According to top White House strategist Karl Rove, Americans can be divided into two groups — those with a pre-9/11 view of the world and those with a post-9/11 perspective. The same basic distinction also applies in Germany, where the country's highest court last week declared as "unconstitutional" a law that potentially allowed the government to shoot down civilian airliners hijacked by terrorists. Of course, prior to the 9/11 attacks, no one would have predicted that governments in Germany or the United States might one day be faced with the tragic decision of whether or not to take out a hijacked aircraft with hundreds of innocent passengers on board in order to prevent it from becoming a weapon of large-scale destruction. But the 9/11 attacks did happen, and it is high time to adapt to this scary new world by preparing for the previously unthinkable. However, for reasons rooted in Germany's post-1945 vision of the world, the constitutional court sided with the plaintiffs from the libertarian FDP opposition party and struck down the law.
Given the terrible atrocities committed by the Nazis, Germany's constitution makes it illegal for the government to take the life of any of its citizens. According to the court, this restriction applies not only to the death penalty but also to the shooting down of hijacked aircraft, where, in essence, the government would take the lives of some citizens to save the lives of others. In theory, the only scenario where a hijacked plane could be shot down is if the government knew for sure that all on board were terrorists. In today's world, these restrictions could have almost absurd consequences.
Also, the court found the law — which came into force in January 2005 under the leftist Schroeder government — to be in violation of Germany's constitutional restrictions on the domestic use of the armed forces. Under German law, the government can only deploy the military to cope with natural disasters and particularly grave accidents resulting in regional or interregional emergency situations. Yet, even when providing domestic assistance to the German police, the armed forces cannot employ "typically military" weapons, i.e. scrambling a fighter jet to shoot down a hijacked airplane.
Finally, the judges argued that "the issue is not the defense against attacks aimed at abolishing the body politic and at eliminating the state's legal and constitutional system" &$151 something which may have provided a constitutional justification for the downing of a hijacked aircraft. Disturbingly, Germany's highest judges failed to understand both the true intentions as well as the potential capabilities of the new breed of Islamic terrorists that we now confront. After all, if you listen to Osama bin Laden and al Qaeda, there is no doubt that they wish to destroy our free and democratic societies with the intention of establishing a radical Islamic caliphate. Furthermore, terrorists crashing large passenger planes into Germany's 18 active nuclear power plants could wreak mass destruction and pose a severe threat to the country's national security. The constitutional court neglected to take either factor into account.
Ultimately, of course, judges only interpret the laws, they don't make them. So if Germany's current constitution makes it illegal to shoot down a hijacked aircraft to prevent catastrophic terrorist attacks from happening, lawmakers should amend the constitution sooner rather than later. While Germany's ruling center-right CDU/CSU parties are prepared to change the constitution to give the government the necessary means to protect against the unprecedented threats of the post-9/11 world, they fall short of the two-thirds parliamentary majority required for any such amendments. Most opposition MPs, and even many members of the ruling left-wing SPD party — who had previously voted for the contested law — are dragging their feet, clinging to an outdated, pre-9/11 vision of the world. It would be tragic if it took a 9/11-style attack, or worse, on German soil to make the country's lawmakers, judges, and citizens finally realize that they can no longer afford to be flying blind in the post-9/11 era.
Ulf Gartzke is a Senior Fellow at the Dusseldorf Institute for Foreign and Security Policy.
By Ulf Gartzke.