Terrorism and the Constitution: Looking at the German Case

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...