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V PRACTICAL OBJECTIONS


Finally, the image of balancing liberty against security is ambiguous for practical reasons. Even if one accepts that civil liberties and human rights can be balanced against national security, it is not clear whether the counter-terrorism measures introduced in the aftermath of the 9/11 attacks actually increase security, or merely diminish liberty. Indeed, it appears that those who advocate the balancing approach often have no idea whether the counter-terrorism measures introduced actually reduce the threat of terrorism. It is thus imperative to examine how far (legislative) counter-measures are based on fair estimates of actual consequences, rather than on the felt need for reprisal, or the comforts of purely symbolic action. Jeremy Waldron has convincingly illustrated the gap between symbolism and effectiveness by referring to the reduction of due process guarantees:

A reduction in due process guarantees may make it more likely that terrorist suspects will be convicted. And that, people will say, is surely a good thing. Is it? What reason is there to suppose that our security is enhanced by making the conviction and punishment of suspects more likely? We know that the conviction and punishment of an Al-Qaeda fanatic, for example, will have no general deterrent effect; if anything, it will have the opposite effect – making it more rather than less likely that the country punishing the suspect is subject to terrorist attack. Of course, this is not a reason for not punishing the perpetrators of murderous attacks, but the reasons for punishing them are reasons of justice, not security (via general deterrence); and those reasons of justice may not be as separable from the scheme of civil liberties that we are currently trading off as the ‘new balance’ image might suggest.75

In Australia, the absence of any predictions in relation to the effectiveness of proposed anti-terrorism legislation has been a key feature of the parliamentary debate on the issue.76 Indeed, legislation such as the ASIO Legislation Amendment Act 2003 (Cth) itself prevents any body from assessing whether information obtained through questioning and/or detention was of any quality at all and whether, and to what extent, the Act is an effective tool in the fight against terrorism. As George Williams and Ben Saul have pointed out, ‘it is impossible for Parliament and the community to evaluate the need for, and effectiveness of, the legislation if the general nature of the information obtained through questioning remains off limits’.77

It is beyond question that it can be notoriously difficult to make fair estimates on the effectiveness of counter-terrorism measures.78 However, the difficulty of the ask cannot be an excuse for a lack of thorough analysis and sound decision-making. An in-depth analysis must include an examination of the experiences from previous terrorism crises and comparable campaigns, such as the so-called ‘war on drugs’. As far as left-wing terrorism in Europe in the 1970s and 80s is concerned, for example, it is highly questionable whether repressive counter-measures and intrusive anti-terrorism laws did play a significant part in the decline of terrorist organisations.79 Similarly, in the context of the ‘war on drugs’, a campaign which in many aspects may be compared to counter-terrorism, there is little compelling evidence to suggest that requiring higher standards of due process and protection of human rights impeded effective law enforcement.80


VI RECONCILING RESPECT FOR CIVIL LIBERTIES AND HUMAN RIGHTS WITH THE INTERESTS OF NATIONAL SECURITY


It has been argued that the balance metaphor is inappropriate to describe the process of reconciling respect for civil liberties and human rights with the (alleged) imperatives of national security. But, what is the significance of this argument? Some commentators have suggested that using the image of balance might be necessary to facilitate and foster broader public debate on the problem of curtailing civil liberties and human rights in the interests of national security. George Williams, for instance, accepts that it may be problematic and inaccurate to refer to the process as ‘balancing’. Nevertheless, he prefers to employ the balance metaphor in public discourse ‘because “proportionality” does not capture in the public mind what is involved’.81 ‘The nature of public discourse’, according to Williams, is ‘that these things are difficult to communicate except where a metaphor is used’.82

At first, the argument advanced by Williams seems to make sense. Using simple metaphors to explain difficult and complex problems is indeed helpful to communicate with the broader public. However, the use of crude metaphors becomes problematic when both academia and the legislature and/or policy makers adopt the terminology and the concept uncritically. This then leads to an unwarranted reduction of the complexity and scope of the issues at hand. Furthermore, it leads to sloppy reasoning, faulty decision-making and, ultimately, to fundamentally flawed public policy. Unfortunately, this is exactly what seems to have happened in the case of the balance metaphor being employed in the context of civil liberties, human rights and national security.

The question, of course, is whether an alternative exists to the ‘balancing’ approach. One such alternative might be the so-called ‘proportionality test’ which is used in German constitutional jurisprudence and has been further refined by the German Federal Constitutional Court.83 In essence, the proportionality test consists of three main requirements: any curtailment of constitutionally protected civil liberties and human rights must generally be (1) suitable, (2) necessary and (3) appropriate.84

The requirement of suitability (1) is usually very broadly defined to mean that the government must only introduce legislative measures that are generally suitable to achieve the intended purpose. In fact, ‘suitability’ might be more precisely defined in negative terms: that no completely unsuitable measure be taken. The second requirement (‘necessary’) relates to the scope of the government’s intervention and to the question of whether the legislative measure under consideration is warranted by the exigencies of the situation. Its effect is that the government must refrain from interfering with the citizens’ (constitutionally protected) civil liberties and human rights if it can accomplish the same aim without interference with those rights and freedoms at all, or by resorting to a less drastic measure. Finally, any government action curtailing rights and freedoms must be appropriate and strictly proportional (3). The requirement of appropriateness means that legislative action by the government is unacceptable if the burden created thereby is disproportionate to the purpose of the measure. According to the so-called Wesengehaltsgarantie (principle of materiality) a burden is particularly disproportionate if it affects the ‘essential content’ (‘Wesengehalt’) or the very nature of the right or freedom which is curtailed. It is almost self-evident that the more the statutory infringement affects fundamental expressions of human freedom of action, the more carefully the reasons serving as its justification must be examined against the principal claim to liberty of the citizen.85


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