9/11 Scenarios and the Question of the Foundation of the Democratic State: The State for the Human Person or the Human Person for the State?

Abstract

9/11 Scenarios and the Question of the Foundation of the Democratic State: The State for the Human Person or the Human Person for the State? Carlo Panara Introduction A Fundamental Question to deal with in constitutional theory is that of the source of legitimacy of State power and of the limits to such power. This question has become even more crucial in the “Terrorism Era” following the terrorist attacks of 9/11. Fundamentalist Islamic terrorism is, rather than a simple attack on single States, more fundamentally, an attack on a certain type of State, which can be generically described as the Western democratic State, the legitimacy of which terrorism aims to destroy by highlighting its ineptitude to defend itself and its subjects against terrorist attacks. However, if the Western world and its institutions are the real aims against which terrorism is pooling its energies, then a reflection on the foundation of the democratic State—as the main institution of Western political thought—becomes pressing. At least two alternatives are possible: 1. The real foundation of the democratic State is the individual and his or her rights. 2. It is the legally organized community—i.e., the State itself—as the warrantor of security, liberties, and rights. Resting on the assumption that extreme cases are best capable of highlighting the true nature of things, I will address this issue by dealing with 9/11 scenarios. [End Page 82] To Strike or Not to Strike? On 9/11 one of the four airplanes hijacked by al-Qaeda crashed in Pennsylvania while two U.S. fighter planes were already on their way and were, allegedly, ready to fire. In the aftermath of that sad episode, two States (Germany, Air Security Act, Luftsicherheitsgesetz, of January 11, 2005; and Russia, Act of March 6, 2006) enacted controversial legislation allowing their air force to preventively shoot down airplanes used to commit terrorist attacks like those of 9/11. In the case of Germany, the law however was declared void by the Federal Constitutional Court (Bundesverfassungsgericht) in February 2006, on grounds of a violation of the principle of respect for human dignity (Luftsicherheitsgeset-zurteil of February 15, 2006). The possibility of such 9/11 scenarios places us before a moral and juridical dilemma. In an airplane there are not only terrorists but also innocent people, such as passengers and crew. Whoever wants to make a sound claim for the expedience of bringing the airplane down therefore needs to address that issue and to justify why innocent people can be sacrificed by the State. The State is actually left with two real options: 1. That of shooting down the airplane, killing both terrorists and innocents to save a larger number of people on the ground, resting on the utilitarian assumption that fewer people are aboard the plane than are in jeopardy on the ground and that their lives are already inescapably lost or 2. That of not shooting down the airplane, that is, not intervening at all If the State takes the first option (1), it will be comparing the lives of innocent people aboard with the lives of innocent people on the ground. It will be doing so on a purely arithmetical basis by ascribing a higher value to the life of the latter. To that, one could easily object that the life of all individuals is of equal worth and therefore not a single innocent human being on the hijacked airplane may be sacrificed even if this is done to save the life of a larger number of people on the ground. But the argument that the people onboard, already doomed, have thus lost their status as legal subjects also seems unconvincing. Until the airplane crashes, we cannot in fact be absolutely sure that the lives of the people aboard are really lost. The passengers could at any time rebel against the hijackers [End Page 83] and take control of the airplane, or the hijackers could change their minds at the last minute and give up their criminal plan. On the other hand, the State has the duty to protect its citizens and, if it does not act at all as with scenario (2), many...