So reports the Global Post:
In Lower Saxony, a state in northwestern Germany, Muslim worshippers heading to Friday services routinely arrive to find the street in front of the mosque cordoned off and armed police at the entrance. Those entering or leaving the mosque must show their identification papers. Sometimes the police search bags, ask questions, or bring those who cannot show ID to the precinct station. In one city, officers stamped Muslims on the arm after checking them.In these controls, known as “unmotivated mosque checks,” the police are not seeking any specific person or investigating any particular crime. Rather, they are acting under a 2003 state law that empowers them to question and search individuals in public places regardless of any suspicion of wrongdoing in the interest of preventing crimes of “grave and international concern.”
That seems like unjustifiable religious discrimination, and also not particularly helpful in catching terrorists, especially when done “routinely.” Nor is it easily justifiable, I think, as a means of getting valuable tips from mosque-goers, since I expect that it would decrease the amount of cooperation between mosque-goers and the police rather than increasing it.
I do not think that religious institutions should be immune from standard police practices aimed at rooting out crime that may happen or may be planned at the mosques. Just as it’s often permissible for the police to engage in clandestine surveillance of an Italian-American Social Club when they think there’s mafia activity there, or of a political group’s meeting place when they suspect there are crimes being planned there, so I think it should be permissible for them to surveil churches, mosques, synagogues, and the like.
There are often institutional constraints on the police doing this (the federal government, for instance, has had such guidelines), and such constraints may often be prudent. But I don’t think that, as a matter of principle, such constraints should be absolute, nor do I think that they should be constitutionally compelled — for the U.S. view on this, see Laird v. Tatum, which I believe is correct. (Naturally, I’m not an expert on German law and whether it actually compels them; I’m speaking here of broader principles.)
But in any case, this sort of ID-checking (as opposed to much less visible surveillance) does not strike me as standard police procedure for places that are used perfectly legitimately by many law-abiding people, but may also be used by some serious criminals. And while I accept that certain constraints on privacy, liberty, and equality may be proper if they are genuinely necessary to preventing extremely dangerous crimes, this sort of procedure strikes me as so unlikely to be effective that I find it hard to see it as justifiable under such an argument.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
carpundit says:
I think the buried lede is that German officials were putting stamps on Moslems’ arms. It’s hard for me to get past the symbolism and view this as an academic question.
Are their memories so short?
January 13, 2010, 3:24 pmMartinned says:
Not in Germany. As a general rule, they can be counted upon, both individually and as a nation, to be the moral compass of Europe. They are very sensitive over anything to do with war or human rights.
This was most recently evidenced by the huge national discussion over the accidental death of a large number of civilians in the German-run part of Afghanistan. (Story here.) The minister responsible already resigned, though that had more to do with there having been a coverup than with the bombing per se. Note that the bombing wasn’t actually carried out by Germans. The Germans on the ground called in US air support, and the resulting bombing got up to 142 people killed.
As for this story, let me see if I can find some more details.
January 13, 2010, 3:33 pmSk says:
“But in any case, this sort of ID-checking (as opposed to much less visible surveillance) does not strike me as standard police procedure for places that are used perfectly legitimately by many law-abiding people, but may also be used by some serious criminals.”
HAHAHAHAHAH!!!
DWI checkpoints throughout the US.
(or, as they used to say in movies in the ’40′s and ’50′s, ‘Your papers, please…’ in a menacing, Eastern European accent).
HAHAHAHAHAHAH!!!
Sk
January 13, 2010, 3:43 pmssd says:
The next step is to have all muslims wear a gold crescent on their clothing to save the police time.
January 13, 2010, 3:45 pmMartinned says:
According to the original story, the place where this is happening is Braunschweig/Brunswick, a city of about 250.000 inhabitants about as far away from the North Sea as you can get in Niedersachsen. (i.e. about 200 km away from a place like Hamburg, which is a more logical place for islamic terrorism, if for no other reason than that it is where the 9/11 bombers lived before they came to the US.)
