|[The US] needs the pretext of a global war on terror to maintain the legitimacy of U.S. imperialism, to justify further military intervention, expanded military budgets, concentration of executive power, and restrictions on civil liberties. Slightly paraphrased from a December 16/17, 2006 Counterpunch essay by Anthony Arnove, author of Iraq: The Logic of Withdrawal.|
December 16, 2006
The most important logical contradiction involved the concept of State terrorism. The Government had to extricate itself from this one and the means it used is extremely interesting. It did so by exempting itself and all other governments from its anti-terrorism law by defining terrorism as the use of terror by individuals or associations of individuals, i.e., the use of terror by States is, by definition, not terrorism.
It also rejected the term "State terrorism" as having no standing in law.
The Government quotes the former Secretary General of the UN, Kofi Annan, to support its position. Annan said it is unnecessary to include terror used by States in an anti-terrorism convention, because international law already forbids it. He apparently forgot that the criminal law of all states also forbids its use by individuals, making an anti-terrorism convention similarly superfluous.
What Annan should have said is that it would have been a waste of time to again forbid States to use terror because they already ignore the existing laws against waging war. He made this dumb statement in 2005 against the background of the US and its opportunist lackeys attempting to suppress the Iraqi Resistance which had arisen in response to the clearest example of a war of aggression since Hitler invaded Poland in 1939.
When the two laws, the anti-terrorsm bill and the law creating an anti-terrorism database, were put to a vote on December 1, 2006 they both passed. Since the government had 448 votes, not counting a few defections, out of a total of 614, the 54 members of the LEFT faction, all of whom voted against, were mere straws in the wind.
My introduction and translation of the entire exchange follows.
[Translated by Otto Hinckelmann December 15, 2006.]
The following document consists of three parts.
Parts 1 and 3 are official publications of the German Government.
Part 1 consists of the Government's answers to 14 questions formally posed to it by the LEFT faction of the Bundestag as a so-called kleine Frage (small question).
Part 2 is an unofficial partial transcript of a speech given by a speaker from the LEFT faction in opposition to the new Anti-Terrorism Database Law proposed by the Government.
Part 3 is background information appended to the proposed new Anti-Terrorism Database Law. It is provided here because the Government refers to it in its answer to one of the kleine Frage and because of its intrinsic interest.
Parts 1 and 2 originally appeared in the left-oriented Berlin newspaper junge Welt.
The submission of a kleine Frage is a formal parliamentary procedure in Germany. It is a right granted to a faction and to which the Government must respond in writing. A faction is a voluntary grouping of politically like-minded delegates. In order to qualify as a faction, the size of the group must be at least 5% of the total number of delegates.
The total number of delegates in the current Bundestag, which was elected on September 18, 2005, is 614 and it is grouped into five factions:
December 4, 2006, page 10
|On Friday December 1, 2006, the Bundestag approved the establishment of an anti-terror database as well as a "Supplementary Law for the Combating of Terrorism". jW herewith documents the response of the federal government to the questions posed by the Bundestag faction The Left on "Terrorism" and "State Terrorism" as well as excerpts from the address of Bundestag delegate Jan Korte made during the debate on the subject of the Supplementary Law and the Anti-Terror database.|
Preliminary remarks of the questioners:
The Conference of the Interior Ministers of the Federation and the States on September 4, 2006 demanded the implementation of a so-called anti-terror database. What is questionable about that is not merely that this database further diminishes the separation between the police officials and the secret services. Equally as grave is the fact that the Federal Government has, up until now, presented no precise definition of "terrorism".
Lastly, on September 8, 2006, the Federal Government voted in favor of Resolution A/60/L.20 of the General Assembly of the United Nations for the combating of terrorism. And yet here as well there is no definition of what is to be understood by the term "terrorism". The representatives of Cuba and Venezuela [also Syria, South Africa, Iran, Lebanon, and Libya: transl.] have indicated that terrorism that originates from States is worth combating as well (Text of UN GA resolution).
In the debates on the anti-terrorism efforts of the Federal Government up until now such precision is also lacking. In the draft law on the anti-terror database, with which the Interior Ministerial Conference of September 4, 2006 was in general agreement, the language used is "persons who use illegal force as the means to achieve internationally directed political or religious objectives or who support, approve of, or through their activities deliberately provoke, such use of force."
