On February 15, 2006, the German Constitutional Court (BVG) in Karlsruhe declared that the “Act on Aviation Security” introduced by the former SPD (Social Democratic Party)-Green Party government was unconstitutional and invalid. The aim of the law was to allow the German Defence Secretary to order the shooting down of civilian airplanes if “according to circumstances it can be assumed” that the airplane was “being used against human lives.”
The current interior minister, Wolfgang Schäuble (Christian Democratic Union, CDU), has reacted to this judgement by proposing a constitutional amendment that goes much further. Schäuble’s proposed law not only permits the shooting down of civilian aircraft in the case of an assumed terrorist attack, but also authorises the government to mobilise the German army for domestic purposes against the civilian population.
To this end, Schäuble wants to expand article 87a paragraph 2 of the German Basic Law so that the armed forces can be mobilised not only for the national defence, but also “for direct defence against any other attack on the foundations of the community.”
According to the line of argument employed by the interior minister, the international legal rules of war would then apply in such cases of “quasi-defence.” Such rules permit military attacks on civilians, and such attacks are only ruled out if they “bear no relation to the anticipated concrete and direct military advantages.”
Schäuble’s argumentation serves to annul the reasoning employed by Germany’s highest court in rejecting the aviation security law. The BVG had based its judgement on article 1 of the Basic Law, which declares that “human dignity is inviolable” and that the sacrificing of innocent lives in order to save others is incompatible with the constitution. Human lives cannot be exploited in such a way as to play off one against another.
Schäuble has reacted—as has the Bush government in the US—by declaring terrorist attacks and other “attacks on the foundations of the community” to constitute an act of war. In so arguing, the distinctions are blurred between an international attack and domestic crimes, between combatants and criminals, between war and peace. According to Schäuble, what is at issue is a matter of “outdated terms.” The protection of human dignity, guaranteed in the constitution, is “eminently limited in extreme emergency situations”.
In fact, the formulation “attacks on the foundations of the community” is so imprecise as to allow any sort of interpretation. Schäuble repeatedly refers to the scenario of the September 11 terrorist attacks, when terrorists flew two passenger planes into the World Trade Centre. In the current proposal for a constitutional amendment, however, there is no mention made of either airplanes or terrorism. The reference to “any other attack on the foundations of the community” could equally apply to such events as large-scale protest movements or a general strike.
On January 5, in a detailed piece in the Tagesspiegel newspaper, Schäuble made clear that his primary concern was not the defence of ordinary citizens but rather the defence of the state. His proposed regulation was to be “assigned within the sphere of the political,” he writes. “The averting of danger concerns the protection of individual legal interests. The foundations of the community, on the other hand, are a collective property. If the state as a whole is threatened, it is entitled to defend its existence and do what is necessary to protect the legally defined community against attacks aimed at causing its destruction.”
Hobbes penned his Leviathan immediately after the English civil war and defended a conception of the absolute state in which individuals surrender all their rights by relinquishing their liberty. According to Hobbes, the task of the all-powerful Leviathan is it to fight the monster “Behemoth” with all available means. By Behemoth, Hobbes understood the social revolution.
According to this logic every fundamental right, every form of protection of the individual citizen, can be done away with should the government conclude this is “necessary” to defend the state. Schäuble has already declared that he is in favour of using information obtained through interrogations involving torture employed by other states in order to protect the German state against terrorism.
The interior minister justifies his attacks on basic democratic rights by arguing that the “new terrorism” has created a completely new infrastructure and is directed “against society as a whole.”
He has also referred to United Nations resolution 1368, which gave the Bush administration an international cover for the war it was planning in the “war on terror.” This was the resolution that provided the very dubious justification under international law for the subsequent war against Afghanistan, where Al Qaeda operated under the protection of the Taliban government. Resolution 1368 in no way provides any basis for introducing martial law for the domestic struggle against terrorism.
In the Süddeutsche Zeitung, Heribert Prantl compared Schäuble’s proposed constitutional amendment with article 68 of the constitution of the German Reich of 1871, which provided a legal framework for the so-called “state of siege of the Reich.” According to this article, the emperor could impose a state of emergency and set aside basic rights when there was evidence of an “urgent danger for public security” that could not be dealt with through “usual means”—i.e., the deployment of police.
In fact, it was not necessary to go back as far as the German Reich. The constitution of the Weimar Republic from 1919 stated in article 48 paragraph II: “When the public security and order of the German Reich are substantially disturbed or endangered, then the president of the Reich can take the necessary measures to restore public security and order, if necessary with the assistance of the armed forces.”
This clause was used by President Friedrich Ebert (SPD) up to 1921 on no fewer than a dozen occasions, usually to suppress political movements by workers protesting against the prevailing conditions under capitalism. These movements were then combated with fierce brutality by the German army and extreme right-wing Freikorps (militia) forces.
Many commentators have sought to trace the uncompromising obstinacy with which Schäuble insists on realising his aim of providing a legal framework for the mobilisation of the German army for domestic purposes to personal idiosyncrasies. In reality, Schäuble’s stance is the logical consequence of the policies decided by Germany’s ruling grand coalition (SPD, CDU and Christian Social Union).
The coalition contract worked out by the union parties and the SPD declared: “In view of the threat posed by international terrorism, the borderline between external and internal security is becoming increasingly blurred.... Following the decision by the Federal Constitutional Court on the Act on Aviation Security, we will examine whether and to what extent there is a need for constitutional amendments.”
In spring of this year, the German defence secretary, Franz Josef Jung (CDU), had already demanded a redefinition of cases of defensive action to include terrorism. The government’s White Paper on Security Policy published last autumn stated that the government saw the necessity for “an expansion of the constitutional framework” in order to make possible the intervention of the armed forces and the use of military means for domestic purposes.
According to a report in the taz newspaper (January 6), the domestic affairs speaker of the SPD, Dieter Wiefelspütz, is also calling for “a changed interpretation of the term of defence.” Wiefelspütz maintained “it was irrelevant who was behind the dangers or attack.” In his view, defence is the protection of national territory and its citizens when “police action is demonstrably insufficient for defending against danger.”
The grand coalition was formed at the end of 2005 to implement the socially retrograde Agenda 2010 polices drawn up by the SPD-Green government in the face of growing popular opposition. Now, the collaboration of the country’s two largest political parties has stripped away any possibility of opposition within the realm of parliamentary institutions. This in turn has the inevitable consequence that increasing social tensions find expression outside of these institutions.
Just a few weeks ago, the long-time editor of the weekly Die Zeit, 75-year-old Theo Sommer, warned of the dangers of such a situation for the ruling elite in Germany. “If sufficient people believe that that they are being robbed of any chance of living their lives by a stark economic reality, they will rise up. Even in our part of the world, nobody can absolutely guarantee that there will not be a revolution in the future. One should not abuse history through lack of imagination.”
It is in this context that one must analyse the assault being conducted by Schäuble on basic constitutional rights. Under the pretext of counterterrorism, the government is assuming the same sort of authoritarian powers that have previously being used in Germany by an emperor and Weimar president of the Reich to suppress social opposition and the socialist workers movement.