The Trade-Off between Civil Liberties and Security in the United States and Germany after 9/11/01

Thesis Structure

I. Introduction

II. Reviewing Opinion Polls – Peoples’ Attitudes Concerning 9/11/01
1. Abstract Value-Trade-Off
2. The Perception of Fear and Concrete Value-Trade-Off
a. Attitudes towards Surveillance Measures
b. Attitudes towards Non-citizens, Foreigners and Racial Profiling

III. U.S. and German Civil Liberties Standards before 9/11/01
1. American Civil Liberties and German Basic Rights
2. U.S. Surveillance Laws vs. German Surveillance Laws
a. The U.S. law landscape
i. Title III of the Omnibus Crime Control and Safe Streets Act of 1968
ii. The “Church Committee” and the 1970s Intelligence Reforms
iii. The Foreign Intelligence Surveillance Act of 1978
iv. Anti-Terrorism and Effective Death Penalty Act of 1996
v. Non-citizens, Foreigners and their Rights
b. The German Law Landscape
i. A Basic Right to Security and “Rasterfahndung”
ii. The “Volkszählungsurteil” of
iii. Criminal Telecommunications Surveillance
iv. The G-10 Law
v. Non-citizens, Foreigners and their Rights
c. U.S. and German Surveillance Laws in Comparison

IV. U.S. and German Civil Liberties Standards after 9/11/01
1. The Declaration of the “War on Terrorism“ and its Implications
2. U.S. Surveillance Laws vs. German Surveillance Laws
a. Legislation that Never Passed before 9/11 and other Legal Tendencies
b. U.S. Surveillance Laws
i. The USA PATRIOT Act
ii. Non-citizens, Foreigners and Interim Rule 2171-01
iii. The Limit of Limitations
c. German Surveillance Laws
i. The Antiterrorism Law I
ii. The Antiterrorism Law II
iii. The Antiterrorism Database
d. U.S. and German Surveillance Laws in Comparison

V. Conclusion

References

Integrity Statement

I. Introduction

It is a truth universally acknowledged that no democratic society can exist without granting certain liberties to its people and safeguarding them from potential harm. However, when either security or liberty is taken to their extremes they can have a rather disruptive effect on the stability of that democracy. Liberty, if granted without boundaries, can shatter a democracy to its very core and even be the cause of its downfall. The unlimited freedom of speech in the Weimar Republic can bee seen, among other things, as one example of this. By abusing the liberty to speak out against the very nature of the Weimar political system and its constitutions, the NSDAP and followers of the old monarchy were able to gain power. Once in control they annulled the very liberties that are fundamental to a democratic society little by little and thus led the country into a dictatorship for 12 years. In a similar way the same is true for an overreaching extension of security. Confining liberties to a degree that virtually invalidates them for the sake of defending the society from perceived threats may result in harming the very social order that the security measures are supposed to guard. One example is the U.S. internment camps for Japanese during the Second World War. Over a hundred thousand U.S. citizens with Japanese origins were detained solely on the basis of their ethnic backgrounds in order to prevent possible agents from conducting espionage inside the United States.

Benjamin Franklin once said that, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” (Wisdom Quotes). There must be a balance between the two extremes. But what does the balance between these two values look like? From a historical perspective, there have been many democracies all over the world that have at times struggled with finding the right calibration for them. Though generally constitutions of democracies are dedicated to both security and liberty, the balance between those two often tends to be re-evaluated and shifted after crucial events have taken place.

One such event that has shocked people all over the world and had governments undertake sustainable value-trade-offs in favor for more security were the terrorist attacks on the United States on September 11, 2001^[1]. The effects of this catastrophe and its different impacts on the American and German legislation are the main focus of this paper. When sociotrophic fear is induced by a traumatic event, it opens a window of opportunity for more security. This in turn tempts governments to seize this moment to implement legal changes that restrict liberties in a way that was not socially acceptable before.

Throughout the three parts of the main body, it will be shown how the same event can lead to an altered outcome if the preconditions are different. Since it is, however, impossible to take a comprehensive view at all the aspects of the post-9/11 legislation, special issues will be at focus: For one, the people’s attitudes toward the attacks and the resulting political setting will be scrutinized. Following that, legal changes that have come from these altered preconditions regarding criminal and intelligence surveillance and the treatment of foreigners, non-citizens and natives will be discussed.

Although both governments equally seized the opportunity to concentrate more than ever on prevention management rather than consequent management after 9/11, there have been differences in the actual implementations that have taken place to keep the risk of further attacks and potential losses of citizens minimal. Additionally, divergent legislative preconditions and attitudes from citizens had a major influence on the way the value-shift has been executed. In order to provide the reader with a comprehensive comparison of the initial circumstances and ensuing changes, each chapter will start off with an analysis of the situation in the United States. The conditions and transformations in Germany will be discussed in the following section. Once the reader has obtained a thorough understanding of the relevant settings of the respective nations; a comparison of the preceding issues will take place.

A successful political realignment and subsequent tilt in the balance between security and civil liberties is closely tied to the support of the citizenry. Chapter two will therefore contain an analysis of opinion polls taken in both the U.S. and Germany. Starting with a brief theoretical overview of how abstract and concrete value-trade-offs are manifested, the actual attitudes towards fear of terrorism in general and towards specific measures will subsequently be provided. In addition, the opinions of the general public regarding the treatment of non-citizens and foreigners will be an important focal point.

Chapter three will deal with the actual civil liberty standards and security legislations in the two countries prior to 9/11. In order to make clear which liberties are exactly in question, relevant amendments to the U.S. Constitution and the basic rights put down in the German Basic Law will be pointed out. Thereafter, criminal and intelligence surveillance laws and the treatment of foreigners and non-citizens preceding the attacks will be the center of attention.