This story from April 2008 has the German interior ministry talking about an investigation by the gloriously named Verfassungsschutz, i.e. the Department for the Protection of the Constitution. (That would be the German version of MI-5.) They discovered an islamist/salafist network in Braunschweig and in Hannover. On the same day, the same paper (Die Welt) also has a story about a coordinated police effort against connected groups, searching 16 locations throughout Germany.
January 13, 2010, 3:48 pmcboldt says:
The string “unmotivated mosque checks” only surfaces a few google hits, all of them referencing this particular article.
January 13, 2010, 3:53 pmMartinned says:
The national media do not seem to have reported on this story yet. This local paper from Bremen writes:
Or, in my translation:
January 13, 2010, 3:54 pmcboldt says:
Searching on “Braunschweig” “mosque” “police” turns up a story from 2008.
See http://www.911video.de/news/140908/ which translates a story from STERN, “The CIA Contact From Ludwigsburg”
I wonder if there are ongoing periodic checks, as the subject article implies, or if the checks have been sporadic. I’ve been looking for other reports, and Germany : Euro-Islam: News and Analysis on Islam in Europe and the United States. I didn’t scan for a date in that one, but it contains the following:
January 13, 2010, 4:12 pmChris Travers says:
Well, it could be worse. they could be requiring Muslims to wear little yellow crescent insignias…..
January 13, 2010, 4:40 pmPaul says:
Carpundit, supra:
Perhaps. But I myself prefer the German practice of stamps on the arm to the Muslim practice of rusty scythe to the neck …
January 13, 2010, 4:48 pmMartinned says:
Continuing my translation of the article linked in my previous comment…
January 13, 2010, 4:56 pmMartinned says:
The most significant thing about that article would be the remarks by Mahrenholz. European judges tend to be much less political than their American counterparts, and would certainly try to limit themselves to legal issues. If a former vice-president of the Bundesverfassungsgericht says this is not OK, it probably isn’t.
Further support for that position comes in the form of this article in the Hanover local newspaper, dated December 2nd as well. The headline reads: “Jurists consider Mosque checks unconstitutional”. Apart from Mahrenholz, the article also quotes two professors from the University of Hanover, one of whom is also a senior (administrative) judge.
So odds are that the responsible minister, Uwe Schünemann (CDU), is going to get in further trouble over this, either politically or through the courts. Still, it is disappointing that this didn’t cause more debate outside Lower Saxony. The only article I could find among significant national media is this article in Der Tagesspiegel.
January 13, 2010, 5:10 pmSuperSkeptic says:
(emphasis added).
I’m not sure I understand this. And I’m not sure precisely what is meant by “institutional constraints” in this context. Do you mean, solely, the government’s self-initiated limitations, e.g., local police DUI procedures? As for Laird, do you mean that there are no such constitutional constraints on government actors – unless they (the government actors) impose them upon themselves sua sponte? My understanding from Laird was merely that absent “something more” of a concrete “injury” such a determination was non-justiciable, i.e., the plaintiffs lacked standing. Therefore, minimum procedures may be constitutionally compelled, in fact – should someone get the courts to weigh in with an “injury-in-fact” consisting of “something more” than the allegation of a subjective “chilling-effect” caused by the government’s covert surveillance of them or their organization.
From the opinion:
I read that as Burger ducking the issue of actual constitutional (institutional?) constraints by using Standing, but that there still is (or may be) a constitutional basis for such limitations should a plaintiff come to the Court with the proper record. I read the post to say that there are no such constraints, unless the government (executive) puts them on themselves – and that there shouldn’t be (which, as opinions go, is fine). Maybe I am misreading Laird to suppose that the constraints are there, but that elusive judges reluctant to elaborate on them have declined to enter that “thicket” and do so thus far.
Perhaps I’m way off base, but when I read “institutional” constraints, I think non-legal, as in: “the institutional legitimacy of the Court due to its public perception.”
