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2006 Balancing Civil Liberties Against National Security?


BALANCING CIVIL LIBERTIES AGAINST NATIONAL SECURITY? A CRITIQUE OF COUNTERTERRORISM RHETORIC
CHRISTOPHER MICHAELSEN*
I INTRODUCTION

A prominent feature in the political and academic discourse on counter-terrorism law and policy in the aftermath of the September 11th attacks (‘9/11’) has been the question of whether, and to what extent, it was (and is) necessary to curtail civil liberties and human rights in order to combat international terrorism effectively.1 On one side, the claim is made by those defending incursive counter-measures that liberal democracy itself is targeted as the enemy. According to Australia’s Attorney-General, Philip Ruddock, for instance,

[t]he terrorists are driven by ideological obsession and a desire to destroy Western liberal democratic societies. They want to wage war against all those who do not conform to their perverted and corrupted view of Islam. All countries and people who value peace and freedom are terrorist targets.2

The unprecedented threat to ‘our way of life,’ therefore, warrants restrictions of civil liberties and human rights. It is imperative to make sure that the very mechanisms protecting the individual from excessive state power do not hamper the government’s ability to respond effectively to the threat. Civil liberties and human rights, so the argument runs, are political conveniences for enjoyment in times of peace.3 They should not, however, constitute restraining yardsticks for government in times of emergency and national danger.

On the other side, commentators maintain that it is particularly in times of crisis that the liberal democratic state must adhere strictly to its defining principles.4 Rights would lose all effect if they were easily revocable in situations of crisis.5 Besides, to believe that depriving citizens of their individual rights and freedoms was necessary to maintain security is to put oneself on the same moral plane as the terrorists, for whom the end justifies the means. Indeed, sacrificing fundamental liberal values such as the respect for the rule of law, civil liberties and human rights would amount to losing the ‘war on terrorism without firing a single shot’.6

What both sides have in common is that they then turn to history to seek vindication for their claims. In the US, commentators who support draconian domestic measures against terrorism often refer to President Lincoln’s suspension of habeas corpus during the Civil War and argue that democracies have survived precisely because they have occasionally suspended traditional rights and guarantees.7 The constitutional Bill of Rights, after all, does not constitute a ‘suicide pact’.8 The opponents of repressive measures, on the other hand, point to the arbitrary and unjust internment of Japanese Americans during World War II and instead prefer to quote Benjamin Franklin who reminded his fellow colonists in 1759 that ‘they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’.9


In Europe, the debate follows a similar pattern. For instance, both sides of the debate turn to the responses to left-wing and separatist terrorism in the 1970s and 80s to seek guidance for the evaluation of current counterterrorism measures. Some argue that the temporary suspension of civil liberties and human rights in previous terrorism emergencies actually strengthened liberal democracy and contributed significantly to a reduction of terrorism.10 Others maintain that the repressive counter-measures taken often led to an escalation of the conflict and, what is more, that they continue to have adverse effects on civil liberties and human rights up to this day.11 In Australia, too, commentators have referred to historical examples where governments sought to curb civil liberties and fundamental freedoms in the name of national security.12

What is most striking, however, is the fact that the great majority of analysts on both sides of the equation argue that in order to ‘save’ liberal democracy from the scourge of international terrorism a ‘balance’ must be struck between security and liberty.13 Where this balance falls, of course, depends on the political colours of the respective commentator. The image of balance is not only employed by academics and political analysts. It also features prominently in the transcripts of parliamentary debates on the issue in the US, Canada, the European Union and Australia.

The purpose of this article is to examine the rationale behind the balance metaphor in more detail. It is argued that the assertion that civil liberties need to be balanced against the interests of national security is, at best, misleading and, at worst, structurally wrong. Accordingly, this paper challenges the validity of the image of balance on seven interrelated grounds. These can be broadly classified in four categories: philosophical, rights-based, strategic and practical. The article concludes by proposing an alternative framework to be used when examining and reconciling civil liberties and national security.

II PHILOSOPHICAL OBJECTIONS

A The Interrelationship between Liberty and Security


The image of balancing liberty and security in the context of countering terrorism is based on the false assumption that the two goods are mutually exclusive. Liberty and security, however, are interrelated and mutually reinforcing; they cannot, logically, be ‘balanced’ against each other. In order to illustrate the reciprocity between liberty and security it is helpful to briefly re-visit some key underpinnings of the idea of liberalism.

At the outset of his Two Treatises of Government, John Locke describes the state of nature as a state of liberty and equality between individuals. In this state of nature, individuals have two natural rights: the right to preserve themselves and the right to punish others for attempting to kill them or generally threatening their survival.14 They exercise those rights under the constraint of the law of nature, whereby they are forbidden to harm others. As Locke puts it, ‘though this be a state of liberty, yet it is not a state of license’. Although the state of nature is not by definition a Hobbesian state of war, it is also not stable enough for people to be altogether happy in it.15 Indeed, the state of liberty is likely to degenerate into a state of war not everybody is disposed to fulfil their duties. To prevent a state of war from ensuing, an impartial judge is needed to interpret the law and mediate between the parties, and a government is needed to enforce this law and provide stability and security.16 Locke specifically describes the reasons men have for abandoning the state of nature in favour of political society as ‘the mutual preservation of their lives, liberties, and estates, which I call by the general name “property”’.17

The notion of individual liberty as a precondition for public security was further developed by leading philosophers of the enlightenment and post-enlightenment era. When Jean-Jacques Rousseau observed that ‘man is born free, and everywhere he is in chains’, he did not advocate a lawless state of nature, but a political system built on the free will of its citizens.18 Despite the strong emphasis on individual liberty, the State’s exclusive right to resort to force to ensure security and the rule of law – illustrated in Hobbes’ Leviathan – has been upheld throughout European constitutional history. On Rousseau’s view, however, this monopoly of violence must be controlled by the citizenry. The State is prohibited from interfering with the individual’s right to freedom and personal development except in order to prevent a threat to the order of the state or a violation of the rights of others.19

