Federal Conference of the Ministers of the Interior

The “Politics II” BigBrotherAward goes to the Conference of the Interior Ministers of the Federal States represented by its chairman, Günther Beckstein (CSU¹), the Interior Minister of Bavaria.

The Interior Ministers Conference receives the award for its resolution on 4 Sep 2006 to establish a joint anti-terror database, which is to be supplied and used by all German police forces and all 19 intelligence services on the national and federal state level. With this network, police and intelligence services will become more entwined — despite the constitution calling for a strict separation of these two kinds of state security agencies.

The Conference has thus opened the door to a fatal re-unification in security politics. It formulated the cornerstones of this networking scheme, which have now largely been adopted by Federal Interior Minister Wolfgang Schäuble (CDU²) in his draft “joint data law”³. After the Federal Government passed the draft on 20 Sep 2006, only the Federal Parliament (Bundestag) can stop the project now.

According to the Conference, a central anti-terror database (originally to be called “Islamists database”) is necessary not least because of the attempted train bombings of Koblenz and Dortmund — while it is known that the two alleged attackers had not been conspicuous in any way, neither to the intelligence services nor to the police. They would therefore never have been registered in such a database.

The Conference speaks of a necessity of “improving cooperation between the police and intelligence services, especially through sharing data on terrorists”. By using these words, they hide the fact that the database is not supposed to be one of convicted criminals but essentially a preventive list of suspects. To make someone such a suspect, “genuine evidence”, whatever that is, will be sufficient. And even personal data of alleged “contacts” of suspects are to be stored in the new database. So even the social surroundings of mere suspects, such as family, children, colleagues, business partners, lawyers, landlords, sports friends etc. are under threat of being systematically registered in this database, and people who have not committed the slightest offence might come under the grave suspicion of supporting terrorism. It is stigmatising to the extreme if people are to be stored in a terrorism database for nothing but suspicion.

The anti-terror database will be kept at the Federal Criminal Police Office (Bundeskriminalamt, BKA). Almost 40 other security authorities will be authorised to enter and access data: the Federal Police (Bundespolizei, formerly known as Bundesgrenzschutz or Border Protection Police), the Customs Criminal Office (Zollkriminalamt), the Federal Intelligence Service (Bundesnachrichtendienst, BND, Germany’s foreign intelligence agency), the Federal Constitution Protection Office (Bundesamt für Verfassungsschutz, the domestic intelligence agency on the federal level), the Military Intelligence Agency (Militärischer Abschirmdienst, MAD), the Federal States’ Constitution Protection Offices (Landesämter für Verfassungsschutz, the domestic intelligence agencies on the state level), the states’ Criminal Offices (Landeskriminalämter) — and other police forces, if specific reasons are given. All these security authorities are obliged to supply data — only in individual cases, for reasons of secrecy or protecting sources can this be waived, partly or completely, or the data can be shielded from access by a “hidden” kind of storage.

The anti-terror database will be designed as an extended index, or more precisely as a combination of full data and index. This means that on access, authorities can find out immediately whether another authority holds information on a suspect person, group, company or foundation. They see full data on only basic items at first, such as identifications (including “distinguishing physical features, languages, dialects, photos …”), and references (index) to findings or incidences stored with other authorities. As a second step, the inquiring institution will request the respective authority to release an extended record, which is stored in a hidden area of the database and might contain sensitive personal data about suspects and some contacts — such as communication partners, financial transactions, school and professional education, places of work, driving and flying licences, abilities with “terrorism potential”, everyday and travelling movements, even details of ethnic and religious identity and maybe soon deviant sexual behaviour, as called for by Dieter Wiefelspütz, spokesman on interior policy of the Social Democratic Party (SPD). This catalogue, says the Conference's resolution, is supposed to “facilitate a reliable threat assessment by the security authorities”. Also, “specific notes, additional remarks and evaluations” by the participating authorities are to be included. This backdoor clause paves the way to a full-text database that can be extended at will. Next to the permanent creation of the anti-terror database, joint “project databases” with personal data are to be legalised, which police forces or secret services can set up on occasion and keep and jointly use for up to four years. It makes one wonder if the poisonous “fruits of torture" will be stored in these files as well. After all, Federal Interior Minister Schäuble deems it compatible with basic human rights if German security authorities are allowed to profit from inhuman prison conditions and interrogation practices in other countries, and maybe use confessions and other evidence gathered under torture to avert threats.

