Germany’s ‘Separation Principle’: Police and Secret Service Reconnaissance Tasks in a Changing Security Landscape

This project addresses the growing convergence between modern police work and security intelligence directives. Besides softening the ‘iron limits’ of concrete danger and initial suspicion as vital law enforcement intervention thresholds, state responses to terrorism and international organised crime have expanded police powers and their technical surveillance capabilities to record and evaluate complex threat scenarios. At the same time, Germany’s intelligence services have exploited this changing security landscape to react more strongly to individual efforts aimed at endangering the state, and to enhance their vital role as an effective ‘early warning system’ within the nation’s overall security framework. As a result, both law enforcement authorities increasingly converge and overlap in the field of intelligence activity, leading to growing confusion about their constitutionally separated functions, powers, and competencies.
In response, this doctoral project examines the nature and implications of the constitutionally provided order of competence and (above all) Germany’s so-called ‘separation principle’, which since enactment of the Grundgesetz in 1949, has aimed to rigidly partition the nation’s police forces and secret services. This enquiry therefore seeks answers to the following inter-related questions: What limits to changes in law enforcement functions and aptitudes can be found in the constitution? How are these boundaries to be determined and where can a dividing line be drawn in the reconnaissance activities of the police and security intelligence services? Are these boundaries respected in current legal doctrine and where and how do they become blurred? And lastly, are scholarly theses describing an ‘intelligence serviceization of the police’ and a ‘policeization of the intelligence services’ ultimately correct?
Besides engaging in a rigorous doctrinal study of German constitutional and public security law, answers will be facilitated by employing comparative law methods to improve our understanding of the roles and inter-relationships between criminal, preventive-police, and intelligence law. While touching on issues of digitalisation and contributing to a more doctrinally coherent understanding of German law enforcement realities, the project’s principal aim is to assess how the threat of convergence of modern police work and intelligence activities affects pu­blic se­cu­ri­ty law’s ability to pro­tect the fun­da­men­tal rights of in­di­vi­du­als and the func­tio­ning of our le­gal in­sti­tu­ti­ons and de­mo­cra­tic pro­ces­ses.