Are evermore powerful state organs of policing and "security" threatening fundamental liberties? Are we witnessing the gradual transformation of constitutional democracies into "executive states"? Are we heading for an era of "plebiscited caesarism" relying on a media machinery of perception management, as the rise of Berlusconi in Italy seems to indicate?

The following contribution addresses these questions from a German point of view. It is an abridged translation of a speech given by professor Jürgen Seifert at a seminary on "internal security" organised by the German Green party in Munich, on 16 September. The author is a professor emeritus of law and political sciences and teaches at the University of Hannover. Professor Seifert is widely known in Germany for his publications on state of emergency legislation, the development of the constitution and the problems of secret services and police.

 

FECL 29 (November 1994):

THE EROSION OF DEMOCRACY THROUGH THE PREDOMINANCE OF THE EXECUTIVE

 

A security state without liberty for the citizens ends in generalised crime just as a polity with liberty, but incapable of offering its citizens public security. Security is a basic need of mankind. This is documented by the constitutions of modern states.

People want both security and liberty. When the security framework becomes too tight, young people, above all, break out in search of liberty. On the other hand those who have experienced the insecurity that tends to accompany liberty, often long for a protective safety net.

Thus, the issue is about how to combine liberty and security. At every stage of political-societal development the equilibrium between liberty and security must be set anew.

In German history, security always tended to prevail liberty. Indeed, the term 'liberty' referred to the freedom of the nation rather than to individual liberty. The Nazi song "Nur der Freiheit gehört unser Leben" (Our life is dedicated to freedom) had nothing to do with individual liberties, but was a hymn to "national" liberty based on the serfdom of all others. Only since 1945 did individual liberties gain some significance.

Yet, the relation between liberty and security is an ambivalent one. This ambivalence is deeply rooted in every one of us and this is precisely why the term "security" is often used in political campaigning. Our longing for "security" is being instrumentalised and exploited by certain politicians. They know all too well that in our country "security" is higher rated than the freedom of the individual. This is why the monstrous term "internal security" created as a pendant to the "internal state of emergency" by a Social-Democrat [during the campaign for the introduction of an emergency law in Germany in the 60s] was never really questioned. Yet, who, after all, can pretend to be able to achieve this "internal security" - i.e. actually security inside ourselves? If we give it just a brief thought, we will understand that no police or other organ of the state can create "internal security". It would already be a major achievement if the police were capable of ensuring some form of "public security".

Both Chancellor Kohl's Christian-Democrats (CDU/CSU) and the social-democrat opposition (SPD) are promising "internal security", thereby suggesting that an effective "combat against crime" is possible, provided all "necessary measures" are taken. Yet the mere term "combat against crime" (just as the term "internal security") gives the impression that crime can be eliminated like vermin, merely by providing the police with additional powers. Such conceptions actually derive from the fundamentally conservative Utopia of a crime-free society, a clean and cosy "brave new world".

I proceed from the assumption that security policy without social policy is deemed to failure. In this piece, I will, however not enter further into the important issue of social policies as a means of ensuring public security. Instead, I would like to concentrate on the following questions:

- Which objectives is the Christian-Democrat Union (CDU/CSU) pursuing with its campaigns on security?

- How can such campaigns be countered?

- How can the present political and societal imbalance between the executive power and the opposition be set right?

The structure and function of security campaigns

The CDU/CSU's security campaign is shaped to a large extent according to the special interests of the German security apparatuses. We are talking about the BKA (Federal Office of Criminal Investigation), The BVS (internal secret service) and the BND (foreign intelligence service).

In the "Cold War" and the years of con-frontation with the phenomenon of terrorism these three organisations succeeded in putting through their gradual enlargement. Compared with the police authorities of the länder this growth was totally disproportionate.

With the end of the cold war and the debacle of terrorism in Germany, it would have been logic to considerably reduce the budget and the personnel of this security apparatus. Yet, all three organisations succeeded in presenting themselves as indispensable instruments for "combating organised crime". In doing so, they all made extensive use of their long-standing policy of influencing the mass-media and their easy access to public funding.

