In the aftermath of the December 19 truck rampage committed by jihadist Anis Amri at a Berlin Christmas market, the German public debate has shifted to the policy and security lessons to be drawn from the attack. Given the Tunisian nationality of the attacker, discussions have focused on immigration law and on administrative counter-terrorism measures.

New security prerogatives proposed

Politicians from the conservative CSU party have been at the forefront of demands for increased competencies for the security services. In a policy paper, the CSU leadership most notably called for an expansion of administrative detention.

For the CSU, being identified by the intelligence services as an individual likely to threaten public safety because of suspected terrorist intentions (i.e. being identified as a Gefährder or ‘endangerer’ in German politico-legal parlance) is to be sufficient for an individual to be placed in administrative detention. Moreover, in the case of foreigners awaiting deportation, the period of custody prior to expulsion is to be prolonged from four days to four weeks.1) http://www.deutschlandfunk.de/sicherheitsgesetze-bericht-ueber-umfassenden.1947.de.html?drn:news_id=692879

Finally, the CSU proposes to curb the usage of the more lenient juvenile penal law for terrorist offenders under the age of 21, to allow counter-terrorism intelligence operations against suspects as young as the age of 14, and to monitor the movements of convicted extremists even after their release from prison through electronic ankle bracelets.2) http://www.deutschlandfunk.de/sicherheitsgesetze-bericht-ueber-umfassenden.1947.de.html?drn:news_id=692879

Effectiveness of policy initiatives

The moment for the CSU’s initiative is opportune: not only has the attack on the Christmas market shaken the German public; the effectiveness of expansive surveillance also appeared to be on ample display when a group of young men from Syria and Libya were caught on camera while trying to set on fire a homeless man sleeping in a Berlin metro station.

The men turned themselves in when crystal-clear CCTV images showing their faces were released to the public. Citing this example as an ostentatious success story, the CSU has demanded a drastic expansion of video surveillance of public spaces in the aftermath of the Christmas market attack.3) http://www.zeit.de/gesellschaft/zeitgeschehen/2016-12/berlin-polizei-fahndet-ubahn-obdachloser-angezuendet

A spokesman of the German lawyer’s association, Swen Walentowski observed, however, that “video surveillance does not lead to greater security. There are completely false and exaggerated expectations of video surveillance. […] [A] terrorist would never be deterred by a video camera mounted on some lamp post.”4) http://www.heute.de/csu-papier-fuer-schaerfere-sicherheitsgesetze-partei-setzt-auf-gunst-der-stunde-46201116.html

Investigative blunders in the run-up to the attack

Walentowski’s comments highlight the fact that the effectiveness of a number of the currently flouted counter-terrorism proposals is questionable. Indeed, in retrospect Anis Amri’s journey through Europe was hardly a smooth one, and the Tunisian did little to conceal his jihadist ambitions. European security services failed to use existing legal provisions that would have allowed them to curb the terrorist threat posed by Amri.

Having left Tunisia after the country’s revolution, Amri lived in Italy for years and had repeated brushes with the law in the country, spending time in Italian jails. Yet although mandatory on paper, the exchange of information between German and Italian security services appears to have been highly deficient, meaning that Amri could start a new life after his arrival in Germany in summer 2015.5) http://www.spiegel.de/politik/deutschland/anis-amri-und-der-anschlag-in-berlin-versaeumnisse-im-anti-terror-kampf-a-1127376.html

Subsequently, Amri established contacts to the hardline preacher Abu Walaa, dubbed the informal leader of the Islamic State organisation (ISIL) in Germany. The Abu Walaa network attempted to help Amri to travel to Syria. Amri also repeatedly discussed plans for a potential attack with leading figures in the preacher’s group.6) http://www.dw.com/de/anis-amri-abu-walaa-und-die-salafisten/a-36879648

Slipping under the radar

Authorities had collected extensive material on Amri’s activities. Amri’s file at the domestic intelligence agency was updated only a few days before the December 19 attack, and included his aliases, his contact persons and addresses, details of his arrest in Italy, and his activities as a courier in the Abu Walaa network. It noted, too, Amri’s willingness to work as a suicide operator and his interest in building a bomb.7) http://www.tagesschau.de/inland/anschlag-berlin-amri-101.html

Abu Walaa himself, as well as some of his most important associates, were arrested in early November 2016. Yet intelligence services ceased their efforts to monitor Amri in summer 2016. Shortly before, an attempt to deport Amri back to Tunisia had failed: although his demand for asylum had been rejected, Tunisia refused to issue travel documents and to readmit Amri.8) http://www.spiegel.de/politik/deutschland/anis-amri-und-der-anschlag-in-berlin-versaeumnisse-im-anti-terror-kampf-a-1127376.html

To be sure, with numbers of suspected ISIL sympathisers being relatively large, German and European intelligence services will not be able to effectively monitor every single potential attacker. Rule of law and high standards of accountability can also be encumber investigations against terror suspects. The Amri case nevertheless appears to show a series of mishaps on the part of authorities. Tough questions must be asked as to why Amri was allowed to slip under the radar.

Failures to make use of existing legal provisions

When dealing with Amri, intelligence and security services had a range of tools at their disposal which they only used haphazardly. These include cooperation and information exchange with other agencies in the European abroad, as well as a number of domestic measures.

Perhaps most notably, Amri’s freedom of movement could have been restricted, thereby hampering his ability to integrate into the German jihadist network in Hanover and to commit an attack in Berlin – both places far from his home in North-Rhine Westphalia. The German Residence Act enables local authorities to require suspect or dangerous asylum-seekers who have had their demands for refugee status rejected to remain within a certain area and to report to the local police.

If the individual violates these requirements, he or she is placed in detention. Significantly, Amri did run into police controls when he was travelling through the country several hundreds of kilometres away from his home. At this point, he could have been arrested and detained had such a residence requirement been in force.9) http://www.spiegel.de/politik/deutschland/anis-amri-und-der-anschlag-in-berlin-versaeumnisse-im-anti-terror-kampf-a-1127376.html

Legislative fever

Yet none of these measures were taken – in spite of authorities’ awareness of Amri’s jihadist activities. Instead, the young man travelled frequently and freely across Germany, keeping in touch with his contacts from the radical scene and scouting potential places for attacks. The failure to stop Amri is thus less due to inadequate legal provisions than to a faulty assessment of the threat Amri posed.10) http://www.tagesschau.de/inland/anschlag-berlin-amri-101.html

Consequently, the Green Party security spokesman, Konstantin von Notz, accused the governing parties of voicing expansive demands for new laws in order to detract from their failings in implementing existing legal provisions.11) http://www.heute.de/csu-papier-fuer-schaerfere-sicherheitsgesetze-partei-setzt-auf-gunst-der-stunde-46201116.html

Following the events of December 19, Germany is currently undergoing the familiar legislative fever that appears to be the inevitable consequence of a terrorist attack. While it may be necessary to amend or alter selected legal provisions, the rushed introduction of sweeping new counter-terrorism laws does not respond to the genuine shortcomings in the German and European counter-terrorism framework that the Christmas market attack has revealed.

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