The ramifications of 9/11 on the U.S. Constitution and the German Basic Law will be the content of chapter four. It will be shown how the value-trade-off has been initiated and how far it has gone. It will be revealed how laws that had been “shelved” for years prior the attacks have been passed as a result of the terrorist assaults and the consequently altered perceptions of security. These points will be illustrated by, among other things, the two most prominent laws in the U.S. and Germany, the USA PATRIOT Act and the Antiterrorism Laws I and II, respectively. The legal settings for criminal and intelligence surveillance will be evaluated in this regard. Additionally, a close look will be taken at the treatment of foreigners and non-citizens and the “special” attention they have been receiving. Finally, the development of legal tendencies over time in each country will be an issue.

The insights that have been gained in chapters two, three, and four will be joined together in chapter five. It will be shown how different legal preconditions have been affected in the same fashion by similar reactions of the people. The severity and effectiveness of the respective value shifts in each country will once again be briefly discussed. Following that, a comparison of the extremity of legal changes from before to after 9/11 in the U.S. and Germany will be provided. A contrast between the two nations of the persistence of the value-shifts in favor for more security over time will follow. In the final analysis, it will become clear that different preconditions and changing attitudes over a period of time have led to similar but divergent shifts in the value-systems. In conclusion, it will be apparent that the more traumatic an event is, the more prone it is to lead to a more biased shift toward security over civil liberties. Moreover, the assumption that in times of fear the acceptance of individual differences in a society is decreasing will be proven correct.

Although secondary literature concerning new legislation after 9/11 in the U.S. is abundant, the same is not true for Germany; while comparisons about the value-trade-off in the two countries are virtually inexistent. This disparity can at times lead to a more in depth analysis of the U.S. American situation than the German. The majority of articles written can be dated back to the two to three years after the terrorist attacks. A selection of those, together with texts of relevant laws, will be the basis of the chapters dealing with the legislation before and after 9/11. Primary literature like various opinion polls of large U.S. and German institutes such as Gallup, The Transatlantic Trends, EMNID or FORSA will also be the main basis for the evaluation of the perception of fear and the ensuing willingness to accept a value-trade-off in favor of security. Furthermore, newspaper articles and information from government and other websites will be cited to provide additional insight.

II. Reviewing Opinion Polls – Peoples’ Attitudes Concerning 9/11/01

A key finding repeatedly emphasized in the literature on mass beliefs is the fact that there are inconstancies or even contradictions when it comes to people’s attitudes towards a value-trade-off between security and civil liberties. In general, there is an obvious discrepancy between the willingness to accept liberty-constraints in the abstract or more specific ones. While an abstract trade-off usually conveys a negative connotation, precise measures tend to score considerably higher approval-rates (Lewis 2005, 24).

Knowing this, one could ask: What is the benefit of looking at opinion polls? The answer is simple: Public opinion matters regardless if it is stable or not. The governments of both the U.S. and Germany had security legislation “lying around” for a long time before 9/11 (Lewis 2005, 22; Kunz 2005, 18). But without a window of opportunity, politicians run the risk of being punished by the voter when putting through unpopular large-scale legislation. The importance of this fact and the significance of opinion polls have become particularly obvious after 9/11, when the governments of both the U.S. and Germany seized the shift in public opinion, which now favored the enhancement of security legislation, by passing severely restrictive antiterrorism laws. This suggests that the more interest the public expresses in a certain topic, the more its approval or disapproval will influence political actions. As a result of increased public interest, the number of polls covering this topic rose immensely following the terrorist attacks in the U.S. as well. As Huddy et al. (2002, 1) put it: “It is difficult to think of many others events to which Americans’ reactions have been assessed as thoroughly [as of 9/11]”. Although there have been polls about fear and fear of terrorism preceding the attacks, these have never been as explicit and in depth as the ones conducted after the attacks. For a scientific analysis, however, this bears certain complications. German polls, for example, concerning fear and, in particular, fear of terrorism have mostly been collected as part of a general inquiry about social concerns. Therefore, it is hard or even impossible to conduct an explicit comparison of feelings and attitudes from before and after the attacks. This is not only problematic in respect to Germany, but the challenge grows when it comes to contrasting the amount of fear from terrorism in the U.S. and Germany to each other.

Even when polls concerning terrorism from before 9/11 are available, the questions are mostly similar, not identical. Not a single polling institution has been sensible about asking identical follow-up questions. Even larger discrepancies can be observed between the questions asked among different American and German institutions. This makes it not only hard to compare results, but also introduces a bias to the answers. It has been shown (Gallup Poll News Service 2007), for example, that respondents react more favorably to the request of giving up civil liberties for security if positive aspects of the trade-off are addressed. Likewise, reluctance grows when this is not the case. In addition, the reader should also be aware of the fact that opinion polls are always at risk of having errors due to random effects like sampling^[2]. These inconsistencies make it obvious that polls cannot be utilized as precise indicators for political action. However, public opinion can be understood as a trend barometer indicating “opportune moments” for legislative changes.

1. Abstract Value-Trade-Off

According to a study conducted in the immediate aftermath of 9/11 in the U.S. by Davis and Silver (2004, 35-43), the willingness to accept a value-trade-off between security and liberty is linked to the notion that the freedoms and liberties granted to the American people eased the preparations and execution of the terrorist assaults. Among other things, they established that sociotropic fear^[3] and trust in government are independent factors when it comes to accepting a value-trade-off between security and civil liberties. They discovered that a rising level of fear combined with a high level of trust in the government fosters the people’s acceptance for restrictions of civil liberties in general^[4]. The main independent variable was, therefore, fear. Davis and Silver (2004) concluded that no matter how high the trust in the federal government was an increased sense of threat always led to an increased acceptance of liberty restrictions. Even people who prior to 9/11 where strong supporters of civil liberties were willing to compromise them in the aftermath. This was due to the threat they felt. Worries about too far fetched restrictions on civil liberties diminished even further the more the people additionally trusted in their federal government.

