A criminal probe of two journalists at Netzpolitik, a Berlin blog, has provoked a major debate in Berlin about reforming Germany’s law on treason, with some policymakers now demanding clear parameters to protect journalists.
The controversy started when the Netzpolitik bloggers, Markus Beckedahl and André Meister, reported last week that they were being investigated on suspicion of treason for publishing what appeared to be a secret government file detailing Germany’s new push to surveil social media.
On Tuesday, the justice ministry removed the federal prosecutor in charge of the investigation – but not before stirring up a storm of protest and fears that the treason law could threaten freedom of the press.
Critics range from center-left Social Democrats, the government’s minority coalition partner, to the socialist Left Party and liberal Federal Democratic Party. They are all calling for better protection of journalists.
The treason law is rarely used, and in the current case, it is unlikely the investigations will be pursued further. There is no need for a knee-jerk reaction. Stephan Mayer,, Christian Democrat Parliamentarian
But members of Chancellor Angela Merkel’s center-right Christian Democrats and their Bavarian sister party, the Christian Social Union, warn against rash decisions.
“The treason law is rarely used, and in the current case, it is unlikely the investigations will be pursued further,” said the CDU/CSU parliamentary group’s spokesperson on domestic policy, Stephan Mayer. “There is no need for a knee-jerk reaction.”
There was also a cautionary note from the SPD parliamentary group's spokesperson, Konrad Lischka. “It should be thought about calmly and without time pressure,” he said.
But the head of the Left Party, Bernd Riexinger, called for a change in the law. And FDP leader Christian Lindner told Handelsblatt that a distinction should be made “between people who reveal secrets and those who pass them on via journalistic channels.”
Mr. Lindner said changing the law was needed to prevent the president of the Office for Protection of the Constitution, Hans-Georg Maassen, from “using it to intimidate journalists.”
The debate started when the attorney general, Harald Range, opened the treason investigation against the bloggers – following a criminal complaint by Mr. Maassen in May.
Mr. Range had begun to investigate whether an initial indication of treason was justified. He said the review had reached a preliminary conclusion that the legal interpretation underpinning the investigation was valid.
But when the case was made public last week, Mr. Range was harshly criticized by the federal justice minister, Heiko Maas, and others. On Tuesday, Mr. Maas sacked Germany's top prosecutor.
The justice minister, a member of the SPD, also announced plans to determine whether the criminal law referring to treason and protection of state secrets needed an “overall reform in the context of press freedom.”
The Social Democrats have already proposed introducing a protection clause for journalists in the relevant paragraph 94 of the German penal code.
Another article of the penal code could serve as a model for reform – Paragraph 353b, which regulates the breaching of official secrets. It has been more “journalist-friendly” since Germany’s top court declared in 2007 that actions taken by authorities against the magazine Cicero were illegal. The magazine’s offices were searched after an editor quoted from a confidential document of the federal police force.
So aiding and abetting the breaching of official secrets is “not illegal, if it is limited to the acceptance, evaluation or publication of the secret,” according to the breaching article of the penal code. This idea could possibly be transferred to the treason law, according to Mr. Lischka.
Patrick Sensburg, chairman of the parliamentary committee investigating the collaboration of Germany's intelligence service, the Bundesnachrichtendienst or BND, with the U.S. National Security Agency, warned against special regulations. In legal history, there were “very few cases of journalists suspected of treason,” said the Christian Democract in an interview on German radio, adding these cases usually “decided in favor of press freedom.”
Constitutional law expert, Christoph Degenhart, is also skeptical of rushing to change the law. “To take a one-off case as a reason for a change in law does not seem to be warranted, as the demands of press freedom can be taken into account within the existing legal framework,” he said.
But the legal expert sees room for discussion on a concrete definition of the term “state secret.”
A concrete definition of this term is important in the context of current investigations because the justice ministry and the former federal prosecutor appeared to disagree on whether the documents published by Netzpolitik actually reveal information of particular sensitivity for German security.
Treason can be considered only if state secrets were revealed.
After news of the probe broke, the chancellory and the interior ministry denied knowledge of any investigations - a reaction Mr. Beckedahl struggled to accept.
In an exclusive interview with Handelblatt Global Edition, he said: "We’ve been under investigation for two and a half months, and no one in the government knew anything about investigations for treason against journalists? Then something’s really rotten."
On Thursday, the interior ministry said it was in the early stages of its probe.
Till Hoppe and Dietmar Neuerer cover politics for Handelsblatt from Berlin. John Blau contributed to this article. To contact the authors: [email protected], neuerer[email protected] and [email protected]