The academic, political and public discourse on counter-terrorism law and policy has frequently revolved around the idea that a balance must be struck between civil liberties and the interests of national security. However, as has been demonstrated, this idea is problematic for four interrelated reasons. First, a simple balancing approach does not give adequate consideration to the philosophical and conceptual underpinnings of the notions of liberty and security. Liberty is a precondition of, and closely related to, security. As a consequence, the two goods cannot logically be balanced against each other. Secondly, there are major rights-based objections to a simple balancing exercise. These include the jurisprudential problem of whether, and to what extent, civil liberties can be balanced against community interests. Other rights-based objections range from the difficulty of conceiving security as an individual right, to the distributive inequality of the measures curtailing liberty themselves. It is not the entire population which is trading off liberty for greater security, but only certain parts of it. Thirdly, commentators invoking the balance metaphor to justify new security laws to counter the immediate dangers posed by terrorism do not give appropriate weight to the long-term consequences of curtailing fundamental rights and liberties. Despite delivering some possible short-term gains in security, some counter-measures may actually increase the potential for terrorism and diminish security in the long run. A detailed enquiry into whether a diminution of liberty actually enhances security or whether one is trading off civil liberties for symbolic gains and psychological comfort is necessary. In conclusion, it is imperative to avoid simple balance rhetoric when developing, formulating and implementing legal measures to counter the threat of international terrorism. The use of crude metaphors should never become a substitute for sound reasoning, sensible decision-making and effective policy work.
* Dipl Jur (Hamburg), LLM (Qld). PhD Scholar at the Strategic & Defence Studies Centre, The Australian National University, Canberra. I wish to thank Rob Ayson, Joe Siracusa, George Williams, Tom Poole and the anonymous referees for much appreciated comments and criticisms. All errors remain mine. <email@example.com>.
1 Although often used as synonyms, civil liberties need to be distinguished from human rights. See, eg, Conor Gearty, ‘Reflections on Civil Liberties in an Age of Counterterrorism’ (2003) 41 Osgoode Hall Law Journal 185.
2 Philip Ruddock, ‘International and Public Law Challenges for the Attorney-General’ (Speech delivered at the Centre for International and Public Law, Australian National University, Canberra, 8 June 2004) – , <http://law.anu.edu.au/cipl/Lectures&Seminars/04%20Ruddockspeech%208June.pdf> at 4 June 2006.
3 See, eg, Richard A Posner, ‘Notes & Dispatches – The Law: Security Versus Civil Liberties’ (2001)
288(5) The Atlantic Monthly 46–7; Viet D Dinh, ‘Freedom and Security after September 11’ (2002) 25(2) Harvard Journal of Law and Public Policy 399.
4 David Cole and James X Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (2nd ed, 2002); Cynthia Brown (ed), Lost Liberties: Ashcroft and the Assault on Personal Freedom (2003).
5 See, eg, Ronald Dworkin, ‘Terror and the Attack on Civil Liberties’ (2003) 50(17) New York Review of Books (6 November 2003).
6 See, eg, the statement by Wisconsin democrat Russell Feingold, the only senator to vote against the USA Patriot Act, who has pointed out that ‘[p]reserving our freedom is one of the main reasons we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.’: 147 Cong. Rec. S11019 (daily ed. Oct. 25, 2001) (statement of Sen Feingold); see also UN Secretary-General Kofi Annan, ‘Keynote Address: Fighting Terrorism for Humanity: A Conference on the Roots of Evil’ (Speech delivered at the International Peace Academy, New York, 22 September 2003).
