O Tribunal constitucional alemão e as leis de segurança

Esta matéria foi enviada pelo Prof Farlei Martins. Sobre o assunto não deixem de lerem a obra do qual fui organizador Constituição e Estado de Segurança nas decis~~oes do Tribunal Constitucional Federal alemão publicada pela Editora Juruá em 2008. Leiam e divulguem!




Dissent Magazine
Winter 2009
Terrorism and the Constitution: Looking at the German Case
By Ralf Poscher
The U.S. Supreme Court reacted slowly to the constitutional questions raised
by post–September 11, 2001, anti-terror strategies. Many questions of
constitutional law are still unanswered. There have been no rulings on the
“special treatment” of detainees in the fight against terrorism. 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 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. On this
view, the best way for constitutional courts to deal with anti-terror
measures is to look the other way.

In light of this American reaction, the recent judgments of the German
Federal Constitutional Court seem to come from a different legal planet. 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. The consistency and tenacity of its
rulings—at times against strong political criticism—have surprised many
observers.

The task of setting constitutional limits to legislative and administrative
anti-terror measures is not only politically delicate but doctrinally
demanding. 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? Is there a threshold for preemptive data mining?

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. 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? 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 on anti-terror measures. The dynamic of the fight
against terrorism tends to undermine doctrinal standards fundamental to
constitutional law. Constitutional courts have to elaborate or extend
traditional doctrinal standards or design new ones. A brief account of some
major decisions handed down by the German Court can suggest one way of
approaching this challenge.

THE 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. 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. 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 core of privacy comprises, inter alia, communications of inner
feelings, intimate family life, and sexual relations. The Court interpreted
the constitutional amendment in a way that would not infringe on this core
of privacy. But it declared the criminal procedure rules unconstitutional
because they did not provide safeguards against violations of the dignity
provision.

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.
Information obtained from this sphere cannot be used in any circumstance and
is not allowed as evidence in any court procedure. 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. 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 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. 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.” For
intensive measures such as the surveillance of telecommunications, the Court
required concrete evidence of an involvement in criminal activities. 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. Most police codes now include
provisions that allow such dragnet investigations in the case of a concrete
danger of serious crimes. 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 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. Screening the population for the
ordinary is self-defeating. The legal problem lay in the threshold “concrete
danger.” A concrete danger demands that there be at least some temporal,
local, or personal concretization of the crimes that the measure aims to
prevent. 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. 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. 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 will 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. 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 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. 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. This strict position was
recently supported by a judgment of the European Court of Human Rights on
the case.

THE SERIOUSNESS with which the Constitutional Court takes the protection of
human dignity became even clearer in 2006. 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). 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. Although the competence
obstacle could be overcome by a constitutional amendment, the dignity clause
is not open for revision. 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. 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 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. 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. 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 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. 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 bill that allows the
federal Criminal Police Office to operate online searches of personal
computer systems under the restrictions the Court has outlined. There is
still a political debate about some substantive and procedural nuances of
the bill, but as soon as it is passed it will serve as a model for other
federal and state police codes.

These decisions highlight only some major cases. 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 procedural—safeguards. Worth mentioning is the
obligation to monitor and report publicly to the Parliament on the
employment of anti-terror measures. The first report was released in 2005.
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. 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.

MANY 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. 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
threat-of-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.
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. There can
be video surveillance of a public place, but the police have to show that
there have been more crimes in that place than in others, and the
surveillance activity has to be made public to make the intrusion less
intense. More intrusive measures require a “concrete danger.” 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. 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. Third, the absolute and material standards are
accompanied by procedural safeguards that ensure a prior check and later
public or judicial control. 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.
Procedural safeguards like these compensate for the deficiencies of the
relative standards when overwhelming damage is to be feared.

These constitutional restraints rarely deprive the agencies of their
capacity to act. They mostly require them to use their powers with
consideration for individual rights and for the more global effects on
society. 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 anti-terror
measures has led to any significant incapacity. 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; in 2003, they seized three Palestinians who planned an attack on
Jewish institutions in Düsseldorf and Berlin; in 2004, they uncovered a plan
to assassinate the Iraqi prime minister in Berlin; in 2006, they blocked
preparations for an attack on an El Al airplane in Frankfurt; in 2007, they
arrested two Germans and a Turk who had stored several barrels of explosives
for attacks on U.S. military institutions in Germany; and in September 2008,
they arrested two suspected terrorists whom they had watched for months.
Among anti-terror experts the German security agencies are generally
respected for their reliability and effectiveness.

TEACHING 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.
Bourgeois society was not created in Germany by a democratic revolution, but
by the Rechtsstaat. 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 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. Much can be said for societies like the American, where
trust in the democratic political process is more deeply rooted, where
people believe that the political process itself will 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 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.

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. 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. Two things have been
achieved. First, legal standards protect individual rights. They can be
activated by each individual in each instance when they are endangered.
Individual rights empower individuals: they are not dependent on public
opinion, political rallies, alliances, or majorities. 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, will 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. 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. Second,
legal standards 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. Doctrinal solutions are always specific to the
context of a given legal order. Furthermore, different societies face
different challenges. Germany is not a global power. 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.



Ralf Poscherholds the Chair for Public Law, Sociology, and Philosophy of Law
at Ruhr University Bochum. This article was written during a sabbatical at
the Institute for Advanced Study in Princeton.