Dangers to the Constitution

Germany's landmark immigration law will not introduce a law-free zone in which foreigners suspected of ties to terrorist groups can be held without trial or legal representation. That is a good thing. After the March bombings in Madrid, Interior Minister Otto Schily had proposed creating a lawless enclave for foreigners who could not be deported for humanitarian reasons. The opposition Christian Union parties urged the government to make this a cornerstone of its immigration law.

In its yearly report on threats to the constitution, presented last week, the government again stressed the danger posed by violent Islamic militants. Terrorists, the report said, targeted civilians who could not be protected by police guards. But those who have been following Schily's remedies for the terrorist threat may wonder whether the Interior Ministry is aware of the most acute danger to the constitution.

In this context, it's useful to recall the circumstances surrounding the creation of the U.S. constitution. Its authors had witnessed the power of unlimited government: destructive taxation, government spying on citizens, corruption and debasement of the legal system, imprisonment and murder of dissenters.

That is why the constitution sets strict limitations on the power of government. It is also why the authors of the constitution continually warned that the government was the greatest danger to the constitution, which itself is nothing more than a contract giving government bodies the authority to rule as long as they played by the rules.

Schily's proposals have followed in the footsteps of legislation passed in the United States in October 2001, legislation that has come under heavy criticism across the globe for the sweeping powers it accords government. Known as the Patriot Act, it gives the government the right to arrest people accused of being “enemy combatants“ and incarcerate them without trial or legal representation. The military prison in Guantanamo Bay naval base in Cuba is the most notorious example. But hundreds have been arrested and held as enemy combatants in the United States under the Patriot Act as well. The U.S. Supreme Court is currently deliberating the legality of Guantanamo.

Fortunately, Schily's failure to gain the necessary support for holding foreigners without charge leaves habeas corpus in place in Germany. But he is has made several other proposals that should put patriots on their guard. One seemingly benign suggestion foresees better enabling of the police to pre-empt future terrorist attacks. Initially, the Social Democrat wants to give the federal police access to data gathered at the state and local level. That would make a central agency responsible for collecting and interpreting data. In a second step, Schily wants to give the federal police agency access to data collected by Germany's secret service, BND, another central aspect of the Patriot Act. As one Free Democrat pointed out, giving the police unlimited electronic access to secret service information would violate the most basic principles of the state. The secret service is allowed to place wire taps and read letters without warrants because it does not have executive authority. The police are subject to much stricter rules because they do have this authority, which is also why there is a constitutional separation of secret service and police.

German voters will have to decide how much value they place in their constitution. In the United States, the battlefield is clearly divided. “Who will run the war on terrorism?“ asked Jay Sekulow, legal counsel for the conservative American Center for Law and Justice, which supports the government's position. “Will it be hundreds of U.S. district court judges across America, or the president as commander-in-chief of the U.S. Armed Forces?“ The opponents of government's sweeping new powers like to quote Benjamin Franklin: “They who would give up an essential liberty for temporary security deserve neither liberty or security."