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  Civil Liberties in an Age of Terror: How to Balance Freedom and Security

Civil Liberties in an Age of Terror How to Balance Freedom and Security

By Dieter Grimm

Part 4: The Crucial Role of Courts

Courts can play an important role in this context. There are many examples showing that they play a crucial role in a number of liberal democracies when it comes to reviewing laws enacted in order to protect the country against terrorism. Only a few days ago (February 23, 2007) the Canadian Supreme Court declared that security concerns cannot be used to excuse procedures that do not conform to the Canadian Charter of Rights and Freedoms. Extended periods of detention and the lack of review of the detention of foreign nationals were declared unconstitutional. Indefinite detention was found to be a cruel and unusual punishment.

Two years earlier (December 12, 2004) the British House of Lords, reviewing a post 9/11 law that permitted unlimited detention of suspects of terrorism, had already written: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law“. It continued that, of course, the government has the duty to protect the lives and property of the citizens. But it called this a duty the government owes all the time and which it must discharge without destroying the constitutional freedoms. A distinction between citizens and aliens in this respect is not permitted.

A year ago (February 15, 2006) the German Constitutional Court declared a law null and void that authorised the air force to shoot down an aircraft abducted by terrorists if innocent passengers were on board. The court relied, among others, on the principle of human dignity. It explained that dignity is inherent to every human being, regardless of their abilities and qualities, their physical or mental status, their merits or reputation. Using Kant's famous formula that dignity forbids to make any human being a mere object, the court found that the passengers of such an airplane were used as mere means for the rescue of others and treated like things.

In some other cases the German Constitutional Court declared laws unconstitutional that extended the power of the secret services to intercept telephone conversations or to acoustically survey homes of persons and to transmit the collected data to the law-enforcing authorities.

The court acknowledged that the new quality of terrorist attacks asks for new methods of collecting data in order to prevent such attacks. However, it required a clear description of the purposes for which searches may be conducted and sufficient grounds for using these means. It criticized that the safeguards against criminal prosecution were undermined by too easy a data-transmission between the intelligence agencies and public prosecution. Yet, the true hero among the supreme courts and constitutional courts when it comes to preserving fundamental rights and the rule of law in times of terror is the Israeli Supreme Court.

Israel has been the target of terrorist attacks for many years. Government means to protect the citizens are not always beyond doubt. The Court is often called upon to decide in the midst of terrorist threats. It does not hesitate to examine government actions, while they are underway, as to whether they comply with domestic and international law. And it insists on applying the ordinary means, in particular balancing, which it finds flexible enough to take extraordinary threats into account.

When it comes to torture the Court says that a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading treatment whatsoever. It then proceeds to examine, measure by measure, the interrogation methods of the government as to their compatibility with human dignity. It intervenes in the midst of a military action, e.g. in connection with the erection of a security fence or the attempt to detect tunnels where weapons are being smuggled into the country, sometimes with the commander on the phone, whether a measure affects the Palestinian population more than necessary and tolerable.

This is not an easy task. In one judgement it confessed that these decisions will not make it easier to deal with the terrorist situation. It continued that this is the destiny of democracy. It cannot use the same means as its enemies. But precisely this is its strength. In another judgement the then President of the Court, Aharon Barak, wrote: “We, the judges of the modern democracy, have a major role to play in protecting democracy – protecting it from the terrorism that attacks it and protecting it from the means that the State wants to adopt in its war against terrorism. If we fail in our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security. Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves.“

Professor Dr. Dieter Grimm is rector of the Wissenschaftskolleg in Berlin, a visiting professor at Yale Law School, a distinguished member of the Global Law Faculty at New York University Law School and a professor for Public Law at Berlin's Humboldt University.

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