Non-judicial rights review of counterterrorism policies: The role of fundamental rights in the making of the counterterrorism database and the data retention legislation in Germany

Abstract

Abstract This article analyzes the institutions, procedures, and mechanisms of non-judicial rights review in Germany, focusing on the policy field of national security. Although there is currently a fruitful constitutional debate about the virtues and vices of non-judicial review in the Anglo-Saxon legal world, this debate has virtually gone unnoticed in German scholarship, and the role of political actors in protecting fundamental rights is neglected. This article studies how rights considerations affect the making of antiterrorism policy in Germany and what mechanisms exist in the legislative process to ensure the creation of rights-respecting antiterrorism policy. It is methodologically designed as a case study and focuses on two controversial pieces of legislation: the Data Retention Act and the Anti-Terror Database Act. The article reveals that Germany features a bureaucratic model of rights review in which rights issues are primarily negotiated between the two constitutional ministries—the Ministry of Justice and the Ministry of the Interior—which are mutually entangled in an institutionalized competitive relationship. This model complements the German strong-form model of judicial review and has the effect that the role of rights is mostly mediated through the Constitutional Court’s case law and the prospect of judicial review. The article further demonstrates that these non-judicial rights-review processes are surrounded by a legalistic and rather formalistic political culture that is not conducive to a principled and deliberative engagement with fundamental rights. Overall, rights are prominently considered and clearly have a constraining effect, however, often ultimately recede when weighed against the objective of ensuring collective security in the wake of the threat of terrorism.