Security authorities view the surveillance of homes and communications indispensable to fight terrorism. Civil rights advocates disagree. The Federal Constitutional Court will now have the last word on the subject.
Shortly before Christmas Eve 2008, German police authorities received an early present. Politicians cleared the way for a "law allowing the Federal Criminal Police Office (BKA) to ward against the dangers of international terrorism." After long, tough negotiations the ruling coalition of conservatives and social democrats finally agreed to pass the new BKA Act. The last legislative hurdle was cleared on December 19: After passing through the Bundestag, the lower house of German parliament, the law was also passed in the Bundesrat, or upper house, by a 35 to 34 vote - over the objections of the Free Democrats (FDP), the Greens and the Left Party.
On Wednesday, the Federal Constitutional Court will decide the fate of this law, which has been contentious from the very start. Among the plaintiffs are both retired and active politicians. These include former Federal Interior Minister Gerhart Baum (FDP), and the sitting Chairwoman of the Committee on Legal Affairs of the German Bundestag, Renate Künast (Greens). The plaintiffs criticize the paradigm shift in German security policy, for the law allows the BKA to investigate proactively - and to use methods that were previously only available to intelligence services and the Office for the Protection of the Constitution.
Journalists are second-class professional 'secret keepers'
Critics say that the possibility of surveilling the telecommunications of so-called "bearers of professional secrecy" is unconstitutional. This group includes lawyers, doctors and journalists. These enjoy only partial protection, whereas politicians, clergy and other criminal defense lawyers are off limits for such eavesdropping.
However, during parliamentary hearings it wasn't just constitutional lawyers that warned about softening the rules of separation between the police and intelligence services. Even the former President of the Federal Intelligence Service (BND), Hansjörg Geiger, voiced grave concern: The individual must be free from the fear "that state authorities will monitor his activities in his own home." The BKA referred to its own former president, Jörg Zierke, in pointing to the growing threat of terrorist attacks. It is estimated that some 50 Germans are being trained as potential attackers near the Afghanistan-Pakistan border. Moreover, another 100 or so "threateners" are being observed by the BKA and state criminal investigators.
No one knew about IS when the BKA Act was passed
It has been eight years since the law went into effect, and Zierke's successor Holger Münch tirelessly points to those persons fighting with the self-proclaimed "Islamic State" (IS) in Syria and Iraq as justification for its necessity. Since 2008 the number of conflict zones in the world has continually increased, and so has the number of "threateners" returning to Germany according to security authorities. The BKA Act, so it may seem, came at just the right time. Supporters also point out that the surveillance of telecommunications such as Skype calls is not allowed without authorization from a judge, with the only exception being extremely rare cases in which "a threat is imminent," as Zierke said in 2008.
From Federal Interior Minister Thomas de Maizière's (CDU) point of view, the expanded competencies of the Federal Criminal Police Office have paid off. He says there have been some 1,500 "threat-relevant leads," but only 15 preliminary investigations as a result of the BKA Act. In an oral hearing before the Federal Constitutional Court in July 2015, de Maizière testified that this is evidence that the BKA is exercising its authority "with great care." The hearing was conducted to determine whether the BKA Act had upheld the principle of proportionally over the course of the nine preceding months.
Critics talk of a German FBI
The hearing was not only concerned with the number of surveillance measures, but also the quality of those measures. Because the BKA is also allowed to gather human intelligence by using its own undercover investigators and by hiring confidential informants, or liaison officers with close contacts to suspects. Constitutional law expert Christoph Möllers has rejected the expanded authority since 2008, referring to the BKA's American counterpart the FBI. He says that the core of America's security architecture, as compared to that of federalized Germany, "doesn't work very well."
Opponents of the BKA Act warned that the potential passing on of BKA information to foreign intelligence services could lead to the abduction of German terror suspects. That concern is based on real events. Two Germans, Murat Kurnaz and Khaled el-Masri, were in fact illegally kidnapped by the US Central Intelligence Agency (CIA) in the early days of the "War on Terror" that began after the World Trade Center attacks on September 11, 2001.
Fear of attacks has grown, but so has the fear of increased surveillance
Investigative committees in the Bundestag have also dealt with the fates of the two men. Not coincidentally, such committees have looked closely at the role that German intelligence services played in the abductions. El-Masri claims to have been questioned by BND and BKA agents during interrogations that took place while he was in US custody. Media reports, however, assert that he also had contacts to the Islamist scene in the Swabian town of Neu-Ulm. Regardless of the validity of claims from either side, the case shows just how a person can go from being suspected to being hunted.
The Federal Constitutional Court will now have to determine how the security needs of the state can best be balanced against civil rights. Not an easy task in the wake of the Paris and Brussels attacks. Fear of deadly attacks in Germany has become noticeably greater since the BKA Act was introduced, but so has the fear of unlimited surveillance. Edward Snowden's public revelations about the BND's role in helping the US spy agency NSA in their massive global telecommunications surveillance program made sure of that.