Michael Lysander Fremuth

Wächst zusammen, was zusammengehört? Das Trennungsgebot zwischen Polizeibehörden und Nachrichtendiensten im Lichte der Reform der deutschen Sicherheitsarchitektur

Volume 139 () / Issue 1, pp. 32-79 (48)

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Globalisation has brought many benefits for mankind. However, it also constitutes a threat to the historically grown nation-state. The process of globalisation allows societies to transcend national borders to a quality and quantity unknown before. As borders are losing relevance and technological progress increases dramatically, the state is more vulnerable to internal and external attacks. Accordingly, granting security, one of the main foundations for legitimising the very conception of statehood, becomes more and more problematic. Gathering, analysing and adequately using information is one crucial means for the fight against terrorism, extremism and organised crime. In Germany, police as well as the three federal intelligence agencies deal with information. Yet, the relation between those agencies is governed by the principle of separation (»Trennungsgebot«). Intelligence agencies have to be organised separately from police agencies and must not be endowed with any executive police competencies. Additionally, the German Federal Constitutional Court established an obligation of informational separation. The principle of separation traces back to the time after World War II and was imposed by the allied powers that made its acceptance a prerequisite for confirming the newly drafted German Constitution. It became enacted subconstitutional German law, yet the principle was not expressively included within the Constitution itself. Unlike many scholars and the Federal Constitutional Court, the author argues that the principle of separation does not amount to a constitutional principle. As law in force, though, it binds the legislator who must not contradict himself. Thus, the principle of separation might serve as a benchmark for recent legal revisions to reform German public security law. The author analyses selected amendments of security law and comes to the conclusion that the enforceable right to seek information, newly granted to intelligence agencies, amounts to a partial breach of the principle of separation. Then, he addresses compound files of intelligence and police agencies. These jointly organised and operated databases have been established to pool information and make them available for the fight against terrorism and extremism. According to the author, these databases partially erode the principle of separation but do not eradicate it. The same conclusion is drawn with regard to joint centres where police and intelligence personnel work together, inter alia, to fight terrorism, extremism and cyber-attacks. They increase dialogue in working groups, exchange data on the basis of the respective law for data exchange and streamline their activities. The legislator, though, is asked to establish rules that address the risks provoked by the specific situation within the centres which rests in the striking distance of personnel from agencies that should be separated. The author proceeds to demonstrate that the principle of separation, furthermore, is called into question by a development that aligns police agencies with intelligence agencies by granting competencies of clandestine information retrieval to the police and by extending its mandate to risks and phenomena in the run-up to a concrete threat (»Gefahrenvorfeld«). The author finally argues that granting security and protecting liberty and human rights should not be regarded as antagonists but as mutually reinforcing aims that have to be constantly balanced by the modern constitutional state.

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