Similar findings to those of Davis and Silver (2004) were also made by Barbara Lübcke (2006, 4). Basing her results on recent opinion polls conducted by the Social Science Institute in Kiel, she found that people who support a value-shift for more security tend to perceive the chance for terrorist attacks in Germany as higher than those who oppose such shifts.

In the following, these findings will be the basis for the examination of fear in the U.S. and Germany. This will be followed by an analysis of trust and contentedness with government actions and, finally, the findings will be compared.

The events on 9/11 increased the world’s awareness in respect to terrorism like nothing else ever before. According to the German Marshall Fund (2002, 1) no other incident has shaken the American public like this catastrophe in the last thirty years. This has led to a heightened sense of vulnerability. The only other comparable incident to 2001 in the amount of dread it caused in U.S. citizens toward terrorism is the Oklahoma City bombing in 1995, in which 169 people were killed and almost 1000 injured (Ball 2004, 11). When a poll was conducted only a few days after the bombing, 42% of the respondents admitted to being very or somewhat worried that they or a family member might become a victim of terrorist attacks (Carroll 2005, 2-3). Although nearly 9 in 10 of the people asked thought it was also very (47%) or somewhat (42%) likely that similar assaults might happen somewhere else in the U.S., about the same percentage (88%) had a great (58%) or moderate (30%) amount of confidence in federal law enforcement. At the same time, 46% did not trust the government to be able to prevent further attacks from happening and, 49% of the interviewees did not deem it necessary to sacrifice civil liberties in order to fight terrorism (Lewis 2005, 23). Even though sociotrophic fear was high in the immediate aftermath of Oklahoma City, the Clinton administration failed to implement as far fetching legal changes as it had initially intended. The reason for that was a combination of a lack of trust in the abilities of the government and faith in the exiting legislation. During the year it took Congress to discuss and pass new security laws, public fear and support for legislative changes continuously diminished. Consequently, the window of opportunity for more severe changes had been missed. By May 1996, a month after the Antiterrorism and Effective Death Penalty Act of 1996 was signed by Congress, the percentage of people who felt personally threatened by terrorist attacks had decreased to 35% while only 30% still deemed a value-trade-off as necessary (Carroll 2005, 2; Lewis 2005, 23). This trend was further continued throughout the 1990s. When in 1998 a poll was conducted that inquired about the two or three biggest problems the country was facing, terrorism was not on the list of responses (The German Marshall Fund 2002, 2).

Looking at Germany a similar attitude towards terrorism throughout the 1990s can be observed. Since no major terrorist attacks had taken place in the country since the 1980s, personal fear of terrorism was trending rather low. A follow-up study of the Social Scientist Institute of the German military (Buhlmahn 2004), covering the years between 1996 and 2003, established that most people were predominantly worried about crime, the economy, social reforms, or ongoing tax-debates. In comparison to that, terrorism was seen as much less of a threat. Even when specifically asked about fear of terrorism, the percentage of people feeling threatened remained at a relatively low level. Only the fear of wars throughout the world was lower.

Table 1 Fear of terrorism before 9/11

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Source: Buhlman 2004.

Table 1 shows that compared to the predominant issue of crime, a substantially smaller amount of the German population felt threatened by terrorism. Only one third of the people answered with yes when they were asked if they were afraid of becoming victims of a terrorist attack. This attitude is also mirrored in the big opinion polls taken during that time by the leading German institutes. However, since it was not believed to be a major issue before 9/11, no specific questions concerning terrorism can be found in polls prior to 2001 (Renate Kremzow, e-mail message to author, October 10, 2006). Additionally, when asked about the feeling of safety induced by the justice system and the police, 62% of the people questioned said that they felt safe shortly before the 9/11-attacks in May 2001 (EMNID Overnight/WiWo 5/22/2001). Although the German government did have plans to strengthen security laws, it was facing many difficulties that prevented a value-trade-off of liberties in favor of enhanced security. These difficulties included the absence of a broad basis of fear concerning safety, the lacking demand for legal changes in regard to security legislation, high costs, and confidentiality issues (Haubrich 2005, 292).

However, things abruptly changed on the morning of September 11, 2001. People all over the world were in shock to find out about the ruthless attacks on New York, the Pentagon and the failed attempt to hijack a plane that resulted in a crash in Pennsylvania. These three attacks killed altogether nearly 3000 people. One indicator for how harrowing, traumatizing, and completely shocking this event was for everyone around the world, is the fact that there was no one who had not heard about it or felt emotionally affected. When, for example, the German Institut für Demoskopie Allensbach (2001, 1) conducted an opinion poll asking about the 9/11 attacks two days afterwards, 100% of the people called had heard about the assaults on Washington and New York. According to the institute, there had never been an equal response rate^[5].

September 11, 2001 was the end of the era of post-cold war easiness. People became terrified the moment the second plane hit the south tower of the World Trade Center at 9.03 a.m. It did not only cause President Bush to declare that the U.S. had been hit by an "apparent terrorist attack" but also compelled the Federal Aviation Administration to halt all flight operations for the first time ever in U.S. history (CNN.com/U.S. 2001a). According to a Gallup/CNN/USA Today poll (9/11/2001) conducted on the night of the attacks nearly 9 in 10 of the respondents (87.18%) said that the assaults had been the “most tragic news event in […] [their] lifetime”. At the same time, another Gallup poll (Saad and Carroll 2001, 3) revealed that 58% of the interviewees were either very (23%) or somewhat (35%) worried that they or a family member would become a victim of a terrorist attack. In April 2000 this number had been only half as high at 24%. The change becomes even more apparent if one contrasts the number of people being “very worried” in 2000 with the number just one and a half years later. This amount almost octupilated from only 4% to 23% immediately after the attacks. When two weeks after 9/11 another poll was conducted asking, “How likely is it that there will be further terrorist attacks in the United States over the next several weeks” (Gallup/CNN/USA Today 9/21-22/2001), about two thirds of the respondents felt it was either very (23%) or somewhat (44%) likely that this would happen. Within two weeks the number of people thinking further attacks were very or somewhat likely rose to 83%. The climax of this development was reached on October 19-21, 2001 (Gallup Poll News Service 2007a) with 85%. As Table 2 shows, this socitrophic fear was, in comparison to the Oklahoma City bombing, not only an episodic state of shock but remained at a constantly high level. Until today, it has hardly ever dropped underneath the 50% margin.

