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Civil Liberties in an Age of Terror

How to Balance Freedom and Security

By Dieter Grimm

The world after 9/11 has led many Western countries to rethink their security policies, but where does the limit lie between protecting citizens and eroding their civil liberties?

The terrorist attacks on the Twin Towers in New York, on trains in Madrid, on the subway in London and Tokyo, the suicide-bombers in Israel and Iraq have dramatically increased the demand for security, not only in those societies that were victims of the attacks, but also in other Western societies that are afraid of becoming targets of terrorists. Guaranteeing security is the foremost task of the state. The modern state with its attribute, the monopoly of legitimate force, owes its existence to the desire for security produced by the religious civil wars.

A state that is unable to guarantee security to its citizens risks losing its legitimacy.

As a consequence after 9/11 many states have made attempts to enhance security and protect their citizens against terrorist attacks.

This has been done by reorganizing and enlarging existing security agencies, creating new security offices, and in particular by tightening up security laws, adopting new laws, and increasing state powers.

Yet, most of the states that are potential targets of terrorist attacks are states devoted to constitutional democracy, the rule of law, limited government and civil liberties. These are not accidental but essential qualities. They constitute the identity of such societies and cannot be sacrificed without a loss of identity.

The tension that arises from this double commitment to security and to liberty is at the centre of the present political discussion.

On the one hand, it would be wrong to assume that liberty and security are in opposition to each other. They rather complement each other. Freedom without security is of little use. Security without freedom is undesirable. On the other hand, they are not necessarily in harmony either. Liberties can be the source of insecurity, and the protection of liberty can be an impediment to fighting terrorists. This is why guaranteeing a society's security often calls for limiting its liberties.

This is particularly true regarding a means that governments increasingly use in order to provide security, namely pre-emption or prevention. Prevention in the modern sense is not about preventing an imminent criminal act or observing an identified suspect. Prevention in the modern sense is about discovering potential sources of terrorism, observing milieus that may breed aggressors, and detecting persons whose profile makes them prone to offences.

In sum: What governments wanting to cope with terrorism need most is information, and since the terrorist threat is diffuse they want to get unlimited access to information.

A consequence is that the threshold for gathering information is constantly lowered. In terms of time the government intervenes earlier than before. The laws no longer require a clear and present danger nor a sufficient suspicion. Some clues often suffice to start observations. In terms of scope the field of action broadens. Many more persons are affected. It is no longer possible to keep the government at a distance by lawful behaviour. In terms of subject matter the difference between relevant and irrelevant data disappears.

From a rule of law-point it is extremely difficult to limit pre-emptive information-gathering by law. If everything and everyone is of interest all borderlines become blurred.

Governments usually justify their actions by asserting that law-abiding people do not have to fear any harm. But this is too easy an excuse. There are enough examples of people who by mistake or due to wrong interpretations of the data or because of denunciation were observed, arrested, detained or even tortured.

But apart from these cases of actual harm a person is no longer free in his or her behaviour when he or she has to expect that the government may have full information about his or her whereabouts, inclinations, activities, friends etc.

In particular this may cause a chilling effect when it comes to making use of certain liberties.

Another threat to liberty is, of course, the increased use of detention and effective means of interrogation, even including torture.

Here, too, the traditional thresholds for state action are lowered or absolute prohibitions like those against torture are no longer respected in the interest of enhanced security.

Torture and other means such as shooting down captured airplanes that are being used as weapons in a terrorist attack seem particularly plausible in the case of a ticking bomb. Sacrificing some lives or the physical integrity of some persons is justified by the number of persons whose lives one hopes to save.