The Constitutional Suspension of the Constitutional State

After the attacks of September 11, nothing will be as before. This sentence, a disastrous threat, could be read and heard everywhere in the last months. Under the mantle of the “worldwide war against terrorism”, Interior minister Otto Schily bundled his security packages I and II and steered them through the cabinet. The veil slowly fell hiding the advance of a “totalitarian spirit” (Burkhard Hirsch) that already drifted among the anti-globalization movement and other activists before the attacks. The question raised is whether everything is really different after September 11.

At first, the events of that day didn’t seem to immediately affect state or governmental association with globalization critics. Otto Schily’s security packages were sold to the public by the Federal Government as a reaction to September 11, a necessity in the struggle against terror. However the same Federal Government has admitted since the end of September 2001 that there were no signs that violent terrorist acts were imminent in Germany and that there were already adequate means for combating terrorism.

The criminalization of politically active persons should be criticized. Sit-in blockades are reinterpreted as acts of violence… In the “prognosis of dangers”, those participating in announced peaceful demonstrations legitimately criticizing the policy of the rulers are stylized as violent culprits or perpetrators… The basic rights charter including the basic right to political activity, the freedom to demonstrate, was ignored by Italy. Constitutional principles were simply overruled by Germany with the conferral of exit prohibitions…

Even before September 11, rights of freedom were already massively restricted and undermined for impenetrable reasons of state.

Demonstrations are mainly directed against dominant policy. The basic right of demonstration is the foundation of every liberal society. Thus conditions for or prohibitions of demonstrations are serious encroachments in the basic rights and freedom rights of the population.

A demonstration prohibition for the whole city has unfortunately been imposed for a long time. In February 2002 in Munich, this practice was extended to the protests of the globalization critics against the Nato security conference. This prohibition is based on the sweeping expectations of violence of demonstrators, an expectation of uncontrollable violence in the form of the officially produced appearance of immediate danger.

Prohibiting demonstrations “by general decree” represents the sharpest limitation of freedom rights since it minimizes the basic right to demonstration derived from Art. 8 of the German constitution (freedom of assembly) and Art. 5 (freedom of speech). Prohibiting demonstrations is not directed against particular offenses or criminal acts but against the anti-globalization movement altogether and every protest. Legal ways are hardly open. Administrative courts do not critically evaluate the prognosis of dangers.

The enforcement of the security needs of the German state and the freedom rights of individuals are not balanced any more. The freedom rights of the constitution are now under the proviso of prevention. Every citizen is regarded as potentially dangerous until the state ascertains that he is not concretely dangerous. The state acts with essential hostility and distrust toward its population and turns the constitutional assumption of innocence into its opposite.

With the constitutional standardization of security measures, the limits between the constitutional state and the surveillance state were quietly annulled. The laws on “internal security” benefit the state in managing the basic rights and human rights of the population. They aren’t useful in combating terrorists. Imperceptibly the term terrorism is redefined and an insidious equation of terrorism and globalization criticism achieved. The intensified measures on “internal security” allow so much room for interpretation that terrorism is an action of civil disobedience. In short, all protest against a dominant policy can be interpreted as terrorist and punished or put under state control. Thus the state has the possibility of criminalizing every social struggle or deeming it terrorist.

This principle of declarations of internal enemies is not only directed against foreigners of Muslim faith or Arab descent put under a categorical suspicion of terrorism but against everyone who acts critically against an increasingly unjust economic, political and social system.

The state itself becomes the most immediate threat to its population and to public security. Repression and social controls creep into everyday life and can strike anyone at some time.

If globalization critics and other political activists were exposed to state repressions and the Federal Government was already on the way to the surveillance state, if nothing has changed in the current praxis, the question is what is now actually different after the events of September 11?

The terrified situation after the assassinations was systematically exploited to create the legal basis for annulling democratic rights and freedoms. The “Anti-terror Packages” of the Federal Government were not rush jobs but merely produced at the suitable opportunity.

By enforcing these measures under the cover of combating terror, the state has obtained by devious means a legal basis for making every critic into a security risk and all citizens on the quiet into objects of control. The laws on "internal security" make possible the construction of exhaustive movement profiles and complete surveillance for the state. The right to informational self-determination is largely suspended.

The symbolic surveillance of public places through camera dummies contradicts the right to an anxiety-free social atmosphere and provokes an unfree, overly disciplined conduct through the symbolic criminalization of individuals.

The question now is: What moves the state to enforce this? The fear of further loss of power. The Federal Government tears down political and elementary legal freedom rights because like other national governments the legitimacy of its political and economic rule based on acknowledgment fades in the course of the movement criticizing globalization. The increase of state repression toward the population is an indicator for the expected loss of power from the dominant view. The state regards it as necessary to resort to repressions to maintain rule if necessary even without any legitimation. A state acts totalitarian toward symbolic resistance as though it faces real counter-force when the legitimation of its rule threatens to be lost.

The surveillance state begins where resistance against future dangers has priority to resistance against present dangers and no balance exists any more between state power and its control.

Thus the arbitrariness of the authoritarian state increasingly replaces the binding legal system. Security laws arose legally with totalitarian characteristics.

Beate Malkus from the Committee for Safeguarding Political Rights can be reached by e-mail: rightnow@sopos.org.

Translated by Marc Batko