Table 2 Level of sociotrophic fear in the U.S. from further terrorist attacks

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Source: Gallup Poll News Service 2007a.

Another factor closely linked to the feeling of threat is the perception of “being at war”. According to a Gallup/CNN/USA Today Poll (9/14-15/2001) taken only days after terrorists had attacked the Pentagon and destroyed the World Trade Center, 73.10% of the respondents answered positively to whether they felt the U.S. was at war. This perception of war was fostered by the Bush administration and had been established as a fact within days. One piece of evidence for this is that already ten days after the attacks the question asked about “the war on terrorism” (Gallup/CNN/USA Today 9/21-22/2001) was not whether a war was going on or not, but whether it would to be a difficult or comparatively easy one. The affirmative rate to this question was extremely high, with more than nine in ten interviewees (94.19%) thinking that it would be a difficult war. Likewise, follow-up questions dealing with the “war on terrorism” never again questioned its very existence, but only confidence in winning or satisfaction with the “war on terrorism” (Gallup Poll News Service 2007b). While public confidence towards a victory in the “war on terrorism” was still high in the immediate aftermath of the attacks (Table 3), an increasing amount of the population gradually agreed that either neither side or the terrorists would win the war.

Table 3 Opinions on who is winning the war on terrorism*

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* People answering “no opinion” compose the remaining percentage.

Source: Gallup Poll News Service 2007a.

With more than half of the population dreading further attacks and almost all of the population feeling “at war”, the preconditions according to Davis and Silver (2004, 29-30) are favorable for a value-shift in towards security. The fact is that a lot of the legislation that was passed after 9/11 which resulted in far reaching restrictions of civil liberties, most prominently the PATRIOT ACT, was not very controversially debated by neither Congress nor the House of Representatives (Schild 2005, 274). If Davis and Silver (2004, 30, 38) are right with their findings, this means that trust in government must have also been at a high level over time. Moreover, the willingness to accept a value shift in favor for security must have risen rapidly as well.

Looking at opinion polls this trend can be confirmed. When only a few days after the attacks a Gallup poll (Gallup/CNN/USA Today 9/14-15/2001) was conducted, almost nine in ten respondents had either a great deal (41.36%) or a fair amount (47.43%) of confidence that the U.S. government could protect citizens from further attacks. This is about a third more (approximately 34%) than when the Oklahoma City bombing took place. Furthermore, and this is even more important in respect for legislative change and support, this attitude remained at a high level over the next years. Table 4 shows that between May 2003 and August 2006 the faith in the Bush administration’s ability to protect the U.S. from further terrorist attacks was more or less constantly upheld by about two thirds of the people.

Table 4 Faith in the administration to prevent further terrorist attacks

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Source: Gallup Poll News Service 2007a.

What about the willingness of people to accept a value trade-off? Going back to the Oklahoma City bombing, the acceptance in the immediate aftermath of 49% had rapidly decreased to 30% in May 1996. The same is true for the level of fear in people. According to a PSRA/PEW poll (Huddy et al. 2002, 17) in 1997, less than a third of the population deemed it necessary to give up essential liberties in order to curb terrorism in the U.S. However, this number rose significantly after the attacks on 9/11 to, depending on the polling institute (Table 5), between 55% (PSRA/PEW) and 79% (CBS and CBS/NYT).

Table 5 Value-trade-off acceptance in the aftermath of 9/11*

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* People answering “don’t know” compose the remaining percentage.

** The question on which these numbers are based was: Do you think Americans will have to give up some of their personal freedoms in order to make the country safe from terrorist attacks, or not?

*** The question on which these numbers are based was: In order to curb terrorism in this country, do you think it will be necessary for the average person to give up some civil liberties, or not?

Source: Huddy at al. 2002, 17.

The most important finding about the willingness to accept a value trade-off in respect to 9/11 is that while the general enthusiasm toward giving up liberties continuously decreased to pre-9/11 rates, the satisfaction with the performance of the Bush administration remained at a high level. The same can be said about the contentment with specific actions that had been taken (for further information see chapter two subsection two). Chart 1 shows that while about half of the people (47%) were still supporting a restriction of liberties in favor for more security in late January 2002, the number had dropped by about 16% to 31% by December 2005. Yet, at the same time that the approval-rate of restrictions made by the government underwent a considerable decrease, the percentage of people believing the government had not gone far enough in restricting liberties remained at a rather constant level between about one fourth and one fifth of the population. However, while in late June 2002 still 60% agreed that “the government has been about right” in restricting civil liberties in order to fight terrorism, this number suffered from a huge drop to 40% in early January 2006. During the same period, the number of people believing that the Bush administration “has gone too far” rose by about a fourth (26%) of the population from 12% in June 2002 to 38% in January 2006.

Chart 1 The perceived performance of the administrations on restricting civil liberties vs. willingness of people to accept restrictions on civil liberties (%)

Abbildung in dieser Leseprobe nicht enthaltenSource: Gallup Poll News Service 2007.

