> The state investigation, into two journalists at Netzpolitik.org, is currently paused.
This is wrong.
The investigation was never paused. Last week the prosecutor did claim he would pause the investigation, but that was a misleading claim from the very beginning - with the sole purpose to calm the public. Although that didn't work out (the demonstrations happened nevertheless), it achieved some strange success: The media keep repeating and repeating that, despite having no evidence that anything was ever paused.
The only "pause" that exists is that the investigation is currently waiting for an assessment ("Gutachten"). However, that is normal part of the investigation and would have happened anyway. So this is "waiting" (passive), not "pausing" (active). The prosecutor didn't do anything here to pause the investigation.
There is probably a subtext we are missing. Sacking the chief will not immediately stop the prosecution (otherwise, all prosecutions would be dropped now!), I bet it will actually be paused and quietly resumed in a few weeks, in a more subdued tone. This has probably been used as a good occasion to get rid of an old entrenched player who thought he was untouchable, being a few months from retirement.
Paranoia tinfoil theory: Ronge was blackmailed by German spooks to hold the line for them, no matter what. Better to lose a year of pension than your reputation...
Non-paranoia theory: the state wants to make an empty gesture to appease the unruly masses upset about unpopular laws without actually changing them. What a show!
Granted, I am not familiar with German systems for changing laws, but if we doesn't like prosecutors enforcing unjust laws, we should change the laws to make publishing state secrets legal in limited cases (e.g. when it serves a public good), not make show of firing a prosecutor who is enforcing laws and about to retire anyway. It simply isn't wise to rely on prosecutorial discretion for justice to persevere over unjust laws, as that's simply not their role in the judicial system.
The Tagesschau yesterday (https://www.tagesschau.de/inland/maas-range-101.html) made it very clear that the Generalbundesanwalt is a "political public official" and as such (unlike judges, who are independent) subordinate to the minister of justice, and has to follow his directions. Maas refusal to do so, instead attacking the minister publicly for "meddling", is explanation enough for his dismissal.
It's also very questionable if Maas was indeed "just" enforcing laws, at least he was strangely selective in doing so (for some reason, he was very reluctant to enforce similar laws in the NSA-spy-affair). It's also very questionable of the accusations of treason against journalists only doing their job would have held up in court.
So the simple explanation is that the Generalbundesanwalt went too far, his superior had to act to avoid loosing face, and all this speculation about empty gestures, unjust laws or whatever is completely unnecessary.
Oh, good point, thanks for explaining. I did think it strange that a prosecutor was implying he was part of the judicial branch, and chalked it up to not being familiar with the German judicial system.
Still, I think it's better to limit prosecutorial power by changing laws than to rely on prosecutorial discretion, i.e. I'd prefer he get fired for "this is a wholly baseless prosecution that has no place under our laws", not for "this is an unpopular prosecution that your boss told you to drop".
I imagine the NSA is a sophisticated enough actor that prosecuting anyone related to them would be pretty futile. We can certainly wish that everyone be equal under the law regardless of resources, but that's simply not the case in practice.
They are against (part of) the German government as well as Germany's secret service ("Bundesnachrichtendienst", BND) for their extensive cooperation with the NSA.
Given that Maas apparently intented to kill the Gutachten on Friday, I think it's fair to assume that the investigation is not continuing or even merely paused. It's definitely dead now.
The next prosecutor would have to be extraordinarily stupid to get involved in this affair any further than required to put an official stop to the investigation.
The Generalbundesanwalt (Public Prosecutor General, GBA) is a civil servant bound by his superior's orders. That is why he can always be retired instantly by the Minister of Justice (§54 BBG). So yes, it is extraordinarily stupid for a GBA to against his orders.
In this case, however, I think Range actually wanted to be retired. He has taken so much fire over his apparently incompetent statements relating to NSA spying (among others he confused NSA and NASA on multiple occasions) that he probably wanted to get out of what is otherwise a fairly quiet job. In particular since there is pretty much nothing to gain anymore in this case.
I completely agree. Range has completely mishandled the NSA situation but he isn't stupid. It's obvious that this would get him retired and doing it this way was decent attempt at stopping this whole affair and does his colleagues a favor.
Still, it is interesting that even German media keep talking about the "pause" that never existed.
I really hope that the investigation will be dropped officially. If it will mere be discontinued and put on ice, this would have a really bad psychological effect on Markus and André. Even if it is 99.999% sure that they won't face any repression, having the investigation dropped would be a clear cut, and enable them to be truly relieved.
