2001 ff.: The permanent emergency

On October 18, 2001, Otto Schily stood in the Bundestag and said a sentence that summarized the coming years of German domestic policy. Freedom and security should not be played off against each other. He then formulates his order: “Security is the prerequisite for freedom.”

A remarkable sentence. Schily had defended Gudrun Ensslin and Horst Mahler, in 1980 he was a co-founder of the Green Party, and in 1989 he switched to the SPD. And in 2001, at the age of 69, the former civil rights lawyer became the architect of a new German security state.

Five weeks earlier, the attacks of September 11th had shaken the idea that Western societies could make themselves safer and freer through open borders, liberal legal systems and international networking. Something else happened in Germany: some of the attackers had lived and studied in Hamburg for years. The terror had a German address.

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Gerhard Schröder's government promised the USA "unrestricted solidarity", and the state of emergency that began at that time looked different than how states of emergency are usually imagined. No tanks on the streets, no curfews. It came in the form of legal changes, new data access and expanded responsibilities. The state of emergency was not declared but managed.

Just a few weeks after the attacks, the red-green federal government passed an initial security package. Security authorities received more money and staff, and the so-called religious privilege in association law was abolished. Religious associations, like other associations, could now be banned if they went against the constitutional order or pursued criminal purposes.

The second package went further. On December 14, 2001, the Bundestag passed the Anti-Terrorism Act and it came into force at the beginning of January 2002. Intelligence services were given new opportunities to obtain information from banks, airlines and telecommunications providers. Immigration law was tightened. The legislature created the possibility of biometric features for passports and identity cards - the electronic passport with a digital facial image came in 2005, and from 2007 fingerprints were also stored in it.

More important than the individual measures was the direction in which they pointed. Security policy shifted from reaction to prevention.

The classic constitutional state has a relatively simple starting point: someone does something forbidden, the state investigates and then punishes them if necessary. The new security logic does not only ask about an act, but also beforehand about the risk of a possible act. Who could be dangerous? What connections could indicate a network? Which data combine to form a pattern?

That sounds reasonable at first. A state that wants to prevent a terrorist attack can hardly wait until it has been committed. But as the question changes, the subject of state attention also changes. It's no longer just suspects who come into focus. But people who share characteristics with possible suspects.

Hardly anything showed this more clearly than the dragnet search after September 11th. Police authorities had mass amounts of data compared. The search was for supposed “sleepers”, young men with certain origins, religious affiliations, residence status and study biographies. In North Rhine-Westphalia alone, around 5.2 million data records were transmitted to the police. Nationwide, the data of about 32,000 people ended up in a file called “sleepers.”

However, there was no concrete evidence against these people, but that was precisely the principle of the method. The search was not for a perpetrator about whom we knew something, but for people who resembled a constructed perpetrator profile. The dragnet search did not reveal a “sleeper”. In 2006, the Federal Constitutional Court drew the line: Karlsruhe ruled that searches should not be carried out in this way without a concrete danger.

It is a conflict that has accompanied German security policy ever since. On the one hand, there is the desire to know as early as possible where a danger could arise. On the other hand, there is the question of how early a democratic state can actually declare its citizens to be potential threats.

For Muslim citizens after 2001, this question was not a legal abstraction. Mosques were monitored, Islamic associations were checked, and residence and security laws were more closely linked. The three protocols on pages 28 and 29 in this issue tell us what this general suspicion felt like in everyday life.

Because the new powers should not actually apply forever. After five years, it should be checked whether the state still needed these instruments. This corresponded to the logic of the state of emergency: an extraordinary threat justifies extraordinary measures - but only as long as the extraordinary threat exists.

But in 2007 the powers were continued and partially expanded. 2011 again. 2015 again. Each time there was a reason why now was not a good time to do without them. Islamist terror had not disappeared. There were new attacks and new forms of radicalization. At the same time, right-wing extremist terror became more central to the security debate. And then the time limit itself disappeared.

In November 2020, the Bundestag decided, with the votes of the Union, SPD and AfD, to no longer limit central powers from the period after September 11th. The law came into force in December. Information options for air traffic, financial service providers and telecommunications companies, the use of so-called IMSI catchers to locate cell phones and other instruments that were once introduced in response to an exceptional situation were now permanently part of security law.

Security laws have a political advantage that makes them difficult to repeal. Your success can hardly be measured. If no attack occurs after the introduction of a new authority, this may mean that the measure has been effective. But it could just as well mean that no one was planning an attack. Or that classic police work prevented him. Or international intelligence cooperation. Or coincidence.

Conversely, abolishing a security measure is politically risky. If an attack were to occur afterwards, questions would immediately be asked as to why the state chose not to use an instrument that might have prevented it.

Perhaps the most important legacy of 9/11 is not a particular surveillance technology or a single law. But rather in a habituation, in the fact that we have gotten used to the fact that airports are security zones. That biometric data is in passports. That secret services request information from private companies. And that large data sets can be linked together for security purposes.

The effect: Today, 25 years after September 11th, the state of emergency feels like a normal state. Not like the exception.