Democracy Under Pressure Germany Balances Liberty and Security in Face of Terror
Part 2: Where Did German Security Agencies Go Wrong?
Five-hundred kilometers away from Düsseldorf, in the Berlin State Criminal Police Office, officials were asking similar questions. They became responsible for Amri's file on March 10 and they too put together a profile of Anis Amri and, like their counterparts in North Rhine-Westphalia, continually updated it. The two offices took turns keeping track of the potential terrorist, depending on his location. But they didn't always know exactly where to find him nor did they always have sufficient personnel to monitor him.
Two agencies, two profiles, two suspect files: At first glance, it would appear that security officials were particularly vigilant when it came to Amri. But this doubling up could also be the ultimate source of their failings. To be sure, the two state criminal police offices regularly shared information on Amri and also presented their results on several occasions to the Joint Counter-Terrorism Center (GTAZ), which is comprised of all 40 German security agencies. But Amri managed to give them the slip nonetheless.
Two state interior ministers in particular are now in the position of having to explain what went wrong: Andreas Geisel of Berlin and Ralf Jäger of North Rhine-Westphalia. As initial analysis has shown, far from all information pertaining to Amri was shared between the two states and some of it was only shared with significant delay. The two profiles, at least, were not identical.
When several different agencies work on the same case, there are bound to be communications shortcomings and misunderstandings. Bad intentions aren't a necessary ingredient.
It also isn't always clear which agency is in charge. Amri's case wasn't just being pursued by two state criminal police offices, after all. There were almost a dozen other agencies involved, from the federal prosecutor's office to the local migration office in the small North Rhine-Westphalian town of Kleve. How could anyone possibly have maintained an adequate overview?
The investigators involved, in any case, were unable to. Recent conversations with state security personnel have not been particularly encouraging regarding the state's ability to carry out such a complicated investigation. One official spoke of "reciprocal information segregation" and another mentioned the "security agencies' partial blindness." A third presented the situation as follows: "We are demanding mass access to the data of upstanding citizens but the security agencies approach each other with extreme suspicion." In Germany, the third official continued, there is no single decision-making authority. "There are at least 16 of them."
Between February and November 2016, Anis Amri was discussed on seven separate occasions by the GTAZ in Berlin. Meeting participants evaluated on a scale from one to eight how likely it was that Amri was really planning a terror attack. Today, they say that they couldn't have assembled sufficient evidence that would have stood up in court. That is also the reason, they say, that the Berlin State Criminal Police Office didn't apply for authorization to continue active surveillance of Amri after Sept. 21. And that, in turn, hindered Berlin prosecutors from making further progress in their investigation into Amri for attempted participation in a homicide.
Officials were unable to determine whether Anis Amri was more than just a big mouth, as are so many of those Islamists under surveillance. But it was known that he had contact with members of Islamic State. It was known that he had frequently spoken of carrying out an attack and that he actively sought accomplices from the Islamist community. In GTAZ, though, he was only rated a five on the scale, meaning that officials felt it was "rather unlikely" that he would actually carry out an attack.
Given the facts currently known, it is hardly possible to determine who exactly was responsible for this miscalculation. Participants to the meetings say that six agencies unanimously agreed with the evaluation. That, too, is a problem of having too many agencies: Individual responsibility becomes watered down in the maze of institutions and GTAZ becomes a facility without a leader. Would it not have made more sense for a federal agency with clear responsibility to have taken the lead in the investigation?
Nikolaos Gazeas, a Cologne-based expert for criminal law as it pertains to terrorism, says there are measures available to limit the mobility of potentially dangerous Islamists. A deportation order with strict reporting requirements is one example. "Why the authorities didn't issue one is incomprehensible," he says.
Asylum law expert Daniel Thym, a professor at the University of Constance, also believes that a "courageous agency" could have applied for Anis Amri to be placed in pre-deportation detention due to his use of multiple aliases and constantly changing places of residence. Amri was, in fact, briefly imprisoned in Ravensburg, but was released after just two days.
Were there, then, sufficient rules and laws that were simply not adequately applied? The case of Amri, says one high-ranking security official, was primarily an enforcement problem. Like Thym, he also points to Amri's use of at least 14 aliases, of which the authorities were aware. Hiding one's identity as an asylum-seeker is punishable in Germany, but police say that this infraction is almost never enforced. But why not? Why didn't any agency file charges against Amri?
