25 years of anti-terror laws | Advance state power

The “security packages” of 2001 and 2002 came into force under the then Federal Minister of the Interior Otto Schily (right). The focus was on police secrecy. Photo: dpa/Holger_Hollemann The attacks of September 11, 2001 in the USA were also a turning point for internal security policy in Germany and the European Union. “We have to face the situation,” said Jörg Ziercke, the President of the Federal Criminal Police Office (BKA), who has been in office since 2004. What is meant is risk-based monitoring of the “preliminary action”, also known as “pre-emption”: the police should take action before a concrete danger or a decision to commit an offense occurs.

Just eight days after the attacks, the German federal government under Interior Minister Otto Schily (SPD) launched the first "security package" aimed at association and immigration law. From then on, religious associations could be banned under association law. The deportation of foreigners who the authorities accused of supporting terrorism was also made easier. A few months later, a “Criminal Law Amendment Act” created Section 129b of the Criminal Code, which makes membership in or support of a foreign terrorist organization prosecutable in Germany.

The second “security package” came into force on January 1, 2002 as the “Anti-Terrorism Act”. It regulated the later establishment of an “anti-terror file” that draws on the databases of all security agencies and thus undermines the principle of earmarking the storage of sensitive information. Since then, this data has been allowed to be searched using “dragnet searches” – a forerunner of “palantization,” in which computers search for connections between actions or people in various sources using opaque software.

The “Security Package II” changed 17 laws and six regulations. Partly because the federal states were critical of the BKA's expansion of powers, it was limited to five years. With the first “Anti-Terrorism Supplementary Act”, the special powers became the rule from 2006 onwards, with further extensions following in 2011 and 2015. The authorizations were then incorporated into the newly structured BKA law, and from the point of view of critics, this cemented the weakening of the requirement to separate the police and secret services.

9/11 also marked a turning point at the EU level - until then, action against terrorism was largely left to the member states. The most important new pillar of cross-border cooperation after the attacks in 2001 was the framework decision on combating terrorism, which came into force in 2002, contained a common definition for the first time and harmonized the penalty framework for such acts across the EU.

The framework decision also brought with it the “EU terror list,” which lists people or groups that are considered to be involved in terrorism. Inclusion on the list is possible at the suggestion of just one Member State, provided no other country vetoes it. Sanctions can then be imposed against those affected.

The list thus also became an instrument of political arbitrariness, because alleged involvement in terrorism does not have to be publicly proven. As far as Germany is concerned, this is reflected in the continued listing of the Kurdish PKK as a “foreign terrorist organization,” even though it has renounced armed struggle in Turkey.

Part of this forward shift in criminal prosecution is also the introduction of the term "threat" for the fight against extremism as a precursor to terrorism - previously this was only mentioned in Germany in the context of violent football fans. In 2004, the BKA and the state criminal investigation offices agreed on a vague working definition for “right-wing extremist,” “left-wing extremist,” “religious,” or “threats” motivated by “other foreign ideologies.”

Since the German Presidency of the Council in 2020, the Federal Ministry of the Interior has been committed to introducing the term at EU level - even in its German spelling. From a legal perspective, however, “threats” are blameless, unconvicted people who should nevertheless be monitored and prosecuted by the police. The term is therefore symbolic of the secretive nature of police work after 9/11.

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