January 13, 2010, 5:53 pmOwen H. says:
How delightfully hateful and bigoted your comment is. It’s strange, but not one of the many Muslims I work and interact with daily have ever tried to do that to me. I think you are confused.
January 13, 2010, 6:18 pmjcm says:
European judges tend to be much less political than their American counterparts,
January 13, 2010, 6:34 pmKarlsruhe declared void the law that forbid political militancy to Judges. Because it violated right of judges ,putting them below the rest of the citizen to be politically active. Compare with White vs Minnesota , where the equivalent american law was declared void because citizens have the right to know.
56% of judges are social democrats
44% Demo Christian
The President of the Constitutional Court in 1994, Roman Herzog, wanted to be President of Germany. So he called to the DCU direction, his party, and asked to be nominated. He got a leave to present his candidacy with the condition of returning to his post if defeated . He became President of Germany
Martinned says:
@jcm: I’d appreciate it if you could try in whole sentences next time. Either way, nothing (I think) you’re describing disproves my point: Not even Karlsruhe judges openly get involved in political debates the way American Supreme Court justices sometimes do. For one thing, they don’t write separate opinions.
The example of Roman Herzog proves little, since the President of Germany generally isn’t supposed to get mixed up in political debates either. The only strange thing about him is that he ended up as the Chief Justice of Germany even though he never used to be a judge before being appointed in Karlsruhe. I’m not sure how that happened.
P.S. I highly doubt that there are no judges in Germany who belong to the FDP or Green parties. Anyway, being a member of a political party is a private decision, like voting, which judges also tend to do more than the average citizen. None of that means that they are prone to making statements about political matters, as opposed to legal ones.
January 13, 2010, 7:07 pmBleepless says:
I cannot imagine what the authorities imagine they accomplish by this. Anybody afraid of being identified just will stay home. In Islam, mosques are a convenience, not a necessity.
January 13, 2010, 9:00 pmMartinned says:
I’m not sure if modern day islamists agree.
January 13, 2010, 9:39 pmAs for muslims generally, one clue is that the police already caught 65 wanted criminals, according to one of the articles I linked, so either the checks aren’t very predictable, or going to mosque isn’t that optional.
Chris Travers says:
Honestly I cannot imagine that the authorities responsible for this didn’t expect it to be both controversial and make Germans the butt of many jokes.
I don’t know if Germans are as outspoken as Americans in this way, but if it happened here I would be wondering if the arm-stamping was a local enhancement done in protest.
January 13, 2010, 9:57 pmMartinned says:
Like I said, normally Germans are extremely sensitive about this kind of thing. At the same time, one of the lessons they drew from the 1920s and 30s is that they shouldn’t put up with people using their constitutional rights to destroy the constitution from within. AFAIK, the official procedure for taking away someone’s constitutional rights has never been used, but from time to time extremist political parties are banned under the procedure provided for in the constitution. Moreover, there’s a reason their version of MI-5 is called Verfassungsschutz, i.e. the Department for the Defence of the Constitution.
German national guilt about the Nazi era didn’t stop them from going after the RAF in the 1970s, and it won’t stop them from going after islamst terrorists now. That said, I would have expected more debate over this than there seems to have been.
Tomorrow I’m having lunch with a guy who sits on a city council in Germany. I’ll ask him about this stuff, to see if I can find out why no one outside Lower Saxony is protesting over this.
January 13, 2010, 10:19 pmLitigator London says:
As it happens, the European Court of Human Rights has just issued its decision in the case of Gillan & Quinton -v- United Kingdom also involving searches not justified by reasonable suspicion purportedly made in the context of anti-terrorism legislation. The Court held that the case was to be distinguished from the case of searches of intending air passengers where an argument could be made that by electing to travel there was implied consent to the security measures necessary for public safety, but in the case of random searches as used by the Metropolitan Police:-
“The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer’s honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism.”
The Court held:-
“In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.”