However, if the intent was to ignore the use of terror by governments, then the problem of international terrorism was not adequately addressed. Regrettably, it is verifiable that the Federal Government has already used illegal force as a means to achieve internationally directed political objectives; this was made especially evident in 1999 with the attack on the former Republic of Yugoslavia, which took place without a UN mandate. Also, in connection with the Iraq war, the Federal Government supported such an illegal use of force, as was determined by the Federal Administrative Court in its decision of June 21, 2005. In view of the granting of overflight rights for US military aircraft, the guarding of US bases, and other activities in support of the illegal attack on Iraq the court held that:
complicity in an international crime is itself an international crime (Decision of the 2nd Military Service Law Panel of June 21, 2005, BVerwG 2 WD 12.04).
If one understands terrorism to mean the illegal use of force to achieve political objectives then many more persons are victims of state terrorism than of terroristic associations as they are described in the statutes on criminal law. Among these must be included not only wars in violation of international law but also those wars, despite being legitimized by a UN mandate, in the course of which the belligerents repeatedly, either intentionally or through gross neglect, kill civilians as, for example, Operation Enduring Freedom in Afghanistan. Furthermore, the forceful maintenance of a world order that keeps billions of people in misery is likewise conducive to generating violence. Given a serious intent to combat terrorism in all its forms, this will have profound consequences for the policies of the Federal Government.
Preliminary remarks of the Federal Government:
The Federal Government explicitly rejects the view that there is such a legal concept as "state terrorism". That does not mean that the actions of States which the Minor Interrogatory relates to the concept of "state terrorism" are not subject to any legal regulation. The opposite is the case. Actions of States, in particular the use of armed force by them, are subject to the norms of international law, in particular the humanitarian international law and the system of human rights. To associate these with the concept of "terrorism" is therefore neither supportive nor necessary.
The Federal Government supports this view internationally as well. It is also shared within the European Union, as demonstrated by the joint perspective of the Council of December 27, 2001 on the use of special measures for combating terrorism (2001/931/GASP – ABl. EG 2001 L 344/93). According to this joint perspective, activities which are classified and more precisely described as terroristic criminal acts, as criminal acts in connection with a terroristic association or as criminal acts in connection with terroristic activities are committed by "persons, associations, and bodies." States are not included.
It is true that, on the international level, there are repeated attempts to incorporate the concept of "state terrorism" into the definition of "terrorism." This is certainly one of the most importance reasons why a consensus on a comprehensive convention for the combating of terrorism could not be reached up until now. Here also, the Federal Government and the EU take the position that "terrorism" is to be regarded as a criminal phenomenon that is engaged in by persons and organizations founded by them, but not by States. This interpretation is also supported, among others, by the Secretary General of the United Nations Kofi Annan: "We do not need to argue whether States can be guilty of terrorism, because deliberate use of armed force by states against civilians is already clearly prohibited under international law." [This quote is in English in the original: transl.] (From a presentation on the elements of a comprehensive UN anti-terrorism strategy in a speech given in Madrid on March 10, 2005.)
At the international level, the Federal Government supports completely the draft for a comprehensive convention on international terrorism as it was presented by the negotiation coordinators of the UN General Assembly. This draft contains a definition of a "terroristic act" which is in substantial agreement with that of the European Union. Furthermore, at the level of the United Nations, there are a series of conventions for the combating of terrorism in which specific forms of terroristic actions are defined for the respective convention. Nevertheless, the Federal Government is of the opinion that the creation of a comprehensive UN terrorism convention with a clear definition of terrorism and a "terroristic act" on the international level is indispensable. Among other things, this would limit the arbitrary interpretation (for example, the inclusion of legitimate political opposition) of the concepts of "terrorism" and "combating terrorism" by individual States.
We ask the Federal Government
1. In the view of the Federal Government, does the illegal use of force to achieve political goals constitute a form of terrorism when it originates from the government of democratic States? If not, why not? If so, what consequences for the cooperation of the Federal Republic of Germany with the European Union and NATO flow from it?
2. In the view of the Federal Government is war a form of terrorism, in particular a war in violation of international law, and what is the basis for its position?
3. In the view of the Federal Government is the years-long deprivation of the freedom of persons without legal basis as well as their humiliation and mishandling by State authorities a form of terrorism, and what is the basis for its position?
No. Reference is made to the Preliminary Remarks of the Federal Government.
4. In order to combat terrorism will the Federal Government also fight against those who, in its opinion, support the illegal use of force? If so, how does it define the concept of support?
