By Benedict Wilkinson

1. Introduction

In a recent article, Sir David Omand argued that the UK Intelligence community should be able to data-mine personal information in order to maintain security and reduce the terrorist threat against the UK.[1] The Guardian reacted violently, claiming that ‘if the tentacles of surveillance… act in concert right across Whitehall, then privacy could be throttled’.[2] These two extreme positions are symptomatic of a widespread perception that civil liberties and security are bound up in a ‘zero-sum’ game in which civil liberties are being sacrificed for increasing state knowledge of – and dominance over – the individual.

This article is an attempt to describe the multiple ways in which the trade-off model relies on constructing a false opposition between the apparently immutable and mutually-exclusive terms of security and civil liberties. As a result, the balance model fails to account for an increasingly complex nexus of interrelated ideas and concerns. I begin by outlining the two extremes of the conventional spectrum of state responses to terrorism, before proceeding to discuss what has been widely seen as a more realistic, ‘on the ground’ scenario – the Expanded Criminal Justice Model. I then proceed to argue that the opposition between civil liberties and security is flawed in i.) the formulation of new legislation against a new or different terrorist threat; ii.) the assumption that reducing civil liberties necessarily brings about increased security; and iii.) the related assumption that increasing security necessarily restricts certain freedoms.

2. The Conventional Model

Traditionally, liberal state responses to terrorism have been classified into ‘criminal justice’ models (CJM) and ‘war’ models (WM). Crelinsten usefully characterises the differences between the models, saying that the former respects the ‘rule of law’ where the latter follows the ‘rules of war’.[3] More practically, the CJM is characterised by reactive police responses in the attempt to collect evidence and, ultimately, bring terrorists to justice in the courts.[4] Conversely, in the WM, the major aim is the ‘identification and destruction of the enemy’[5] by military forces acting under the rules of war.[6]

Pedahzur and Ranstorp, however, have argued, cogently, that these theoretical models ‘do not concur with reality on the ground’.[7] Indeed, the ‘expanded criminal justice model’ (ECJM) they outline is probably the most accurate generalized depiction of western liberal state responses. Under the ECJM, terrorism is neither an act of war nor an ordinary crime. Rather, it occupies a ‘grey area’ between the two extremes: the state provides special legislation (e.g. allowing detention and surveillance) to treat terrorism as an extraordinary phenomenon – and the ultimate goal is the use of this legislation in order to facilitate pre- or post-event arrest and punishment of the perpetrators.

The ECJM occupies a tense position between the CJM and the WM: in many ways, the ECJM is an attempt to have the ‘best of both worlds’ – security and civil liberties. Moreover, that there is a perceived opposition between pro-rights CJM and pro-security WM only contributes to the ubiquity of the trade-off theory. In the following section, I provide three arguments which suggest that the trade-off position is too simplistic a framework for assessing the appropriateness of a state’s response to terrorist activity.

3. Three Flaws

a. The Threat

A primary reason for, as it were, moving the slider along the spectrum of civil liberties and security is in response to a new, or radically altered, terrorist threat. Clearly, the threat from al-Qaeda and its supporters is different to that posed by, for example, the IRA. Nevertheless, Wolfendale has argued that the threat from terrorist organisations is actually small in comparison to the threat of counterterrorism legislation on civil society.[8] She asks, provocatively, whether ‘the existence of a possible threat… justifies the actual infringement of civil liberties’.[9] Similarly, Waldron has suggested that the trade-off between civil liberties and security is solely dependent on a populace’s valuation of the risk of attack against the associated adjustment in liberty.[10]

Two points can be drawn from this: first, that the once straightforward trade-off between civil liberties and security actually includes a third and more complex term: public perception of risk; second, as Wolfendale has argued, that the trade-off model implies that ‘undermining civil liberties and legal protections is the most effective way to combat terrorism’.[11] The model, then, fails to represent, accurately, the relationship between civil liberties and security, constructing a simplistic linear spectrum, in which one extreme’s increase is, necessarily, the other’s decrease. Instead, the relationship appears to include, at the very least, a public assessment of the value and associated risks of adjusting the levels of security and freedom.

