VZCZCXRO9696
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSL RUEHSR
DE RUEHRL #0985/01 2231442
ZNR UUUUU ZZH
R 111442Z AUG 09
FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC 4926
INFO RUCNFRG/FRG COLLECTIVE
RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUEAIIA/CIA WASHINGTON DC
RHMCSUU/FBI WASHINGTON DC
RHEFHLC/HOMELAND SECURITY CENTER WASHINGTON DC
RHEHNSC/NSC WASHINGTON DC
RUCXONI/ONI WASHINGTON DC
RUEHRL/USDAO BERLIN GE
RHMFIUU/HQ USCENTCOM MACDILL AFB FL
RUEKJCS/HQ USEUCOM LO WASHINGTON DC
RHMFISS/HQ USEUCOM VAIHINGEN GE

UNCLAS SECTION 01 OF 03 BERLIN 000985 
 
SIPDIS 
SENSITIVE 
 
State for EUR/CE, EUR/PGI, S/CT, IO/PSC and EEB/ESC/TFS 
 
E.O. 12958: N/A 
TAGS: PTER PGOV PREL KCRM GM
 
SUBJECT: CONTROVERSIAL COUNTER-TERRORISM LEGISLATION ENTERS 
INTO FORCE 
 
REF: A. 2008 Berlin 619 
      ¶B. 2008 Berlin 862 
     ¶C. 2008 Berlin 1275 
 
 
¶1. (U) SUMMARY: On August 4, significant amendments to the 
German Criminal Code entered into force that criminalize a 
range of terrorism-related preparatory actions such as 
participating in terrorist training or acquiring weapons/bombs 
with the intent to commit attacks that endanger the German 
state.  The amendments also outlaw the distribution and 
acquisition of bomb making and similar instruction materials, 
but again, prosecutors will need to demonstrate that these 
instructions motivated individuals to commit violent crimes. 
Establishing relations with a terrorist group with the intent 
of receiving training to commit attacks is also outlawed.  By 
encouraging early intervention into potential terrorist 
activity, the amendments aim to reduce the threat of attacks 
against Germany and the international community.  Although 
opposition parties (FDP, Greens and Left Party) and many media 
criticized the law, Justice Ministry officials assured Embassy 
that the law was an effective and necessary tool to prosecute 
terrorists.  END SUMMARY. 
 
Amendments to Penal Code Target "Homegrown" Terrorists 
--------------------------------------------- -------- 
 
¶2.  (U) The Justice Ministry drafted the legislation in 
reaction to a series of cases in which German citizens and/or 
residents traveled to Pakistan to undergo terrorist training 
at camps belonging to the al Qaida-affiliated Islamic Jihad 
Union (IJU).  German security authorities estimate there are 
up to 140 individuals who have travelled to overseas training 
camps of whom approximately 70 have returned to Germany.  The 
most prominent example of "homegrown" terrorists are the 
members of the Sauerland IJU group that planned attacks on 
U.S. institutions in Germany in 2007 and are currently 
standing trial in Dusseldorf, two of whom are German citizens 
who converted to Islam and underwent terrorist training in 
Pakistan.  In March 2008, a German resident (with Turkish 
citizenship) carried out a suicide attack that killed two U.S. 
soldiers in Afghanistan after having receiving training in 
Pakistan.  More recently, a number of German citizens and 
residents have appeared in extremist videos filmed in the 
Af/Pak border region. 
 
Keeping Pace with the Terrorists 
-------------------------------- 
 
¶3. (U) The new amendments modernize Germany's counter- 
terrorism legal framework.  Although there were important post 
9/11 legislative changes, the foundation of existing German 
counter-terrorism law originates from the 1970s in reaction to 
the militant left-wing Red Army Faction (RAF).  Justice 
Minister Zypries (SPD) maintains that the amendments to the 
Criminal Code were necessary to close existing loopholes. 
Earlier laws outlawed membership and support of domestic and 
foreign terrorist organizations, but the new sections now 
permit the prosecution of individuals who engage in 
preparatory terrorist actions.  The new law responds to the 
development of modern terrorist structures that are often 
comprised of small numbers of compartmentalized or independent 
actors operating without any firm connection to a 
hierarchically-based group.  Justice Ministry Counter- 
terrorism Office Director Hellmann explained to EmbOffs that 
although the law intends to address threats from international 
terrorists, it is designed to include all terrorist activity, 
including activities from violence prone right- and left-wing 
extremists.  The new legislation includes three main elements. 
 