Access to initially hidden areas of the anti-terror database is projected to be given to requesting authorities via a fairly trouble-free online procedure, “as far as is necessary to fulfil the particular objectives of investigating or defending against international terrorism”. If a reference to a hidden area is encountered, clearance is to be “granted immediately”, to quote the Conference's resolution — which probably means automatically and without a factual and legal assessment of the individual case. The draft law speaks of a decision according to existing rules on data sharing. This means that every storing authority will have to adhere to its legal regulations when responding to a clearance request. When requests are granted, data can be accessed online. In urgent cases, e.g. to prevent an imminent terrorist attack, access will be possible without prior approval — the interior ministry talks about data transfers within seconds, “at the press of a button”.

The anti-terror database therefore gives police forces at the national and federal state level simpler ways of accessing unsubstantiated preliminary information from intelligence agencies, and these agencies in turn get access to highly sensitive suspects’ data from the police.

Why, then, is this shared data pool such a problem? This kind of linkage is ultimately revoking the constitutional mandate to separate police and intelligence institutions — which, after all, was a historically essential lesson from the painful experience with the Nazi Gestapo (Geheime Staatspolizei, Secret State Police), which engaged in both intelligence activities and executive law-enforcement. The mandated separation, a consequence of the principle of the rule of law as laid down in the German constitution, was enacted in then West Germany to prevent an uncontrollable and therefore undemocratic concentration of power in the security apparatus and a new political secret police. The negative experience made in former East Germany with its “Stasi” (Staatssicherheit, State Security), which was intelligence authority and police force rolled into one, reinforces the original intention of the German constitution.

While this separation (which was meant to go beyond the organisational-functional level) has long been perforated in the last decades, it would practically be abolished with an online electronic data exchange between police and intelligence agencies such as the one projected by the Interior Ministers' Conference. There is the danger that secret or intelligence services would tend towards becoming an intelligence gathering extension of the police, and that police forces would mutate into an executive branch of the intelligence agencies. Internal reviews of individual cases of data sharing, which had been routine under the mandate of separation and the principle of informational self-determination, are clearly being reduced at this time. To control the flows of data is therefore going to be a hopeless task — even if every access to the database is to be logged and data protection commissioners can perform audits under privacy laws.

We are seeing a fatal structural change here — or to put it another way: one element of a new security architecture, whose aim it is to gradually abolish constraints on state power. This reshaping of the liberal-democratic, law-based state has been going on for a long time. At the core of the process are two taboo breaches that have a particular significance in the context of Germany’s history. One, as already mentioned, is the increasing linkage between police and intelligence agencies. Apart from the anti-terror database, the Berlin based “joint terrorism defence centre”, where police and intelligence services have been working together directly since 2005, shows this development. The second breach is the militarisation of “interior security”, which is most visible in the deployment of the German army (the Bundeswehr) as a regular reserve security force — even though police and the military, for historical reasons and according to the constitution, are to be strictly separated.

The anti-terror database must also be understood on the background of the anti-terror laws enacted after 9/11 (the “Otto Catalogues”, for which former Federal Interior Minister Otto Schily received a Big Brother Award), which drastically extended the remits and powers of secret services and police, and also significantly increased the “density” of surveillance in state and society. It must further be seen in the context of the planned “terrorism defence supplementary act”, which the governing “grand coalition” recently put before parliament with the aim of not only prolonging the soon to expire anti-terror powers of 2002 for another five years, but extending them as well — without presenting an independent, critical assessment of the current anti-terror laws and their effects first. Now all secret services are to be given yet more powers, not only for averting terrorist threats, but even for intelligence gathering on anti-constitutional activities that could further violence. Exceptional anti-terror instruments for the secret services are thus made into everyday, regular competences.

To sum it up: with an anti-terror database at the centre of a new anti-terror network, we see the (at least partial) unification of what should not be unified, we see the disposal of important democratic lessons from German history and the sacrificing of constraints of governmental power to an unrestrained attitude of prevention. Maybe the anti-terror laws will eventually have to be decided upon by the Federal Constitutional Court⁴. The court has had to declare several laws and measures unconstitutional in the last few years — such as the “Major Eavesdropping Attack”⁵ with electronic bugs in and from private residences, preventive telecommunications surveillance, the licence to shoot down hijacked aeroplanes in the airfare security act and excessive “dragnet investigation”⁶ to try and find so-called “sleepers”. Respect of the constitution seems to be dwindling in the political classes in the course of fighting terrorism — strictly speaking, this should be a case to consider for the Constitution Protection (Germany’s domestic intelligence agency), if not for storage in the anti-terror database.

The Big Brother Award 2006 to the interior ministers of the German federation and of the federal states is consciously given in a preventive way, before their resolution is put into practice. The Bundestag now has the last word, it is the only institution that could still stop this project. We regard this award as a measure of threat prevention and as work relief for the Federal Constitutional Court.

Congratulations, Mr Chairman Beckstein, heartfelt congratulations to all responsible members of the Interior Ministers Conference.