Forty-year-old Berlin lawyer Christina Clemm was just 10 during the so-called German Autumn of 1977: Her recollections of the historic showdown between the German state and its enemies, the left-wing underground organization known as the Red Army Faction or "Baader-Meinhof Gang," are vague. But when Clemm visited her client, 36-year-old Andrej H., in Berlin's Moabit prison early last week, the atmosphere there was reminiscent of those dark years of leftist terrorism.
The lawyer was only allowed to shake her client's hand in the presence of a prison guard. A plate of bullet-proof glass an inch thick separated them during their conversation. In addition, Clemm's mail was intercepted. Andrej H. told her he was being held in solitary confinement 23 hours a day. He was only allowed out for exercise for one hour a day with two other prisoners. He is being held under paragraph 129a of German criminal law -- the paragraph that deals with terrorism.
And yet the academic -- who holds a Ph.D. in sociology, lectures at Humboldt University in Berlin and has three children -- is not even a prime suspect in the arson investigation that led to his arrest, according to the warrant. The federal prosecutor's office believes H. and an academic from Leipzig are the intellectual leaders of the left-wing "militante gruppe" (mg), a left-wing faction which has allegedly been responsible for about 25 arson attacks since 2001. Three other men from Berlin have also been detained. They were seen trying to place incendiary devices underneath trucks belonging to the German military.
How Far Can the State Go?
The move by the investigators to use all severity in dealing with such a case is very likely a precedent -- and seems destined to trigger a debate as to the appropriateness of the approach. The central questions are clear: In the age of bloody suicide attacks, what constitutes terrorism? And: How far can the state go?
More than 3,000 supporters, including academics from Germany and the United States, have signed a letter of protest "Against the Criminalization of Critical Science." Last week, renowned US sociologists Saskia Sassen and Richard Sennett published an article called "Guantánamo in Germany" in the British Guardian, in which they write: "We are struck by the gray zones of fragile civil liberties and confused state power that this case reveals."
The German Green Party has already said that Minister of Justice Brigitte Zypries has some explaining to do and has promised to pursue the issue in Germany's parliament, the Bundestag. Green Party Floor Leader Renate Künast has criticized the investigation as "lacking a legal basis." Former Bundestag Vice President Burkhard Hirsch, of the liberal Free Democrats, spoke of an inappropriate attempt to turn small militant groups into terrorists. "Torching a car is no small offense," was the brusque retort of Dieter Wiefelspütz, the domestic policy spokesman for the Social Democrats. One could very well speak of terrorism in such a case, Wiefelspütz added.
The bitter debate comes four years after a 2003 legal reform pushed through by the government of then Chancellor Gerhard Schröder which introduced new guidelines for the prosecution of terrorist acts. Coming not long after the al-Qaida attacks in the US, the reform took aim at international terrorist organizations -- and made the prosecution of those groups much easier. At the same time, Schröder's SPD and his coalition partners the Greens wanted to limit the application of terror laws -- originally passed to deal with Red Army Faction attacks in the 1970s -- domestically. There were also European Union guidelines to take into consideration.
Arson as Terror
Ever since, arson has only been punishable as terrorism when carried out with the intention of "significantly intimidating the population" or "eliminating or seriously damaging the foundations of a state or an international organization." Moreover, attacks need to be capable of causing "considerable" damage to the state. Jerzy Montag, one of the Green Party's legal experts, praised the new law at the time by pointing out that it makes it impossible to prosecute "every little thing" as a case of terrorism.
But how do you know when a state is severely damaged? Is every politically motivated crime equal to terrorism, or should the case of Andrej H. be approached solely as attempted arson?
A lack of case law means that an authoritative answer to these questions does not yet exist. The only relevant court decision was handed down by the Federal Court of Justice in its decision that the "pinprick tactic" of right-wing arsonists can be defined as terrorism -- because right-wing arsons are carried out with the intention of driving "all foreigners" out of the region. Cologne-based professor Claus Kress believes that terrorism charges could be leveled against Andrej H. and the other suspects as long as "more than only marginal elements of the German military were destroyed." But, he adds, setting fire to single vehicles is not enough.
Criminal law professor Thomas Weigend likewise finds fault with a broad application of terror laws. In a letter to former head federal prosecutor Kay Nehm, he found fault with the "excessive reach" of the 2003 law and called for a restrictive interpretation. An attack, he wrote, should be classified as terrorist only when "the state in its entirety suffers damage," as in the case of "large-scale attacks on the energy supply," for example. Exceptions should be made only for extreme violence against humans.
Unusually Sloppy
Even justices at the Federal Court of Justice in Karlsruhe, Germany's highest appellate court, take this view. "Only limited effects with no broader impact are not sufficient, according to the letter of the law," two magistrates at the Federal Court of Justice note. According to that interpretation, the militante gruppe Andrej H. is accused of leading wouldn't be a terrorist organization at all. Even if the left-wing radicals have declared war on the state and have set fire to police cars, job centers and a supermarket, they have taken care not to hurt anybody. Contrary to the Red Army Faction, explosives or firearms are not part of their weapons arsenal.
But what seems like an academic quibble is vital for the future of the investigation into Andrej H's case. Only if the case is classified as terrorism does it become part of Federal Prosecutor Monika Harms' portfolio -- and only then can investigators make use of the full range of surveillance measures. Most importantly, it is only then that alleged behind-the-scenes conspirators can be prosecuted even when they have not contributed to specific crimes in a tangible way -- as with Andrej H. Investigators tapped his phone, traced his movements by following his mobile phone signal, read his e-mails and maintained video surveillance on both entrances to his house for almost a year.
If the arrest warrant issued by the Federal Court of Justice is to be believed, these measures yielded little: Policemen saw the avowed G-8 critic meet with one of the alleged arsonists in a café in February and April of this year. The meetings are said to have been arranged in secret through the e-mail account "opelprolls@yahoo.de." The investigators believe H. is the intellectual mastermind behind the group because his dissertation on urban renewal features the word "gentrification," which also appears in the communiqués of the "militante gruppe."
Last week, Ulrich Hebenstreit, the judge overseeing Andrej H's detention, carefully distanced himself from the initial accusations and temporarily rescinded the unusually sloppy arrest warrant against Andrej H. Hebenstreit argued that H. continues to be "strongly suspected of having committed an offense," but that sufficient evidence "regarding direct participation in one or more attacks by the 'militante gruppe' is not yet extant."