Data Mining and ‘Renegade’ Aircrafts: The States as Agents of a Global Militant Security Governance Network — The German Example

Security governance has changed the way societies organise and control the execution of powers. This contribution will focus on the ’German’ approach, and, inevitably these days, also on the EU approach towards new threats to security, especially with regard to terrorism. The main argument is that national responses to terrorism after 9/11 have to be understood in a wider context; they are embedded in a growing structure of security governance, which has evolved into a Global Militant Security Governance. This formally non-hierarchical network structure poses a threat to the rule of law/Rechtsstaat principle and lacks basic respect towards fundamental rights. The structure and its actors act first; they do not waste time on complex legal debates. Two distinct phenomena that represent the main characteristics of the Global Militant Security Governance are discussed. First, the blurring of institutional and legal boundaries between two distinct fields of governmental action: police actions and military operations. Here a 2005 decision of the German Federal Constitutional Court upon the admissibility of shooting down civilian aircrafts in order to prevent a terrorist attack is used as an illustration. Second, we can observe a de-formalisation of security governance processes. Two subtopics will be adressed here: the extension of data-mining operations and their conflict with the constitutional right to personal data protection, on the one hand, and the informal or barely regulated co-operation of information agencies in the dissemination and processing of this data, on the other. In the concluding remarks the question how to tame the Global Militant Security Governance is addressed. Crucial for a success of such an attempt are the installation of a new type of effective control institutions within transnational information networks and a new awareness about regulatory pre-cooking activities that have evolved in the shadow of the law.