Saturday, December 02, 2006

Defending the Indefensible: Why the German Federal Constitutional Court Got it Right

In a remarkable decision the German Federal Constitutional Court struck down an anti-terrorism provision which empowered the minister of defense to order that a passenger airplane be shot down, if it could be assumed that the aircraft would be used against the life of others and if the downing of the plane would be the only means of preventing the present danger.[1] Under the Court’s reasoning, shooting down a plane violates the fundamental right to life and the right to dignity enshrined in the German Constitution. The treatment of the passengers as objects without proper legal protection is in the Court’s view unconstitutional.

The Court’s decision is interpreted as asserting that the power granted to officials under the law to shoot down planes is unconstitutional. Under this view the dignity of the (innocent) passengers on such an airplane is violated by the (legal) powers granted to officials under the law. What makes the law therefore unconstitutional is the content of the law which is incompatible with the dignity provision.

It is hard, however, to defend such a position. Most contemporary Kantian deontologists agree that deontological injunctions can be overridden under certain circumstances. Even if one concedes that shooting down a plane with 50 passengers in order to save an estimated 50 victims is not justified, it is likely that there is a number of victims which would indeed justify the shooting of the plane. This observation is not merely an observation of moral philosophers. The duties to protect are an established component of the German Federal Constitution. It seems reasonable that the duty to protect may include a duty to protect the potential victims of a terrorist attack and that such a duty grounded in the Constitution requires, at least under certain circumstances, the downing of a plane. Furthermore the Court’s assertion that by shooting the plane passengers are used as a mere means is highly misleading. The death of the passengers is a foreseen consequence of shooting the plane; their death is not a means to save the potential victims of the terrorist activity. In fact their death is not even necessary to achieve the desirable end since even if none of the innocent passengers were present in the plane, shooting the plane would have achieved the same desirable end.

I believe, however, that the decision is justified. While officials have a power to down planes under these dire circumstances, this power ought not to be enshrined in a statute. This power is derived from the constitutional “duties to protect” – duties which have long been recognized in the German system. Section 14 of the Air-transport Security Act is invalid not because the powers granted to officials in this section are too broad and therefore unconstitutional, but because it is important that an official who makes such a decision could not back his decision by pointing out to a legislative authorization. Instead such an official ought to confront her own conscience and face the consequences. Prior legislative authorization is a means of “legalizing” and “normalizing” what ought not be “normalized” or “legalized”.

[1] For a good description of the case, see Oliver Lepsius, Human Dignity and the Downing of an Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act 7 German Law Journal No. 9 (1 September 2006) (