Germany’s Defense Minister gets in trouble for having common sense
posted at 6:41 pm on September 17, 2007 by Bryan
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Who says that the war to save the West is overlawyered?
Germany’s Defence Minister Franz Josef Jung has sparked fury by saying he would order a hijacked passenger jet to be shot down if necessary — even though the country’s highest court ruled last year that such a move would be illegal.
If the court was meeting as the hijacked plane was zooming toward it, would the court change its no shoot down ruling? Discuss.
German Defence Minister Franz Josef Jung is under fire for declaring that he would order a hijacked passenger jet to be shot down if it were being used in a terror attack, despite last year’s Constitutional Court ruling that it would be illegal.
Jung, a member of Chancellor Angela Merkel’s conservatives, told Focus magazine in an interview published on Monday: “If there is no other way I would give the order to fire to protect our citizens.”
He admitted that the Federal Constitutional Court had ruled that a hijacked plane could only be shot down if only terrorists and no innocent people were on board.
The effect of that ruling is that the terrorists would either have to hijack an empty plane or they would have had to kill all innocent people on board before the Luftwaffe could shoot it down. The former is unlikely to happen at all; the latter turns the innocents into human shields right up to the point of impact on, say, the German high court building.
If I can see that, why can’t the vaunted high court justices see it?
The court in 2006 overturned the Air Security Act which empowered the defence minister to order a plane to be shot down even if innocent people were on board. The court ruled that weighing “life against life’” was in breach of Germany’s constitution. The debate has raged in Germany ever since the September 11 terror attacks and security has moved back to the top of the agenda ever since the arrest two weeks ago of three Islamists suspected of plotting bomb attacks.
They’re still weighing life against life: By not shooting down the plane, they’re valuing the lives of the innocents and the terrorists on board as having greater value than the many more lives that are at risk on the ground, all of which are innocent. If I can see this, why can’t the justices see it?
Predictably, the German left is having a fit. But it’s not just the German left that’s screaming. Even the country’s fighter pilots organization is hopping. But there’s a reason, and it has nothing to do with security or “weighing life against life.”
Germany’s organisation of army fighter pilots VBSK also rejected the idea. “I can only advise pilots not to obey the minister’s command in such a case,” Thomas Wassmann, VBSK chairman, told the Leipziger Volkszeitung newspaper. He said Jung’s statement was akin to “calling on pilots to carry out an illegal order.”
Bernhard Gertz, chairman of the German Army Federation, a union representing the interests of military personnel, said pilots would make themselves liable to prosecution if they shot down a passenger jet that was being used as a missile.
And that’s where overlawyering the war gets us: Military fighter pilots would allow a hijacked plane to crash into the terrorists’ intended target, killing everyone on the plane and possibly everyone unfortunate enough to be standing where the hijacked plane hits, if making the shot means they’ll be prosecuted for it after the fact.
We pretty much can’t make life any easier for terrorists or their lawyers, can we. If it’s not the German high court creating safe airspace for hijackers, it’s the University of Texas law students working for Gitmo detainees, or it’s Seton Hall law drafting up amnesty for Gitmo detainees. Terrorists may be scary, but lawyers are downright terrifying.
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I am at a loss for words.
Theworldisnotenough on September 17, 2007 at 6:48 PM
Boomer Sooner!
see-dubya on September 17, 2007 at 6:50 PM
Lawyers are the curse of civilization.
infidel4life on September 17, 2007 at 6:51 PM
There’s your biggest problem right there. A unionized military? You’ve got to be kidding.
Kowboy on September 17, 2007 at 6:54 PM
I’m sure the terrorists will consult with the German High (On Something) Court as to what’s legal, too.
amerpundit on September 17, 2007 at 6:55 PM
Hmmmm… Hijack a 747 full of Moslems…
Place nuclear bomb onboard…
fly to Germany…
They can’t shoot it down…
Interesting.
Romeo13 on September 17, 2007 at 6:56 PM
What he said…
doriangrey on September 17, 2007 at 6:58 PM
OK, but what if the plane was headed straight for Oktoberfest?
The only thing to do is arm the pilots…
with Schnitzengruben. But no more than 15 Schnitzengruben.
trubble on September 17, 2007 at 7:05 PM
earsplittingloudenboomer
Kini on September 17, 2007 at 7:10 PM
@Bryan,
you got this story pretty much completely wrong.