The old "enemy" notions of the cold war era have been replaced by the new label of "(international) organised crime". Undeniably, new forms of serious criminality and concerted organisation of crimes do exist. This is a consequence of a more open world market and increased opportunities for making money in Germany. But this criminality can not be coped with by merely replacing the traditional term of concerted perpetration of a crime with a new term.

Almost a third of the German penal code now comprises "organised crime". The term has a specific function. While it clearly does not contribute to coping with crime, it does result in a "de-differentiated" perception of the complex and varied phenomenon of criminality. Thereby it becomes possible to use the blanket term "organised crime" as an enemy label. An enemy label is something else than an enemy or a threat. It is a picture, a perception introduced between us and the other (i.e. the problem): This picture reduces everything to a situation of "it's me or you", black or white, good or bad. The "enemy" is on one side, "we" are on the other. The "we" sentiment arises, because everybody fears to be afflicted.

The de-differentiation achieved by the use of the enemy label prevents a social-political problem from being analyzed with a view to find a reasonable solution.

Our own part in the problem is denied and projected on a scapegoat. Thus, by using the enemy label of "organised crime" one represses the fact that, for instance, both gamble and ruthless profiteering are fundamentally inherent to capitalism. As a matter of fact, the term "organised crime" builds on the picture of a "decent capitalism". The dark sides of capitalism are projected on the enemy label "organised crime", just as they once were projected on "international Jewry".

Enemy labels were developed as an element of psychological warfare. Enemy labels contribute to reducing political debate to substitute warfare. The "War on Drugs" in the USA is serving as a model for the German campaign on the "combat against organised crime". It is no accident, when the whole arsenal of military terminology together with the fascination for advanced technology is taken over in this substitute warfare.

The enemy label "organised crime" is useful:

- The BKA is using it as a justification for demanding extensive powers to carry out eavesdropping comparable only to secret service operations and for extending criminal investigation to a stage prior to material suspicion.

- The BVS believes it can prevent the otherwise inevitable cuts in personnel by seeking to be entrusted, alongside the police, with the pro-active surveillance of "organised crime".

- The BND has used "organised crime" as an instrument for constitutionally legitimising a posteriori its practice since long ago of "electronic intelligence". Until recently, this activity was carried out in secret. The new law on the combat against organised crime now expressly allows the BND to electronically "filter" international telecommunications from and to Germany See FECL No.28, p.1). Thereby, the hitherto existing strict prohibition for the BND to carry out activities inside the country is being undermined. As for the separation of roles between the secret services and criminal prosecution, it is de facto abolished.

In all three cases the issue is about the restric-tion of fundamental rights that is not possible without amendments of the constitution and that affect its very essence. Besides, it can be doubted whether the enormous organisations above actually are capable of stemming modern forms of serious crime.

- There is no cost and benefit analysis. Nobody is, for instance, asking about the costs of extensive eavesdropping. Nobody is asking how the technical equipment of regular länder-police could be improved, if one would renounce expensive electronic surveillance of wireless telecommunications.

- On the part of the ruling CDU/CSU no discussion is taking place of the question how the requested massive competencies affect the very constitutional foundations of the Federal Republic of Germany. In Bavaria, the Data Protection Commissioner commented the competence for the BVS in matters related with "organised crime" as follows: "This amounts to the almost boundless launching of the big eavesdropping attack against totally innocent persons" (see cl No.20, p.1).

How to confront campaigns

We will not deny that the CSU/CDU, with its campaign on internal security, is also striving for stemming serious and mass-criminality. But legitimising new executive powers, enlarging federal apparatuses of policing and, last not least, the purpose of harming the political adversaries are just as important objectives. For years, the Christian Democrats have won elections with such campaigns.

