(FBIS Translated Text)
Minister of the Interior Otto Schily, 71, about deportation difficulties, his problems with US policy, and his attitude toward Cicero and Bismarck.
(Der Spiegel) Mr. Schily, a court has ruled that for the time being the self-appointed caliph of Cologne, Metin Kaplan, cannot be deported to Turkey. Is the Kaplan case not an expression of the failure of your security laws, which were aimed at getting radical Islamists out of the country more quickly?
(Schily) That is certainly a setback. We are making every effort to have that ruling rectified on appeal. This is the first time that a deportation has foundered because a court presumes that a state like Turkey will not comply with laws in the future. The administrative court assumes that contrary to firm assurances provided by Turkey, statements against Kaplan that were obtained through torture could be used. I cannot accept that.
(Der Spiegel) But the problem with Kaplan is that the Turks have tortured his supporters and have wanted to use such statements against Kaplan. Perhaps international cooperation would be easier if states such as Turkey were to observe human rights conventions.
(Schily) You have to make a distinction between the past, when institutions of law and order in Turkey committed inhumane transgressions, and the new Turkey, which has altered its laws and procedures, all the way up to abolishing the death penalty, and which knows that only by applying the rule of law does it have a chance of being admitted to the EU. Indeed, in Germany too there has lately been a discussion of whether certain methods are consistent with the rule of law.
(Der Spiegel) You are referring to the Jakob von Metzler murder case, where the Frankfurt police considered using torture.
(Schily) But surely that cannot lead to you conclude that deportations to Germany should no longer be permitted. The deporting state must be able to rely on compliance with the law on the part of the partner state. The Turks themselves now acknowledge that unacceptable incidents occurred in Turkey in the past. But our impression is that the Turkish Government is making every effort to counter such mistakes. Independently of that, I will obtain further assurances from my Turkish counterpart that no statements obtained under torture will be used against Kaplan.
(Der Spiegel) How much symbolic significance is there to the Kaplan case?
(Schily) He could become a symbol of our state's weakness. If we fail to get that person out of the country, then that will cast doubt on democracy's ability to defend itself. How much should we really put up with?
(Der Spiegel) But in other cases as well, the deportations of radicals announced with great fanfare after 11 September have fallen short. Why is that?
(Schily) You will have to ask the Laender about that. The federal government has changed the law so as to allow a person who constitutes a danger to public safety to be removed from the country. But specific deportation cases are up to the Laender. That is why I have urged the interior ministers in the Laender to finally avail themselves of all options.
(Der Spiegel) The response by the Laender is sobering: There has been practically no instance in which radical Islamists have been deported.
(Schily) I am not the superintendent of the authorities in charge of foreign nationals; I can only create the legal foundation. The rest is up to the Laender themselves. Whereby a ruling as in the Kaplan case certainly does not encourage such authorities to take tough action, and for that reason too a change is needed.
(Der Spiegel) So are you satisfied with the overall results thus far?
(Schily) Absolutely not. But then we also have to ask in all honesty why that is. Let's say we have a person from Algeria — in that case there may actually be reasons that make deportation impossible.
(Der Spiegel) Because the Algerians do not always observe the principles of the rule of law?
(Schily) For example. There is a similar situation in Egypt. With an Egyptian ...
(Der Spiegel) ... the radical preacher Usama Ajub in Muenster ...
(Schily) ... we have no assurance that he will not face the death penalty under any circumstances. Thus we cannot deport him. I will not send anyone to his death or to face torture.
(Der Spiegel) Does that not mean that ultimately our democracy must put up with someone like Kaplan?
(Schily) No, I do not look at it that way. In my opinion a return to Turkey is possible. Turkey has provided an assurance of its compliance with the European Convention on Human Rights. If a country wants to join the European Union, then its circumstances must be such that not a trace of doubt on that point remains. Otherwise the undertaking is doomed from the outset. In fact, it is not unusual for a deportation to fail because a country of origin flatly refuses to accept its citizen. This must have consequences.
(Der Spiegel) For example?
(Schily) In several thousand cases Ethiopia has declared that it is willing to take one of its citizens back only if we put a certain amount of money on the table. In that case you cannot say, "Thanks for the slap in the face, here's some more development aid." In that case you must also cancel assistance. We had a similar quarrel with the former Romanian Government as well. In these cases I am unyieldingly rigid. And with success: After much clear dialogue Romania now takes its citizens back.