Lowering the Hurdles
Would stricter laws have helped to capture Anis Amri in time?
German security agencies currently list 548 Islamists as representing a potential danger. Only about half of them are currently in Germany, or around 270 people. Eighty of them are currently behind bars. Just over 50 of those thought to be a danger are rejected asylum-seekers who could be deported -- a significant number.
An additional category of Islamists thought to be less dangerous is known as "relevant persons." This group too includes almost 50 rejected asylum-seekers who are eligible for deportation.
Such deportation is not possible in all cases -- in instances where their home country refuses to deliver the requisite documentation, for example, or when their home country is engulfed in war. Or in cases where the agencies don't know where to find the Islamist in question.
German state interior ministers are now discussing ways to lower the hurdles to pre-deportation detention. Currently, it is only possible when the person in question is considered a flight risk. Criminal law expert Gazeas therefor believes that a legal reform is "absolutely reasonable." He says that uniform, country-wide criteria for identifying potentially dangerous Islamists are necessary.
These are minor changes that could be made -- small adjustments -- to stabilize German security architecture.
One such change was recently made to telecommunication surveillance practices. In early November 2016, all state prosecutor generals and the federal prosecutor general agreed to a joint resolution allowing investigators to listen in on encrypted communication in the same way they are allowed to perform surveillance on unencrypted telecommunications, such as regular calls or text messages. In "less than 15 percent of the cases" is unencrypted telecommunication used exclusively, investigators say. In all other cases, suspects at least occasionally used encrypted communication channels such as WhatsApp. Officials can only break such encryption by deploying a Trojan and they are demanding a legal basis for doing so.
Thus far, though, they have been denied such a law. Now, though, domestic policy experts from the SPD, for example, want to include such demands in their party's position paper.
Tracking dogs belonging to the federal police force are another example. Due to budgetary constraints, the force does not have as many dogs as planned for. For the last 10 years, they haven't had the full allotment of 635 dogs, which are able to track one of the explosives commonly used by IS attackers, and plans are currently afoot to reduce that number. In 2008, the federal police force ceased training dogs due to a lack of need and it was only resumed in 2016. The result is that Germany has too few dogs that are able to find hidden explosives.
Three Approaches for Revamping Security
Merkel's grand coalition government is currently considering at least three different approaches to revamping the country's security policy -- the CDU's paper by de Maizière, the SPD analysis by Gabriel and calls made by the Christian Social Union (CSU), the Bavarian sister party to Merkel's CDU. It's no exaggeration to say that none of them is tailor-made to address the mistakes made in the Amri case.
De Maizière nonetheless does pose legitimate questions in his op-ed. Why, for example, is the federal government responsible for processing asylum applications but not for deportation when an application is rejected? The states handle that, but De Maizière wants to change the system. Many experts agree with him and also support his idea of creating deportation centers at airports.
The fact that the states are free to pick and choose how they work together often means that the fight against terror becomes scattershot. One notable result was that last year the federal office of domestic intelligence agency BfV was unable to name the precise number of "individuals with Islamist-terrorist potential." The figures weren't reliable, one confidential paper noted, because some of the state offices had withdrawn from the relevant working group.
Such examples make calls for centralized control of the security authorities sound quite reasonable. Serious breakdowns in the past have occurred because the authorities weren't coordinating properly with each other, they were working against each other or they were simply overwhelmed.
Would a strong federal police force be the right answer? Does it really make sense for each state to have its own domestic intelligence arm? Could such a system alleviate problems with incompatible databases and could top-down command ensure the speed and efficiency necessary for dealing with extreme situations? Yet even if such ideas seem justified, where would they lead? Would Germany then still need state criminal police offices? Would federalism still make sense? And what about modern-day Germany's historic mandate to avoid a repeat of the Nazi-era police state? Federalism provides a guarantee for mutual checks and balances between the federal government and the states. This also helps to ensure a healthy democracy. And lest we forget, France provides the example that even a centralized executive is no guarantee for preventing terrorist attacks.
Angela Merkel has welcomed her minister's catalogue of demands. Indeed, she has always protected de Mazière from criticism. But she, too, was of the opinion that he hadn't been sufficiently outspoken on security policy to assuage the conservative wing of the CDU and CSU.