If the assessment above is correct, one will not be able to cope with this playing on peoples' security concerns by making concessions. Instead, one must

1. lay bare the pattern of argumentation and denounce the methods, i.e the use of enemy notions and the exploitation of fears;

2. trace back the call for ever more executive powers to the so-called security-apparatuses' special interests, demand a cost-benefit analysis and clear proof that the executive competencies called for actually do allow for more successfully dealing with criminality; and finally

3. show capable of wresting political compromise from the CSU/CDU and forcing it to renounce this sort of campaign-waging and friend and foe reasoning.

Unfortunately, the SPD chose another way: it tried to meet the CDU/CSU's campaign on security with its own campaign. The result was that the Social-Democrats, out of fear of jeopardising their electoral chances, bowed to the premises of the Christian-Democrats on crucial issues. It was no accident, when the Interior Minister, Manfred Kanther, immediately called for an additional law, as soon as the first bill on the combat against crime was adopted.

Even those who believe that they can confront the campaigns described above by way of a normative project for a civil society or with appeals for tolerance and compromise, are ill-prepared. The majority of social-democrat politicians who are now accepting the dictate of the CDU/CSU, presume that they nevertheless might succeed in reaching an acceptable compromise on a definitive regulation. They have unlearned to confront the subjugation-aimed peremptoriness of the political adversary. Yet, as long as one party refuses dialogue and compromise and instead tries to set facts and to weaken the political adversary, appeals for democratic conduct are meaningless. In such a situation, one must uncover the authoritarian pattern as a such and wrest openness to dialogue and compromise from the opponent.

Therefore, I believe that it is necessary to

- meet authoritarian peremptoriness with concrete resoluteness with a view to force the counterparts willingness to compromise and to establish a culture of political controversy. Wolfgang Ullmann calls this teaching people "round-table capacity". In other words, what we have to do, is to refuse the very premises set by the CDU/CSU with a view to re-create the equilibrium between liberty and security by way of controversy on particular issues.

I am talking about a culture of political contro-versy because I want to emphasise that such a culture implies something else than enmity and that one over and over has to wrest this political culture (in short: "round-table capacity") from the eventuality of enmity.

 

The political-societal imbalance between executive and opposition

A lot of the problem is due to the SPD's conduct in the Bundestag (Federal Parliament). As representatives of the main opposition group, many social-democrat MPs incline to a real-political conception of loyalty and responsibility towards the state that brings them closer to the governing CDU/CSU than to the Greens whom they tend to consider as naive utopists. They do not understand that the only chance for an opposition party to gain a majority lies in being perceived as an alternative by the voters. Yet, hitherto, the Social-Democrats have proven incapable of imposing their own issues on the governing coalition of Chancellor Kohl. Due to their inability to draw up a counter-proposition to the government's bill on the "combat against crime", the länder governed by the SPD finally had to give in much more than necessary.

This is, however, not only due to personal behaviour of some politicians, but just as much to the fact that the imbalance between the hard benches of opposition and the power inherent to the position of government has gradually increased.

Moreover, a significant change has occurred that many have not even become aware of yet. For decades both the SPD and the Greens drew benefit from social grass-rout movements, by considering their demands and thereby giving the impression that they were implementing popular demands within the limits of political common sense. Yet, when these social movements waned, the two parties lost much of their impetus.

This is all the worse, as the adversary, i.e. the CDU/CSU has learned in more than two decades how to stage campaigns in the mass-media with the help of scientific methods and specific means of influencing journalists. These campaigns could actually be viewed as the conservative equivalent to the mostly progressive social grass-rout movements.

We must take notice of the fact that, today, such media campaigns are essentially staged through the exploitation of executive positions. With respect to such "staging" the executive has always, and not only in Germany, out-classed opposition. Indeed, the detention of power is always rewarded. What is new is, for the first, the extent to which executive action can actually set facts for the media, and, for the second, the manner in which a specific perception of reality is generated by the media loyal to the executive. We are dealing with what the Americans call "perception management".

