A test for a young democracy: How the RAF challenged the German Rechtsstaat

Caroline Gröne, Konrad Duffy


When Edward Snowden revealed to which extent modern surveillance systems control the world, this provoked a massive outcry among politicians and citizens. The National Security Agency's (NSA) programme, exposed by Snowden, is probably one of the biggest programmes collecting data of foreign and domestic citizens in the world. However, as terrorism has already existed before the 21st century, also counter-terrorist measures have a long tradition. The method of collecting data by using computerized systems has its beginnings in the second half of the 20th century. This new "computational security" is widely regarded as the beginning of "new surveillance" One of the countries which first made use of new surveillance methods was West-Germany, having to deal with left-wing extremism in the 1970s and 80s. It is, therefore, of particular interest to investigate to what extent Germany could cope with the new challenges and keep its democratic legitimacy as a Rechtsstaat, in particular in view of its fragility as a young and politically divided democracy. The Rechtsstaat is here defined as "a state in which the rule of law prevails".
This paper examines to what extent the new surveillance and security methods, introduced by the German government against the RAF, led to a transformation of the understanding of the Rechtsstaat. To elaborate on this question, the first part touches upon the evolvement of the RAF. Furthermore, it introduces the criminologist Horst Herold, the main "hunter" of the RAF in more detail, and the creation of dragnet investigation. The second part outlines the concept of new surveillance using literature by Gary Marx and David Lyon, and examines to what extent "new surveillance" theory can be linked to the events in Germany. The third part explores the workings of the legislative and executive powers of the time by illustrating how they were threatening to undermine the Rechtsstaat in the attempt to establish security. The paper concludes by arguing that to counter the radical left-wing movement of the 1970s and the RAF, the German government implemented a number of policies and new processes, which challenged some of the basic principles of the Rechtsstaat, and thereby jeopardized the political and judicial foundations of this young democracy.

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DOI: http://dx.doi.org/10.26481/marble.2016.v3.267