The measures for the combating of terrorism in the area of repression are directed against persons who, in accordance with Criminal Law, have committed punishable acts; in this regard particular reference is made to §129a, b StGB. [This is a reference to the German Codified Criminal Law book: transl.] According to § 129a Abs. 5 StGB, a person who supports an association designated in Section 1, 2, or 3 of § 129a StGB is punishable. The concept of support, in the prevailing interpretation, the independent complicity of a non-member, has been more precisely concretized in the legal literature and in the administration of the law. To the extent that the question pertains to the draft of the law for the creation of a common database from police officials and intelligence agencies of the Federal Government and the states (Common-Database-Law), reference is made to the basis for § 2 Satz 1 Nr. 2 ATDG-E (page 29 of the draft law of the Federal Government, Federal publication 672/06). [The German text can be accessed via the link http://dip.bundestag.de/btd/16/029/1602950.pdf – the editor]
5. By the term "supporting terrorism" does the Federal Government take this to mean the participation in Operation Enduring Freedom, since innocent civilians are repeatedly being killed by NATO troops there, and on what does it base its position?
No. On the contrary, "Operation Enduring Freedom" serves to combat terrorism which also follows from the petition of the Federal Government to the German Bundestag of November 7, 2001 (Bundestag Publication 14/7296). In addition, reference is made to the Preliminary Remarks of the Federal Government.
6. Under "supporting terrorism" does the Federal Government understand this to mean also the granting of overflight rights to foreign military aircraft when these participate in wars of aggression in violation of international law such as those against Iraq in the year 2003? If not, what basic difference does the Federal Government see between a bombardment in violation of international law by State military forces and illegal bombing attacks by non-State actors.
No. Reference is made to the Preliminary remarks of the Federal Government.
7. To combat terrorism will the Federal Government also combat those who, in its opinion, support the illegal use of force to achieve political goals and how does it define the concept of support?
The means for combating terrorism are directed against persons and organizations who through stirring up hatred or arbitrary measures promote a readiness to use force and to disturb the public peace: Combating terrorism must be preventive, that is it must be ready to go at the very onset of terroristic crimes. To the extent that the question is directed toward the draft of the law to create common databases for police authorities and intelligence services, reference is made to the background material for § 2, para. 1, Nr. 2 ATDG-E. [My translation of this is appended. It's worth reading: transl.]
8. By "advocacy" of terrorism does the Federal Government understand this to mean the open intervention in favor of governments which, for example in Afghanistan or in Iraq, are responsible for repeated killing of innocent civilians, and on what does it base its position.
The Federal Government does not share the underlying premises of the question. In addition reference is made to the reply to question 7 and the preliminary remarks of the Federal Government.
9. To combat terrorism does the Federal Government also want to combat those who provoke the use of, in its opinion, illegal force, and how does it define the concept of "provoking?"
Reference is made to the answer to question 7.
10. Does the Federal Government share the view of the questioners that the conduct of a war of aggression in violation of international law, the killing of innocent civilians as in Afghanistan by NATO troops, or the years-long imprisonment of persons without legal basis by state authorities are likely to provoke the use of force, and how does it justify its position?
The Federal Government does not share the underlying premises of the question. However, it is obvious that political and social conflicts can give rise to social violence. Nevertheless, the Federal Government is firmly convinced that terroristic attacks are never justified.
11. Does the Federal Government share the view of the questioners that the reigning world order with its unjust distribution of wealth is likely to provoke the use of force, and how does it justify its position?
Reference is made to the answer to question 10.
12. Does the Federal Government judge the use of force to stabilize the worldwide predominance of capitalistic industrial States differently from the use of force to destabilize this predominance, and how does it justify its position?
The Federal Government does not share the underlying premises of the question. Nevertheless, the Federal Government is of the opinion that the use of force must be judged on the basis of the relevant international laws. Additionally, reference is made to the preliminary remarks of the Federal Government.
13. To combat terrorism will the Federal Government also combat those who, in its opinion, are connected to terrorists or terrorist suspects. If so, what does it take this to mean?
Reference is made to the answer to question 4 and the preliminary comments.
14. Does the Federal Government, in its own estimation, associate with Powers which conduct wars in violation of international law, rob individuals of their freedom for years without legal basis, or in other ways use illegal force as a means for achieving internationally oriented political or religious objectives, or support such uses of force, or advocate or through their activities deliberately provoke such? If so, with which and in what manner?
The Federal Government does not share the underlying premises of the question. The Federal Government associates with all States with which it maintains diplomatic relations. It is of the opinion that these diplomatic relations are useful and necessary in the promotion of international legal standards.
Excerpt from the speech of representative Jan Korte (THE LEFT) before the German Bundestag on December 1, 2006.
It's appropriate to look at the big picture. I remind you of the program for strengthening internal security; This highly questionable issue was voted on in the course of the budget discussions. I remind you of the supply data storage. Highly questionable projects were whipped through by you. They are putting a new security architecture at the expense of freedom in motion. That is truly populist and dangerous to fundamental rights. — and now on to today's project.