May I pick this key sentence:
It’s not up to the German Constitutional Court to create anything here. Actually, it’s not up to the Court to do anything else other than strictly adhering to the Constitution. Unlike the US system here in Germany the Constitutional Court does not happen to detect new laws and meanings every week (cf. partial birth abortion which, as some constitutional lawyers in the US claim, is right there in the US Constitution as envisioned by the Founding Fathers). The sole purpose of the Court is to decide whether federal lawmaking conflicts with the Constitution. Nothing else.
Moreover, back then the Court did not decide that shooting down a plane were unlawful but unconstitutional, and they explictly said that the German constitution needed a change to cover the new law, or there would be no such law. The sole reason why it’s still unlawful is not due to the Constitutional Court’s decision but simply because there is no legislative majority to change the constitution.
You’re conflating the matter in a very unhelpful way. Germany’s Contitutional Court never had the purpose of determining if any given idea by lawmakers is “good” or “bad” per se, and written reports by the Court make ample use of the opportunity to suggest improvements to federal lawmaking. In this case the Court wrote that a passage in the Constitution that explicitly states that the State must never harm citizens when no imminent threat is detectable, directly contradicts the new law that enables shooting down planes, and the Court recommended that the federal government first introduce clear metrics how to weigh the lives of citizens against each other. So far they failed to do so, hence the current situation.
Niko on September 17, 2007 at 7:15 PM
This is so common sense that I don’t get how anyone can’t understand it. If the people onboard the plane were going to die during the terrorist strike anyway, why not shoot the plane down and save the lives on the ground? What’s comlicated about that?
BadgerHawk on September 17, 2007 at 7:16 PM
That line blew up your and the Court’s entire rationale for the decision.
Bryan on September 17, 2007 at 7:21 PM
Care to explain?
Niko on September 17, 2007 at 7:23 PM
So according to the German high court, their Constitution really is a suicide pact. And apparently not being satisfied with everyone on board dying, they want to add the body count that’ll come with the plane crashing on-target with who knows how many thousand gallons of flaming fuel aboard. Brilliant. F*cking liberals.
ReubenJCogburn on September 17, 2007 at 7:25 PM
What threat is more imminent than an ongoing hijacking, when we know that terrorists are likely to use planes full of people as missiles to strike ground targets that also happen to be full of even more people?
Bryan on September 17, 2007 at 7:26 PM
What Germany is saying, is that it is better for the passengers to be killed by terrorists, than be killing by the military. If the military kills them, they won’t sleep as well at night. If they let the terrorists kill them, they sleep better.
This is a PTSD hangover from their Nazi past, compounded today by their inherent leftist nature, in which they can no longer psychologically deal with the idea of their military shooting at anything at anytime. Basically, their nazi past so screwed the Germans emotionally, that they can no longer function in any military capacity. They would just as well have the plane hit a building. That works for them.
jihadwatcher on September 17, 2007 at 7:32 PM
@Bryan
You’re still conflating the issue. Let me phrase it out.
Suppose terrorists hijack a plane and threaten to crash it into the German parliament. At this point the German constitution says, sorry, no imminent threat, the citizens aboard must not be harmed.
Suppose the plane is heading for Berlin already. Same situation, passengers must not be harmed according to the constitution.
Suppose the plane is flying over Berlin. Still the same.
Suppose the plane is actually steering towards the parliament at low altitude. Only then is there an imminent threat according to the constitution.
For it is not a question whether German military is allowed to shoot down the plane when it’s already declining towards the target. Mr Jung wants to shoot it down after news comes in that it’s been hijacked. That is unconstitutional.
There are countless more examples from past anti-terror situations in Germany. German police and military are not allowed to shoot a kidnapper unless he’s actually pointing a gun to the head of a victim and putting his finger on the trigger. That’s how the constitution mandates it.
It seems your point is that the German Constitutional Court sucks. It does not, nor does the German consititution. It’s the federal government that sucks because so far they failed to propose a change to the constitution and organize a majority for the vote. Ironically, Germany’s Defense Minister – you know, the one you seem to hail in this article – is actually a member of the party which blocks any meaningful attempts to clear up the matter.
In other words, Mr Jung is a gas-bag. Nothing new here.