(Der Spiegel) The EU now wants to ban the political arm of Hamas — but for now you have failed to effect a ban on the collection of donations for the al-Aqsa Martyrs Brigade, which has ties to Hamas. What now?
(Schily) That is regrettable. Unfortunately one cannot entirely rule out the possibility that we will lose out to al-Aqsa in the next round too. For that reason I am in the process of examining what conclusions we should draw from that. Why do we really have to prove that money has been collected for terrorist activities? Can we not demand that groups such as al-Aqsa prove that terrorist organizations such as Hamas are not supported with their money? I consider a reversal of the onus of proof legitimate and appropriate in this regard.
(Der Spiegel) Policy on internal security is increasingly reminiscent of a staged competition, with the slogan: "constantly faster, harder, and more frequent." Thus, the Laender where the CDU (Christian Democratic Union) is in power are demanding the right to detain persons solely on the basis of a suspicion, a so-called threat of escalation. The Christian Democrats consider it "insupportable if a suicide attack cannot be averted by mere virtue of the fact that the law does not provide for that."
(Schily) That would clearly be a sort of anticipatory preventive detention. Such a notion is alien to criminal law. How should that be done? When would such detention end? Who should order it on the basis of what facts? That brings to mind the Taliban and al-Qa'ida prisoners in Guantánamo Bay, for whom no legal category has yet been established.
(Der Spiegel) How about declaring them "outlaws"?
(Schily) At the very least they are not being held as prisoners of war in accordance with the Geneva Convention, because there was no belligerent party in Afghanistan. But they are also not being treated as accused persons in normal criminal proceedings. They have simply been taken out of circulation in order to restrain a potential threat. This is like preventive police custody...
(Der Spiegel) ... which in Germany is limited to two days in the absence of a court decision. Many of the prisoners in Guantánamo Bay have been there for nearly two years without knowing what they are charged with.
(Schily) We have to make sure that we do not slip into a system of presumed guilt. There is an interesting detective novella by Witold Gombrowicz. It is set in Poland and turns the old crime-solving model around, whereby Sherlock Holmes finds a corpse and then looks for the murderer. With Gombrowicz the process is reversed: The perpetrator is known from the outset, and then I look for the corresponding corpse.
(Der Spiegel) Like the Americans are doing in Guantánamo Bay?
(Schily) Clearly, certain fundamental questions have not been answered. Under what legal qualifications are those prisoners being detained? The institution of criminal proceedings used to be the minimum requirement. It is certainly true that the mere act of mulling over an unpleasant idea cannot lead to punishment. On the other hand, I can understand when the Americans say that they cannot let the detainees circulate freely, because in that case they would have to fear that they might stage new attacks.
(Der Spiegel) The prisoners have included 13-year-old boys and half-blind 70-year-old men who can hardly walk. How do you claim to know that the people at the base in Guantánamo Bay are even al-Qa'ida activists?
(Schily) I am not saying that the question has been adequately resolved. I am only saying that we have a problem there. Our international legal community must look into this problem in dialogue with the United States — if the Americans are in fact willing to engage in such a dialogue.
(Der Spiegel) It appears that there has been a reversal of the original matter of concern: The United States is losing much democratic legitimation precisely because it is not willing to solve such problems.
(Schily) That could be. But certainly the fact that an intensive critical discussion is under way in the United States itself is also part of the overall picture. Maybe Der Spiegel is being read in the White House, where it is stimulating debate.
(Der Spiegel) So how does your US counterpart John Ashcroft react when you address such issues with him?
(Schily) Our relationship is very good, but that does not mean that he always shares my opinion. We discuss the topic, but right now the Americans still see no other choice. But I do hope that the thought process in the United States will lead to reasonable solutions consistent with the rule of law. However, we should also avoid voicing obvious criticism with regard to Guantánamo at the expense of addressing a problem faced not only by the United States, but also by the entire community of democratic states: With what legal instruments do we react to the mixture of war, terrorism, and crime? The classic clean division into, say, military and police instruments is no longer an adequate way of dealing with the problem.
(Der Spiegel) US Secretary of Defense Rumsfeld says this about the detainees: "We have no interest in bringing them before a court or releasing them." So do you have a proposal for how the prisoners should be dealt with?