7 See, eg, William H Rehnquist, All the Laws but One: Civil Liberties in Wartime (1st ed, 1998).
8 See, eg, Jonathan Alter, ‘Time to Think about Torture’ (2001) 138(19) Newsweek 45 (5 November), quoting U.S. Supreme Court Justice Robert Jackson in Terminiello v City of Chicago 337 US 1, 37 (1949): ‘There is the danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’
9 See, eg, Jerel A Rosati, ‘At Odds with One Another: The Tension between Civil Liberties and National Security in Twentieth-Century America’ in David B. Cohen and John W. Wells (eds), American National Security and Civil Liberties in an Era of Terrorism (2004) 9. The quote from Benjamin Franklin can be found in Emily Morrison Beck (ed), Bartlett’s Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to their Sources in Ancient and Modern Literature (1 5th and 125th anniversary ed, 1980) 348.
10 See, eg, Hans Josef Horchem, ‘The Lost Revolution of West Germany’s Terrorists’ (1989) 1(3) Terrorism and Political Violence 353–360.
11 See, eg, Heribert Prantl, Verdächtig: Der starke Staat und die Politik der inneren Unsicherheit [Suspicious: the Strong State and the Policy of Internal Insecurity] (2002) 24–51; Oliver Tolmein, Vom Deutschen Herbst zum 11 September[From the German Autumn to 11th September] (2002) 10–105.
12 The most prominent example is Prime Minister Menzies’ attempt to outlaw the Communist Party in the 1950s. See, eg, George Williams, ‘Australian Values and the War against Terrorism’ (2003) 26(1) University of New South Wales Law Journal 191; Jenny Hocking, ‘Counter-Terrorism and the Criminalisation of Politics: Australia’s New Security Powers of Detention, Proscription and Control’ (2003) 49(3) Australian Journal of Politics and History 355; Jenny Hocking, Terror Laws: ASIO, Counter-terrorism and the Threat to Democracy (2003).
13 Alan M Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (2002) 165–222; The Human Rights and Equal Opportunity Commission, Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD (23 May 2003) , <http://www.hreoc.gov.au/human_rights/terrorism_sub/asio_asis_dsd.html> at 9 June 2006; see also Prime Minister John Howard quoted in ‘PM announces tough anti-terror measures’, The Age (Melbourne) 8 September 2005.
14 John Locke, The Second Treatise of Government, (first published 1690, Thomas P Peardon ed 1952) chs 2–3, especially , , .
15 To Thomas Hobbes the state of nature in which man lived before the social contract was ‘a war of every Man against every Man’, a condition of internecine strife in which the life of man was ‘solitary, poor, nasty, brutish and short’. Thomas Hobbes, Leviathan, (first published 1660, Richard Tuck ed 1996) ch 13.
16 Locke, above n 14, ch 9, –.
17 Ibid .
18 Jean-Jacques Rousseau, The Social Contract (M Cranston trans, 1975 ed) ch 1 [trans of Le Contrat Social].
19 The German philosophers Immanuel Kant and Georg Wilhelm Friedrich Hegel also placed individual liberty at the heart of the State. See, eg, Leonard Krieger, The German Idea of Freedom: History of a Political Tradition from the Reformation to 1871 (1957) 86–138.
20 See, eg, the Constitution of Germany, the Basic Law for the Federal Republic of Germany (1949); Constitution of Austria (1945); Constitution of the 5th Republic of France (1958); Constitution of the Italian Republic (1947); Constitution of the Kingdom of Denmark (1953); Spanish Constitution (1978); Constitution of the Republic of Estonia (1992).
21 See generally Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (1989).
22 The centrality of the individual human being as the source of the entire legal system, as well as its addressee, is expressed in art 1(1) of the German constitution, the Basic Law, which reads: ‘Human dignity is inviolable. To respect and protect it is the duty of all State authority’.
23 Philip Ruddock, ‘A New Framework: Counter Terrorism and the Rule of Law’, (Speech delivered to the Sydney Institute, Sydney, 20 April 2004) <http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Speeches_2004_Speeches_20_April_2004_-_Speech_-_A_New_Framework:_Counter_Terrorism_and_the_Rule_of_Law> at 10 June 2006.
