The surveillance powers Germany introduced after 9/11 were meant to be temporary. Twenty-five years on, they have become the rule rather than the exception – from a database exempt from data-protection limits to a “Gefährder” concept now headed for EU level.
The attacks of 11 September 2001 in the US also marked a turning point for domestic security policy in Germany and the European Union. “We have to get ahead of the situation,” was how Jörg Ziercke, President of the Criminal Police Office (BKA) from 2004, summed it up. What is meant is risk-based surveillance of the “preliminary stage” (“Vorfeld”), also referred to – borrowed from English – as “pre-emption”: police are meant to act even before a concrete danger or a decision to commit an offence exists.
Just eight days after the attacks, the German government under Interior Minister Otto Schily (Social Democratic Party) launched the first “security package”, targeting association and foreigners’ law. Religious associations could henceforth be banned under association law. The deportation of foreign nationals accused by the authorities of supporting terrorism was also made easier. A few months later, a “Criminal Law Amendment Act” created Section 129b of the Criminal Code, making membership of, or support for, a foreign terrorist association prosecutable in Germany.
Temporary special powers, made permanent
The second “security package” came into force on 1 January 2002 as the “Counter-Terrorism Act”. It laid the ground for the later establishment of an “Anti-Terror Database” fed by the databases of all security authorities, thereby undermining the principle of purpose limitation for the storage of sensitive information. Since then, this data may be searched using “dragnet investigation” – a precursor to “Palantirisation”, whereby computers use opaque software to search various sources for connections between offences or individuals.
“Security Package II” amended 17 laws and six ordinances. Partly because the federal states took a critical view of the expansion of the Criminal Police Office’s powers, it was limited to five years. However, under the first “Counter-Terrorism Supplementary Act”, the special powers became the norm from 2006 onwards, with further extensions following in 2011 and 2015. The powers were subsequently absorbed into the newly restructured Criminal Police Office Act, which critics say cemented the erosion of the separation between police and intelligence services.
Tougher measures in the EU too
At EU level too, 9/11 marked a watershed – until then, action against terrorism had largely been left to member states. The most important new pillar of cross-border cooperation following the 2001 attacks was the Framework Decision on Combating Terrorism, which came into force in 2002, contained a common definition for the first time, and harmonised the range of penalties for such offences across the EU.
The Framework Decision also brought about the “EU terrorist list”, on which individuals or groups deemed to be linked to terrorism are placed. Inclusion on the list is possible on the proposal of a single member state alone, provided no other country vetoes it. Sanctions can then be imposed on those affected.
This also made the list an instrument of political arbitrariness, since an alleged involvement in terrorism does not have to be publicly substantiated. As far as Germany is concerned, this is illustrated by the continued listing of the Kurdish PKK as a “foreign terrorist organisation”, even though it has renounced armed struggle in Turkey.
“Gefährder” concept pushed onto the EU agenda
Part of this shift towards pre-emptive criminal prosecution is also the introduction of the term “Gefährder” (“potential threat”) for combating extremism as a precursor to terrorism – previously, the term had only been used in Germany in the context of violence-prone football fans. In 2004, the Criminal Police Office and the State Criminal Police Offices agreed on a vague working definition for “Gefährder” motivated by “right-wing extremism”, “left-wing extremism”, “religion” or “other foreign ideologies”.
Since Germany’s Council presidency in 2020, the Ministry of the Interior has been pushing to introduce the term at EU level too – even in its German spelling. Legally speaking, however, “Gefährder” are individuals with no criminal record who have not been convicted of anything, yet are nonetheless meant to be monitored and pursued by the police. As such, the term symbolises the intelligence-ification of policing since 9/11.
Published in German in „nd“.
Image: Activists disrupted the streets at Hackescher Markt in Berlin 28 August 2025 in protest for the murder of journalists in Gaza. A massive and violent police operation did prevent the crowd from blocking the busy tourist streets for an hour (Montecruz Foto).
