Rainer Nickel, Data Mining and "renegade" Aircrafts: the States as Agents of a Global Militant Security Governance Networkthe German Example

• Jurisdiction: European Union
• Publication year: 2010
• Citation: Vol. 24 No. 2

DATA MINING AND "RENEGADE" AIRCRAFTS: THE STATES AS AGENTS OF A GLOBAL MILITANT SECURITY GOVERNANCE NETWORK-THE GERMAN EXAMPLE

Rainer Nickel^*

Security governance has changed the way societies organize and control the execution of powers. This Article focuses on the German approach, and, inevitably these days, also on the European Union approach towards new threats to security, especially with regard to terrorism. The main argument is that national responses to terrorism, especially after September 11, 2001, have to be understood in a wider context: they are embedded in a growing structure of security governance, and this structure has evolved into a Global Militant Security Governance. This formally non-hierarchical network structure poses a threat to the rule of law, or Rechtsstaat,¹and lacks basic respect towards fundamental rights. The structure and its actors move first; they do not waste their time on complex legal debates.

This Article makes this point by discussing two distinct phenomena that represent the main characteristics of the Global Militant Security Governance. First, it describes and analyzes the blurring of institutional and legal boundaries between two distinct fields of governmental action: police actions and military operations. This Article uses a prominent German court case in order to illustrate this effect: in 2006, the German Federal Constitutional Court ("FCC") decided upon the admissibility of shooting down civilian aircrafts in order to prevent a terrorist attack.²

Second, this Article illustrates a de-formalization of security governance processes. It addresses two subtopics in this context: the first is the extension of data-mining operations and their conflict with what the German and

European contexts call the constitutional right to personal data protection (a concept which is similar to, but also considerably different from, the right to privacy approach in U.S. constitutional law). The second subtopic concerns the informal or barely regulated cooperation of information agencies in the dissemination and processing of this data. In a number of cases, this cooperation has led to a chain of events that brought individuals directly into military detainment at Guantánamo Bay, Cuba.³

In the concluding remarks, this Article addresses the question of how to tame the Global Militant Security Governance. Crucial to the success of such an attempt is the installation of new types of effective control institutions within transnational information networks, and a new awareness about regulatory pre-cooking activities that have evolved in the shadow of the law.⁴

I. MILITANT SECURITY GOVERNANCE AND ITS TENDENCY TO OVERCOME

INSTITUTIONAL AND LEGAL BOUNDARIES

The terrorist attacks of September 11 have had a wide and lasting impact. They ignited waves of government and legislative activities around the globe that were aimed at the prevention of future attacks. In Germany, one piece of legislation concerned the permission to shoot down civil aircrafts that have been hijacked to be used as weapons against persons⁵("renegade" aircrafts).⁶

The legislation led to a remarkable decision of the German FCC, which imposed clearly defined constitutional limits to anti-terrorist measures.⁷The court also rejected the philosophy that the end justifies the means.⁸

A. Legislation on Renegade Aircrafts: The German Air Security Act

One imminent reason for the introduction of a new regulation was an incident that bore resemblance to the New York City attacks. On January 5,

2003, an armed man hijacked a sports airplane, circulated over the financial district of Frankfurt am Main and threatened to plunge the plane into the tower of the European Central Bank unless he was allowed to make a phone call to the United States.⁹A state police helicopter and two Federal Air Force fighter planes took off and circled around the sports plane.¹⁰The state police activated a red alert, cleared the inner city district of Frankfurt, and evacuated Frankfurt skyscrapers.¹¹About half an hour after the hijacking, it became clear that the hijacker was a confused man.¹²After his demand for a phone call was fulfilled, he landed at Frankfurt Rhein-Main Airport and police arrested him without any resistance.¹³

This incident fueled a political discussion about emergency responses to such dramatic events. In 2005, the Federal Government introduced a legislative proposal covering this scenario, and the Federal Parliament accordingly passed the Aviation Security Act (Luftsicherheitsgesetz, or LuftSiG).¹⁴In Section 14, the Aviation Security Act ("ASA") authorizes the armed forces (especially the Federal Air Force) to shoot down an aircraft that has been hijacked or otherwise intended to be used as weapon for a crime against human lives:

(3) A direct use of force shall only be permissible in the event that circumstances suggest that the aircraft is intended to be used against human life and this is the only means to defend this human life against the current threat.