b. Successful Security

That the public must calculate the costs and benefits of increased security and decreased civil liberties, does not, on the face of it, present any real problem. However as has been noted above, this evaluation is complicated by the implication that all security procedures – for which the populace sacrifice their freedoms – are successful counterterrorist measures. Some, according to Wilkinson, ‘play into the hands of the terrorist… and become totally counterproductive’.[12] The misconduct of US troops in Guantánamo Bay, for example, or the internment without trial of IRA suspects in the 1970s, were not only unsuccessful security measures which eroded various freedoms, but ones which actually contributed to the problem and helped to legitimise terrorist action.[13] As Donohue puts it ‘if the reason for violence in the first place is constricted liberty… will further restricting freedoms (in order to obtain more security) have the desired effect?’.[14]

The problem, then, is that the trade-off model fails to make adequate note of the friction between an actual decrease in civil liberties and a potential increase in security and completely fails to describe the ways in which the reduction or dilution of various freedoms can actually limit methods for non-violent protest and add greater legitimacy to the terrorist position.

c. Maintaining Civil Liberties

The balance model also seems to suggest that every increase in security necessarily entails a decrease in civil liberties. This is the most serious and overlooked fault with the trade-off model. In the first place, it implies the converse – that security is unattainable in a truly liberal democratic state. In other words, the only state response can be CJM in its purest – and hypothetical – form. This is, crucially, to overlook what Hobbes rightly sees as the principal duty of any liberal democracy – to provide safety and security for the state and its citizens to function. To put it provocatively: if collective security is the prima facie reason for a state’s existence, then isn’t this a civil liberty?

In the second place, it suggests that liberal democracies cannot provide democratic accountability for their security legislation and actions. The pro-security lobby often employ this as a crucial method for legitimising their security policies: Dershowitz, to take an extreme example, sets out a case for legalising torture in order to make it open and accountable. Similarly Omand, to return to the first example in this paper, has suggested that access to personal data will require the UK intelligence community to show that it operates with ‘proper legal authorisation and appropriate oversight’.[15] Whilst providing accountable, democratic security legislation is clearly important, in turn, this presents its own problems. Can actions such as torture, for example, ever be an appropriate response in liberal democracies? Whose rights are more important – the citizens’ or the terrorists’? Nevertheless it does suggest that the pro-security lobby perceive public trust and institutional accountability as the key methods for providing, simultaneously, security in cooperation with – and support of – civil liberties.

4. Conclusion

In conclusion, I suggest that the trade-off model is too simplistic and misleading a framework within which one can assess, adequately, the proportionality and appropriateness of state responses to terrorism. Instead, I suggest that the model needs expanding (in much the same way as ECJM) in order to include other terms such as public evaluations of the threat, the potential for unsuccessful counterterrorism measures, the necessity of security for civil liberties and so on. Ultimately, though, the key point against which I have argued is that security and civil liberties are, somehow, sitting on either end of a see-saw and that state responses to terrorism can be evaluated by which end hangs lower. To sum up, then, there is a trade-off between civil liberties and security – but, crucially, it is a more complex model than the see-saw would have us believe.

Terrorism presents unique challenges. But they do not necessitate, nor do they prescribe, the abolition of our values. As countless legal scholars have reminded us, our prohibition against torture can be found in the 1984 Convention Against Torture, the U.S. statute implementing it, and entire bodies of domestic law and international treaties to which the U.S. is a party. It can also be found in the U.S. Constitution — in the Fifth and Eighth Amendments — which binds American officials wherever and whenever they act. These are bedrock values; they cannot be forsaken.

It is not only that we value human dignity and thus should seek to prevent torture. It is also that torturing makes us less safe. Even if one accepts the rather tenuous arguments about the efficacy of torture in gaining information (and they are not entirely convincing), we have learned that such actions have ripple effects that increase the ranks and allegiances of those who would seek to harm us. Better, then, given principled and pragmatic considerations, to fight terrorism in accordance with our values.

But we must first come to terms with how we have deviated from our values. Memoranda from the Bush Administration are being revealed. This week Congress will discuss how we might come to terms with, and take responsibility for, the legacy the memos reveal. Whatever our course — whether it is a commission of inquiry or prosecutions — Americans must investigate rigorously what was done in our name and account for all that has been done.

Of course, the choice of investigation is not always in the hands of American elected officials. In Congress, it may be. But in U.S. federal courts, there are cases challenging the program of extraordinary rendition, under which foreign nationals were taken into U.S custody and sent to countries where officials knew they would be interrogated under conditions of torture. The Second Circuit will soon rule on such a suit, brought by a Canadian citizen who was taken at JFK airport in New York and rendered to Syria, where he was allegedly tortured. I am hopeful that the courts will fulfill their duty — that they will say what the law is, admit it was broken, and hold responsible the Executive for breaking it.

