Edited by David Cole, Federico Fabbrini and Arianna Vedaschi
Chapter 4: Secrecy vs. openness: counterterrorism and the role of the German Federal Constitutional Court
Germany is no newcomer to counterterrorism. In fact, it has struggled with terrorists since the early 1970s. But 9/11 tested Germany’s approach to counterterrorism in a special way. The fact that a number of Islamist terrorists had spent considerable time within Germany planning their attacks was a harrowing discovery for the authorities. It was therefore not surprising that the German state reacted swiftly to 9/11. In 2002, the legislature adopted two counter-terrorism packages that extended the competences of the security and intelligence agencies. Notions of openness and transparency underlie much of German constitutional-legal practice (though not explicitly mentioned in the Basic Law). These themes are especially relevant with respect to counter- terrorism – an area in which the tensions between openness and secrecy are extensive. Transparency, among others, implies clarity of legal regulation and democratic accountability of decision-making. The German Parliament (Bundestag) has the power to legislate in areas relating to the exercise of fundamental rights. This power is exclusive to the legislature, which means that the executive may not regulate such matters by way of delegation. Moreover, Parliament exercises oversight over the actions of the executive. However, the power of parliamentary oversight is not limitless, especially in the area of counterterrorism. The German Federal Constitutional Court (FCC) resolves disputes that arise between branches of the Federal Government. It also deals with constitutional complaints and examines the constitutionality of laws. Although the FCC has not declared the extension of the powers of the intelligence and security agencies unconstitutional, it has handed down a considerable number of judgments concerning security legislation.
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