A.  Anti-terrorism Laws in Germany and the Balancing of Security and Liberty

In a remarkable decision the Federal Constitutional Court has declared a prominent provision of a new German anti-terrorism law unconstitutional and void. The decision attracted wide attention for its treatment of constitutional questions of human life and dignity as well as the constitutional limitations of so-called “security statutes.”

After 11 September 2001, Germany saw an incredible increase in security legislation. The lawmakers of both Bund (federation) and Länder (federal states) enacted several new statutes intended to ameliorate the general level of security in the country. Almost all of these statutes curtailed civil rights by limiting individuals’ freedom. They triggered an intense debate in the academic literature about the balancing of security against liberty. For the political branches, however, infringements of civil rights were of little concern; security issues always trumped individual freedom. One could even say that the executive and legislative branches lost an appropriate understanding of individual liberty. The general perception in politics rather emphasizes security as the basis for all freedom and belittles conflicts between liberty and security. According to this perception, more security generally enhances individual freedom. The state, consequently, has a political as well as legal duty to guarantee individual safety.

One of the most prominent statutes to emerge from this new security-oriented paradigm was the so-called Air-transport Security Act (Luftsicherheitsgesetz), enacted by the Bundestag in June 2004. The Act entered into effect on 15 January 2005, after Federal President Horst Köhler put aside his concerns about constitutionality and signed the law. The law rearranged provisions of existing statutes under the rubric of the new Air-transport Security Act. It also introduced new competencies for the security agencies. The most prominent provision of the statute contained a somewhat hidden §14 (3). This section empowered the minister of defense to order that a passenger airplane be shot down, if it could be...