Getting The Balance Right: Is There A Trade-Off Between Security And Civil Liberties?

By admin | Fri 22 May 2009 at 17.28 GMT
Categories: Intelligence, International Relations, Recent, Terrorism | Tags: civilliberties, Omand

Getting The Balance Right: Is There A Trade-Off Between Security And Civil Liberties?

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.