‘Balancing’ liberty and security
The UK home secretary's proposal for 'pre-emptive justice' to deal with potential terrorists shows how fear undermines freedom.
UK home secretary David Blunkett announced on 2 February 2004 that he wants a debate about using ‘pre-emptive justice’ to arrest and detain suspected terrorists and potential suicide bombers. Now, many are calling for a reassessment of the balance between liberty and security in the ‘war on terror’.
As Baroness Helena Kennedy argues, the call for a debate is ‘a classic Blunkett tactic’: ‘You suggest all kinds of outrageous and awful things because then you get away with half of them. You set people up for something awful and then they are relieved when they don’t get the worst possible scenario. But all of this is terrible and even half of it would be a disgrace.’ (1) Tory leader Michael Howard has demonstrated there will be little parliamentary opposition to Blunkett’s proposals, saying he appreciates that ‘it is a very difficult balance to get right’ (2).
Some will claim that there is little new in this debate. The idea of a necessary balance between liberty and security has been with us for as long as the modern state. This balance defines the sphere of rights and provides the limits of the political. Since the time of Hobbes it has been argued that the state is necessary to provide security for individuals, and that, by definition, citizens of a state accept the duties of law, taxation and military service arising in return. Citizenship entails social responsibilities and duties and restrictions upon the liberty of the individual. From this perspective, the balance between security and liberty is at the heart of ‘politics’, and renegotiating this balance in the wake of new threats since 9/11 seems reasonable if regrettable.
Blunkett has argued that the threats posed by suicide bombers present ‘a whole different ball game to anything that we have ever known before’. If terrorists are not deterred from committing attacks by being jailed afterwards (or by killing themselves during the attack), they have to be dealt with in advance. ‘You can’t deter when the deterrent no longer exists. I accepted by necessity we have to have prevention under a new category which is to intervene before the act is committed, rather than do so by due process after the act is committed when it’s too late.’ (3)
Initially, preventing this new threat justified the emergency powers of the Anti-Terrorism, Crime and Security Act, rushed through parliament after 9/11. Sixteen people have been detained under the Act, all in high security prisons without charge or trial. The powers applied only to suspects who were not British citizens and whose lives would be endangered if they were deported. So far, legal challenges to their detention have failed (4). Blunkett has won the argument in parliament, the courts and the media; he confidently defended the government’s record days before floating his new proposals, admitting that liberties and rights were being undermined in the process of ensuring security, but that ‘squaring the circle is nigh on impossible, although we’re all trying our best to do just that’.
Now Blunkett is proposing a change in the law to allow British suspects to be held under similar ‘pre-emptive’ powers. These pre-emptive trials would be held in secret without juries and presided over by judges vetted by the secret services. Lawyers defending the accused would also be vetted, and vital evidence could be withheld from them to stop ‘sensitive’ information being made public. Defendants could be found guilty on weaker evidence than normal. Currently, jurors in a trial are told they must be sure ‘beyond reasonable doubt’ that a defendant is guilty before they can convict. Blunkett’s proposals would allow judges to use the lower criteria of convicting a defendant ‘on a balance of probabilities’.
Today, any discussion of the balance between security and liberty will end up in a defeat for liberties. This is not because the debate is framed by the urgency of ‘national security’ and appeals to chauvinism or anti-Muslim sentiment, or because people accept the intelligence services’ dodgy evidence. Rather, the lack of resistance to the government’s attack on liberties lies in the deeper resonance for the pre-emptive logic of the ‘war on terror’.
In the face of hypothetical threats of the ‘next 9/11’ – which could include anything from hijacked planes being flown into nuclear plants to dirty bombs or germ warfare – it is impossible to draw a balance between liberty and security. As Paris professor Didier Bigo argues, this is because we are not dealing with a problem of security but with a state of mind. Fear of the future is the dominant characteristic of modern politics; and liberties cannot be defended while the future is seen in terms of threats rather than possibilities.
Today, few people would disagree with US vice-president Dick Cheney’s assertion that ‘another attack is a matter, not of if, but when’. This fearful state of mind was not created by 9/11 or the ‘war on terror’ or by neo-conservative ideologues. Well before 9/11 there was a growing political consensus around the dangers of the future. This pessimism is summed up by the ‘precautionary principle’; the idea that risk is to be minimised if possible and that security should come before liberty. Today, liberties and protections of law are under sustained attack from those who argue that precaution is the primary duty.
In the context of the ‘war on terror’, any liberties can be construed as security risks. In fact, Blunkett’s views of ‘pre-emptive’ justice merely highlight the precautionary political trends already evident in both the domestic and international arenas. There is no right-wing or conservative monopoly on the desire to roll back the gains of legal and political equality. In the international sphere, for example, calls for pre-emptive military interventions were first raised by human rights advocates before being taken up by the Bush administration. Without challenging the politics of fear and precaution there can be no balance between security and liberty.
David Chandler is senior lecturer in international relations at the Centre for the Study of Democracy, University of Westminster. He is the author of:
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Blunkett jumps the gun, by Bill Durodié
spiked-issue: War on terror
(1) ‘Secret Terror Trial Plan By Blunkett “Is Shameful”’, The Times, 2 February 2004
(2) Conservatives will consider terror law plans, Conservative Party, 2 February 2004
(3) Blunkett hails anti-terror laws, BBC News, 30 January 2004
(4) Internment: the truth behind the ‘war on terror’ (.pdf 156 KB), Gareth Peirce, Liberty, 15 December 2003
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