(By the way, a major misunderstanding here might stem from the fact that in Germany the text of the constitution can be changed by a 2/3 majority in both houses and with consent of the German President. It happened many times in the past 50 years.)
Niko on September 17, 2007 at 7:37 PM
This is the same Germany that, in a wonderful 2003 article, columnist Amity Shlaes elaborated how so many there were convinced that it was German “restraint” and pacifism which had brought down the Berlin Wall, and that Reagan had almost screwed it up. Click through. Worth the read.
eeyore on September 17, 2007 at 7:38 PM
American craft brewers will take up the slack.
;-)
infidel4life on September 17, 2007 at 7:38 PM
Bryan, I think the issue here is that you seem to think that you detected a structural or ideological flaw in Germany’s lawmaking process. It’s not a systemic question but simply a technical issue. The German Constitutional Court never said anything to the effect that it considers shooting down a hijacked plane as prohibited under any circumstances. They’re simply going by the book, and until a new edition comes out they just keep the old one. Simple as that.
Think about it.
Niko on September 17, 2007 at 7:44 PM
The Federal Constitutional Court needs to stop drinking the bong water .
Mojack420 on September 17, 2007 at 7:45 PM
Definitely not kidding.
Christoph on September 17, 2007 at 7:47 PM
What if they hijacked a plan. Landed in Syria. Refueled it. Strapped on a nuclear bomb. And fly back into Germany and into the middle of Hamburg with people still on it? Would Germany not shoot the plan done before it had the chance to detonate it remotely or by crashing head first into the ground?
What the decision here? Better to kill 300 on board or see the end results where 500,000 are killed?
Kokonut on September 17, 2007 at 8:04 PM
plan = plane (sticky e key)
Kokonut on September 17, 2007 at 8:05 PM
Lawyers,,, they were the one, or one of the few professions that were not allowed in the early American settlements. They are a curse. The vast majority of the time, you only need a lawyer to protect yourself from other lawyers.
JellyToast on September 17, 2007 at 8:07 PM
If the legal system, as it is, endangers more lives -by its passivity- than by allowing reasonable action, then the law should be over-ruled as unjust to the greater good, which is the basis of all societies.
This is literally a fatally-dangerous law.
Can obeying such an immoral bit of “Constitutional” illogic be justified by the pilots?
Or anyone with at least a pair of functioning… brain cells?
profitsbeard on September 17, 2007 at 8:09 PM
I dont think the issue here has much to do with technical questions about how the German constitution works. The real point is the political and cultural situation exists that your government has a policy to not directly confront terrorists even if that costs thousands of lives. If that wasn’t the case, then amending the constitution shouldnt be that hard, according to what you just wrote.
Resolute on September 17, 2007 at 8:15 PM
I’d agree that it’s not the Constitutional Court’s decision if they are simply holding to the text of the constitution of Germany (I’m sure plenty of the people here on this board wish our Supreme Court would do the same).
However, I have to differ with you on your opinion of what constitutes and imminent threat (I apologize if you are stating case law and not your opinion – if it is case law, then I must differ with the case law).
If hijackers of a certain stripe have a history of flying planes into populated buildings and they hijack another plane, that should be considered an imminent threat.
If you wait until the plane is within spitting distance of the building before you shoot it down, all you’ve done is ensure that the people on the plane die along with an increased number of people on the ground.
If imminent is defined as the trigger is pulled and the bullet is flying or the plane is descending into the building, you’ve committed yourself to responding to attacks and you’ve forgone any real chance of preventing attacks (unless the criminals/hijackers happen to be non-citizens that aren’t holding any citizens hostage).
JadeNYU on September 17, 2007 at 8:20 PM
There is no “amending the constitution” in Germany. There is only the constitution text, no amendments. If you want to change the constitution you need to gather a 2/3 majority in both houses, and acquire the consent of the President.
And I agree with your observation that the “government has a policy to not directly confront terrorists”. For what it’s worth, the current Chancellor and most of the cabinet are members of the conservative party, so it’s not a matter of, you know, “leftists” dominating the “political and cultural situation” at all.
However, it is merely a technical question for the Constitutional Court.
Niko on September 17, 2007 at 8:23 PM
Niko,
What in your opinion would be the German Governmental response if – if – the US military in Germany concluded the hijacked aircraft was targeting a US installation in Germany and destroyed the aircraft?
