Terrorism As Discourse
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DIPLOMARBEIT Titel der Diplomarbeit „The multi-causal and asynchronous development of terrorism laws in Germany from the 1970’s to the present” Verfasser Mag. iur. Clemens Kaupa angestrebter akademischer Grad Magister der Philosophie (Mag. phil.) Wien, im Dezember 2009 Studienkennzahl lt. Studienblatt: A 312 Studienrichtung lt. Studienblatt: Geschichte Betreuer: Univ.-Prof. Mag. DDr. Oliver Rathkolb Content Introduction ................................................................................................................................ 3 Terrorism as discourse ............................................................................................................... 6 Terrorism discourse: the case of SDS .................................................................................... 7 Terrorism discourse: sympathizers....................................................................................... 11 Terrorism laws in Germany enacted during the RAF period................................................... 16 Kronzeugenregelung – the leniency law .............................................................................. 16 Conclusion........................................................................................................................ 23 Lauschangriff – the wiretapping program............................................................................ 24 Conclusion........................................................................................................................ 32 Rasterfahndung..................................................................................................................... 34 Conclusion........................................................................................................................ 54 § 129a (formation of a terrorist organization) and related changes of the penal and procedural penal code (StGB and StPO).............................................................................. 56 Conclusion........................................................................................................................ 65 Kontaktsperregesetz – the communication ban law............................................................. 66 Conclusion........................................................................................................................ 71 Radikalenerlaß...................................................................................................................... 72 Conclusion........................................................................................................................ 82 Conclusion................................................................................................................................ 85 German terrorism laws as a continuation of a pre-democratic, authoritarian tradition........ 85 The liberalization of the state and of police matters ............................................................ 88 Terrorism legislation ineffective against terrorism .............................................................. 89 Terrorism legislation as a political instrument against the left ............................................ 89 Terrorism laws are almost never repealed............................................................................ 90 Institutional conflict and a non-monolithic conception of the state..................................... 91 Final remarks........................................................................................................................ 92 Cited Literature ........................................................................................................................ 93 1 2 Introduction Left terrorism in Germany in the 70’s and 80’s was a polarizing issue and continues to be so. Different narratives compete for dominance in interpreting the acts of the RAF and other terrorist groups. Most of them focus in some form on the dichotomy of terrorist acts and state reaction. One narrative, dominant in major parts of the left and the liberal left since the 70’s , has acknowledged and condemned the criminal character of the RAF’s terrorist acts, but has put its focus on the state reaction, which it has perceived as being excessive, following an authoritarian political agenda and reducing civil liberties. The dominant narrative on the political right and in important parts of the SPD has portrayed the RAF as an overall threat to the survival of the state, necessitating and justifying a forceful reaction. These two narratives differ not only in regard to their assessment of the state reaction, but also in how they characterize the development of terrorism laws. The “left” narrative has described and continues to describe the development of terrorism laws as an ongoing reduction of civil liberties. The “right” narrative suggests that reductions of civil liberties by terrorism laws are mostly temporary and disappear when the terrorist threat subsides. This concept is often based on the metaphoric assumption that security and liberty are in some sort of balance, as Ronald Dworkin pointed out.1 By describing the above-mentioned narratives as “left” and “right”, I already indicated that they do not merely serve an analytical function, but have been and continue to be employed in public debate to substantiate a political agenda. The concept of “terrorism” – defined by the narrative surrounding it – has a specific discursive function. However, terrorism laws are not merely an appendage to (anti-)terrorism politics, just as the law is not merely an appendage to politics in general. Rather – following Luhmann – politics and the law, although they interact and influence each other, are distinct systems following their own rules of continuity, reproduction and development. Looking at the history of terrorism and state reaction in Germany from this perspective I suggest that not a singular, but a multitude of development patterns are to be discovered. It may be worthwhile to describe the development of terrorism laws as a bundle of (legal, political, social) processes having their own distinctive – sometimes complementing, sometimes competing – histories. By this, I do not wish to suggest that more straightforward, mono-causal narratives (such as the ones outlined above) are less valid than the one that I present. However, I consider it important to be clear about their 1 Ronald Dworkin: The Threat to Patriotism, in: The New York Review of Books (2002) Vol. 49 No. 3 3 functions in political discourse. Giving account of an asynchronous and multi-causal development of terrorism laws in Germany shall hint at the great number and the complexity of processes that it has been influenced by. This thesis aims at providing a systematic analysis of the development of the major terrorism laws enacted during the RAF period and includes both the specific legal developments and the connected general political discourses. Each of the six legal measures is discussed separately. The final chapter attempts to establish common traits in the development of the different anti- terrorism laws. In particular, it analyzes the Kontaktsperregesetz, Kronzeugenregelung, Lauschangriff, Rasterfahndung and the terrorism provision in the penal code (§ 129a StGB) and related provisions. Important provisions not covered due to space constraints concern the limitations of defence rights (Verteidigerausschluss). Additionally, I included a chapter on the Radikalenerlass. While the Radikalenerlass does not constitute terrorism legislation per se, I believe that it provides major insights into the de-normalizing structure of the security debate in Germany in general. So far, very little has been published on the legal dimension of Germany’s anti-terrorism efforts from a historic point of view, and no systematic analysis of relevant legal developments has been attempted yet. Therefore, this thesis mostly relies on primary sources. The reconstruction of the legal developments of the researched measures and the connected political debates is mainly based on articles from Der Spiegel, a weekly journal that had a left- liberal orientation until the mid-90’s. Additionally, I carried out a broad research in a variety of professional legal journals, including the Neue Zeitschrift für Verwaltungsrecht, the Neue Juristische Wochenschrift and the Zeitschrift für Rechtspolitik. Finally, I analyzed two political publications: Kursbuch, the major journal for the radical and non-orthodox left in the 70’s, and Blätter für deutsche und internationale Politik, a political science journal of predominantly social democratic orientation. While the Spiegel-research provided the structural backbone of the thesis and was the main source for the reconstruction of the political discourse, the legal research gave an overview of the relevant legal debates. Finally, Kursbuch and Blätter provided an insight into the critical opinions on the development of terrorism laws in Germany. Earlier drafts of this thesis included a larger chapter on the theoretical side of the terrorism discourse. However, the number of publications that perform a discourse analysis of 4 “terrorism” is vast and has – in my view – already comprehensively substantiated the argument that “terrorism” is not a neutral term but has a discursive and political function.2 I therefore decided to limit the theoretical part to a minimum and instead fully focus on the analysis of the development of terrorism laws