Interlocking Powers and Federalism in Domestic Security Affairs
The fusion of power characteristic of the English constitution is also significantly offset by intergovernmental power-sharing mechanisms in Germany. To eradicate centralized Nazi structures for all time, the Constitutional Council in 1948 combined executive power sharing with the territorial fragmentation of powers to the Länder. The “cumbersome decision-making mechanisms,”38 were encouraged by the allied powers, and, according to Peter Katzenstein, created a “semi-sovereign state” with “severely circumscribed and widely diffused” executive powers.39 In fact, critics argue that “hardly any other democratic state is characterized by such a refined system of ‘checks and balances,’ of separated and interlocking powers, but also absence of power, like the German system.”40 Federalism experts explain the lack of sweeping reforms in Germany with the “joint decision-making traps,”41 with Katzenstein noting that “the decentralization of the state contributes to the political predisposition for incremental policy change.”42
As the system is grounded in federalism, the governing majority (drawn from the Bundestag) has to take into account the interests of the Länder represented in the Bundesrat. Until the 2006 federalism reform, the Bundesrat role became ever more dominant as an increasing number of legislative initiatives required mandatory Länder approval (Zustimmungsgesetze) and Länder decisions regarding these types of laws cannot be overturned by the Bundestag. These laws are therefore different from other bills that also have to be discussed and voted on by the Bundesrat, but can still be overruled by the lower house. Legislation that required this kind of compulsory Bundesrat approval included many bills that involved Länder jurisdiction or prerogatives in matters of domestic security.43
In an effort to provide uniform representation of state interests in the Bundesrat—against those of the federal government in the Bundestag—the Länder have formed the permanent steering committee of the Interior Minister Conference (Innenministerkonferenz, IMK). Apart from coordinating state strategies, IMK procedures are used to harmonize operational details and ensure uniform policy administration across the sixteen states.44 The closed IMK meetings are attended by the federal interior minister (who lacks veto power) and the sixteen interior ministers of the states, who also constitute the Interior Committee in the Bundesrat. While the interior ministers are the public face of this informal decision-making body, they rely on a complex administrative apparatus of issue-specific task forces and working groups for policy advice.
Whenever the governing majority of the Bundestag and the Länder of the Bundesrat find themselves immersed in “separation of powers” struggles, the chancellor serves as a mediator between both chambers. Similar to the interplay between executive and legislative branches in the United States, chancellors can use the intergovernmental tug of war to shield themselves from demands of their own party, parliamentary group, or coalition (and vice versa). At the same time, interbranch struggles can be used to rally support within one’s own ranks or justify gridlock and failed reforms to the public.45 The same mechanism works on the state level as well, where joint decisionmaking serves as a pretext to deflect criticism for failed initiatives or claim responsibility for successful reforms.46 Unlike the U.S. system, however, federal and state governments as represented by the Bundestag and Bundesrat often do not share a common interest in producing tangible results.
The parties frequently serve as the common denominator and negotiation vehicle between the federal government and the Länder, and “much of the political coordination between federal government, individual Land governments and the federal chamber (Bundesrat) is facilitated through party channels.”47 Overall, Bundesrat voting patterns illustrate that state concerns have frequently taken a back seat against party interests.48 In fact, critics argue that the Bundesrat has become an instrument of entrenched party politics, abused by government and opposition alike.49 In times of “divided government,” when the majority of the states are governed by the same party that constitutes the main Bundestag opposition party, the Bundestag/Bundesrat mediation committee thus serves as a powerful venue to influence legislation.50
The notion that federal priorities are regularly overwhelmed by party interests does not hold consistently, however. Länder voting patterns have become less predictable since unification, in the course of which the number of the states represented in the Bundesrat increased to sixteen.51 While “governments can be said to be significantly better off under the conditions of ‘unified government’,”52 state governments are prepared to sacrifice national party strategies when these run counter to state interests, particularly when they threaten to jeopardize state sovereignty and jurisdictions, for example, in the domestic security arena.
Reforms Needed? The 9/11 Attacks from the German Perspective
On the eve of 9/11, the German political environment did not appear to be particularly conducive to far-reaching reforms in the counterterrorism realm. The governing coalition included the left-wing SPD and antiwar Green Party, many of whose members had been involved in both peaceful and violent civil rights movement protests during the 1970s. Some even sympathized with the Baader Meinhof group, officially known as the Red Army Faction (Rote Armee Fraktion, RAF). In an ironic twist, Interior Minister Otto Schily (SPD) had served as defense lawyer for various RAF members during the terrorism trials in the 1970s. Whatever the nature of the compromise struck by the governing coalition, the intricate decision-making structures discussed throughout the preceding sections meant that any counterterrorism bill affecting Länder sovereignty would also require approval of the Bundesrat, where the SPD-led government coalition faced a CDU-led Länder majority.
A 1999 Jihadi plot to blow up the Christmas market in Strasbourg (a French town with a large German-speaking population at the German/French border) was considered a first red flag by German security services but did not lead to any reforms. The 9/11 attacks, however, did lead to significant changes. In the days after 9/11, it soon became clear that the federal republic, with its rigid privacy rights and liberal asylum policies, had served as the logistic base for several Al-Qaeda members involved in planning and execution of the attacks.53 The notion of a German terrorist sanctuary in “Hamburgistan”—four of the hijackers had lived and studied in the northern city of Hamburg—was unacceptable in the view of many.54
Antiterrorism laws passed to counter RAF terrorists in the 1970s and 1980s did not prevent the infiltration of Al-Qaeda cells into German society, further highlighting the difference between the transnational Jihadist movement and more traditional terrorist groups.55 Moreover, both differed in regard to, inter alia, political goals, methods, and organizational structure. For example, as opposed to Jihadi suicide terrorists aiming to inflict civilian mass casualties at any cost, left-wing revolutionary terrorists in Germany were more selective and “only” focused their “anti-imperialistic struggle” on high-profile targets,56 including corporate leaders, U.S. or NATO military bases, and representatives of the German state (mostly high-ranking members of the judiciary or police). In an effort to gain public support and achieve the revolutionary end goal, RAF members regularly explained and justified their actions by means of open letters to the general public.57 Overall, and in stark contrast to the scope of the 9/11 attacks that killed 2,977 people and also cost eleven German lives, the RAF campaign resulted in the total death of 34 people over a thirty-year time frame.58
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