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Published online by Cambridge University Press: 06 March 2019
The metaphor of the balance has long dominated national security law and policy. As Richard Posner has explained, one side of the balance “contains individual rights, the other community safety, with the balance needing and receiving readjustment from time to time as the weights of the respective interests change. The safer we feel, the more weight we place on the interest in personal liberty; the more endangered we feel, the more weight we place on the interest in safety, while recognizing the interdependence of the two interests.” While policymakers have debated the relative weight states should give to civil liberty concerns and public security concerns in various contexts, few question the general balance metaphor that structures these debates. By all accounts, interest balancing has provided the primary model for making national security law and policy worldwide since September 11, 2001.
1 Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency 148 (2006).Google Scholar
2 See e.g., id. at 83 (alleging that “almost everyone …. accepts the necessity of resorting to [torture] in extreme situations”).Google Scholar
3 See id. at 77–87; Posner, Eric A. & Vermeule, Adrian, Terror in the Balance: Security, Liberty, and the Courts 183–215 (2007).Google Scholar
4 See Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans. 2005) (rev'd ed. 1934).Google Scholar
5 See Fox-Decent, Evan & Criddle, Evan, The Fiduciary Constitution of Human Rights, 15 Legal Theory 301 (2010) [hereinafter “Fox-Decent & Criddle, Fiduciary Constitution“]; Evan Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale Journal of International Law (Yale J. Int'l L.) 331 (2009) [hereinafter “Criddle & Fox-Decent, Jus Cogens“].Google Scholar
6 See Fox-Decent & Criddle, Fiduciary Constitution, supra note 5 at 325.Google Scholar
7 See Criddle & Fox-Decent, Jus Cogens, supra note 5 at 356 & 365–70.Google Scholar
8 See Criddle, Evan & Fox-Decent, Evan, Human Rights, Emergencies, and the Rule of Law 34 Hum. Rts. Q. 39 (2012).Google Scholar
9 Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 1 BvR 357/05, Feb. 15, 2006, 115 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 118 (GER.), available at: http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html, last accessed: April 24, 2012, (English translation of press release available at: http://www.bverfg.de/en/press/bvg06-011en.html, last accessed: April 24, 2012) [hereinafter “Aviation Security“].Google Scholar
10 Case of Gäfgen v. Germany, App No. 22978/05, [2010] Eur. Ct. HR 759 (1 June 2010), available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentld=868977&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (last accessed: 24 April 2012) [hereinafter “Gäfgen v. Germany“].Google Scholar
11 Waldron, Jeremy, Security and Liberty: The Image of Balance, 11 Journal of Political Philosophy (J. Pol. Phil.) 191, 192 (2003). Waldron criticizes the simple formula ‘less liberty equals more security,’ claiming that this abstract balancing model overlooks important nuances that must be taken into account in the justification of any restriction on civil liberties. For instance, the simple balancing model disregards the fact that diminutions in liberty tend to fall disproportionately on minorities, and that increasing state power also increases the risk of its abuse.; see also Id. at 200–06.Google Scholar
12 Id. at 192.Google Scholar
13 Id. Google Scholar
14 Restatement (Third) of the Foreign Relations of the United States § 702, comments h, k and n.Google Scholar
15 Dershowitz, Alan, Shouting Fire: Civil Liberties in a Turbulent Age 477 (2002).Google Scholar
16 Posner, supra note 1 at 83, 85.Google Scholar
17 See, e.g., Shue, Henry, Torture, 7 Philosophy and Public Affairs (Phil. & Pub. Aff.) 124, 141 (1978).Google Scholar
18 Id. See also Shklar, Judith, The Liberalism of Fear, in Liberalism and the Moral Life 26–27 (Nancy L. Rosenblum, ed. 1989); Waldron, supra note 11 at 207.Google Scholar
19 To this end, Dershowitz has proposed a warrant regime for coercive interrogation, see Dershowitz, Alan, Why Terrorism Works: Understanding the Threat, Responding to the Challenge 158-59 (2002), while Eric Posner and Adrian Vermeule have advocated a series of reforms for administrative oversight to address the potential for abuse in coercive interrogation; see Posner & Vermeule, supra note 3, at 209–13.Google Scholar
