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Comment by vog | Hacker News Reader

> The state investigation, into two journalists at Netzpolitik.org, is currently paused.

This is wrong.

The investigation was never paused. Last week the prosecutor did claim he would pause the investigation, but that was a misleading claim from the very beginning - with the sole purpose to calm the public. Although that didn't work out (the demonstrations happened nevertheless), it achieved some strange success: The media keep repeating and repeating that, despite having no evidence that anything was ever paused.

The only "pause" that exists is that the investigation is currently waiting for an assessment ("Gutachten"). However, that is normal part of the investigation and would have happened anyway. So this is "waiting" (passive), not "pausing" (active). The prosecutor didn't do anything here to pause the investigation.

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There is probably a subtext we are missing. Sacking the chief will not immediately stop the prosecution (otherwise, all prosecutions would be dropped now!), I bet it will actually be paused and quietly resumed in a few weeks, in a more subdued tone. This has probably been used as a good occasion to get rid of an old entrenched player who thought he was untouchable, being a few months from retirement.

Paranoia tinfoil theory: Ronge was blackmailed by German spooks to hold the line for them, no matter what. Better to lose a year of pension than your reputation...

Non-paranoia theory: the state wants to make an empty gesture to appease the unruly masses upset about unpopular laws without actually changing them. What a show!

Granted, I am not familiar with German systems for changing laws, but if we doesn't like prosecutors enforcing unjust laws, we should change the laws to make publishing state secrets legal in limited cases (e.g. when it serves a public good), not make show of firing a prosecutor who is enforcing laws and about to retire anyway. It simply isn't wise to rely on prosecutorial discretion for justice to persevere over unjust laws, as that's simply not their role in the judicial system.

> I am not familiar with German systems for changing laws

After 16 years of Kohl fiddling his thumbs and 10 years of Merkel glueing hers together, I'm not sure Germans are any more.

Well, Range was strangely un-eager in his investigations in the NSA scandal. There's something wrong here that is independent of the law.

I imagine the NSA is a sophisticated enough actor that prosecuting anyone related to them would be pretty futile. We can certainly wish that everyone be equal under the law regardless of resources, but that's simply not the case in practice.

These investigations are not against the NSA!

They are against (part of) the German government as well as Germany's secret service ("Bundesnachrichtendienst", BND) for their extensive cooperation with the NSA.

The Tagesschau yesterday (https://www.tagesschau.de/inland/maas-range-101.html) made it very clear that the Generalbundesanwalt is a "political public official" and as such (unlike judges, who are independent) subordinate to the minister of justice, and has to follow his directions. Maas refusal to do so, instead attacking the minister publicly for "meddling", is explanation enough for his dismissal.

It's also very questionable if Maas was indeed "just" enforcing laws, at least he was strangely selective in doing so (for some reason, he was very reluctant to enforce similar laws in the NSA-spy-affair). It's also very questionable of the accusations of treason against journalists only doing their job would have held up in court.

So the simple explanation is that the Generalbundesanwalt went too far, his superior had to act to avoid loosing face, and all this speculation about empty gestures, unjust laws or whatever is completely unnecessary.

Small correction: Maas is the minister, Range is the Generalbundesanwalt.

Oh, good point, thanks for explaining. I did think it strange that a prosecutor was implying he was part of the judicial branch, and chalked it up to not being familiar with the German judicial system.

Still, I think it's better to limit prosecutorial power by changing laws than to rely on prosecutorial discretion, i.e. I'd prefer he get fired for "this is a wholly baseless prosecution that has no place under our laws", not for "this is an unpopular prosecution that your boss told you to drop".

http://istdasverfahrengegennetzpolitikschoneingestel.lt/

Discontinuing is not the same as pausing, but hey.

Given that Maas apparently intented to kill the Gutachten on Friday, I think it's fair to assume that the investigation is not continuing or even merely paused. It's definitely dead now.

The next prosecutor would have to be extraordinarily stupid to get involved in this affair any further than required to put an official stop to the investigation.

Still, it is interesting that even German media keep talking about the "pause" that never existed.

I really hope that the investigation will be dropped officially. If it will mere be discontinued and put on ice, this would have a really bad psychological effect on Markus and André. Even if it is 99.999% sure that they won't face any repression, having the investigation dropped would be a clear cut, and enable them to be truly relieved.

What's the difference between discontinuing it and dropping it? If it's officially dropped, does that prevent a later prosecutor from restarting it?

In the US you'd need a declaratory judgment to deal with the threat of "legal action at some later point". But I think that's a civil law concept -- I have no idea how that would go in criminal law.

The Generalbundesanwalt (Public Prosecutor General, GBA) is a civil servant bound by his superior's orders. That is why he can always be retired instantly by the Minister of Justice (§54 BBG). So yes, it is extraordinarily stupid for a GBA to against his orders.

In this case, however, I think Range actually wanted to be retired. He has taken so much fire over his apparently incompetent statements relating to NSA spying (among others he confused NSA and NASA on multiple occasions) that he probably wanted to get out of what is otherwise a fairly quiet job. In particular since there is pretty much nothing to gain anymore in this case.

I completely agree. Range has completely mishandled the NSA situation but he isn't stupid. It's obvious that this would get him retired and doing it this way was decent attempt at stopping this whole affair and does his colleagues a favor.

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