Balancing Security and Liberty in Germany Russell A. Miller* INTRODUCTION Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy.1 Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, modern Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined.2 The second encounter – with leftist domestic radicalism in the 1970s and 1980s – required the maturing German democracy to react to domestic terrorism.3 The third encounter – the security threat posed in the * Associate Professor of Law, Washington & Lee University School of Law (
[email protected]); co-Editor-in-Chief, German Law Journal (http://www.germanlaw journal.com). This essay draws on material prepared for a forthcoming publication. See DONALD P. KOMMERS & RUSSELL A. MILLER, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY (3rd ed., forthcoming 2011). It also draws on a previously published piece. See Russell A. Miller, Comparative Law and Germany’s Militant Democracy, in US NATIONAL SECURITY, INTELLIGENCE AND DEMOCRACY 229 (Russell A. Miller ed., 2008). The essay was written during my term as a Senior Fulbright Scholar at the Max Planck Institute for Comparative Public Law and Public International Law in Heidelberg, Germany. 1. See, e.g., Jacqueline E. Ross, The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 AM.