The leading candidate to be elected to Germany’s Constitutional Court, Horst Dreier, has come under fierce criticism by left-wing media and the Green party for supporting the concept of “rescue torture” as a means of last resort to prevent imminent, large-scale terrorist attacks. In essence, this is the German version of the ticking time-bomb debate, and the political stakes are high. If confirmed, the 53-year old law professor would also take over as president of the Constitutional Court in 2010. Dreier made the controversial case in favor of “rescue torture” in a law textbook that is required reading at most German law schools. Just two weeks ago, the incumbent top judge, Hans-Juergen Papier, made headlines when he came out strongly against current German government’s plans to authorize the in extremis downing of hijacked civilian airliners. Judge Papier has also made it clear that he strictly opposes all forms of torture, even when employed as a measure of last resort. To back up his point, Papier invokes Article 1 of the country’s Basic Law which states that “The dignity of man is untouchable.” The irony of all this is that Judge Papier is a member of the law-and-order conservative CSU party, whereas Horst Dreier belongs to the left-wing SPD party that also nominated him for the Constitutional Court. In Germany, judges for the country’s top court must be jointly confirmed by both legislative chambers, the Bundestag and the Bundesrat. Traditionally, the judges are nominated on a rotating basis by the two biggest political party formations, the conservative CDU/CSU and the left-wing SPD. In the past, the nomination and confirmation of Germany’s top judges was never really controversial. Everything was worked out behind the scenes ahead of time. This time, the Greens broke that tradition, knowing that they could score valuable political points in a debate where roughly 90 percent of the German population is strictly opposed to using any kind of torture, regardless of circumstance. It remains to be seen whether this politically inconvenient torture debate will make the SPD withdraw its Constitutional Court nominee before the vote set for February 15. Dreier, for his part, defended his controversial stance: “I wrote what I wrote and I stand by it.”