(4) Only the Federal Defense Minister or, in the event that he/she is being deputized, the member of the Federal Government authorized to represent him/her, may order the implementation of measures in accordance with paragraph 3 above.¹⁵

This legislation introduced two novelties: a deployment of federal troops within the borders of Germany with a license to use military means, and the use of Federal troops as a kind of policing force. In the context of the United States, this may not be very controversial in itself. The U.S. Air Force is seen as an integral part of the security mechanism that protects the "homeland" against all kinds of attacks,¹⁶and the United States has declared a "war against terrorism" that may lead to a qualification of all possible terror attacks as actions in bello.¹⁷In Germany, however, the two novelties described above are entirely controversial. The Grundgesetz does not allow for the deployment of troops within the borders of Germany, the act of policing is a competence of the Federal states, and there is not any institution comparable to the National Guard.¹⁸

Accordingly, the Federal Air Force can only be activated in the case of an attack that has been formally defined as a war attack by an alien army force (a "defense case," or Verteidigungsfall), or in exceptional circumstances, which the Grundgesetz, Article 35, defines as follows:

(1) All federal and Land authorities shall render legal and administrative assistance to one another.

(2) In order to maintain or restore public security or order, a Land in particularly serious cases may call upon personnel and facilities of the Federal Border Police to assist its police when without such assistance the police could not fulfill their responsibilities, or could do so only with great difficulty. In order to respond to a grave accident or a natural disaster, a Land may call for the assistance of police forces of other Länder or of personnel and facilities of other

Id. administrative authorities, of the Armed Forces, or of the Federal

Border Police.

(3) If the natural disaster or accident endangers the territory of more than one Land, the Federal Government, insofar as is necessary to combat the danger, may instruct the Land governments to place police forces at the disposal of other Länder, and may deploy units of the Federal Border Police or the Armed Forces to support the police. Measures taken by the Federal Government pursuant to the first sentence of this paragraph shall be rescinded at any time at the demand of the Bundesrat, and in any event as soon as the danger is removed.¹⁹

It is far from clear whether these provisions apply at all in the case of a hijacked airplane. A renegade aircraft may cause a grave accident, but do the provisions also cover intentional accidents? Even if we assume they do, what exactly does Article 35 allow? Police forces in Germany do not have fighter jets or any other typical military equipment.²⁰Can the Federal Army complement police equipment, or is it only limited to the equipment and means at the police's disposal? And if the Army can use military means, would this still amount to assistance to the police (as defined in Article 35, paragraphs 2 and 3), or would this be a different case of an Army operation authorized by state police? In any case, Section 14 of the ASA clearly states that only the Federal Government is authorized to order the use of force against a

"renegade" aircraft, and not the state government.²¹The conditions outlined in

Article 35, thus, are not met; if the command lies with the Federal

Government, the Government does not "assist" the states, but acts on its own.

Another emergency provision, Article 87a, allows for the deployment of the Armed Forces only if the "democratic order" of the Federal Republic is in danger.²²Therefore, in cases where there is neither a massive attack nor a war- like emergency situation, it is rather questionable whether the Grundgesetz allows for the deployment of the armed forces. The Christian Democrats, the major opposition party at that time, attempted-unsuccessfully-to amend Article 35 of the Grundgesetz.²³No political will existed to extend the emergency powers of the Federal Government and the Armed forces: the existing emergency provisions in the Grundgesetz were already a result of a difficult political compromise reached in the 1960s,²⁴and none of the other major parties in the Bundestag (including the Social Democrats) was willing to open up another round of political discussions about this issue.²⁵

The clear distinction between a case of war-which must be clearly declared by parliamentary decision-and the internal deployment of troops- which is forbidden except for rescue operations in natural disaster scenarios- is a consequence of Germany's Nazi past. During the Third Reich, many legal and institutional boundaries that had been erected under the Weimar Republic as guarantees for the effectiveness of the rule...