tempting to politicians.

The Left Gets Tougher

One other domestic security policy paper almost got overlooked in all the excitement over de Maizière's initiative. SPD leader Sigmar Gabriel put his own thoughts down on seven pages of paper, many of which came as a surprise to his own party. He too is calling for a stronger government and tougher laws, but at the same time greater prevention efforts including youth welfare and social work in the refugee hostels. He's also proposing an initiative, the Free Europe Network, aimed at counteracting jihadi propaganda on the social networks. "We won't defeat homegrown terrorism through criminal law alone," Gabriel told SPIEGEL in his interview. A strong government also needs soft power elements at its disposal.

For now, though, the debate is likely to go in another direction. Alarmed by their coalition partner's paper, several interior ministers and members of parliament with the SPD met with Justice Minister Heiko Maass on Wednesday night. They have already agreed upon the first key points for a position paper on domestic security. They include: a tightening of Germany's Residence Act, special initial reception centers for refugees whose identity has not been confirmed and ankle bracelets for those identified as potential Islamist threats.

It's not the time meekness.


By Melanie Amann; Maik Baumgärtner; Hubert Gude; Dietmar Hipp; Frank Hornig; Martin Knobbe; Ralf Neukirch; Conny Neumann; Sven Röbel; Jörg Schindler; Fidelius Schmid; Andreas Ulrich

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