News2Use on September 17, 2007 at 8:27 PM
Indeed I’m just stating law and not my personal opinion.
You’re absolutely right. The schizophrenic thing about Germany is that on one hand authorities rather wait for the crater than act to prevent it, on the other hand as of right now more than a handful laws are being prepared that extend pre-emptive investigation and surveillance beyond anything that MoveOn and the ACLU every imagined. Mandatory backdoors at German ISPs are already in place for law enforcement, German financial institutions are giving out transaction information to low-level policemen, and soon the federal government will pass a law that allows them to remotely install trojan programs on suspect computers.
The point is that where it concerns high-profile actions the German government is fighting “a softer, gentler war” on terror while at the same time stepping up profiling and surveillance to unprecedented levels.
Niko on September 17, 2007 at 8:31 PM
The same as they always do in Germany/France: deplore the “unresponsible act” in public – and then have a dinner party with the US officers where they privately congratulate them.
Niko on September 17, 2007 at 8:34 PM
Judges have nothing to say about the tactics used to conduct a war, whether it be on our own soil or on foriegn shores. At least here. I don’t know about Germany.
If judges were to decide military tactics, they’d have to approve the curricula and lesson plans of all military courses (or teach the classes themselves), review and approve all defense contracts to ensure that the weapons available to the military were lawful, and write some sort of code to define lawful warfare. Furthermore, judges would be required to review every military order to ensure it is lawful.
Fortunately, the U.S. Constitution leaves the waging of war to the Executive and says nothing about the Courts having a role.
The logical conclusion of the German model is that all any foriegn power would be required to do is come into that country and take a hostage. After that, the government would be powerless to stop them from doing anything.
jaime on September 17, 2007 at 8:37 PM
The parties must be receiving more publicity than they were a few years ago..good to see they still could happen.
News2Use on September 17, 2007 at 8:43 PM
Sorry but I can’t get the picture out of my mind of a plane full of lawyers being hijacked by Islamic terrorists who threaten to crash it into the German Constitutional Court. I’m finding it hard to see a downside, no matter what.
Buzzy on September 17, 2007 at 8:55 PM
Hopefully, it will remain an academic question for Germany, and I do not see why it should be otherwise.
If airliner cockpits are not accessible and the pilots refuse hijackers access–even if the bad guys are killing passengers–then the scenario only happens if the pilots are complicit or if the bad guys smuggle weapons on board and destroy the plane over a populated area. However, only in the former case would there be a need for the airliner to be shot down. I’d say concentrate on preventing bad guys from flying the planes first and avoid the entire problem. It’s not as if the 9/11 attackers took over the plane through their magical powers.
jaychandra on September 17, 2007 at 9:05 PM
Let me get this straight. They have a union for their military? I can’t get my brain around this one.
Being Jewish with Holocaust survivors in my extended family, I have little love for Germany. As I get older, I grudgingly respect the current day German military. I met a Korvettenkapitän, LCDR equivalent for U.S. Navy, about ten years ago. He was a Tornado pilot. Nice guy and competent as hell. He recognized my last name as being Jewish and apologized to me. That was very strange to me.
The German government has got to realize their Constitution is not a suicide pact. If a plane is being used as a missile to kill innocent civilians, the fighter pilot must be allowed to shoot the plane down without fear of prosecution.
Mooseman on September 17, 2007 at 9:06 PM
Niko, with all due respect IMHO you are under a slight delusion here. The process which you have described, means it is actually much easier to amend the constitution in Germany then in the U.S. In both cases it is the supreme court’s role to decide if the letter of the law conflicts with constitution. Purely technical. You seem content to criticise the U.S. supreme court for moving beyond that role while wearing blinders to the possiblity the German court has done the same. Is there really some part of the constitution that essentially states that the government is forced to negotiate with hostage takers? Even if they arent interesed in negotiating and are nothing more then human shields? I seriously doubt there is any such provision that can be found without using a “nuanced” take on what is actually written.