Prior to his Frankfurter Allgemeine op-ed, De Maizière had refrained from taking the political risk of making public demands, a reticence that has engendered criticism from both the CSU and elements within his own party. Among conservatives, it is considered certain that CSU chief Horst Seehofer will demand that a member of his party be assigned to head the Interior Ministry following elections this fall. In Bavarian state Interior Minister Joachim Hermann, he could have just the kind of conservative candidate he is seeking.
De Maizière, for his part, knows his post is at stake. He has always said that he doesn't like shooting from the hip and that he would prefer to present his ideas in closed-door discussions with the SPD rather than insisting on maximum demands on which he would later be forced to backtrack.
This time, though, he is taking that risk. He wrote this week's op-ed mostly on his own. He also knew the kind of opposition it would trigger. "He no longer wants to allow himself to be pushed around," says one leading CDU domestic policy expert. The expert said he thought that de Maizière's proposal not only made sense in terms of policy, but also as the right response to public sentiment. He believes the usual step of further tightening laws will not go far enough and that entirely new security architecture is needed.
During the first decade after 9/11, Germany passed a dozen new security laws. They made membership in a foreign terrorist organizations a prosecutable offense, established anti-terrorism databases and also loosened Germany's privacy protection laws. Then came new data retention rules and most recently the ban on being able to buy a SIM card for a mobile phone without presenting an ID. Taken individually, none of these measures has been very earth-shattering. Together, however, a bit of freedom has indeed been taken away.
Are Stricter Laws Truly Effective?
It also remains unclear whether stricter laws are even effective -- whether they serve as a deterrent or help prevent attacks. "After closer inspection, it turns out that some of the things that have been greatly praised, actually haven't delivered all that much," says former Justice Minister Sabine Leutheusser-Schnarrenberger of the business-friendly Free Democrats. She wonders where the developments are leading us. "In the end, all you have left are torture and the baseless surveillance of all people -- and we can't have that. Civil rights activists have almost no role left to play."
During its postwar history, the Federal Republic of Germany has experienced periods of liberalization as well as periods of rolling back liberalization like the one beginning now. Nevertheless, even in conservative circles, enthusiasm for de Maizière's proposals isn't universal. Anger is simmering, for example, within the Bavarian Interior Ministry. Some within the CSU are angry that the party's own ideas are being trumped and, under de Maizière's proposals, Bavaria's own state intelligence agency could be eliminated. For the first time in recent memory, CSU head Horst Seehofer and his party have seen their traditional dominance in the security debate eroding.
Nine months ahead of the general election, the parties in Chancellor Merkel's coalition government are faced with some fundamental decisions. They must settle whether they want to fundamentally reform the state, Germany's system of federalism and the security apparatus.
They could also choose to implement a number of small changes and, for a start, provide more money and staff to the often overstrained authorities.
Both variants could potentially improve the country's security, but they cannot provide a 100-percent safety guarantee. The first path would satisfy the need of many people for quick and easy answers. That's likely to be very tempting to politicians.
The Left Gets Tougher
One other domestic security policy paper almost got overlooked in all the excitement over de Maizière's initiative. SPD leader Sigmar Gabriel put his own thoughts down on seven pages of paper, many of which came as a surprise to his own party. He too is calling for a stronger government and tougher laws, but at the same time greater prevention efforts including youth welfare and social work in the refugee hostels. He's also proposing an initiative, the Free Europe Network, aimed at counteracting jihadi propaganda on the social networks. "We won't defeat homegrown terrorism through criminal law alone," Gabriel told SPIEGEL in his interview. A strong government also needs soft power elements at its disposal.
For now, though, the debate is likely to go in another direction. Alarmed by their coalition partner's paper, several interior ministers and members of parliament with the SPD met with Justice Minister Heiko Maass on Wednesday night. They have already agreed upon the first key points for a position paper on domestic security. They include: a tightening of Germany's Residence Act, special initial reception centers for refugees whose identity has not been confirmed and ankle bracelets for those identified as potential Islamist threats.
It's not the time meekness.
By Melanie Amann; Maik Baumgärtner; Hubert Gude; Dietmar Hipp; Frank Hornig; Martin Knobbe; Ralf Neukirch; Conny Neumann; Sven Röbel; Jörg Schindler; Fidelius Schmid; Andreas Ulrich
- Part 1: Germany Balances Liberty and Security in Face of Terror
- Part 2: Where Did German Security Agencies Go Wrong?