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Chapter 3

Case Study II: Germany

Part 1: German Government Structures and Decision-Making

The German government system displays only few of the strong executive powers typically associated with parliamentary democracies. Instead, it is notorious for the various checks and restraints imposed on the executive branch. These are numerous within the executive branch, where the electoral system has given rise to additional power-sharing arrangements. The chancellor not only needs to drag along his or her party but must also secure support from the coalition partner. Additional interlocking powers characterize the intergovernmental dealings between the federal and state governments regarding domestic security affairs. In fact, the federal-state relationship in the domestic security arena brings about separation-of-powers effects usually reserved for presidential systems. Before analyzing counterterrorism responses after 9/11, a detailed assessment of the structural confines of German decision-making processes—how they have evolved since the founding of the federal republic in 1949, and the informal rules of engagement the constitution does not reflect—is in order.

German Power-Sharing Arrangements

It is no coincidence that foreign observers, especially hailing from presidential systems like that in the United States, refer to the British rather than the German parliamentary model when discussing the alleged “efficiency” of parliamentary systems. The German system is cumbersome, complex, and confusing, as it represents the epitome of power-sharing, political checks, and compromises. In other words, it is designed to restrain rather than facilitate executive power. Apart from the legislative checks common to all democratic government systems and the rather informal intraexecutive coalition and party checks (the latter being similar to those imposed on British prime ministers), the German system exhibits additional structural checks that go beyond anything we can find in British, French, or U.S. government systems. The German Länder (states) participate in the legislation and administration of the federation through their representation in the Bundesrat (federal council),¹ which plays a role similar and yet more powerful to that of the upper houses in bicameral systems like those of the United States, Great Britain, and France. As the Bundesrat has essentially “veto powers” with regard to many domestic security laws, it serves as a powerful control mechanism on the Bundestag (federal diet) and, by extension, the executive branch in the domestic security realm.

In Germany, as in other parliamentary systems, the structural balance of power has tilted toward the governing majority made up of representatives from both executive and legislative branches. Like the British prime minister, the German chancellor can stay in power only as long as he or she is supported by a legislative majority in the Bundestag. Connected by “personal union,” the chancellor and cabinet members often serve as members of Parliament.² Further illustrating this synergy, the executive uses its “affiliated” parliamentary groups to introduce cabinet bills to the Bundestag to speed up the decision-making process.³

Alternatively, Montesquieu’s principle (“que le pouvoir arrête le pouvoir”) is implemented through various inter- and intrabranch controls, as well as an elaborate and unique system of interlocking powers.⁴ Horizontal checks on executive power include, most important, the Bundestag’s right to replace the chancellor by means of the no-confidence vote. As the chancellor can only be forced out of office through a constructive vote of noconfidence (Article 67 of the German Basic Law), he or she has more job security than any British prime minister. The same members of Parliament who withdraw their support for the chancellor have to elect a successor with an absolute majority within 48 hours. The chancellor cannot actively dissolve the Bundestag, but can threaten to invoke a vote of confidence (Article 68). Intended as an instrument to discipline parliamentary critics within the chancellor’s own ranks, this article has served the sole purpose of calling in early elections in the event of a no-confidence vote.⁵ Other formal Bundestag powers include the right to establish investigative committees and summon executive testimony. Opposition parties may influence executive agenda-setting by introducing legislation, launching written inquiries, and publicly questioning cabinet resolutions and government conduct.⁶

Illustrating significant discrepancies with the British parliamentary system, the German electoral system prevents the Westminster-style “singular approximation” of executive and legislative power.⁷ In contrast to the British majoritarian two-party system, the German proportional election system ensures multiparty representation in Parliament.⁸ As a result of this multiparty competition, it is practically impossible for any one party to reach an absolute majority of over 50 percent necessary to gain control over all other parties. With one exception, since 1949 all majority parties in Germany have had to form governing coalitions with other parties. Illustrating the all-pervasive political culture of power-sharing commonly associated with consensus democracies like Germany, even when his Christian Democratic Union (Christliche Demokratische Union, CDU) party reached the absolute majority in the 1958 elections, Chancellor Konrad Adenauer opted for a coalition to improve his government’s legitimacy and thus decision-making powers. Needless to say, British-style majority voting is considered unfair and even undemocratic among German critics.

As a result of the coalition “fragmentation” in the executive branch, the Bundestag gains clout, so that parliamentary groups can and do play a more influential role in the decision-making process than the British Commons or French National Assembly.⁹ This is also symbolized by the fact that, in contrast to the British and French prime ministers, the chancellor is formally elected by the members of the Bundestag (Article 63) rather than nominated by his or her party (like in Britain) or president (like in France).

