ADVERTISEMENTS

The lesson to be learned from the excursion to the German constitutional planet is not the bold one, that the German courts got the rule of law right. But what should be said is that the German Federal Constitutional Court spent considerable effort and exhibited doctrinal creativity in developing rule of law standards that cope with the challenges posed by terrorism and the fight against it. The court developed a system of absolute limits, relative thresholds, and procedural safeguards against the dynamics of anti-terrorism. The legislature followed, sometimes more coerced than inspired, but also with some contributions of its own. Two things have been achieved. First, legal standards protect individual rights. They can be activated by each individual in each instance when they are endangered. Individual rights empower individuals: they are not dependent on public opinion, political rallies, alliances, or majorities. In this respect, there is a significant difference between the correction of repressive and abusive practices via the political process and via a legal approach. Many people, the guilty as well as the simply unlucky, will be humiliated, tormented, and tortured before the political process can correct interrogation and detention practices that have gone wrong?many more than if courts offer each detained person effective legal protection. A real price is being paid while the political public deliberates, and the price is paid by real people in real pain, real suffering, and really destroyed bodies and lives. Second, legal standards also give some constitutional structure to the multitude of anti-terror measures that otherwise?at least in the German case?tend to become wholesale and undifferentiated. Now there are different categories of measures with different material thresholds and procedural protections that force the agencies to consider means more carefully and with more sensitivity to different factual circumstances. It would be easier, perhaps, simply to tap the phones of anyone that the police consider likely to commit crimes or to be in contact with someone likely to commit crimes. But such a wiretapping practice would be radically unstructured and maybe also ineffective, whereas the constitutional structure forces the agencies to distinguish more carefully between what is and isn?t important.

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