‘We can never be safe – but at least we can be free’
The UK home secretary might dismiss civil liberties as 'airy-fairy' - but for Nadine Strossen, president of the American Civil Liberties Union, the case for liberty remains rock-solid.
‘It’s so tempting to think, oh, if we just give up our freedoms, then we’ll be safe. But nothing can protect us from terrorism. We’re never going to be safe in that sense – but at least we can be free.’
Nadine Strossen, president of the American Civil Liberties Union (ACLU), is in fighting form as usual. She is also exhausted: since 11 September, the ACLU has been working ‘24/7’ to defend liberty from a range of attacks from inside the USA.
America’s foremost civil liberties organisation has led opposition to the USA-PATRIOT Act, the anti-terrorism legislation rushed into law six weeks after the terrorist attacks – yet has still found time to defend, on free speech grounds, a several-storey patriotic mural painted on the side of a privately owned building in Los Angeles (with the owner’s consent), after the City of Los Angeles had ordered the mural’s removal (1).
That’s the great thing about America. It may be the home of political correctness, the place that spawns the politics of ‘You can’t say that!’ and has people running to their lawyers when somebody does say that. But it is also a country where people cherish their liberties – and where there is an organisation like the ACLU prepared to fight tooth and nail to defend them. So the day after the terrorist attacks on New York and Washington, as the world looked on in shock and fear, the ACLU put out a statement on its intention to ‘urge our leaders to continue to uphold the principles of liberty the nation holds dear as they pursue those responsible for this devastating attack on American soil’ (2).
And one week after US president George W Bush signed the USA-PATRIOT Act into law, the ACLU published a damning report on ‘Upsetting checks and balances: Congressional hostility toward the courts in times of crisis’. The document situates the new anti-terrorism act in a context where: ‘Throughout American history, threats to domestic security have triggered unjustified assaults on civil liberties’, and ‘the diminution of liberty that accompanied these episodes was later understood as an overreaction to frightening circumstances’ (3).
But how well has all this liberty-loving gone down in the newly terrorised USA? Since 11 September, the ACLU has campaigned under the banner ‘Safe and Free’ – which may help make its position seem more sensitive to the prevailing fear, but could strike some as contradictory. In the UK, for example, politicians have consistently counterposed the principles of safety and freedom, using such nonsensical formulations as ‘the most important freedom is the freedom from fear’ to justify their restrictions on our liberties. And as Strossen says, ultimately ‘there is nothing that can make us safe’. So what’s the deal?
‘We value human life’, says Strossen simply. But the government has to show that a restriction on individual rights will have a significant effect on security, and ‘many of these measures are not necessarily effective’. She continues: ‘Somebody coming from the opposite view would say that if there is some possibility, some speculation that some of these measures might make us safer, it is worth the trade-off.’ To Strossen, however, dealing with terrorism requires different kinds of measures – ‘like making sure there’s enough anthrax treatment. I’m serious!’. She concedes, with a chuckle, that ‘maybe our true mantra should be “relatively safe and relatively free”’.
While some, predictably, have given the ACLU a hard time about its insistence on freedom post-11 September, the organisation is certainly not out on a limb. Within about a week of the attacks, the ACLU had become part of a broad coalition ‘In defence of freedom’, comprising more than 150 organisations and about 350 law professors and computer scientists from, Strossen tells me, ‘as far left to as far right as you can get’ (4). The 10 principles to which coalition members have signed up might, she says, ‘sound rather abstract’, but she points to the underlying message: ‘the fact that something is labelled anti-terrorism doesn’t mean that it’s actually going to be effective in fighting terrorism.’
This healthy scepticism of the government’s use of repressive legislation seems to be what unites organisations as diverse as the Eagle Forum of Alabama (slogan: ‘a positive force for traditional values in Alabama and America’) to Americans for Tax Reform to LLEGO – the National Latina Latino Lesbian, Gay, Bisexual and Transgender Organization of Washington, DC. And with good reason, too.