What's the difference between discontinuing it and dropping it? If it's officially dropped, does that prevent a later prosecutor from restarting it?
In the US you'd need a declaratory judgment to deal with the threat of "legal action at some later point". But I think that's a civil law concept -- I have no idea how that would go in criminal law.
Just to reiterate something the article mentions, though the title doesn't make it clear:
Range (the prosecutor) was sacked not for the prosecution itself, but for accusing the minister of justice of interfering with the prosecution.
Range had plenty of material to cover his ass for the prosecution itself, including an expertise that the leaked material was indeed state secret, the fact that the ministry knew about the investigation, and a solid initial suspicion.
Part of me starts to think this is the difference between having press freedoms outlined in a constitution, vs them being tolerated by the whim of the acting government, but then I look at the U.S. and the prosecution of reporters and whistle blowers and realize how tenuous press freedoms really are - anywhere.
This strikes me as a weasel worded statement. The Bill of Rights was conceived along side the constitution and kept out of the original constitution largely for political reasons relating to getting a very contentious document approved by the required minimum number of states for passage.
What's important in particular about having those rights at the "beginning" of the Grundgesetz is that the first 20 articles are immutable and cannot be changed unlike the latter parts of the constitution.
This is not true. Only articles 1 and 20 can't be changed. For the rest in between no such guarantee applies and they were changed a few times in the past. Though most likely restricting any of the freedoms severely would be ruled unconstitutional by the very first article.
Of course, the constitution is just a piece of paper, and what's protecting the rights in practice is a political system (especially courts) that tries hard to keep them.
Most of the rights already come pre-holed with exceptions, though. And lots of them contradict each other. There's lots of leeway, to justify a very wide range of policies as different `tradeoffs' between the rights.
The problem, in my opinion, when I see what is going on in different countries, is that even the constitutional rights are no longer a security belt. This belt is cut by different means. Just change the wording or invent special exceptions or find a loophole, where not enough people go against ... The ways are endless, how constitutional rights are torn apart and I fear this is only the beginning.
going to a demonstration in US could easily result in arrest and misdemeanor charges - big no-no if you want to get/stay in the middle class and continue having good jobs. It is a puritan society in its foundation.
It looks like that Germany is in the midst of some low intensity power struggle between many factions within the political system whether intelligence agencies, Merkel's govt, the judiciary and finally the press.
That is how it is supposed to be, isn't it? Always trying to find a balance between those opposing factions. Not like the US where all have capitulated against the intelligence agencies.
Ahahaha. Just look at the NSU neonazi shithole if the ass-kissing to the NSA doesn't show you enough, we Germans have capitulated to our and FVEY secret services too.
The difference seems to be, that the US agencies are causing more damage, because they are actually competent at what they are doing, while the German agencies are happy whenever they are invited to play with the big toys - thus the ass-kissing.
I think the reason for this is mainly less budget partly due to the fact, that the German agencies are often not federal agencies, e.g. each tiny state has their own Verfassungsschutz.
I mean, the NSU affair was really bad, but incompetent-criminals-bad not secret-state-government-bad.
The NSU case is rather different. I have difficulties to see how all belongs together, but I am also not sure, that incompetency is the only problem. We in Germany have a long history of blind eyes on right-wing criminality. I think, at least it is often covered, for prestige reasons.
It might look so, but that is a wrong interpretation. There might be some friction between different parties, but all in all, the system "Merkel" is unbelievable stable, since it is carried by the blind masses, that just don't want any change and are ready for that to swallow nearly anything, this system is throwing at them.
On the other hand, it is a very bad sign for the democratic system of the this country, when now even a warning from the OSZE has arrived in this topic. I remember years, when only third- and fourth-world or Eastern Bloc countries got such warnings and in the German tv it was shown, so we Germans could smile and say, that we are better than "those".
This is wrong.
The investigation was never paused. Last week the prosecutor did claim he would pause the investigation, but that was a misleading claim from the very beginning - with the sole purpose to calm the public. Although that didn't work out (the demonstrations happened nevertheless), it achieved some strange success: The media keep repeating and repeating that, despite having no evidence that anything was ever paused.
The only "pause" that exists is that the investigation is currently waiting for an assessment ("Gutachten"). However, that is normal part of the investigation and would have happened anyway. So this is "waiting" (passive), not "pausing" (active). The prosecutor didn't do anything here to pause the investigation.