24 Philip Ruddock, above n 2, –.
26 The interwoven structure of state obligations has been further refined by developments in international human rights law. The UN human rights treaty bodies, the Special Procedures of the UN Commission on Human Rights and other institutions have adopted a three-level typology outlining the obligations of states. This typology is now widely accepted and determines the state’s duties as ‘obligations to respect, protect and fulfil’ individual rights. It is applicable to civil and political rights as well as economic, social and cultural rights. The obligation to respect requires states to refrain from interfering with the enjoyment of human rights. The obligation to protect human rights entails the expanding responsibility of States to regulate the behaviour of third parties with respect to precluding the possibility that private persons, acting within the private domain, can violate these rights (so-called ‘horizontal effectiveness’ of human rights). Finally, the obligation to fulfil requires states to take action to achieve the full realisation of rights. These actions can include enacting laws, implementing budgetary and economic measures, or enhancing the functioning of judicial bodies and administrative agencies: see, eg, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht (1997) <http://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html> at 10 June 2006.
27 Burkhard Hirsch, ‘Der attackierte Rechtsstaat: Bürgerrechte und “innere Sicherheit” nach dem 11. September,’ (2002) 159 Vorgänge – Zeitschrift für Bürgerrechte und Gesellschaftspolitik 14.
28 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, (George Schwab trans, 1985 ed) 12 [trans of Politische Theorie].
29 ‘Sovereign is he who decides on the exception.’ Ibid 5.
30 See generally Program on Humanitarian Policy and Conflict Research, Bibliography on Human Security (200 1) Harvard University <http://www.hpcr.org/pdfs/HPCR_-_Bibliography_on_Human_Security_-_2001 .pdf> at 24 July 2006.
31 Kofi Annan, ‘Secretary-General Salutes International Workshop on Human Security in Mongolia’, (Press Release SG/SM/7382, 8 May 2000).
32 Miriam Gani, ‘Upping the Ante in the “War on Terror”’ in Patty Fawkner (ed), A Fair Go in an Age of Terror (2004) 97–101.
33 See also Ronald Dworkin, ‘The Threat of Patriotism’ (2002) 49(3) New York Review of Books (28 February 2002).
34 Emanuel Gross, ‘Legal Aspects of Tackling Terrorism: The Balance Between the Right of a Democracy to Defend Itself and the Protection of Human Rights’ (2001) 6 UCLA Journal of International Law & Foreign Afairs 89, 164–7.
35 Christopher Michaelsen, ‘Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?’ (2005) 28(4) Studies in Conflict & Terrorism 321, 334–5.
36 See also Laura K Donohue, ‘Security and Freedom on the Fulcrum’ (2005) 17(1–2) Terrorism and Political Violence 69, 80–1.
37 Whether or not the interests of the individual are balanceable against the interest of the community at all is a highly problematic question that cannot be discussed here. Suffice it to note that this proposition has been challenged by several eminent scholars. Ronald Dworkin, for instance, has argued that ‘[t]he interests of each individual are already balanced into the interests of the community as a whole, and the idea of a further balance, between their separate interests and the results of the first balance, is itself therefore mysterious’: Ronald Dworkin, A Matter of Principle (1985) 73.
38 See, eg, John Stuart Mill, ‘Representative Government’ in A D Lindsay (ed), Utilitarianism, Liberty, and Representative Government (1964).
39 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (first published 1789, 1961 ed).
40 For in-depth analysis see, eg, Samuel Scheffler (ed), Consequentialism and Its Critics (1988); Samuel Scheffler, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (1994).
41 See also Jeremy Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11(2) Journal of Political Philosophy 191, 194.
42 John Rawls, A Theory of Justice (1999).
43 Ibid 36–40.
44 Ibid 214–20.
45 Ronald Dworkin, Taking Rights Seriously (1977) 189–94.
46 Ibid 194.
47 Ronald Dworkin, ‘Rights as Trumps’, in Jeremy Waldron (ed), Theories of Rights (1984) 153–67.
48 This section is based on a Comment by Christopher Michaelsen, ‘Security Against Terrorism: Individual Right or State Purpose?’ (2005) 16 (3) Public Law Review 178–82.