Section 89a: Serious Violent Acts Endangering the State 
--------------------------------------------- -------- 
 
¶4. (U) The first of the modifications to the Criminal Code 
allows authorities to prosecute individuals who "take 
preparatory actions to carry out a crime intending to, and 
 
BERLIN 00000985  002 OF 003 
 
 
capable of, threatening the existence or security of the 
German state or constitutional order."  These include crimes 
such as murder, manslaughter, and hostage-taking.  The 
definition of what constitutes such criminal preparatory 
actions includes four alternatives: (1) receiving instructions 
or instructing another person participating in training inter 
alia in the manufacture or use of firearms, explosives, 
radioactive substances, poison or special equipment necessary 
to carry out attacks or in other skills serving to commit 
attacks ; (2) manufacturing, acquiring or storing weapons, or 
explosives in order to commit a violent offense; (3) procuring 
or storing items or substances crucial to the manufacture of 
weapons, substances or equipment to carry out attacks; and (4) 
the fundraising, funding, or supplying of assets to prepare 
for a violent crime. 
 
¶5. (U) The preparatory actions are only punishable if they 
were committed with the intent to prepare a violent crime 
endangering the state.  This means that the sole acquisition 
of knowledge/skills without the corresponding intent to commit 
such a violent crime is not punishable.  Hellmann explained 
the amendments did not require, however, that a detailed and 
specific attack plan existed; plans need only be roughly 
outlined.  If the preparatory actions occur outside the 
European Union, they are only punishable if committed by a 
German national or a foreign national with Germany as primary 
residence, or if the terrorist act is to be committed inside 
Germany or against a German national.  Crimes falling under 
this first new criminal offense are punishable by up to ten 
years imprisonment. 
 
Section 89b: Initiating Terrorist Contact 
------------------------------------------- 
 
¶6. (U) Establishing relations with a terrorist group with the 
intent of receiving training to commit a violent crime is 
punishable by up to three years imprisonment or a fine. 
Critics of this element claim the threshold of what is a 
criminal action is pushed too far towards mere preparatory 
actions.  However, Justice Ministry drafters maintain that an 
individual who establishes or sustains contacts with the 
intent of taking up training to commit a violent crime already 
at that time creates an abstract danger and this is sufficient 
justification for criminalizing such actions. 
 
Section 91: Bomb-Making Manuals 
------------------------------- 
 
¶7. (U) The third new criminal offense criminalizes a range of 
actions related to receiving or providing instruction for 
carrying out violent attacks, in particular using the internet 
(for uploading and downloading such instructions).  For such 
activity to be punishable it is not necessary for prosecutors 
to prove that the perpetrator had a specific attack in mind; 
nevertheless, the instructions must be judged to have the 
effect of actually motivating or arousing the readiness of 
persons to commit violent crimes. 
 
Amendments to Procedural and Immigration Law 
-------------------------------------------- 
 
¶8. (U) The law also contains procedural modifications to 
extend existing special investigatory methods (surveillance, 
searches, confiscation) to the new Section 89a and gives the 
Federal Attorney General authority to take over prosecution of 
cases of particular importance.  The changes to immigration 
law allow for the extradition and denial of entry to foreign 
nationals if there are known facts of plans to commit violent 
crimes.  The Banking Act was also amended as to include the 
new Section 89a. 
 
Critics of the Amendments 
------------------------- 
 
¶9. (SBU) The amendments, which finally passed the Bundestag on 
May 28 (and Bundesrat on July 11) after over a year of debate, 
 
BERLIN 00000985  003 OF 003 
 
 
were heavily criticized by opposition parties (FDP, Greens and 
Left party).  The debate centered on concerns about the right 
balance between (growing) state powers and security and 
personal freedom.  The amendments were passed in the Bundestag 
with CDU/SPD majority against the votes of the opposition 
parties and only managed to pass the Bundesrat with the 
supporting votes of Baden Wurttemberg which is co-governed by 
the FDP and CDU - all remaining states with FDP co-government 
opposed the law.  FDP and CDU parliamentarians had both 
criticized the Justice Ministry's law during the legislative 
process, but for different reasons.  FDP members, who have a 
citizens' rights and protection of personal privacy agenda, 
claimed existing laws were sufficient and viewed the 
amendments as unacceptably widening the scope of criminal 
liability. 
 
¶10. (SBU) Some CDU politicians had initially questioned the 
effectiveness of some of the amendments and argued that 
prosecutors would face difficulties demonstrating that 
defendants who underwent terrorist training at overseas camps 
were doing so with the express intention to subsequently carry 
out attacks (see reftels).  EmbOffs raised these latter 
criticisms with BMJ's Hellmann who responded that German 
prosecutors were experienced in proving intent, as proof of 
intent is a requirement for all premeditated crimes.  Hellmann 
also noted that drawing conclusions about intent from certain 
external circumstances or actions would not be too difficult 
for prosecutors, adding proof of a detailed and specific 
attack is not required; plans need only be roughly outlined. 
 
COMMENT 
------- 
 
¶11. (SBU) The new legislation is the second important counter- 
terrorism package adopted this year.  The first, which went 
into effect on January 1, was drafted by the Interior Ministry 
and provided the Federal Office of Criminal Investigation with 
new investigatory powers and lead responsibility in certain 
counter-terrorism investigations.  Taken together, the two 
legislative packages have considerably strengthened Germany's 
ability to investigate and prosecute terrorist cases. 
 
BRADTKE