• English Site
• > Germany

Author Bernhard Schlink On Terror And The Law

The Defense Minister's Dream World

By Bernhard Schlink

In a guest editorial, German writer and professor for public law and legal philosophy Bernhard Schlink reflects on German Defense Minister Franz Josef Jung's recent remarks on the necessity of shooting down passenger airplanes hijacked by terrorists.

We must not expect our politicians and government ministers to have a pedantic relationship to the law. They are not lawyers, even if some of them have studied law. Their first concern is not the implementation of the law but the achievement of a political goal. Sometimes the law is conducive to that goal, sometimes it is a hindrance.

It's perfectly natural that politicians occasionally sigh about how Germany's Federal Constitutional Court doesn't know anything about the real world or about politics. It's natural, too, that government ministers loudly express their annoyance with that court when it thwarts their political plans.

However German Defense Minister Franz Josef Jung's remarks about shooting down hijacked airplanes, which he made last weekend in interviews and which he has since repeated in public, are of a different kind.

"According to the decision of the Constitutional Court, shooting down an airplane would be possible in situations of general danger or when Germany's fundamental liberal and democratic order is at risk. I would like to see a clarification of the matter in terms of constitutional law. But there is no consensus on this yet within the governing coalition. Therefore I would have to make use, in the event of an emergency, of the legal powers associated with a superstatutory state of emergency."

Those were Jung's words in his interview with the weekly magazine Focus, and he restated his wish for a clarification of the constitutional legal position in remarks to the German broadcaster ARD, explaining that constitutional law is currently ambiguous on the question of shooting down hijacked airplanes and that the Constitutional Court also has an interest in the issue being clarified.

His statement is so wrong that it is painful. Constitutional law is clear on the matter. The Federal Constitutional Court sees no need for a clarification of the constitutional legal position. Everything that there was to clarify was clarified by the court in its Feb. 15, 2006 decision: "Shooting down an aircraft which is being used against the lives of humans is not reconcilable with the right to life according to article 2, paragraph 2 of the first clause of the German constitution in combination with the guarantee of human dignity in article 1, paragraph 1 of the constitution, to the extent that humans on board the airplane and not involved in the crime would be affected."

It is not legitimate to shoot down airplanes in "situations of general danger": The Constitutional Court explicitly prohibits shooting planes down in the case of "events where a catastrophe is almost certain to occur."

Nor is it legitimate to shoot down planes for the purpose of protecting Germany's "fundamental liberal and democratic order": According to the Constitutional Court's decision, shooting down planes is explicitly not about "defending against attacks that are aimed at eliminating society and destroying the state's legal order and system of liberties."

And, according to the decision, the superstatutory state of emergency which the defense minister wants to rely on simply does not exist at all. The legal powers associated with a superstatutory state of emergency override the limits laid down by the statutory law. They override them when, and because, the statutory law does not protect values and interests in the way they deserve to be protected.

The Constitutional Court has decided how life and dignity are to be protected in the conflict surrounding the shooting down of hijacked airplanes. It has decided how they are to be protected on the basis of the constitution, and no superstatutory state of exception can go beyond that. There is no such thing as a state of emergency that makes it legitimate to override constitutional law.

Perhaps the defense minister does not actually want a clarification in terms of constitutional law, but rather a change of constitutional law to the effect that shooting down hijacked airplanes, something that is currently prohibited under the constitution, will in future be legal. However the prohibition is based on the guarantee of human dignity, which cannot be called into question through any change to the constitution.

Has the defense minister not read the Constitutional Court's decision? Does he not understand it? Is he knowingly misrepresenting it? One would call Jung's incorrect position foolish or arrogant, if one had not seen him during the interviews. His stern gaze, grave voice, deliberate gestures and meticulously parted hair exuded a stateman's sense of responsibility. The defense minister believes what he says. He believes things are the way he says because he says that is the way they are.

It has often been observed that politicians can lose touch with reality. And just as they can lose touch with reality, they can lose touch with the law. Just as they can live in an illusory reality that mirrors their goals, wishes and fears, they can also live with a law that has nothing to do with Germany's constitution and the country's Constitutional Court, but instead reflects their own goals, wishes and fears. That is not simply foolishness, and it is not simply arrogance. It is the blindness of someone who has become obsessed with a mission.

That does not make it any less dangerous. The interior minister, Wolfgang Schäuble, has recently begun talking about nuclear threats, without any concrete evidence that they exist. In a similar way, Jung is talking about a right to defend against threats that has no basis either in the constitution or the Constitutional Court.

Just as the interior minister is undermining confidence in the safety of the current situation, so the defense minister is undermining faith in the reliability of the law. If their mission is to accustom us to the notion that an emergency knows no law but only the robust intervention of the executive, the police, the military and the intelligence agencies, then what they are doing together makes sense. But in terms of constitutional law, this mission is a scandal.