(Schily) I certainly cannot make an offer of which Washington would take notice. The Americans listen to criticism and then act as they see fit. I think it is obvious that there must ultimately be a procedure through which an objective judicial entity decides whether a specific person constitutes a threat, and that such a person also needs legal counsel in that procedure. Otherwise fundamental principles are lost.
(Der Spiegel) One of the detainees in Guantánamo for nearly two years now is the young Islamist Murat Kurnaz from Bremen, who was apprehended on his way to Afghanistan, without having been involved in the fighting. Rightly so?
(Schily) I cannot comment on that specific case, but you must note one fact, no matter how bitter it is: The battle against terrorism in Afghanistan is being waged not in accordance with police law, but rather with military means. Using military means also means destroying one's adversary. The categories that we have created in order to judge such cases are simply no longer appropriate. In order to clarify such cases in particular, jurists must sit down and find a reasonable balance between the rights of the individual and the legitimate interests of a state in ensuring its security. That is a task that we still face.
(Der Spiegel) Are the Americans not increasingly forcing us into a gray zone in combating terrorism that is not of our liking? Say, by refusing to make the statements from the detained chief planners of the 11 September attacks available to German courts — even as you, as interior minister, are allowed to read such documents.
(Schily) I can fully understand that criticism. But I also know that in certain cases we have weighed the relative merits of making evidence available for proceedings. A similar process takes place in the United States. One can object to that, but at this point we have little opportunity to exert influence over it. We must respect the fact that the Americans see things that way. After all, those are the conditions that exist in international legal relations.
(Der Spiegel) Do you not find it objectionable under the rule of law when Mounir al-Motassadeq of Hamburg is sentenced to 15 years in prison for supporting the attackers without the court hearing the statements made by the chief planners?
(Schily) It is possible that the statements would have made the evidence even stronger. But the Hanseatic Regional Appeal Court obviously felt that even the evidence that was presented was sufficient. I really cannot imagine that the Americans would have held back any exonerating statements.
(Der Spiegel) US President George Bush has called on the Europeans to get involved in Iraq, saying that it is now the main battlefield in the campaign against international terrorism. Do you find this line of reasoning convincing?
(Schily) We would be well-advised not to take on everything. We are doing a great deal in Afghanistan, in developing the police, for example. That is also clearly acknowledged by the US President himself. In the meantime, Chancellor Schröeder has offered our support in rebuilding civilian structures in Iraq, in police training, for example. That is where we should concentrate our efforts. And in fact, anyone in the United States who believes that Iraq is an international responsibility must also create corresponding international decision-making structures. Thus, the German government's attitude toward Iraq is very clear: We are in favor of greater UN involvement in decision-making. That is the only way that we will make advances in Iraq.
(Der Spiegel) Right now it seems that the United States might achieve the exact opposite of its war goal in Iraq: a strengthened mobilization of terrorists.
(Schily) Unfortunately it is obvious that the events have led to some terrorist actors gaining ground again. But we should all be happy that Saddam Husayn's regime has disappeared.
(Der Spiegel) You have offered the United States civilian personnel from the Technisches Hilfswerk [THW; German Government's disaster relief organization] for the rebuilding effort. When will the first people depart?
(Schily) That depends on the security situation in Iraq. I will not send any THW personnel to Iraq as long as there is a danger to their life and limb. We have sent an advance reconnaissance team that has sounded out the situation and drafted proposals for improving the water supply. There are some technical questions that must still be resolved, but I hope that we can get started soon.
(Der Spiegel) Federal President Johannes Rau has recently announced his retirement from politics, referring to his age. Rau is 72, and you are 71. In an interview you toyed with the idea of following Cicero's example.
(Schily) Unfortunately I got ahead of myself there, citing Cicero as a model without first reviewing my knowledge of history.
(Der Spiegel) You would have failed the Pisa test in that regard: Cicero was murdered at his country estate at age 63.
(Schily) Unfortunately that comparison was not good, but the other one ...
(Der Spiegel) ... with Bismarck, who remained politically active until age 75 ...
(Schily) ... fits quite well. In that case I would have four more years. But I have learned that it is not a good idea in politics to set a limit too early. It is better to leave things vague.
(Der Spiegel) Mister minister, thank you for this interview.
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