49 Dworkin, above n 45, 191.
50 See, eg, Josef Isensee, Das Grundrecht auf Sicherheit (1983); Christoph Gusy, ‘Rechtsgüterschutz als Staatsaufgabe – Verfassungsfragen der Staatsaufgabe Sicherheit’ (1996) 49 Die Öfentliche Verwaltung 573–83; Jutta Limbach, ‘Ist die kollektive Sicherheit der Feind der individuellen Freiheit?’ Die Zeit (Hamburg) 10 May 2002.
51 Heribert Prantl and Hans Werner Kilz, ‘Otto Schily ist Otto Schily – das ist gar nicht so schlecht’, Süddeutsche Zeitung (Munich) 29 October 2001.
52 Ruddock, above n 23.
54 See also Günther Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht’ (2004) Höchstrichterliche Rechtsprechung im Strafrecht 88.
55 Article 9(1) ICCPR states that ‘[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 9(1) (entered into force on 23 March 1976).
56 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 161–3; see also Jochen A Frowein and Wolfgang Peukert, Europäische Menschenrechtskonvention: EMRK–Kommentar (1985) 53–8 with further references.
57 Monica Macovei, A Guide to the Implementation of Article 5 of the European Convention on Human Rights, Human Rights Handbooks, No 5, Council of Europe (2002) 6.
58 See, eg, Bozano v France (1986) III Eur Court HR (ser A); Kurt v Turkey (1998) III Eur Court HR 1152.
59 See also Gerhard Robbers, Sicherheit als Menschenrecht: Aspekte der Geschichte, Begründung und Wirkung einer Grundrechtsfunktion (1987) 15.
60 A similar definitional approach has been used by several scholars of political science. Arnold Wolfers, for instance, characterised security as ‘the absence of threats to acquired values’; Arnold Wolfers, ‘“National Security” as an Ambiguous Symbol’ (1952) 67(1) Political Science Quarterly 481, 485. Likewise, David Baldwin defined it as ‘a low probability of damage to acquired values’; David A. Baldwin, ‘The Concept of Security’ (1997) 23 Review of International Studies 5, 13.
61 Oliver Lepsius, ‘Freiheit, Sicherheit und Terror: Die Rechtslage in Deutschland’ (2004) 32(1) Leviathan 64.
62 For an excellent overview see Jeff Victoroff, ‘The Mind of the Terrorist’ (2005) 49(1) Journal of Conflict Resolution 3–42; see also Walter Reich (ed), Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind (1998).
63 Jessica Stern, Terror in the Name of God: Why Religious Militants Kill (2003) 9–62.
64 See, eg, Vamik D Volkan, Bloodlines: From Ethic Pride to Ethnic Terrorism (1997); Cass R Sunstein, ‘Why They Hate Us: The Role of Social Dynamics’ (2002) 25(2) Harvard Journal of Law and Public Policy 429. On the idea of cultural humiliation see Bernard Lewis, What Went Wrong? Western Impact and Middle Eastern Response (2001).
65 Cited in Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence (2000, 2001 ed) 187.
66 See, eg, Jason Burke, ‘Al Qaeda’ (2004) 142 Foreign Policy 18.
67 For in-depth analysis see, eg, Peter H Merkl, ‘West German Left-Wing Terrorism’ in Martha Crenshaw (ed), Terrorism in Context (1995) 160; Peter Chalk, West European Terrorism and Counter-Terrorism: The Evolving Dynamic (1996).
