Counterterrorism and the State. Dorle Hellmuth

on the executive. Like in Great Britain, the governing party holds a tight grip on the chancellor and sets policy-making guidelines. In fact, critics argue that party dominance in German decision-making violates John Stuart Mill’s principles of representative government, in which the executive branch and Bundestag serve as the central bodies for deliberations and decision-making among representatives.¹⁰ Increasingly, so these critics argue, MPs no longer serve as representatives of the people but merely follow the directives of their respective parliamentary groups. To the contrary, another school contends that the concept of representative government could never be realized in any parliamentary system.¹¹ Party membership and cohesion are essential for gaining a mandate in the first place—the more important “second vote” (Zweitstimme) on the German ballot is reserved for the party—and for steering legislative initiatives through the decision-making process.¹² The multiple hats of German government officials and parliamentary rules illustrate this linkage as well. Chancellors often serve as party chairpersons during their tenure, while cabinet members hold strategic positions in their parties.¹³ In contrast to the British system, legislative initiatives cannot be introduced by individual lawmakers but only by parliamentary party groups (or groups representing at least 5 percent of all MPs). Not surprisingly, party cohesion has consistently been high.¹⁴ Going beyond Bagehot’s observation that “party organisation is the vital principle of representative government,”¹⁵ the German constitution even acknowledges the role of parties in the formulation of the political will of the people (Article 21). The principle was supported by a 1977 ruling of the Constitutional Court, which determined that the practice of parliamentary party discipline does not violate representative democratic principles.¹⁶

      Rejecting criticism about the “creeping de-parliamentarization” of decision-making processes, the court further ruled the transfer of actual decision-making powers to working groups, committees, and commissions constitutional.¹⁷ In fact, since the founding of the German republic and very similar to developments leading to the loss of cabinet stature in Great Britain, administrations have rarely used the formal cabinet proceedings for actual decision-making.¹⁸ Decisions are not brokered inside official government bodies—the Bundestag or cabinet as a whole—but within informal settings. Only toward the end of the informal negotiation process are agreements introduced into the formal decision-making channels and adopted as the foundation of cabinet resolutions.¹⁹

      Meetings are attended by leading executive and legislative representative as well as chairmen and secretary generals, ministerial state secretaries, and lobbying groups.²⁰ First convened under Chancellor Konrad Adenauer in the early years of the German republic, these informal decision-making bodies reached unparalleled prominence during the Helmut Kohl administration (considered among the strongest German postwar governments, similar to the Blair administration in Great Britain) and represent the actual centers of cross-coalition, cross-parliamentary, and cross-intergovernmental party brokering. In other words, these informal meetings served as an important consultation forum for more independent chancellors like Konrad Adenauer and Helmut Kohl, who operated largely outside the party orbit.²¹ Parliamentary whips participate in the coalition steering committees and closed meetings at the ministries, while members of the executive take part in the board meetings of their parliamentary groups or the interparty federal-state working groups.²² In many cases, consultations with the Länder, especially when it comes to domestic security questions, are considered a mandatory step, without which proposals are not submitted to the interagency cabinet process.²³ In general, ministers first secure support from their parliamentary groups before presenting controversial proposals to their fellow cabinet members.²⁴ However, there are also limits to this close cooperation. For example, early on in the Schröder administration the chairmen of the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD) and Alliance ‘90/The Greens (Bündnis 90/Die Grünen) parliamentary groups resisted the chancellor’s invitations to participate in cabinet meetings on a regular basis. While it would seem a mere manifestation of the informal decision-making forums with many of the same members, the parliamentary chairs were hesitant to blur the formal line of demarcation separating government and legislative affairs.²⁵

      Chancellor Democracy or Presidential Chancellors? Neither, Quite Yet

      The first postwar chancellor, Konrad Adenauer, so skillfully drew on the powers vested in the head office that his dominant role gave rise to the term “chancellor democracy.”²⁶ Similarly, Chancellor Helmut Kohl’s unilateral management of the unification process has been described as a “manifestation of Chancellor democracy.”²⁷ A detailed analysis of all seven postwar administrations illustrates, however, that the chancellor’s position is not automatically paramount. It is instead greatly dependent on leadership styles, coalition, and cabinet appointments, as well as the chancellor’s relationship with his own party.²⁸ In contrast to the first French president and “founding father” of the Fifth Republic, Charles de Gaulle, Chancellor Adenauer did not seek further to boost the chancellor’s powers and standing via constitutional amendments.

      The chancellor has the prerogative to determine the policy guidelines (Richtlinienkompetenz), as guaranteed by the constitution.²⁹ However, this privilege is, in theory, offset by the principle of joint cabinet decisionmaking (Kabinettsprinzip) and, in practice, by the clout of cabinet members who run their respective ministries by means of ministerial autonomy (Ressortprinzip). In fact, the chancellor’s prerogative has never been invoked by any chancellor. Even if determined to ensure cabinet compliance—for example, by dismissing defiant cabinet members—he or she would still have to rely on extensive bargaining skills to gain the necessary support from the parliamentary majority, as well as that of the governing or coalition party. While, in theory, the chancellor has the right to dismiss ministers, in practice, this instrument of leverage has amounted to no more than hollow threats (contrary to the practice of British prime ministers). Because ministers are often leading party figures, chancellors avoid unilateral dismissals; cabinet members belonging to the coalition partner can only be dismissed by their own party.³⁰ Therefore, the chancellor’s role has come to resemble that of a chief broker and “compromise manager throughout the whole process.”³¹ To reach a political decision, the interests of the chancellor’s own cabinet members, parliamentary group, and party ought to be balanced with those of the coalition partner, resulting in a complex web of power-sharing and bargaining arrangements across parliamentary and party lines.³²

      According to a third school of thought, the debate about the merits of party and “chancellor democracy” distracts from the more recent revolutionary changes in German decision-making, namely, the “gradual shift towards a presidentialized mode of governance.”³³ As globalization and Europeanization have fostered an “executive bias that has become a structural condition of national politics,”³⁴ a development that has affected all other EU member states, the Bundestag’s role has gradually diminished. International treaties and agreements are no longer carefully scrutinized by the legislative branch.³⁵ The transnational dimension of governance, thus, “injects an element of separation of powers … into parliamentary systems by making governments more independent of the legislature.”³⁶

      Despite these EU-wide developments, the Bundestag plays a far more central role in German decision-making regarding security and foreign affairs than do its British or French counterparts. In contrast to the Commons and the National Assembly, the Bundestag grants approval to any foreign deployments of the German armed forces, which are periodically renewed and voted on. As this may not seem like such a huge hurdle given the inherent party discipline, it can turn into a more delicate affair if one of the coalition parties carries strong antimilitary sentiments.³⁷ Moreover, the Parliamentary Control Committee (Parlamentarisches Kontrollgremium) oversees the activities of all three federal intelligence services, and, contrary to its British counterpart, its members are not nominated by and required to report to the German chancellor. The committee is further reinforced by the more stringent G10-Commission (G10-Kommission, where G10 stands for Article 10 of the Basic Law), also housed by the Bundestag, which determines and approves the necessity and legitimacy of all foreign, domestic, and military intelligence/surveillance measures affecting the