The poll results in the U.S. support the findings of David and Silver (2004), but will the same be true for Germany? While there have not been as many widely ranged assessments of people’s opinions of 9/11 in Germany as there have been in the U.S., fear has been one of the central focuses of the polls that have been conducted. According to an EMNID Overnight poll (9/11/2001) taken on the day of the attacks, 50% of the respondents said that they were afraid that similar attacks might happen in Germany as well. At the same time, 60% of the people questioned by the Institut für Demoskopie Allensbach (2001) admitted to be generally scared by the situation. Only a month later, when the identical question was asked in a FORSA/n-tv survey (9/11-12/2006), the percentage people answering this query affirmatively had risen to 77%. Nonetheless, even though sociotrophic fear was an issue German society had to deal with, the majority of people could not foresee that attacks as severe as the ones that had struck the U.S. could happen in their country. When FORSA/ Die Woche (9/14-17/2001) asked only three days after 9/11 if people could imagine similar attacks in Germany, 68% said that they could not. According to the Institut für Demoskopie Allensbach (2006) constant fear of terrorist attacks could not be verified in Germany until after the third big terrorist incident had taken place, namely the bombing of the London subway in 2004^[6]. The same finding was made by a follow-up poll that had been conducted by FORSA/n-tv (9/11-12/2006) only a month after 9/11. It reveals that from September 2004 to September 2006 the percentage of people dreading that Germany might become a target of assaults never fell underneath the 50% level, reaching a high point of 77% in September 2006 (see Table 6). Moreover, when a FORSA/n-tv poll (9/4-5/2006) was conducted to assess the feelings of people five years after the 9/11-assaults, nine of ten respondents agreed that terrorist groups were still capable of arranging and implementing as severe attacks as the ones in 2001.

Table 6 Fear of terrorist attacks in Germany

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Source: FORSA/n-tv 9/11-12/2006.

Like it has been in the United States, sociotrophic fear was and is an actual societal issue in Germany ever since the attacks. However, the question remains if this threat has also been accompanied by support and trust in the government and how the legislative has been handling the circumstances? When asked only days after the attacks if people trusted the government to have the ability to deal with the situation at hand, two thirds (66%) of the population confirmed the question while 15% were unsure and only about a fifth (19%) believed the government might be overstrained (Institut für Demoskopie Allensbach, 2001). At the same time a FORSA/Die Woche poll (9/14-17/2001, 13) showed that slightly more than half of the population (53%) was either unsure (21%) or believed that the government had been to neglectful about taking all necessary steps (32%) to pursue Islamic extremists. The results indicate that people were not only willing to accept a value-trade-off but actually wanted one. Given that more than one terrorist incident has occurred in Europe, the number of people demanding that more measures be taken to prevent terrorist attacks has steadily risen. While 37% of the people deemed further steps as necessary in 2005, only a year later this percentage had risen to 47% (Institut für Demoskopie Allensbach 2006, 3). But does that also mean that Germans are willing to sacrifice civil liberties for security? It is not surprising that the number of people willing to accept a value-shift towards security and with it a confinement of liberties was at its height right after the attacks in 2001. According to FORSA/Die Woche poll (9/14-17/2001, 11) more than 8 out of 10 Germans (82%) were willing to accept restrictions to their civil liberties if that meant more security was provided. When in 2004 (FORSA/RTL Television 3/18-19/2004, 1, 2) the train bombing occurred in Madrid, only 49% of the people would answer this question affirmatively. This is not astonishing considering the previous statement that the level of fear was also at a substantially lower level than 2001 (Table 6). Nonetheless, also 35% of the interviewees thought that the system of inner security needed a fundamental reform. Over the next two years this number remained at a steady level. When FORSA/n-tv (3/14-15/2005, 4) conducted a poll in March 2005, 51% of the participants believed that the balance between security and liberty was about right, while only 15% thought civil liberties had been restricted too much. Interestingly, about a third (29%) still believed that security needs had not been met by legislative measures and more action should be taken. Another year later, in March 2006, only months after another three bombs had exploded in the London subway and one on a bus, killing 56 and injuring over 700 (IISS 2005, 1), the number of people willing to trade liberty for security once again rose up to 44% (Lübcke 2006, 4).

Even though the data and questions asked by polling institutes in the respective countries cannot exactly be compared, clear trends can be noticed. The preceding analysis has shown that the conclusions drawn by Davis and Silver (2004) can be confirmed by various surveys. Both U.S. and German citizens have been substantially shaken by the terrorist attacks that took place on 9/11; for both a significant rise in the level of fear after the horrendous attacks can be observed. Also, the willingness to accept restrictive security measures has been high in both populations, as has the trust in government right after the attacks. The surveys have also shown that as more time goes by after a traumatic event, the more the willingness to accept a value trade-off diminishes, while as long as people are in dread the willingness to accept a general trade-off remains high. The U.S. and Germany are good examples for this, as they show how a high level of fear keeps the willingness to trade liberty for security at a comparatively elevated level, in contrast to when the fear diminishes over time. In Germany, reoccurring terrorist attacks in Europe have caused a continuous rise of fear, which increases further after each new attack. At the same time, the number of people believing that more measures have to be taken to secure them from further assaults has risen as well. The absence of further attacks in the U.S., on the other hand, combined with the fact that the need for more security has been overwhelmingly met by new legislation has caused the number of people willing to sacrifice liberties for more security to diminish severely.

Interestingly, the trust in government has not been affected by time as severe as the willingness to accept a value-shift. This is especially well to be seen in the U.S. One reason might be that the people associate the fact that there have not been further attacks with the measures that have been taken by the government.

Yet, as Lewis (2005, 25) points out, even when people reject a general trade-off, as can especially be observed in the U.S., they still often respond differently to concrete confinements of liberties. Usually, people conform to accepting specific measures over time even though general approval for value shifts is at a substantially lower level. A further analysis of this phenomenon will be at focus in the next subchapter.