First: Of course the separation between the police and the intelligence services will be further reduced by the Anti-Terror Database. That's not even questionable. I can't repeat often enough why there is such a separation: It derives from the experience we Germans have with our history. This theme is now more relevant than ever because the issue has to be the prevention of an uncontrollable concentration of power in the security services.
Every week there is a new scandal, because the situation is obviously out of control. That is our problem. That's why this need for separation is more relevant than ever. On that subject the former President of the German Intelligence Service Hansjoerg Geiger, who is certainly not suspected of being a Socialist, to say nothing of being a Communist, said something very appropriate. In a parliamentary hearing a few weeks ago he said: [In this database: transl.] are to be brought together personal information that is gathered by officials organizationally rightly separated, who have different tasks and different authorizations. You are passing right over this even though this is not just anybody, but rather what the former President of the Federal Intelligence Service said. He's right.
Second: The expanded basic data - keyword religious affiliation - has already been addressed. What is that supposed to mean? What business has this information being in the database? There is an intent here to stigmatize which, as always, primarily affects the migrants in this country. That's why we're rejecting this. [At this point there is an interjection by Dr. Dieter Wiefelspütz of the Social Democratic Party which is part of the center-right coalition government: transl.] (Dr. Wiefelspütz: Mr. Korte, those are certainly cheap prejudices!) You are stirring up the prejudices, not us.
Thirdly the comments field [of the database entries: transl.]: It has already been just recently pointed out that the police searches for facts while the intelligence services react on the basis of assumptions and search for opinions. It is entirely logical that this will lead to false conclusions with disastrous consequences for those affected when you stir them both together. You can't just ignore that.
Fourth, the contact persons: This point has also been touched upon already. They've made a small change. But it's so vaguely stated that the core problem remains. The Federal Data Security official has illustrated it with an example: If I meet my neighbor at a kiosk once, that's probably not a problem. But if I meet him three or four times and maybe I even have a cup of coffee with him then I will very quickly land in the database. That is the core problem…
A prohibition on the use of data obtained through torture - I remind you of the case of Zammar in Syria: the "Fruits of torture," which apparently exist - was not considered by you. Those are just a few of the reasons why the Left faction will vote against your Law. The issue here, to say it clearly, is not an anti-terror database, but rather the issue is a database for the storage of suspicions. We're voting against it.
On the Supplementary Law for the Combating of Terrorism, just a word: Right after September 11, in view of the fear, one could have a lot of understanding for certain measures. However, by now, five years later, it would be about time to reflect and to take a look at whether the commensurability was borne out. To call it an evaluation, when the Ministry [of the Interior: transl.] evaluates its own law is really absurd. It's as if the producers of rotten meat were to give themselves a seal of ecological approval. That's no evaluation. Had we permitted an independent critical evaluation we might have saved ourselves these weekly secret service scandals. [This is a reference to the frequent revelations of the complicity of the German government in the kidnapping and torture of German citizens by the CIA, the so-called "extraordinary rendition": transl.] That has to be recognized too.
I will summarize: Today is another sad day for the basic and freedom rights in this country. I already asked this last time and today I'll ask it again: How far do you want to go with this? Every week there is a sharpening of the law and new encroachments on the basic rights. When will it end? That's what I really ask myself; because that's the problem. The loud-mouthing of the SPD here [At this point there is an interjection by Mr. Sebastian Edath, SPD: transl.] (Mr. Edath: I haven't heard anything!) merely obscures the fact that you too are having serious doubts about what you have started. [This is a reference to the fact that the Social Democrats have been in two consecutive governments since 1998, continuing the near total cooperation of Germany with the US that has characterized German foreign policy since 1945. Under the Social Democratic Chancellor Gerhard Schröder, there was an extra twist in that the government feigned a certain superficial independence while continuing the traditional policy of total collaboration with the US. Some of this is now coming to light and these are the scandals the speaker is referring to: transl.]
(Applause from the delegates of the LEFT as well as from the delegates of the FDP) [The FDP (Free Democratic Party) is a splinter party with a more or less libertarian philosophy: transl.]
[Another interjection by Dr. Wiefelspütz: transl.] (Who? Do you mean Benneter?) [This is a reference to Klaus Uwe Benneter who has been a member of the SPD for 41 years except for a short period when he was kicked out for his left leanings. As he aged he moved, presumably under the influence of the left to right prevailing winds, to the center of his party. In 2005 he resigned his position as General Secretary of the SPD: transl.]
You know exactly what I mean - you've been whispering it among yourselves for a long time - that this law is going to land before the Federal Constitutional Court. A pleasant thank you for your attention.