Party Democracy and Deparliamentarization

Despite the relative strength of the Bundestag as a structural check on the executive branch, it is still the party that imposes the strongest, if informal, checks on the executive. Like in Great Britain, the governing party holds a tight grip on the chancellor and sets policy-making guidelines. In fact, critics argue that party dominance in German decision-making violates John Stuart Mill’s principles of representative government, in which the executive branch and Bundestag serve as the central bodies for deliberations and decision-making among representatives.¹⁰ Increasingly, so these critics argue, MPs no longer serve as representatives of the people but merely follow the directives of their respective parliamentary groups. To the contrary, another school contends that the concept of representative government could never be realized in any parliamentary system.¹¹ Party membership and cohesion are essential for gaining a mandate in the first place—the more important “second vote” (Zweitstimme) on the German ballot is reserved for the party—and for steering legislative initiatives through the decision-making process.¹² The multiple hats of German government officials and parliamentary rules illustrate this linkage as well. Chancellors often serve as party chairpersons during their tenure, while cabinet members hold strategic positions in their parties.¹³ In contrast to the British system, legislative initiatives cannot be introduced by individual lawmakers but only by parliamentary party groups (or groups representing at least 5 percent of all MPs). Not surprisingly, party cohesion has consistently been high.¹⁴ Going beyond Bagehot’s observation that “party organisation is the vital principle of representative government,”¹⁵ the German constitution even acknowledges the role of parties in the formulation of the political will of the people (Article 21). The principle was supported by a 1977 ruling of the Constitutional Court, which determined that the practice of parliamentary party discipline does not violate representative democratic principles.¹⁶

Rejecting criticism about the “creeping de-parliamentarization” of decision-making processes, the court further ruled the transfer of actual decision-making powers to working groups, committees, and commissions constitutional.¹⁷ In fact, since the founding of the German republic and very similar to developments leading to the loss of cabinet stature in Great Britain, administrations have rarely used the formal cabinet proceedings for actual decision-making.¹⁸ Decisions are not brokered inside official government bodies—the Bundestag or cabinet as a whole—but within informal settings. Only toward the end of the informal negotiation process are agreements introduced into the formal decision-making channels and adopted as the foundation of cabinet resolutions.¹⁹

Meetings are attended by leading executive and legislative representative as well as chairmen and secretary generals, ministerial state secretaries, and lobbying groups.²⁰ First convened under Chancellor Konrad Adenauer in the early years of the German republic, these informal decision-making bodies reached unparalleled prominence during the Helmut Kohl administration (considered among the strongest German postwar governments, similar to the Blair administration in Great Britain) and represent the actual centers of cross-coalition, cross-parliamentary, and cross-intergovernmental party brokering. In other words, these informal meetings served as an important consultation forum for more independent chancellors like Konrad Adenauer and Helmut Kohl, who operated largely outside the party orbit.²¹ Parliamentary whips participate in the coalition steering committees and closed meetings at the ministries, while members of the executive take part in the board meetings of their parliamentary groups or the interparty federal-state working groups.²² In many cases, consultations with the Länder, especially when it comes to domestic security questions, are considered a mandatory step, without which proposals are not submitted to the interagency cabinet process.²³ In general, ministers first secure support from their parliamentary groups before presenting controversial proposals to their fellow cabinet members.²⁴ However, there are also limits to this close cooperation. For example, early on in the Schröder administration the chairmen of the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD) and Alliance ‘90/The Greens (Bündnis 90/Die Grünen) parliamentary groups resisted the chancellor’s invitations to participate in cabinet meetings on a regular basis. While it would seem a mere manifestation of the informal decision-making forums with many of the same members, the parliamentary chairs were hesitant to blur the formal line of demarcation separating government and legislative affairs.²⁵

Chancellor Democracy or Presidential Chancellors? Neither, Quite Yet

The first postwar chancellor, Konrad Adenauer, so skillfully drew on the powers vested in the head office that his dominant role gave rise to the term “chancellor democracy.”²⁶ Similarly, Chancellor Helmut Kohl’s unilateral management of the unification process has been described as a “manifestation of Chancellor democracy.”²⁷ A detailed analysis of all seven postwar administrations illustrates, however, that the chancellor’s position is not automatically paramount. It is instead greatly dependent on leadership styles, coalition, and cabinet appointments, as well as the chancellor’s relationship with his own party.²⁸ In contrast to the first French president and “founding father” of the Fifth Republic, Charles de Gaulle, Chancellor Adenauer did not seek further to boost the chancellor’s powers and standing via constitutional amendments.