It seems to me that this ruling would be followed if the practice of the police in Lower Saxony is as described in the reports cited above.
January 14, 2010, 2:03 amMoscheen filzen in Niedersachsen | Verfassungsblog says:
[...] bekanntlich in punkto Terrorbekämpfung noch ganz andere Dinge. Dennoch findet selbst Eugene Volokh, bestimmt kein liberales Weichei: That seems like unjustifiable religious discrimination, and also [...]
January 14, 2010, 5:43 amTweets that mention The Volokh Conspiracy » Blog Archive » Police in German State Checking ID’s of Everyone Entering or Leaving a Mosque? -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Police in German State Checking ID’s of Everyone Entering or Leaving a Mosque?: So reports the Global Post: In .. http://bit.ly/7IW9FS [...]
January 14, 2010, 5:56 amdearieme says:
What happens if a Shia bombs a Sunni mosque, or vice versa? Is such searching then permitted?
January 14, 2010, 8:52 amChris Travers says:
But what I am wondering is this:
Is there any chance that the arm-stamping thing is a matter of local authorities protesting the measure by deliberately invoking Nazi symbolism? Or are Germans unlikely to do this sort of political thing and just confine their protests to off-work hours?
January 14, 2010, 12:45 pmPintler says:
Is that a higher percentage than you would expect if the police instead cordoned off some other local church (or the bar district)?
Heh. My first glance made me wonder ‘wasn’t it a couple of decades too late to be going after the Royal Air Force?
January 14, 2010, 1:17 pmMartinned says:
Germany is where they invented bureaucracy, or at least the good kind. It’s the birthplace of Max Weber, after all. Reading back in the article linked in the OP, I’d say the stamp was simply a convenient way to keep track of who’d already been checked. German bureaucrats don’t have that much of a sense of humor in the first place, and Germans generally tend to not make light of the holocaust.
No, but it is a higher percentage than you would expect if these people knew they were going to be checked and had, as claimed by the person I was responding to, the option of simply staying at home.
January 14, 2010, 2:11 pmChris Travers says:
My first thought too….
Indeed my second thought was “was there a war between the UK and Germany that I don’t know about?”
January 14, 2010, 5:14 pmPositroll says:
A few notes:
January 15, 2010, 9:16 am1. Unlike the British case, the German police usually doesn’t search the mosque-gowers, they just asked for their identity cards. Only in case of suspicious behaviour their bags were checked.
2. Please keep in mind that in orderly Germany, everybody is required to register with the administration at his place of residence and needs to have a national identity card (or passport). Being asked for your identiy card is a relatively normal occurance in Germany.
3. As German tax authorities also deduct taxes for the churches (no separation of church and state in the US sense), German authorities already know the religious affiliation of (most of) their residents. Checking identities in front of the mosque therefore is not a means to identify muslims.
4. If anything, it is an attempt to identify people who belong to a specific sub-community that has radical tendencies. This has been going on for some time now, see
http://www.ndrinfo.de/programm/sendungen/reportagen/moscheekontrollen100.html
(in German; NDR is a radio+television channel financed by some northern German states)
5. You get stamps on your hands / arms in almost any disco. They easily rub of. Comparing these stamps (that show you have been checked and are allowed to freely leave the area / enter the disco) with concentration camp tatoos and the like (that permanently marked you as a criminal / undesired person) is moronic …
6. Whether this is unconstitutional under German law … IMO it’s a borderline case. Probably it depends on how often such controls happen at a certain mosque (are normal mosque-gowers deterred from practising their religion at this place?), and whether there are reasons to believe that there are radical tendencies at this mosque. But I wouldn’t bet any money on the outcome ….
7. Martinned: Unlike other German courts, the BVerfG does publish dissenting opinions of its judges.
Martinned says:
Seconded.
January 16, 2010, 10:16 am(Though I was aware of most of those. If I didn’t mention them, I must have either forgotten or assumed that others were aware of them as well.)