Germany (catch all, incl. terrorism)

[Fuchs]

Incendiary devices, not explosive devices.

Some people (allegedly young left-wing radicals, but more likely just terribly bored people) have been playing arsonists on upper class cars in Berlin and elsewhere for years (highly publicised and thus fuelled by public attention only in Berlin).

These dozens of incendiary devices were probably just a variation of that vandalism.

[davidbfpo]

A BBC report which explains:http://www.bbc.co.uk/news/world-europe-15429744

Which cites:

"He wasn't motivated by politics but rather social envy," said senior police official Oliver Stepien. "He said in essence: 'I've got debts, my life stinks and others with fancy cars are better off and they deserve this'."

Earlier this month, the Berlin railway system was hit by arson attacks. Explosive devices were placed in a number of locations, including at least one on a high-speed rail track. A previously unknown left-wing group, calling itself the Hekla Reception Committee, said it had planted the devices.

[jmm99]

From Bobby Chesney (Lawfare), Prosecuting Conspiracies Before Attacks Occur: Comparing German to American Law in the El-Kabir Case:

Last week I noted that the United States seeks the extradition of Abdeladim El-Kabir, a man currently held in Germany based on allegations that he was part of an al Qaeda-related cell trained in Pakistan and now planning a bombing somewhere in Europe. I posed the question why the Germans would be willing to extradite him rather than prosecute him themselves. The answer may turn on the particularities of the elements of the offense with which El-Kabir was charged.

My understanding is that he is charged there with “membership in a terrorist organization,” in violation of section 129a of the German Penal Code. That law provides, in relevant part:

(1) Whoever forms an organization, the objectives or activity of which are directed towards the commission of:

1. murder, manslaughter or genocide (Sections 211,212 or 220a);

2. crimes against personal liberty in cases under Sections 239a or 239b; or

3. crimes under Section 305a or crimes dangerous to the public in cases under Sections 306 to 306c or 307 subsections (1) to (3), 308 subsections (1) to (4), 309 subsections (1) to (5), 313, 314 or 315 subsections (1),3 or 4, 316b subsections (1) or (3), or 316c subsections (1) to (3), or whoever participates in such an organization as a member,

shall be punished with imprisonment from one year to ten years.

…

(3) Whoever supports an organization indicated in subsection (1) or recruits for it, shall be punished with imprisonment from six months to five years.

…

The key point is that prosecutors must show that El-Kabir either formed or supported an organization directed toward the commission of one of the listed offenses, which in this case would include murder.

Now it may seem at first blush that this would be simple enough, since the reporting is focused on the idea that these guys were planning to carry out a bombing. But there is a spectrum that runs from having the general idea of carrying out such an attack, through the preliminary steps of preparing and selecting a target, and culminating in the attempt - and the million dollar question here is where German law attaches liability on that spectrum for this purpose.

I’m no expert on German law, but my impression is that it requires at least some degree of specificity as to the particular target, as opposed to attaching liability at the point where the men simply agree to carry out a bombing against someone. If that is correct, it is easy to see how it might make it hard to convict these men. American conspiracy law, in contrast, would permit prosecution so long as the men had agreed to carry out an unlawful attack, even if the particulars were to be determined later. This, in short, may explain why the U.S. is stepping in with an extradition request.

Chesney's 2007 Article, Beyond Conspiracy? Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism, explains the scope of US law in 2006:

Abstract:

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be forward-leaning in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in order to facilitate an intelligent debate regarding the second.

In some respects, this is well-trodden ground. I and others have written previously of the government's sweeping capacity under 18 U.S.C. Section 2339B to prosecute potential terrorists who can be linked in some fashion to a designated Foreign Terrorist Organizations (FTOs). But it is becoming clear that the utility of Section 2339B is eroding in the face of several developments, most notably the ongoing decentralization of what might be called the global jihad movement. Simply put, it is becoming less common for a suspected terrorist to be vulnerable to a Section 2339B FTO-support prosecution. What, then, is the government's capacity for anticipatory prosecution when confronted with unaffiliated terrorism?

Setting aside the possibility of a pretextual charge based on some unrelated offense by a suspect, the basic options are a conspiracy charge under a terrorism-related provision such as 18 U.S.C. Section 956(a) or a charge under 18 U.S.C. Section 2339A, the lesser-known of the two material-support statutes. The article identifies the earliest plausible point of intervention under both options, and examines the extent to which indictments in post-9/11 prosecutions have stayed within these boundaries. My most notable conclusion, perhaps, is that Section 2339A can be and arguably has been used to create a capacious form of inchoate liability in circumstances that otherwise would have to be charged under the relatively-demanding standards of attempt.

If anything, the scope of US law has expanded from 2006 to the present (thread, Terrorism in the USA:threat & response (merged thread) ) and its penalties are stiffer than the German law.

Regards

Mike