The chancellor has the prerogative to determine the policy guidelines (Richtlinienkompetenz), as guaranteed by the constitution.²⁹ However, this privilege is, in theory, offset by the principle of joint cabinet decisionmaking (Kabinettsprinzip) and, in practice, by the clout of cabinet members who run their respective ministries by means of ministerial autonomy (Ressortprinzip). In fact, the chancellor’s prerogative has never been invoked by any chancellor. Even if determined to ensure cabinet compliance—for example, by dismissing defiant cabinet members—he or she would still have to rely on extensive bargaining skills to gain the necessary support from the parliamentary majority, as well as that of the governing or coalition party. While, in theory, the chancellor has the right to dismiss ministers, in practice, this instrument of leverage has amounted to no more than hollow threats (contrary to the practice of British prime ministers). Because ministers are often leading party figures, chancellors avoid unilateral dismissals; cabinet members belonging to the coalition partner can only be dismissed by their own party.³⁰ Therefore, the chancellor’s role has come to resemble that of a chief broker and “compromise manager throughout the whole process.”³¹ To reach a political decision, the interests of the chancellor’s own cabinet members, parliamentary group, and party ought to be balanced with those of the coalition partner, resulting in a complex web of power-sharing and bargaining arrangements across parliamentary and party lines.³²

According to a third school of thought, the debate about the merits of party and “chancellor democracy” distracts from the more recent revolutionary changes in German decision-making, namely, the “gradual shift towards a presidentialized mode of governance.”³³ As globalization and Europeanization have fostered an “executive bias that has become a structural condition of national politics,”³⁴ a development that has affected all other EU member states, the Bundestag’s role has gradually diminished. International treaties and agreements are no longer carefully scrutinized by the legislative branch.³⁵ The transnational dimension of governance, thus, “injects an element of separation of powers … into parliamentary systems by making governments more independent of the legislature.”³⁶

Despite these EU-wide developments, the Bundestag plays a far more central role in German decision-making regarding security and foreign affairs than do its British or French counterparts. In contrast to the Commons and the National Assembly, the Bundestag grants approval to any foreign deployments of the German armed forces, which are periodically renewed and voted on. As this may not seem like such a huge hurdle given the inherent party discipline, it can turn into a more delicate affair if one of the coalition parties carries strong antimilitary sentiments.³⁷ Moreover, the Parliamentary Control Committee (Parlamentarisches Kontrollgremium) oversees the activities of all three federal intelligence services, and, contrary to its British counterpart, its members are not nominated by and required to report to the German chancellor. The committee is further reinforced by the more stringent G10-Commission (G10-Kommission, where G10 stands for Article 10 of the Basic Law), also housed by the Bundestag, which determines and approves the necessity and legitimacy of all foreign, domestic, and military intelligence/surveillance measures affecting the privacy of correspondence (mail and telecommunication). In contrast to its French counterpart, the G10-Commission is more likely to veto and scrutinize surveillance measures, as its members do not have to be members of Parliament and are, therefore, not beholden to the government. More important, while recommendations of the French oversight commission for wiretaps are not binding, all German surveillance measures have to be approved by the G10-Commission.

Interlocking Powers and Federalism in Domestic Security Affairs

The fusion of power characteristic of the English constitution is also significantly offset by intergovernmental power-sharing mechanisms in Germany. To eradicate centralized Nazi structures for all time, the Constitutional Council in 1948 combined executive power sharing with the territorial fragmentation of powers to the Länder. The “cumbersome decision-making mechanisms,”³⁸ were encouraged by the allied powers, and, according to Peter Katzenstein, created a “semi-sovereign state” with “severely circumscribed and widely diffused” executive powers.³⁹ In fact, critics argue that “hardly any other democratic state is characterized by such a refined system of ‘checks and balances,’ of separated and interlocking powers, but also absence of power, like the German system.”⁴⁰ Federalism experts explain the lack of sweeping reforms in Germany with the “joint decision-making traps,”⁴¹ with Katzenstein noting that “the decentralization of the state contributes to the political predisposition for incremental policy change.”⁴²

As the system is grounded in federalism, the governing majority (drawn from the Bundestag) has to take into account the interests of the Länder represented in the Bundesrat. Until the 2006 federalism reform, the Bundesrat role became ever more dominant as an increasing number of legislative initiatives required mandatory Länder approval (Zustimmungsgesetze) and Länder decisions regarding these types of laws cannot be overturned by the Bundestag. These laws are therefore different from other bills that also have to be discussed and voted on by the Bundesrat, but can still be overruled by the lower house. Legislation that required this kind of compulsory Bundesrat approval included many bills that involved Länder jurisdiction or prerogatives in matters of domestic security.⁴³

In an effort to provide uniform representation of state interests in the Bundesrat—against those of the federal government in the Bundestag—the Länder have formed the permanent steering committee of the Interior Minister Conference (Innenministerkonferenz, IMK). Apart from coordinating state strategies, IMK procedures are used to harmonize operational details and ensure uniform policy administration across the sixteen states.⁴⁴ The closed IMK meetings are attended by the federal interior minister (who lacks veto power) and the sixteen interior ministers of the states, who also constitute the Interior Committee in the Bundesrat. While the interior ministers are the public face of this informal decision-making body, they rely on a complex administrative apparatus of issue-specific task forces and working groups for policy advice.