68 This is also one of the lessons to be learnt from the experience of anti-terrorism legislation in Northern Ireland. See Paddy Hillyard, ‘The “War on Terror”: Lessons from Ireland’ (2005) <http://www.ecln.org/essays/essay-1.pdf> at 9 June 2006, with further references. See also Paddy Hillyard, Suspect Community: People’s Experience of the Prevention of Terrorism Acts in Britain (1993) which is still the only ethnographic study in Britain of the impact of anti-terrorism legislation on people’s lives.
69 Saied R. Ameli, Manzur Elahi, and Arzu Merali, Social Discrimination: Across the Muslim Divide (Islamic Human Rights Commission, 16 December 2004), <http://www.ihrc.org.uk/show.php?id=1285> at 9 June 2006.
70 Institute of Race Relations (UK), ‘Arrests under anti-terrorism legislation since 11 September 2001’ (September 2004), available at <http://www.irr.org.uk/pdf/terror_arrests_study.pdf> at 9 June 2006
71 Human Rights and Equal Opportunity Commission, IsmaU – Listen: National Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004), especially 67–69 <http://hreoc.gov.au/racial_discrimination/isma/report/pdf/ISMA_complete.pdf> at 9 June 2006.
72 Some Muslim Australians felt that the booklet, Let’s Look out for Australia, which was distributed to all homes in Australia in February 2003, unfairly targeted Muslims in particular. Several participants described how, following distribution of the booklet, their neighbours reported even routine domestic activities and family gatherings. One woman was reported to her real estate agent by a neighbour for washing her balcony with soapy water: see ibid 68.
73 Tanja Dreher, ‘Targeted’: Experiences of Racism in NSW after September 11, 2001, UTS Shopfront Monograph Series, University of Technology, Sydney (2005).
74 Lawyers Committee for Human Rights, Imbalance of Powers: How Changes to U.S. Law & Policy since 9/11 Erode Human Rights and Civil Liberties, September 2002 – March 2003 (2003) 71–4, <http://www.humanrightsfirst.org/us_law/loss/imbalance/powers.pdf> at 9 June 2006.
75 Waldron, above n 41, 209–10 (emphasis omitted).
76 Any such predictions are nowhere to be found in the Senate Legal and Constitutional Legislation Committee, Commonwealth, The Senate Legal and Constitutional Legislation Committee: Provisions of the Anti-Terrorism Bill (No 2) (2005); see also Christopher Michaelsen, ‘Australia’s Antiterrorism Laws Lack Adequate Oversight Mechanisms’, (Paper presented at the Democratic Audit of Australia, Australian National University, Canberra, September 2005) <http://democratic.audit.anu.edu.au/papers/200511_michaelson_anti_terror.pdf> at 9 June 2006.
77 Evidence to the Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of Division 3 Part III of the ASIO Act 1979 – Questioning and Detention Powers, Parliament of Australia, Canberra, 24 March 2005, 9 (George Williams and Ben Saul). <http://www.aph.gov.au/house/committee/pjcaad/asio_ques_detention/subs/sub55.pdf> 9 June 2006.
78 See, eg, Christopher Hewitt, The Efectiveness of Anti-Terrorist Policies, (1984) 19–23.
79 See, eg, Christoph Rojahn, ‘Left-Wing Terrorism in Germany: The Aftermath of Ideological Violence’ (1998) 313 Conflict Studies 1.
80 See, eg, Simon Bronitt, ‘Constitutional Rhetoric versus Criminal Justice Realities: Unbalanced Responses to Terrorism?’ (2003) 14 Public Law Review 76.
81 Email from George Williams to Christopher Michaelsen, 16 May 2005.
83 See, eg, Helmut Goerlich, ‘Fundamental Constitutional Rights: Content, Meaning and General Doctrines’ in Ulrich Karpen (ed), The Constitution of the Federal Republic of Germany (1988) 45–65.
84 See generally Kommers, above n21; see also Sabine Michalowski and Lorna Woods, German Constitutional Law: The Protection of Civil Liberties (1999) 69–93.
85 See also German Federal Constitutional Court, (1963) BVerfGE 17, , .