Mon, Jun. 07, 2010

Counter Terrorism: Separation of Powers

GKM - Washington.   The observer of German counter terrorism policies since the 9/11 terrorist attacks in 2001, has seen fundamental changes in the German security architecture on the one hand, and great scepticism towards these changes on the other.

Frank Gadinger, a 2008 Research Fellow at the American Institute for Contemporary German Studies conducted research on the differences between German and American counter terrorism policies. With Dr. Dorle Hellmuth, Assistant Professor at the School of International Service at American University in Washington, D.C., he analyzed these policies in AICGS's recent Policy Report 41. In the context of their analysis, Gadinger and Hellmuth discussed these policies in a seminar titled Finding Security in an Age of Uncertanity: German and American Counterterrorism Policies on June 4, 2010. Gadinger focused on German polices, and outlined major differences, one of them being the Principle of Separation, Trennungsgrundsatz, a principle the German Supreme Court has developed.

This principle says that there must be a strict organizational and functional separation of law enforcement and intelligence agencies. The separation is considered necessary because of the fine-tuning of authorization and limitations: Law enforcement agencies are authorized to conduct actions that have severe effect on constitutional rights, such as the right to arrest someone or the right to use physical force. These authorizations are not only limited to, but also justified by the existence of an imminent danger for legally protected interests or probable cause that a crime has been committed.

Intelligence agencies are authorized, however, to collect information without the threshold of an imminent danger or probable cause. Therefore, they are not authorized to certain invasive actions. Thus, if these agencies were to cooperate too closely with genereal law enforcement agencies, intelligence agencies could access information that has been gathered in the course of police activities which the intelligence agency itself would not have been authorized to conduct. Misuse of power could be one result; an overly powerful intelligence agency the other.

This principle is unknown not only in the USA, but also in other continental European countries. Gadinger commented on the historical background as explained by the heinous experiences of Germany with a secret police, Gestapo, during the Third Reich. But, this principle has softened, as Gadinger demonstrated, in the course of national and international cross-collabaration of such agencies in the past few years.

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