2. The Perception of Fear and Concrete Value-Trade-Off

According to Lewis (2005, 24-25), there are four reasons why a specific trade-off is still acceptable to people when general acceptance for a value shift has already vanished. The two most plausible explanations may be that when polling institutes ask about specific issues the questions are generally not addressing a bundle of measures together, but specific isolated ones. Even more importantly, these measures might not be, on first sight, understood as ones that weaken traditional civil liberties. Thus, the seeming contradiction can be resolved by realizing that while accepting a single measure like carrying an identity card, accepting video-screenings of public spaces, an increased number of police patrolling the streets, or police being allowed to check ones identity without an apparent reason has a totally different dimension than accepting all of these measures together, or even generally accepting unspecified measures. Responsible citizens might actually not be opposed to considered restrains in general. However, they are aware that answering the question about general trade-off affirmatively is equal to handing the government a blanc-cheque. Therefore, they would rather deny the general request than risking the acceptance of something they might not consider as appropriate. As has been shown above, only a vast amount of fear combined with the feeling of insecurity leads to a general willingness to accept unspecific trade-off.

Another reason Lewis (2005, 25) mentions, which can be closely related, is the fact that questions about specific measures often contain the implied promise of an actual gain. Despite worrying about an avowed loss of liberty, approval is gained by implying that when accepting certain measures, terrorism will “be curbed”. Moreover, the trade-off appears to be a harmless and even desirable exchange between a threat caused by too much liberty and an instant return, namely safety.

The following review of surveys will show the attitudes of Americans and Germans towards surveillance measures and the treatment of foreigners and non-citizens. As can be expected, it will become apparent that while the endorsement of a value-trade-off in general has declined in the U.S., specific measures gain approval even over time in both countries.

a. Attitudes towards Surveillance Measures

The main attention concerning surveillance measures in the U.S. has surely been focused on the PATRIOT Act. Enacted on October 26, 2001 and permanently reauthorized by George W. Bush’s signature on March 9, 2006 (Department of Justice Website), it has certainly become one of the most controversially discussed laws that has ever been passed in the United States.

As has been shown above, the people’s preferences for protecting civil liberties over security becomes stronger as more time passes after a traumatic event. However, as Moore (2003, 2) points out, many Americans are not very discriminative about the governments antiterrorism laws in general or the PATRIOT Act in specific. Although the American Civil Liberties Union (ACLU) has listed at least 12 constitutional rights that the PATRIOT Act threatens or violates (Saad 2003, 1; American Civil Liberties Union), a majority of the public has continuously believed that the government has not gone too far with the PATRIOT Act in restricting people’s freedoms. The contrary is actually the case. The support of the act has remained at a high level over the last 5 years. This may be linked to the above mentioned confidence in the Bush administration’s abilities to prevent further terrorist attacks in the United States. Although the number of citizens believing that the government had gone too far in restricting civil liberties had doubled from 11% nine months after the attacks until August 2003 to 21%, more than half of the people believed that the government had been about right in confining liberties, namely 60% in June 2002 and 55% in August 2003. Even more importantly, at the same time, in June 2002 a quarter of the population (25%) and a little less than a fifth (19%) believed in August 2003 that the Bush Administration had not gone far enough (Moore 2003, 2).

The support is even stronger for specific measures. This can be seen in follow-up polls (Table 7) that inquire particularly about the PATRIOT Act. Among the questions that were asked was if people thought that the PATRIOT Act itself went too far in restricting people’s civil liberties in order to investigate suspected terrorism. Table 8 shows that about half of the population thought over time that the PATRIOT Act is about right in confining people’s civil liberties. Nonetheless, it should be recognized that the nominal rise of people that believed the PATRIOT Act goes too far was more than double as high (11 percentage points) than the percentage of people that did not know what to say or refused to answer (5 percentage points), thought the act is about right (4 percentage points), or thought it does not go far enough (3 percentage points).

Table 7 Does the PATRIOT Act go too far?

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Source: Gallup PATRIOT Act Trends 2006; Gallup Poll News Service 2007; Carlson 2004, 3.

It is no surprise that the number of people that feel the PATRIOT Act goes too far is on the rise. Particularly when one also considers that the more familiar a person is with the act, the more critical they are of it. Moore (2003, 3) shows that being “very familiar” with the PATRIOT Act causes the acceptance for it to diminish. In 2003, the amount of people that were “most familiar” with the PATRIOT Act and thought it went too far was about double (28%) the amount of people that were not familiar with the act (15%) but thought it goes too far.

Table 8 reveals an interesting fact in that respect. When looking at polls over time, the nominal rise of people that think the PATRIOT Act goes too far (11%) is about the same as the nominal rise of people (10%) that are “very familiar” with the PATRIOT Act.

Table 8 Alleged connection between the opinion that the PATRIOT Act goes too far and the highest possible familiarity with the act

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Source: Gallup PATRIOT Act Trends 2006; Gallup Poll News Service 2007; Carlson 2004, 3.

Still, while the number of people disapproving the extent to which the PATRIOT Act restricts civil liberties is rising, the number of people thinking the act is about right has remained at a constant level. This is a contradictory trend to the above mentioned drop in the willingness to generally accept a trade-off, even though a general trade-off is exactly what it is. As can be assumed with reference to Lewis (2005), the approval is even higher when certain single measures are looked at. According to a German Marshall Fund (2006, 45, 47) survey, 54% of the respondents supported the monitoring of citizens’ communication on the internet either somewhat (25%) or strongly (29%) in 2006. When asked about the installation of surveillance cameras in public places in order to prevent terrorism, even more (71%) supported the measure either somewhat (31%) or strongly (40%). According to a Zogby Poll (Zogby International 2006) released in September 2006, the approval rate for video surveillance of public places reached even 80%. A Gallup poll (Gallup Poll News Service 2007a) conducted a year prior in July 2005 produced similar high approval rates. Seventy-eight percent of the respondents were in favor when inquiring about the institution of security systems similar to those on airports in mass transit infrastructure like subways, busses and trains, and 66% supported the proposal that Americans carry national ID cards^[7].