Perhaps none of this will be sufficient to restore dignity to those who suffered at the behest of U.S. officials. But it is a start. And there is hope for the future. The Obama Administration has already charted a new path. The President released a series of Executive Orders seeking to restore respect for the rule of law — both domestic and international — in our struggle against terrorism. And public scrutiny of Bush Administration memoranda will make future administrations think twice about deviating from the rule of law.

There is, too, a larger task at hand. This Administration should not only combat terrorism in a way that accords with our values, but they should also fight the symptoms at its foundation. We must work with other nations to invest in peaceful and prosperous societies, and again show the world with our actions the virtue and principles of a self-determined government. But more so, we must again lead with our example. We have just begun this new century, and as we face its unique challenges, we can only hope that America will do so with a sense of moral purpose befitting our highest principles.

Luke Norris is a J.D. candidate at Yale Law School. A Rhodes Scholar, he is a recent graduate of the MSc in Global Governance & Diplomacy at Oxford.

According to election analysts, if national security had been the main concern for America in the recent presidential elections, then the odds of Republican success were high. As economic issues grew in importance, the balance tipped towards the Democrats. Therefore, it is interesting that one of President Obama’s first moves was to send such a clear message of a break with the Bush past on security issues.

Yet how much will he really change in terms of the nuts and bolts of intelligence? Progressives, it seems fair to say, still struggle with the realities of terrorism and intelligence. Often the intelligence world is seen as one of smoky mirrors and Spooks. But it pays to remember that intelligence is really just the analysis of information; and in the case of terrorism, the analysis of information on the threat of a terrorist attack.

What is crucial is how that information is analysed and used. According to Dennis Blair, in the future the American intelligence agencies will work within the rule of law, respect civil liberties, and ensure accountability and transparency. But Obama and Blair have not yet fully addressed the realities of how large bureaucracies can effectively process huge amounts of information on possible threats and make potentially life and death decisions on how to use that analysis. The instances when intelligence analysis has failed are only too clear – from the numerous signs in the run-up to 9/11 to the more recent botched operation which resulted in the Stockwell shooting in London. Furthermore, such is the proliferation of threats, that it is almost an impossible task to keep abreast of all potential risks.

Two key challenges remain, namely the need for greater coordination and the need to better understand the nature of current threats. In the UK, the intelligence agencies have increasingly sought to ‘open up’ with online, public recruitment and expressions of interest in those from diverse ethnic backgrounds. But there is plenty of scope to go further than this. States have traditionally kept their intelligence to themselves, but in a ‘globalised’ world, there is a growing need to share data on security risks and threats. The European Union, through its 2005 Counter-Terrorism Strategy, has sought to achieve better coordination and integrated analysis of this kind, though this is still a work in progress; greater coordination with the US would significantly improve access to information.

But intelligence should not just be seen as a reaction to immediate threats. Ultimately, what recent attacks have shown is just how little is still understood about the causes and growth of current terrorist groups and activity. Winning ‘hearts and minds’ could be the one thing the new American president is best at, and his inaugural speech went some way towards reaching out to those disaffected with previous American policies. What is still lacking is more ‘intelligent’ analysis of the roots of terrorist activity today and the drivers of its support. The incoming US head of intelligence may find that it is these issues above all others which now take priority in his in-tray.

This article was first published online by Progress (http://www.progressonline.org.uk/columns/column.asp?c=176)

This paper explores decision-making in intelligence analysis based on an examination of the Australian Senate Inquiry into the 2002 Bali bombings. The purpose is to draw lessons for decision-making and identify where current intelligence analysis approaches need to consider alternative concepts for decision-making about threats. The Inquiry provides a publicly accessible case study with which to critically examine how intelligence analysts identified, analysed and assessed terrorist threats in South East Asia prior to the 2002 Bali bombings. The testimony and submissions to the Inquiry makes it apparent that intelligence analysts make decisions on threat under conditions of uncertainty. Additionally, awareness of the existence of an organisation like JI does not provide analysts with everything they need to make sound decisions. Instead, intelligence analysts need concepts for decision-making about threats in the absence of specific information or knowledge of threats. This paper considers two potential approaches for judgements about threat that emerged during the Inquiry. The first approach is identifying factors indicating a potential for the unidentified existence or emergence of threats. The second approach is clearly defining national interests to specifically focus analytical efforts whilst drawing on information that is available.

The full version of the paper is available here.