20 In the age of weapons of mass destruction, Michael Dorf observes, “people are a little nervous about applying that maxim [that it is better to let 10 guilty men go free than to send one innocent man to jail] where the 10 guilty men who are going to go free could have biological weapons.” Waldron, supra note 11, at 204 (quoting Michael Dorf in Pam Belluck, Hue and Murmur over Curbed Rights, Times, N.Y., Nov. 17, 2001, at B8).Google Scholar
21 Posner & Vermeule, supra note 3, at 38.Google Scholar
22 Id. at 187.Google Scholar
23 id. Google Scholar
24 id. Google Scholar
25 Aviation Security, supra note 9.Google Scholar
26 Felix M#x00FC;ller & Tobias Richter, Report on the Bundesverfassungsgericht's (Federal Constitutional Court) Jurisprudence in 2005–2006, 9 Germ. L.J. 161, 185 (2008), available at: http://www.germanlawjournal.org/pdfs/Vol09No02/PDF_Vol_09_No_02_161-194_Developments_Mueller.pdf (last accessed: 24 April 2012).Google Scholar
27 Gesetz zur Neuregelung von Luftsicherheitsgesetz (Aviation Security Act) § 14(1) (BGBI, I) (Jan. 11, 2005).Google Scholar
28 Id. at § 14(3).Google Scholar
29 Aviation Security, supra note 9 at, § 34.Google Scholar
30 Id. at §§ 34–35 (summarizing complainants’ arguments).Google Scholar
31 Id. at § 47.Google Scholar
32 Id. at § 51.Google Scholar
33 Id. at § 121.Google Scholar
34 Id. at § 118.Google Scholar
35 Id. at § 122.Google Scholar
36 Id. at § 119 (internal citations omitted).Google Scholar
37 Id. at § 122. The court held that the military's use of lethal force against a renegade aircraft would not violate the right to life, if the plane did not contain any innocent passengers or crew members. Id. at § 142.Google Scholar
38 Id. at §130.Google Scholar
39 The court noted secondarily that even under a consequentialist theory of the right to life, it was questionable whether the Aviation Security Act could survive constitutional review, because there will always be uncertainty surrounding “how long people who are on board a plane which has been converted into an assault weapon will live and whether there is still a chance of rescuing them.” Id. at § 131.Google Scholar
40 Aufruf zum Verfassungsbruch? (Call for violation of the constitution?), Frankfurter Allgemaine (Sept. 17, 2007), available at: http://www.faz.net/aktuell/politik/inland/kritik-an-jung-und-schaeuble-aufruf-zum-verfassungsbruch-1463080.html (last accessed: 24 April 2012).Google Scholar
41 Gafgen v. Germany, supra note 10, at §§ 10–22, 47, 94–100.Google Scholar
42 Id. at § 94.Google Scholar
43 Id. at § 15.Google Scholar
44 In Germany there is no hard-edged doctrine analogous to the U.S. exclusionary rule.Google Scholar
45 Id. at § 32.Google Scholar
46 Id. at §34.Google Scholar
47 Convention for the Protection of Human Rights and Fundamental Freedoms, arts. 3 & 4, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter “Convention”].Google Scholar
48 Gäfgen v. Germany, supra note 10, at § 87 (citing, inter alia, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Labita v. Italy ([GC], no. 26772/95, § 119, ECHR 2000-IV; Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V).Google Scholar
49 Id. at §§ 106–07.Google Scholar
50 Id. at § 107 (emphasis added).Google Scholar
51 Id. at §§ 91, 108.Google Scholar
52 Id. at §91. Gäfgen alleged that he had been assaulted and subject to additional threats while he was interrogated. The government denied these allegations, and explained Gäfgen's evidence in support of them. In light of these explanations and the domestic courts’ failure to find for Gäfgen on these issues, the ECHR held that Gäfgen had not met the burden of showing that he was subject to further abuses. Id. at §§ 96–98.Google Scholar
53 Article 34 provides that “The Court may receive applications from any person … claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.”Google Scholar
54 Gäfgen v. Germany, supra note 10, §§ 47–48 (the ECHR's characterization of the Regional Court's holding).Google Scholar
55 Gäfgen v. Germany, supra note 10, at §§ 49–50.Google Scholar
56 Gäfgen v. Germany, supra at note 10, at §§ 124–25.Google Scholar
57 Gäfgen v. Germany, supra note 10, at §§ 1-13 (Rozakis, Tulkens, Jebens, Ziemele, Bianku, and Power, JJ., dissenting).Google Scholar
58 See e.g., Fox-Decent & Criddle, Fiduciary Constitution, supra note 5, at 309–25.Google Scholar
59 See Criddle & Fox-Decent, supra note 8.Google Scholar
60 Gäfgen v. Germany, supra note 10, at § 107.Google Scholar
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