The BND has produced facts at a cost of millions of marks and these facts have played their role in the "security" campaign of the CDU/CSU. These moves of the executive do not merely aim at exerting pressure on the opposition. They are, at the same time, important elements in attempts to mobilise a specific sector of the electorate. It would be worth examination whether parties in favour of emancipation can simply adopt this particular style of campaigning without losing credibility. The failure of the SPD in the election of the European Parliament could be an indication of this. The SPD based its campaign on the slogan "Security instead of fear". Among other things, the alleged security threat was illustrated with particularly unfortunate posters warning against the "Mafia-threat".

 

I would like to emphasise that security campaigns are staged not only by the government, political parties and the media. The present position of power of the bodies in charge of security enables them to stage such campaigns by their own. Partly, they also do this in order to affirm their position against competing rival bodies. Thus, for instance the BKA and the BVS are fiercely rivalling each other in their endeavour to obtain an increased role in combatting "organised crime".

The traditionally secretive security apparatuses are benefitting of considerable free play:

1. They dispose of privileged means of influencing the media. Their officials usually get a better hearing from the media than politicians or members of civil liberties groups.

2. They can "hire" journalists by various ways. It is well known that a number of journalists were "rewarded" for years for their services by the BND. In the wake of the "Bad-Kleinen" affair (see FECL No.17, p.1; No 21, p.10; No.22, p.8), the BKA literally fed one particular journalist, Dagobert Lindlau, with "internal" information to such an extent that Mr. Lindlau practically acted as a press officer for the BKA.

3. They have the power to withhold information on certain facts or to chose the best timing for releasing it. For 15 years, the BND and the Federal Government kept silence on the several million marks project of "electronic outer-space surveillance". They also withheld the fact that all telephone calls made from a foreign country to Germany are electronically filtered and may thus be subject to tapping (see FECL No.13, p.6, No.28, p.1). Only when the BND demanded an extension of its competence to the domain of "organised crime" did it go public with its long-standing practice: the service widely publicised "accidental findings" related to crime that it should not even have registered under legislation in force.

4. They can themselves create facts of interest for the media by cleverly timing and spectacularly staging operations, sometimes by engaging under-cover agents and infor-mers. For example, a number of people were arrested in autumn 1994 for alleged involvement in smuggling of nuclear materials. There is some evidnece indicating that the arrests were carried out with the help of under-cover agents. Was it a mere incident that the spectacular and media-oriented operation occurred only weeks before a conference on security scheduled long before by the executive and the decision of the parliamentary mediation committee on the bill on the combat against crime?

The secretly operating executive bodies are not only used as instruments for realising party-political interests. They have become separate powers safeguarding their very own interests and running their own policies. The memoirs of some of the former heads of the services concerned - Gehlen, Nollau, Wessel, Hochem, and others - clearly confirm the above.

With the new powers obtained or sought by the BND, the BKA and the BVS, the three "security" bodies have become a threat to the pre-conditions of democracy, the protection of which they originally were conceived for.

There is no pat solution for coping with this situation, but it certainly is important to at least take notice of the problem and not to accept it as a premise of nature.

 

The struggle for the pre-conditions of democracy

Democracy never comes to being by itself. Not either does it suffice to want "more democracy". In the presence of campaigns organised with the sophisticated means of psychological warfare and a perception of reality shaped by the media we actually have to begin with re-creating some fundamental pre-conditions of democracy.

The reality of this society is a such that it won't do to rely merely on civic action groups and grass-rout democracy - however important both may be. In my view, even the "anti-fascist" militantism (against skinheads and nazi groups) are slightly pathetic. As a matter of fact, the real threat to democracy does not emanate from the various sects of the extreme right, but rather from the very centre of society, from power holders who confound democracy with caesarism based on personal plebiscites; who try to eliminate opposition by means of campaigns and enemy labels, and who more and more regard constitutional rule as a mere garnish of an authoriarian "executive state".

In the debate on so-called "internal security" we need to propose an alternative to the gradual transformation of social and constitutional democracy into a "state of order" dominated by the executive.

If this is true, the conclusion must be: We will hardly succeed to "re-balance" liberty and security without struggling for the pre-conditions of democracy and without the capacity to again and again establish the basic rules of political controversy.

 

Jürgen Seifert