Nonetheless, people are not approving thoughtlessly all provisions that they are facing. When specifically asked about single major key provisions of the PATRIOT Act, certain measures like wiretapping phones (Title II Section 206 of the PATRIOT Act) or entering homes without notices (Title II Section 213 of the PATRIOT Act) were opposed by the majority of the interviewees. Less than four in ten respondents (39%) supported the monitoring of citizens’ telephone calls either strongly (16%) or somewhat (23%) in 2006 (The German Marshall Fund 2006, 44), while another poll conducted by Gallup in July 2005 (Gallup Poll News Service 2007a) revealed that actually less than one in ten respondents (6%) approved of allowing the police to search people’s homes without a warrant.

These findings are, however, not in the main contradicting to Lewis’ (2005, 24) findings that the public is generally supportive of expanding powers of domestic security when asked about specific measures. They rather show why general approval is denied. As mentioned before, people are willing to accept trade-offs when they do not limit “traditional” civil liberties or promise an actual security gain. Apparently measures that target at the “normal individual” are the line where Americans’ approval comes to an end and the trade-off is not seen to be in proportion to the gain. This can be also seen as a reason why the approval rates of the PATRIOT Act are going down with rising numbers of people being “very familiar” with it. But can the same phenomenon also be observed in Germany? Due to reoccurring attacks in Europe, the general willingness to trade liberties for security was still at a higher level than in the United States. This should lead to even higher approval rates and, moreover, to a less discriminative look at specific measures.

Although the German Antiterrorism Laws I and II can be seen as the German equvalent of the PATRIOT Act^[8], they have received a lot less public attention than their American counterpart. Therefore, polling institutes have ceased to ask particularly about these laws and have focused predominantly on questions about specific measures, some of which were implemented in the antiterrorism laws. An EMNID Overnight poll (11/17/2001) conducted only days after 9/11 established that almost nine in ten Germans (89%) supported the opinion that inner security had to be tightened by general measures like stricter controls, enhanced surveillance, and improved protection of the constitution in order to curb terrorism. Of course these are rather unspecific measures that can easily be consented to, especially considering that one of the most severe terrorist attacks ever had taken place only days prior. However, as has been expected, approval rates remained at very high levels even four years later. According to a FORSA/n-tv poll (18/1/2005) conduced in January 2005 about eight in ten Germans favored the introduction of biometrical passports (79%), the centralization of important security agencies (79%), and an easier exchange of information between the police and the secret services (76%). At the same time, 69% consented to more police patrolling the streets and still 60% favored video surveillances of public places. These approval rates are also mirrored by other polls. In a survey conducted by the Institute for Political Science in Kiel in March 2006 (Lübcke 2006, 12, 23), 91 % of the respondents stated that they would agree to the introduction of biometrical passports and 89% favored the expansion of video surveillance. Similar results were produced by the German Marshall Fund (2006, 47) in 2006, which reported that 77% of interviewees either strongly (35%) or somewhat (42%) supported video surveillance as part of the fight against terrorism. When the Institut für Demoskopie in Allensbach (2006, 2) inquired only months later in September 2006 about more video surveillance on train stations, 69% agreed that this would be beneficial to tightening security. This survey had been conducted shortly after an attack on a train had been prevented.

The acceptance and approval rates of measures affecting the majority of people like video surveillance or ID-cards are, as is expected, at least as high if not higher in Germany as in the United States. But what about measures that target only the individual? In the U.S., the monitoring of phone calls or the warrantless search of homes was broadly rejected^[9]. Only the observation of citizens’ communications on the internet found the support of a thin majority (54%) (The German Marshall Fund 2006, 45). Both FORSA and the German Marshall Fund have found that Germans tend to oppose measures aimed at individuals as well. According to the above cited FORSA/n-tv survey (1/18/2005, 6), only 23% of Germans supported the expansion of phone surveillance at the beginning of 2005. A year later in March 2006, six months after further attacks had happened in London, an astoundingly high percentage (70%) of the respondents said in the survey conducted by the University of Kiel (Lübcke 2006, 12, 13) that they would accept expand phone surveillance, while only 47% answer affirmatively when asked about e-mail observation. Another three months later, the German Marshall Fund (2006, 44, 45) reported that only a slim majority of 55% of the interviewees supported monitoring of internet communications either strongly (20%) or somewhat (35%), while the approval rate for the surveillance of citizens’ phone calls was down to 36% with only 12% strongly and 24% somewhat supporting it^[10].

These surveys show that the general willingness to accept a value-trade-off declines when people are asked to accept measures that are aimed at a particular person rather than a group of undefined individuals. Still, as has been expected, a specific value-trade-off is welcomed especially when the level of fear is high and personal constrains are distributed evenly on the population. The U.S. data shows that certain measures aimed at the broad population still found acceptance with half to more than three quarters of the people. At the same time, the general willingness to accept a trade-off could only be found in a third of the population. In Germany on the other hand, the approval for a general trade-off was still at higher levels. This high approval was also seen in support of specific measures. Both Americans and Germans, however, were hesitant when it came to agreeing to measures that potentially invade a specific person’s privacy. A fascinating fact that has been revealed by the Transatlantic Trends 2006 is that Americans tend to be more drastic in supporting or rejecting measures. While the majority of Germans usually “somewhat support[ed]” or “somewhat oppose[d]” measures concerning individual’s liberties, Americans’ support or disapproval concerning these questions was concentrated on “strongly”.