In the 20th century, the realisation of the classic notion of liberty has been further advanced and refined by the constitutions of several leading liberal democracies.20 For example, in the Basic Law for the Federal Republic of Germany, Articles 1 and 2 declare (autonomous) human beings to be the legitimating subjects of the constitution. In this way, individual liberty is taken to be a prerequisite for the constitutional order since the constitution declares (autonomous) human beings to be the legitimating subjects of the constitution.21 The constitutional protection of liberty not only aims at the protection of the individual, but also constitutes a command of the democratic constitutional order, which needs free individuals to form the democratic community. It supports individual development and enhances democratic participation, which leads to the existence of a plural and open society. Nevertheless, the constitution does not solely protect the autonomy of the individual out of respect for human individuality. Individual freedom constitutes a prerequisite for a democratic polity. What is more, it is a precondition for serving as a constitutional source of legitimation.22

As this very brief historical review of the development of the idea of liberalism reveals, liberty can be conceived as a precondition of security. At the same time, it has been argued that a certain degree of security and personal safety is indispensable for the realisation of personal freedom. In the current political discourse on counter-terrorism and civil liberties, however, the interrelationship between liberty and security is often portrayed one-sidedly. Government ministers and other commentators over-emphasise the aspect of personal safety and national security as a precondition of liberty and tend to ignore the fact that individual freedom legitimises the existence of the State in the first place. In light of the threat of terrorism, so the argument runs, the citizen’s full enjoyment of civil liberties depends upon a ‘secure environment’ in which human rights and fundamental freedoms can be realised. This state of security is to be achieved through the expansion of the investigative powers of government and through other intrusive features of special anti-terrorism legislation.

Defending the new anti-terrorism laws in Australia, the Attorney-General, Philip Ruddock, has also invoked the concept of human security in the context of counter–terrorism law and policy. According to Ruddock, the ‘human security’ approach constitutes a ‘new framework’ for understanding counter–terrorism and the rule of law, since it allows striving towards the twin goals of security and justice.23 In light of a ‘new climate of terrorism’, according to the Attorney–General, ‘we must recognise that national security can in fact promote civil liberties by preserving a society in which rights and freedoms can be exercised’.24 Consequently, ‘the extent to which we can continue to enjoy our civil liberties rests upon the effectiveness of our anti-terrorism laws’.25

It is beyond question that it is one of the responsibilities of liberal democratic government to protect the citizenry from physical harm and the threat thereof. However, the duty to protect is but one of several interrelated and indivisible obligations of government. These include, most importantly, the fundamental obligation to respect human rights.26 A policy that does not respect human rights in the first place cannot legitimately claim to protect these rights against transnational security threats in times of emergency.

It is thus also misleading to suggest that it is only after the government has created a ‘secure environment’ that we can enjoy our civil liberties and human rights. This assertion would ultimately lead to security demands the government is not able to fulfil. Besides, it would effectively result in the contention that it is the State that ‘creates’ human rights in the pursuit of security and societal freedom. Such reasoning, however, is inconsistent with the very idea of modern liberal democracy. As Burkhard Hirsch, a former German Justice Minister, has pointed out, ‘there is no societal freedom without the freedom of the individual’.27 Indeed, an approach that effectively attributes the creation of human rights and civil liberties to the State would eventually bring about the end of personal and political freedom. The respect for and protection of human rights would then be reduced to a mere variable in the government’s security policy. Human rights and civil liberties would represent ‘luxury goods’ for enjoyment in times of peace, but would not constitute restraining yardsticks for government in times of perceived national danger.

This line of reasoning strongly resembles the political authoritarianism formulated by the German political and legal theorist Carl Schmitt during the political turmoil of the Weimar Republic. Schmitt claimed that the ‘existence of the State is undoubted proof of its superiority over the validity of the legal norm’.28 Because the norms of a legal system cannot govern a state of emergency, they cannot determine when such an exceptional state comes into existence, or what should be done to resolve it. Consequently, every legal order ultimately rests not upon norms, but rather on the decisions of the sovereign. The essence of sovereignty lies in the absolute authority to decide when the normal conditions presupposed by the legal authority exist29 For Schmitt, the respect and protection of human rights and civil liberties were thus subsidiary to the security considerations of the government (as sovereign). It is well known that several aspects of this political theory provided a defence of authoritarian dictatorship and, initially, to Schmitt’s own personal support of National Socialism and the Third Reich.

In light of the disturbing parallels between Schmitt’s political philosophy and some current approaches to counter–terrorism policy, it is all the more surprising that commentators like Philip Ruddock invoke the concept of human security to justify intrusive anti–terrorism legislation. Often referred to as ‘people–centred security’ or ‘security with a human face’, the idea of human security places human beings – rather than states – at the focal point of security considerations. While the definition and scope of the concept have been debated extensively in recent years, most scholars seem to agree that human security involves more than the absence of violent conflict.30 As UN Secretary-General Kofi Annan has observed, ‘it encompasses human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfil his or her own potential’.31 When Attorney-General Ruddock focuses on the more traditional notions of security in his invocation of the concept, in the sense of providing protection from physical harm, he is ignoring other, equally central aspects of human security which seek to ensure that every individual has the same legal rights and is not at risk of arbitrary or oppressive state action. As Miriam Gani has pointed out, to highlight one feature of human security at the expense of others is rather improper and misleading.32


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