Tough Decisions in the Post-9/11 World

March 4, 2008 (NEW YORK) -- After 9/11 should governments enact laws that would permit them to shoot down hijacked aircraft?
“What if [such a situation] happens again?” asked Rory Brown on Monday during a talk that inaugurated Columbia Law School’s Visiting Scholar Speaker Series. Brown, a Ph.D. candidate at the European University Institute, led a discussion on the moral and legal implications of such horrible dilemmas, focusing on how Germany wrestled with the question in the wake of 9/11.
The German Parliament, the Bundestag, passed a statute giving the Defense Minister the authority to order a shoot down, though it was challenged in federal constitutional court and found to be unconstitutional. The court’s reasoning was that granting such power to the armed forces was not compatible with Germany’s constitution, which stresses civilian rule. Also, the court said the state cannot take life, nor engage in “human arithmetic” in weighing whether to sacrifice the few to save the many.
Brown disagreed sharply with the court’s take on what it called “human arithmetic.”
“The state makes these types of decisions all the time,” Brown said. “How do you decide who gets a kidney, for instance?”
Still, he agreed with the court that there should be no law allowing for shooting down a civilian airplane. “Though at times it may be the morally correct thing to do, there should always be consequences,” Brown said. “Someone should have to answer for making the decision to shoot down a plane.”
Visiting Research Fellow Liav Orgad ‘07 LL.M., an attorney with the Interdisciplinary Center in Israel, followed Brown and discussed the ban Israel placed on the reunification of  families that have some members in the West Bank or Gaza.
In times of peace, Orgad argued, there ideally would be free movement between Israel and the Palestinian territories. But prior to the enactment of the 2003 constitutional amendment, there were 86 cases of Palestinians from Gaza or the West Bank with family in Israel using their familial visitation privileges to commit acts of terrorism, Orgad said. After long deliberation and some disagreement, the Israeli Supreme Court upheld the ban in 2006.
At the heart of the matter was the tension between Israel’s democratic nature and its Jewish identity. By passing the ban, it was made plain that Israel’s Arab citizens were not afforded the same rights as Israeli Jews, who enjoy family reunification privileges under the Law of Return. The court held, and Orgad agreed, that in times of war, there was no realistic way of identifying innocents from potential terrorists that could use family reunification to strike inside Israel.
The Speaker Series will host talks every two weeks.