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Comment by rjzzleep | Hacker News Reader

the germans have a saying:

"was nicht passt, wird passend gemacht"

in my opinion the same will happen here. if the laws don't fit, the laws will be adjusted, or the terminology will change. it happened with the now no longer unconstitutional wars. and obama said the same:

"we're not really spying on you guys, we're just helping our allies"

you have to applaud the germans for their efforts though. after all they were able to temporarily halt the data retention efforts. i say temporary, because i'm convinced that even if the european court of justice really bans it(which i'm not convinced of), it will be even more crucial for them to have someone from the outside spying.

and besides that there is this rather worrisome notion in politics and lobbyism that a no in court only stays no until you turn it into a yes.

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Sure the law will be adjusted but having the CCC directly involved in the trial we'll see some interesting details and backgrounds explained.

I'm curious how the german media will handle it. It's Top-News atm on the main public broadcasters (also on their homepages http://www.tagesschau.de/ http://www.heute.de/ 2nd one is ZDF. Close to the ruling CDU party). So I guess it will survive till the 8pm news. The trial coverage will be a different topic though.

First, it must be brought to trial. The first step is investigation by the state attorney and I would be very surprised if it wouldn't be struck down at that stage. State attorneys in Germany are not independent (unlike judges) but bound to supervisory advice, in this case the department of justice (afaik).

Sure but since they have been working as expert witnesses for the government and similar and they know what they are talking about, it will be hard for the state attorney to make it disappear.

Media will play a major role here too and if you consider the juristical failures in Bavaria and the media coverage there, it would be pretty stupid for the state attorney to try something questionable here.

Laws can't be changed retroactively, so I hope they won't get through with it. I just fear they'll grant immunity to those involved, or find some other way around.

In most of Europe, actually, laws can be retroactive... What is forbidden is a harsher criminal law. For example, creating an incrimination by law after a crime has been committed is a harsher criminal law and is forbidden. But if the legislator wishes to repeal a criminal law, the new softer law can be retroactive. It's called retroactivity in mitius.

I don't know if it's the same in Germany, but it's probable[1]. If so, then yes, the german legislator can make this case disapear completly by making the laws on the subject softer.

[1] Actually, I used to think that this rule was universal, because it seemed to be common sense... but that rule might not exist in countries of Common Law ?

What unconstitutional wars?

The modern German constitution was suppossed to make it very hard to go to war. (Basically only if Germany was attacked.)

"the germans have a saying [..] if the laws don't fit, the laws will be adjusted, or the terminology will change"

They are correct, and it happens worldwide. It leads to the conclusion that unless you are too big to fail/be touched, no one really lives in free and democratic countries.

You use the word democratic, but in a context where you don't mean that word. Courts are antidemocratic. I can't speak to the politics in Europe, but e.g. in the U.S., the law insulates from what people want to otherwise do. For example, after 9/11, you probably could have gotten majority support for restrictions on Muslims. The law tends to insulate from that, or e.g. the mob outrage over the financial companies after the recession. Having money allows you to more effectively use the law to insulate yourself from democracy.

With regards to spying, the people seem broadly okay with spying. At least in the U.K., the popularly elected government just filtered their internet, and support for CCTV is widespread. That's why the minority who oppose surveillance in principle try and use the law to counter the majority will. If the laws get changed to ratify the status quo, that's not antidemocratic.

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