Edited by Jacqueline E. Ross and Stephen C. Thaman
Chapter 14: The emergence of foreign intelligence investigations as alternatives to the criminal process: a view of American counterterrorism surveillance through German lenses
In the United States, as in Germany, efforts to counter terrorist threats make use of the government’s intelligence-gathering powers alongside the criminal process. But the division of labor between the two differs across legal systems. Germany, unlike the United States, differentiates such powers according to whether they implicate the preventive or reactive prerogatives of the state. In contrast to the United States, Germany strictly separates intelligence operations from criminal investigations by assigning the former exclusively to its intelligence services and the latter exclusively to its state and federal police agencies. This division is constitutionally mandated by the principle of separation, which has been a cornerstone of Germany’s post-war security architecture. In order to prevent dangerous concentrations of power in its executive branches, Germany’s post-war constitutional design prohibits intelligence agencies from conducting interrogations, making arrests, or exercising other coercive powers, while the police may not gather or analyze intelligence outside the confines of their mandate to prevent and prosecute crimes.A further distinction between the ‘preventive’ and ‘repressive’ prerogatives of the police themselves derives from constitutional norms that require judicial and prosecutorial oversight of police investigations that are used to generate evidence for criminal prosecutions and thus to justify deprivations of liberty through use of criminal sanctions.
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