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.