Whenever the governing majority of the Bundestag and the Länder of the Bundesrat find themselves immersed in “separation of powers” struggles, the chancellor serves as a mediator between both chambers. Similar to the interplay between executive and legislative branches in the United States, chancellors can use the intergovernmental tug of war to shield themselves from demands of their own party, parliamentary group, or coalition (and vice versa). At the same time, interbranch struggles can be used to rally support within one’s own ranks or justify gridlock and failed reforms to the public.⁴⁵ The same mechanism works on the state level as well, where joint decisionmaking serves as a pretext to deflect criticism for failed initiatives or claim responsibility for successful reforms.⁴⁶ Unlike the U.S. system, however, federal and state governments as represented by the Bundestag and Bundesrat often do not share a common interest in producing tangible results.

The parties frequently serve as the common denominator and negotiation vehicle between the federal government and the Länder, and “much of the political coordination between federal government, individual Land governments and the federal chamber (Bundesrat) is facilitated through party channels.”⁴⁷ Overall, Bundesrat voting patterns illustrate that state concerns have frequently taken a back seat against party interests.⁴⁸ In fact, critics argue that the Bundesrat has become an instrument of entrenched party politics, abused by government and opposition alike.⁴⁹ In times of “divided government,” when the majority of the states are governed by the same party that constitutes the main Bundestag opposition party, the Bundestag/Bundesrat mediation committee thus serves as a powerful venue to influence legislation.⁵⁰

The notion that federal priorities are regularly overwhelmed by party interests does not hold consistently, however. Länder voting patterns have become less predictable since unification, in the course of which the number of the states represented in the Bundesrat increased to sixteen.⁵¹ While “governments can be said to be significantly better off under the conditions of ‘unified government’,”⁵² state governments are prepared to sacrifice national party strategies when these run counter to state interests, particularly when they threaten to jeopardize state sovereignty and jurisdictions, for example, in the domestic security arena.

Reforms Needed? The 9/11 Attacks from the German Perspective

On the eve of 9/11, the German political environment did not appear to be particularly conducive to far-reaching reforms in the counterterrorism realm. The governing coalition included the left-wing SPD and antiwar Green Party, many of whose members had been involved in both peaceful and violent civil rights movement protests during the 1970s. Some even sympathized with the Baader Meinhof group, officially known as the Red Army Faction (Rote Armee Fraktion, RAF). In an ironic twist, Interior Minister Otto Schily (SPD) had served as defense lawyer for various RAF members during the terrorism trials in the 1970s. Whatever the nature of the compromise struck by the governing coalition, the intricate decision-making structures discussed throughout the preceding sections meant that any counterterrorism bill affecting Länder sovereignty would also require approval of the Bundesrat, where the SPD-led government coalition faced a CDU-led Länder majority.

A 1999 Jihadi plot to blow up the Christmas market in Strasbourg (a French town with a large German-speaking population at the German/French border) was considered a first red flag by German security services but did not lead to any reforms. The 9/11 attacks, however, did lead to significant changes. In the days after 9/11, it soon became clear that the federal republic, with its rigid privacy rights and liberal asylum policies, had served as the logistic base for several Al-Qaeda members involved in planning and execution of the attacks.⁵³ The notion of a German terrorist sanctuary in “Hamburgistan”—four of the hijackers had lived and studied in the northern city of Hamburg—was unacceptable in the view of many.⁵⁴

Antiterrorism laws passed to counter RAF terrorists in the 1970s and 1980s did not prevent the infiltration of Al-Qaeda cells into German society, further highlighting the difference between the transnational Jihadist movement and more traditional terrorist groups.⁵⁵ Moreover, both differed in regard to, inter alia, political goals, methods, and organizational structure. For example, as opposed to Jihadi suicide terrorists aiming to inflict civilian mass casualties at any cost, left-wing revolutionary terrorists in Germany were more selective and “only” focused their “anti-imperialistic struggle” on high-profile targets,⁵⁶ including corporate leaders, U.S. or NATO military bases, and representatives of the German state (mostly high-ranking members of the judiciary or police). In an effort to gain public support and achieve the revolutionary end goal, RAF members regularly explained and justified their actions by means of open letters to the general public.⁵⁷ Overall, and in stark contrast to the scope of the 9/11 attacks that killed 2,977 people and also cost eleven German lives, the RAF campaign resulted in the total death of 34 people over a thirty-year time frame.⁵⁸