Freedom of the Press Under Attack?

An investigation by German authorities of bloggers who are suspected of publishing classified information has caused yet another mini-crisis within the governing coalition. The Justice Minister, Heiko Maas (from the SPD Party), has fired the Federal General Counsel responsible for the investigation.

What Happened

The Federal General Counsel’s office, led by Federal General Counsel Harald Range, opened a formal investigation on charges of treason (Landesverrat) against two journalists from, a German news blog. The journalists were suspected of publishing articles based on classified documents. After a brief initial investigation, the General Counsel’s office determined that the articles had been based on “State Secrets” and that the articles were therefore illegal and constituted Straftaten, the German equivalent of a felony.

When the investigation became public last week, all hell broke loose. Minister of Justice Maas, whose Ministry controls the Federal General Counsel, said that he was not convinced that the articles in question “have to do with State Secrets,” and that he was concerned about an attack on freedom of the press. Opposition politicians demanded an explanation. The Chancellor’s Office distanced itself from the investigation, saying that it had complete faith in Minister Maas’s handling of the situation.

General Counsel Range, instead of backing down, went on the offensive. In interviews this week he defended the investigation and said that the comments from politicians constituted an “unbearable encroachment on the independence of the judicial process.” Acknowledging that freedom of the press is a fundamental right, he nonetheless stated that “this freedom on the internet is not unlimited.”

Minister Maas reacted extraordinarily fast, making a statement that he had “lost confidence” in the performance of Mr. Range, and was forcing him into early retirement. The decision was based not only on Range’s recent statements, but also on Maas’s opinion of the investigation itself, which he believed should never have been introduced due to lack of credible evidence of a crime.

Why it Matters – 3 Reasons

The way I read the situation, there are three reasons why this situation could have serious ramifications. The first is that it will certainly be a political problem, not only for the Ministry of Justice, but also for the government as a whole. Politicians from the Green Party are pissed off. They still want an explanation for why the investigation was opened in the first place, and also call into question the wisdom of firing the Federal General Counsel during an open investigation.

But it’s not just the Greens. CSU politician Hans-Peter Uhl has said that he believes that Range is taking the blame for an investigation that Maas already knew about, and that Maas only fired Range to hide his own mistakes. This is provocative stuff, particularly because the CSU is part of the governing Grand Coalition with Maas’s SPD party. The Netzpolitik Affair, as it’s being called, could end up being another crack within the Government that will affect German politics over the next two years.

The second reason is the question of who knew what about the investigation, and when they knew it. Politicians, ministries, and other governing bodies have been tripping over themselves to distance themselves from the investigation. Whether anyone has lied about what he/she knew could also cause problems down the road.

The size of the problem depends, however, on the third reason: the legitimacy of the investigation itself. The assumption amongst politicians and the media has been that the investigation is a direct attack on press freedom, and thus on democracy itself. Even so, at least two agencies – an investigative agency in Berlin, and the Federal General Counsel – thoroughly reviewed the particulars of the case and decided to move forward.

These agencies are presumably filled with reasonably competent people who have until now managed to avoid accusations related to press freedom. That they decided to open a treason investigation against journalists seems absolutely crazy, but it does beg the question of whether journalists should be allowed to publish classified material in every conceivable situation. If Glenn Greenwald were German, he would be absolutely losing his mind right now.

The situation remains very fluid for now. Range was only fired this morning, and I’m sure that the next few days and weeks will be a very difficult time for Heiko Maas and the Ministry of Justice.