Hans-Juergen Papier, president of Germany’s Constitutional Court, has sharply criticized plans by conservative CDU interior minister Wolfgang Schaeuble to amend the country’s Basic Law to allow for the downing of hijacked terrorist planes over German airspace as a measure of last resort. According to advance excerpts of an interview to be published by Der Spiegel on Monday, Papier essentially argues that the calculated killing of innocent passengers aboard civilian airlines through government action could never be justified and was always going to be incompatible with Article 1 of the Basic Law, which states that “The dignity of man is untouchable”. Germany’s “Air Security Act,” which includes the controversial shoot-down clause, was initially passed under the previous left-wing Red-Green government and entered into force in January 2005. In February 2006, however, the Constitutional Court ruled that this particular anti-terrorist provision was unconstitutional. While Germany’s ruling conservative CDU/CSU parties want to change the constitution to give the government the necessary means to protect Germany against the unprecedented threats of the post-9/11 world, they fall short of the two-thirds parliamentary majority required for any such amendments. Virtually all opposition MPs, and even many members of the governing left-wing SPD party–who had previously voted for the contested law–are now dragging their feet, clinging to an outdated, pre-9/11 vision of the world. During his interview, Papier also came out against interior minister Schaeuble’s proposal to declare terrorists “enemies of the legal order.” Back in July 2007, Schaeuble had caused political uproar in Germany when he called, inter alia, for the indefinite detention and “targeted killing” of terror suspects. In this context, Germany’s top judge deemed “the entire discussion about certain people being outside legal jurisdiction and having enemy status as completely inappropriate.”
Papier, a member of Bavaria’s ruling conservative law-and-order CSU party, rarely makes political statements in public, and Germany’s Basic Law and the absolute premium it puts on human dignity must be seen in connection with the terrible atrocities committed by the Hitler regime. But while Germany’s top judge is certainly entitled to his (private) political opinions, all the talk about amending the Basic Law is moot because Schaeuble is not close to obtaining the necessary two-third majority in the German Bundestag to support the motion. Still, one is tempted to ask what kind of major terrorist strike it will take before the rest of Germany’s politicians and judges finally wake up and realize that the new existential threats posed by nihilist Islamic extremists require unprecedented choices and decisions. German conservative defense minister Franz-Josef Jung–who is pushing for another controversial constitutional amendment that would allow the country’s armed forces to be used in domestic (terrorist) emergency contingencies–has already vowed to order carefully vetted Bundeswehr fighter pilots to shoot down hijacked terrorist aircraft based on what he and other conservatives view as a potential “state of emergency above the law.” If anything, the interview with Germany’s top judge is an important reminder of an often underestimated fact in Western democracies: namely that the selection of judges is of paramount importance in determining the eventual outcome of the democratic political process.