Resolute on September 17, 2007 at 9:56 PM
Not really. The only way the Defense Minister is authorizing this is if the plane is “being used in a terrorist attack”, not just hijacked. That means the people on the plane are already dead. At that point you’re not “weighing life against life”, you’re just counting how many dead bodies there will be. To allow the body count to increase due to inaction is unacceptable to me -and I’d say the same if I were on the plane in question.
taznar on September 17, 2007 at 10:14 PM
The LEFT is the reason why we should all go to law school! Even though this is a story about Germany, we all know how the ACLU is attempting to destroy our country. Law school is NOT THAT HARD…it just takes time (I work 40 hours and it takes about 35 hours per week to go to class/study at night and on weekends) Check the law schools in your area, there are lots of part-time evening programs. Work while you go so you can pay tuition, that way you won’t have to pay back any loans after graduation.
JustTruth101 on September 17, 2007 at 10:45 PM
This scenario would make a great movie!
I’m casting this in my head already.
nottakingsides on September 18, 2007 at 12:47 AM
I doubt it would happen….Islamic terrorists would refuse to fly with pigs.
91Veteran on September 18, 2007 at 1:38 AM
In a situation like that being discussed, the rules have to be similar to that for doctors doing triage. Anything else is ego self serving moral self indulgence.
MB4 on September 18, 2007 at 3:38 AM
The distrust was so great, a constitutional amendment was ratified to prohibit a citizen from accepting a “title of nobility” from a foreign government or organization.
http://www.the7thfire.com/Politics%20and%20History/13th-Amendment.html
Interesting reading.
Texas Nick 77 on September 18, 2007 at 6:02 AM
It seems to me that the first time the German government let a skyjacked jet through to kill people on the ground because it was against its constitution, that would be the end of that constitution and that government. The primary reason we have governments is for self-defense. If a government fails its primary responsibility, it will not survive. This is a self-correcting problem.
It’s foolish to split hairs about shooting down airliners based on whether passengers are at risk or its flying at low altitude. We’re not going to know those fine details until the smoke has cleared, if every. The decision makers will only have a coarse and imperfect knowledge of what’s happenning when it’s time to intervene. On the morning of Sep 11, air traffic control didn’t even know how many jets had been hijacked until long after all the known jets had crashed.
The fact is that when we come under attack, our laws are not going to help us much at the moment and we are not going to turn to attorneys to defend us. The critical decisions will have to be made mostly by the military, some by air traffic control, some by the politicians, and will be based on their judgement, experience, and character in lieu of sufficient information.
That said, the Muslims will eventually overplay their hand. They think that the mild Western reaction to their terror indicates weakness, rather than restraint. They may reach a threshhold where restraint is abandoned, where these arguments seem quaint. The Muslims are pulling the tail of the tiger, thinking it’s a a housecat.
Tantor on September 18, 2007 at 6:04 AM
Just did a quick check on the link. My disclaimer follows:
‘I did a quick Yahoo search on the “missing 13th amendment” and clicked on the first thing that popped up. I do not agree with everything, or for that matter, anything that appears on this site. This link was provided as fodder for discussion only.’
Texas Nick 77 on September 18, 2007 at 6:05 AM
This site is a bit better than the other I listed.
http://www.theforbiddenknowledge.com/hardtruth/forgotten_amendment.htm
Texas Nick 77 on September 18, 2007 at 6:15 AM
There are people who would say I’m a bad person for hoping that the Germans face this situation and thousands die because of their Supreme Court. I may be an atheist, but I too long for cosmic justice, and I hold stupidity to be the greatest sin. After all, what distinguishes us as humans as opposed to chimpanzees is the ability to use language at the level of being able to discuss matters like terrorism, global warming, and guest list of The View.
thuja on September 18, 2007 at 8:29 AM
Surprisingly, no one has said it yet, so…
Frozen Tex on September 18, 2007 at 8:39 AM
If the target is no longer a plane but a missle wouldn’t it lose its “protected” status?
This whole line is mind blowing. Common sense is dead.
VikingGoneWild on September 18, 2007 at 11:17 AM
So what this means is we bomb Germany safely now since all we have to do is place one Germany citizen on board the bomber.
(sarcasm off)
VikingGoneWild on September 18, 2007 at 11:20 AM
Almost as good as the 10,000 lawyers at the bottom of the sea joke!
VikingGoneWild on September 18, 2007 at 11:25 AM
Lawyers are a net negative.
(Understatement of the year.)
Loundry on September 18, 2007 at 3:15 PM
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