‘Upsetting checks and balances’, the ACLU’s new report, examines the consequences of anti-terrorism legislation brought in by the Clinton administration after the Oklahoma bombing of 1995 – the Antiterrorism and Effective Death Penalty Act of 1996. The report argues that this, together with two other 1996 laws – the Illegal Immigration Reform and Immigrant Responsibility Act and the Prison Litigation Reform Act – represents a ‘dangerous experiment of dubious constitutionality known as court-stripping’, where the judiciary is treated as ‘an inconvenient obstacle to executive action’ rather than ‘an independent safeguard against abuse of executive authority’. In other words, the government is given greater power to restrict liberties, and the judiciary relatively less power to protect those liberties.
The power of this report lies in its authors’ refusal to accept that these three laws, and the ‘court-stripping’ process that they represent, were ‘not just good faith mistakes in response to perceived threats’. Rather, ‘they were the opportunistic triumphs of an intellectual movement hostile to the role of the judiciary in American life’. A government that has its own reasons for restricting individual liberties – for reasons to do with law and order, say – is able to take advantage of the fear generated by acts of terrorism to sideline the defenders of individual liberty. It happened in 1995 and 1996 – and the USA-PATRIOT Act, as Nadine Strossen puts it, is ‘déjà vu’.
Just as restrictions on liberties cannot keep us safe, so something like the ‘so-called anti-terrorism law’ of 1996 seems to have very little to do with fighting terrorism. This law, Strossen tells me, seems to have been used ‘mainly for crimes to do with drugs and prostitution’. While the USA-PATRIOT Act of 2001 will achieve all kinds of benefits for the government, it seems highly unlikely that it will have any impact on preventing the kind of nihilistic acts of terrorism that characterised 11 September, or even the subsequent anthrax attacks.
What about the US public? How do they feel about freedom – and its defenders in the ACLU – after 11 September? There has been some hate mail, Strossen tells me, and some right-wing organisations have run editorial campaigns against them – ‘one which was a fiction – it claimed we were going to court to stop people singing God Bless America! It’s true that we’ve had some heartbreaking complaints from parents of kids forced to sing it and violating their religious principles, but we’re not running to court over that!’.
But 11 September has also provoked people to send in cheques, ‘saying that now the ACLU is more needed than ever’. And scared as they might be, people are not so willing to give up their freedoms as it sometimes appears.
‘The difference between the rhetoric and detail is very striking’, says Strossen. ‘If I were asked, “Would you be willing to give up some freedoms to protect national security?”, I would say yes! But that’s rather abstract and hypothetical.’ When it comes to the specific restrictions on liberty, she explains, people are far more circumspect. She cites one survey, brought out just after 11 September and at the height of the panic, in which people were asked, ‘Would you do anything to prevent this from happening again’? About 80 percent answered ‘yes’. But when they were asked whether the government should have the power to read their email or monitor their financial records, the percentage of ‘yes’ responses was much lower.
Americans, it seems, continue to take their own individual liberties seriously – and appear to be more suspicious of moves to give up other people’s rights than we are in the UK. Why are we so gullible, by comparison?
‘I’m very concerned – but I never want to talk about what I don’t know directly’, sighs Strossen. She tentatively ascribes the difference between the USA and the UK – and also Canada and New Zealand – to a different tradition, based more on community values than individual values, in which ‘people look to the government to serve a benign purpose’.
‘People look at the USA and think, you Americans have gone too far in the direction of individualism, not community values or egalitarianism’, says Strossen. ‘It is disturbing to me if civil liberties organisations are taking that position. But any organisation is going to be to some extent a reflection of the culture – and the civil libertarian etiquette in this country is more closely connected to the mainstream than in other countries.’
As she speaks, a bizarre illustration pops into my head of the difference in attitudes to being bossed around by those in authority: the stickers by the sinks in bar and restaurant toilets. In the UK, we are told ‘Now please wash your hands’; in the USA, the stickers say ‘Employees must wash their hands’. Yet the New York subway is covered by posters, signed by then-mayor Rudi Guiliani, telling people how to give up smoking.
When it comes to the obsession with our health, and the notion that corporations and political authorities are responsible for protecting us from our own bad habits, America shares many of the same prejudices held by the Brits – indeed, the prejudices are often stronger. But their self-conscious attachment to individual liberty means that, while they may not object to being lectured by the authorities on a handful of issues, they do not take it for granted, as we seem to, that the authorities can lecture them on everything. On issues like smoking, the authorities have clearly won the argument – on other issues to do with lifestyle and liberty, they have to be more careful where they tread.