The polls have indicated that both Americans and Germans become very hesitant and protective when it comes to restricting an individual’s civil liberties that could possibly be their own. However, the question is, is that still true when the individual whose liberties are supposed to be restricted is someone else? How fast are concerns forgotten when it comes to groups that supposedly “produce” terrorists? This will be the focus in the next subchapter.

b. Attitudes towards Non-citizens, Foreigners and Racial Profiling

“How Far is Too Far?” inquires Tabrizi (2004, 195) in one of her articles; asking to what extent Americans are willing to restrict their own and other people’s liberties. The conclusion she provides is that though the American people were worried about civil liberties, they were not willing to protect the rights of non-citizens like their own. “They saw profiling of religious groups as distasteful but were willing to consider race and ethnicity as factors in targeting suspected terrorists” (Tabrizi 2004, 195). But can this be seen in the polls as well? And is the same true for Germany? According to the German Marshall Fund (Table 9) more than eight in ten respondents both in the U.S. and in Germany thought over the last five years that Islamic fundamentalism would be either an “extremely important” or “important” threat in the next ten years. But how exactly does this threat affect the attitude towards Arabs and Muslims in the respective countries?

Table 9 Fear of Islamic fundamentalism as an international threat to Europe/the U.S. over the next ten years*.

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* People answering “not an important threat” at all and refusal, don’t know compose the remaining percentage.

Source: The German Marshall Fund 2006, 28; The German Marshall Fund 2005, 15; The German Marshall Fund 2004; 14, The German Marshall Fund 2003, 19.

When only days after the 9/11 attacks Gallup/CNN/USA Today (9/14-15/2001) asked if people had less trust in Arabs living in the U.S. than prior to the attacks, only 35% of the respondents confirmed this statement. However, when in 2006 a Gallup Poll (Gallup Poll News Service 2007c) presented an array of security measures that were part of an overall strategy to prevent further terrorist attacks and asked if people thought they should be ceased, only 2 percent of the interviewees agreed that racial profiling should be stopped. In a follow-up survey (Gallup Poll News Service 2007c) more than half of the participants continuously favored (58% in September 2001, 53% in July 2005 and August 2006), that Arabs, even including U.S. citizens, should undergo more intense security checks before boarding airplanes. Furthermore, a clear majority of 70% thought this measure was either very (37%) or somewhat (33%) effective in August 2006. Nonetheless, approval rates for racial profiling are not unlimited. When Gallup (Gallup Poll News Service 2007a) asked if Arabs, including U.S. citizens, should carry special ID-cards only about half of the people answered affirmativly in September 2001 (49%) and even less in July 2005 (46%).

Still, when it comes to dealing with people that allegedly have information about terrorist plots or might even be terrorists themselves, Americans are not conflicted in approving measures that they would not consent to if they might be applied to themselves. According to a Gallup poll (Gallup Poll News Service 2007b) about half (49%) of the people questioned thought that it was all right to deprive prisoners of sleep for several days. Another 35% believed it was right to threaten prisoners with a transfer to countries that are known to use torture when they possibly have information about terrorist attacks on the United States. A little less than a third (29%) said that interrogates threatening detainees with dogs was right and only a little less than a fifth (18%) agreed that forcing prisoners to sit in uncomfortable positions, naked and chained in cold rooms for hours was acceptable. Almost a sixth (16%) agreed that is was legitimate to strap detainees on boards and make them think they are drowning by forcing their heads under water while still about one in ten (12%) believed it was not wrong to have female interrogates make physical contact with male Muslims during religious observances.

The immediate effect 9/11 had on the U.S. did not only alter the willingness to give up civil liberties for security but also made it socially tolerable to single out allegedly “dangerous” groups of people and deprive them of the same constitutional rights “normal” people are entitled to. While a decrease in fear also caused people’s consciences to return, the fact remains that singling out groups and applying double standards to them has become a commonly acceptable way of handling the threat of terrorism. Is the same true for Germany?

[...]

^[1] For convenience reasons of reading and writing the date September 11, 2001 will be abbreviated in the following with 9/11.

^[2] Usually this error rate remains within a plus/minus of three percentage points.

^[3] Sociotrophic fear is the individual perception of a person of unspecified threat and anxiety towards the country, society or region where they live. In contrast to that personal threat denotes the threat towards oneself or one’s family and friends (Davis and Silver 2004).

^[4] Of course there is a contingent effect of trust and fear on each other. While a high level of fear combined with a high level of trust always leads to the willingness to trade-off civil liberties for security, there are various combinations of fear and trust whose results cannot be as easily determined. One reason for that is that other factors like age, race, patriotism or political attitude are also playing a role in the explanation of how much and when a person is willing to accept a value trade-off. However, the overall trend is not fundamentally altered by these factors. Therefore, the specifics are not important to the focus of this chapter. For further reference see Davis and Silver (2004).

^[5] The only question that ever came close was the one that had been asked in the mid-1960s interrogation if people had ever heard of Conrad Adenauer; but even then the affirmative rate had only been 99%.

^[6] The second terrorist attack, which the Institut für Demoskopie Allensbach is referring to, is the bombing of a train in Madrid in May 2004. Possibly people realized after the London attacks that terrorism was a “real” threat also in Europe and not a diffuse one far away.

^[7] An interesting fact about ID cards is that although the population has been strongly favoring them, the Bush administration has repeatedly announced that it is not supporting them (Kiefer, 2002, 1).

^[8] The Antiterrorism Laws were similarly to the PATRIOT ACT introduced shortly after 9/11 (the first one was implemented in the same month the attacks took place and the Antiterrorism Law II on 1 January 2002) and provided extended rights to intelligence services (for further information see chapter 3) to fight terrorism more effectively (Hans Seidel Stiftung 2003, 5-9).

^[9] Since there is no law in Germany allowing the police to search a home without a warrant, there are also no polls inquiring about the acceptance of this measure.

^[10] An interesting fact in this respect is that 36% of Germans somewhat and 28% strongly oppose surveillance of phone calls, while the extent of opposition in the U.S. is contrary with 16% opposing it somewhat but 43% opposing it strongly (The German Marshall Fund 2006, 44).