Strossen is right to suggest that, in the UK, the attachment to civil liberties lies further outside the mainstream than in the USA. In Britain today, anybody putting the case for liberties risks being tarred with the brush of the lone right-wing loon; and the notion that there is something selfish about holding on to individual rights if it allows for the possibility that one woman might be offended/one child might be abused/one animal might suffer unnecessary death has been widely accepted.
UK politicians are not even under pressure to mask their disdain for civil liberties. Prime minister Tony Blair has famously described concern about freedom as ‘libertarian nonsense’. In a similar vein, on 11 November 2001 home secretary David Blunkett attempted to justify his new anti-terrorism measures on LWT’s Dimbleby programme, by saying: ‘We can live in a world with airy-fairy civil liberties and believe the best in everybody and they destroy us. But that’s not the world we live in.’ (5) It is a law-and-order fantasy, of course, to describe something so real and concrete as liberty with the term ‘airy-fairy’. But as we know to our cost, home secretaries’ fantasies tend to become law.
The reaction to anti-terrorism measures makes this cultural difference seem particularly stark. When I travelled to the USA for the first time in late October, I expected to find people immobilised with fear and security measures. In fact, although Americans tell me how much things have tightened up, compared to Britain everything seemed remarkably free and easy. In the UK, we are so used to putting up with the broader culture of unfreedom that has developed in response to government anti-terrorism measures, where the priorities of safety and security are pretty much accepted, and restrictions on the right to protest are viewed in the same way as the absence of rubbish bins on the Underground. Americans, by contrast, don’t take these kind of restrictions for granted, and seem more apt to question their desirability or efficacy.
We do not have an ACLU in Britain, and we do not have a First Amendment. What we do have is a movement among some civil liberties campaigners calling for a formal, written Constitution or a Bill of Rights, that enshrines exactly what rights we do have. This simplistic legalism ignores the obvious problem: that today’s society is more suspicious of liberty than the Founding Fathers were, and any attempt to formalise the rights we do have in the UK is more likely to be a codification of the liberties that we do not have, or those that are open to qualification. Just contrast the US First Amendment with the Human Rights Act of 1998 – now incorporated into British law – which defends free expression with so many exceptions and qualifications that there is little ‘free’ about it at all.
Even the ACLU, brilliant as it is, occasionally gets caught up in an over-legal approach to liberty. I ask Strossen if there is any measure brought in by the government after 11 September that she agrees with. ‘Aviation security’, she responds promptly, before preceding to tell me about the ‘pathetic’ levels of security on internal flights within the USA. Additional airline security measures, explains Strossen, generally do not restrict individual liberty – and those that do, through the use of face-recognition technology, for example, have been opposed by the ACLU.
But even so, isn’t there something about a panicked increase in security that should be challenged? Don’t such measures help to create the broader culture of unfreedom that we have in the UK?
‘There’s a very interesting point on spiked about the way that measures designed to keep people safer can actually make them more scared’, replies Strossen. ‘And part of me thinks that we shouldn’t accept any of these changes at all.’ But, she explains, ‘you have to use your energies to fight to advance your principles’ – and I can see that the ACLU has had its work cut out even restricting itself to actual, formal attacks on individual liberty since 11 September. I guess challenging the broader culture of fear is a task that will have to be left to spiked.
But no matter. As long as Nadine Strossen and the ACLU keep up their tireless campaigning, the world will be a freer, better place. It even makes you want a chapter over here. Anybody up for it?
See the ACLU website
Defending dissent, by Josie Appleton
Online insecurity, by Sandy Starr
Defend liberty – especially now, by Jennie Bristow
spiked-issues: Attack on USA
spiked-issue: Free speech
(1) ACLU press release, 23 October 2001
(2) ACLU press release, 12 September 2001
(3) Upsetting checks and balances: Congressional hostility toward the courts in times of crisis (.pdf file)
(4) In Defense of Freedom
(5) The Times (London), 12 November 2001
To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.