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.
Balancing Values and Interests
All these examples show that it is impossible to maximize both security and liberty at the same time.
The price for enhancing security is paid by liberty. Therefore one should not forget that it is liberty and a liberal society whose security we want to enhance. This may require additional limitations of rights. But it does not justify a total sacrifice of liberty in exchange for security. This would mean adopting the Hobbesian model.
There are limits to maximizing security if one wants to preserve the liberal system. And in a truly liberal democracy there are also limits to protecting the liberty of one's own citizens by denying it to foreigners. This is why the acceptability of security-enhancing measures depends on the right balance.
Balancing has become the most important tool when competing values or interests have to be reconciled. Legislators use balancing; authorities or agencies that apply the law do the same; judges who review laws or government acts engage in balancing. In constitutional law balancing and proportionality tests are in use in most systems when the question arises whether limitations of fundamental rights are acceptable in a free and democratic society. This is why a word on balancing with regard to governments' answers to terrorist threats seems appropriate.
The first question is whether everything is subject to balancing or whether some absolute principles exist that cannot be overridden by any other value or interest.
German constitutional law recognizes such a principle. It is human dignity, introduced into the constitution after the atrocities of the Third Reich. Some other countries have followed Germany on this way. Dignity is regarded as a quality that humans do not acquire by a worthy life or good deeds nor forfeit by an unworthy life or bad deeds. It is innate in every human being, and a violation of someone's dignity amounts to a negation of his or her quality as a person.
Thus dignity becomes the basis of all concrete liberties. If there is anything that constitutes a violation of dignity it is torture. The world has reached a consensus that torture is prohibited under all circumstances. This consensus has found its expression in a number of documents of the United Nations as well as in the Geneva Convention. Nevertheless, under the threat of terrorism the number of voices justifying torture in certain extreme situations is growing. The argument is always proportionality. Torturing one person may save the lives of hundreds or thousands of others. It is a quantitative argument and it has a certain appeal.
However, those who argue like this usually start from three tacit assumptions, the validity of which is by no means obvious.
The first one is that the person tortured has the information that is necessary to save innocent lives. The second one is that when tortured he or she will speak and will tell the truth. The third one is that with the help of the information the endangered lives can be saved.
As a matter of fact such a situation is rarely given. In most cases all three assumptions are uncertain. And even if the first one should be clearly given it will be uncertain whether the other two are true because they necessarily imply predictions about the future.
In sum, once torture becomes permissible the number of persons tortured will always be much higher than the number of persons whose torture guarantees success. This is a pragmatic argument, but there is also a principled one. It goes like this: One cannot convincingly defend a system based on human dignity by depriving others of their dignity.
Dignity is an element of mankind, not of nationality. Foreigners enjoy it just the same as citizens do, and the enemy, even the most evil one, enjoys it as well. It would therefore be a self-contradiction to use dignity-negating means in order to protect dignity. This forbids a number of extremely degrading treatments. Even a terrorist threat does not justify the use of any such means. He who allows it in extreme situations will soon find himself on a slippery slope.
In cases when dignity is not at stake balancing appears the appropriate method to solve the tension between liberty and security. A well-tried way is the four-step analysis that is in use in most European jurisdictions but also in countries like Canada and South Africa. In a preliminary step the end pursued by a certain law or measure is determined. The next two steps are a means-end comparison. Is the means at all suitable to reach its end? If so, is there a measure that would impair the liberty at stake less, but would likewise reach the end? In the last step the liberty encroached upon and the value in whose interest that happens are compared to each other.
The last operation consists in balancing in the true sense. Here it is extremely important to define precisely what is to be put into the two scales of the balance. One scale, of course, is filled with the liberty that suffers a loss by the law or government act. The other scale is often filled with values like life, survival or security of the nation, protection of liberal democracy etc.
If these super-values are really at stake the result of balancing is clear from the outset. The more important and the more abstract the goal is in whose interest a liberty is limited the more likely it is that the balance will result in favour of the goal. Yet, just as a limitation usually does not impair a certain fundamental right totally, but affects only a certain aspect of a liberty, the means employed in the interest of security will rarely protect its object fully. The means the government wishes to employ will normally be a specific, partial contribution to an overall goal. If only this specific contribution goes into the second scale the result may often look different.
Inadmissability of Lawless Zones
Therefore a careful use of the tool is crucial. The controlling and rationalizing effect of balancing depends on the degree of precision with which it is carried out.
In addition, in any constitutional democracy government measures against terrorism and suspects of terrorism ought to be subject to review by an independent and neutral institution just as in non-exceptional cases. When civil liberties are concerned, the appropriate institution is the judiciary. Governments tend to invoke the grand values when it comes to fighting terrorism, and they paint gloomy pictures in order to justify extraordinary means. Courts operate from a certain distance, do not have to look to the next election, and can employ a more sober view. There is no good reason to exempt anti-terror measures from judicial scrutiny. In delicate cases in-camera procedures are better than no judicial control at all.
Contrary to this requirement, it is a significant feature of President Bush's war on terror that he tries to exempt from judicial control all steps he takes in this connection.
In order to justify this attempt he usually refers to a resolution passed by Congress in 2001 allowing him to use all necessary means to fight this battle. It is, however, quite unlikely that Congress, by granting the President this power, wanted to allow him to disregard the constitution and the laws of the land, including the Bill of Rights with its elementary guarantees of habeas corpus, access to the courts etc. And had this been the intention it seems doubtful whether Congress was entitled by the constitution to grant such an exemption.
As long as the war on terror is used as a metaphor like the war against drugs or like campaigns against certain other menaces it appears as one of the usual exaggerations of political language that do not cause much harm.
When turned into a legal term, however, its consequences are quite dangerous. It changes the legal regime applicable to terrorists and suspects of terrorism and allows the government to treat them like soldiers of an enemy army instead of like criminals. Under the regime of the international law of war they can indeed be detained without having access to the courts, albeit not indefinitely but for the duration of the war.
On the other hand, the status of a soldier implies not only burdens but also rights. The Hague Convention obliges states to treat prisoners of war humanely. Torture is completely prohibited. Soldiers may not be interrogated. They must be released when the war is over.
But President Bush in his war on terror does not only want to get rid of the safeguards of criminal law. He does not want to be hampered at all by the law. It is the category of an enemy combatant that promises to render this service. This category combines the burdens of both criminal law and the law of wars but provides none of the safeguards either of these two legal regimes contains.
It may be that the traditional dualism between domestic criminal law and public international law of war does not sufficiently reflect the reality of international terrorism, so that the development of a third legal category should be considered. Yet, if so, it would have to be a legal category, not a licence to lawlessness.
It would be necessary to define the rights of government vis-à-vis enemy combatants, and it would be necessary to define the protection this group of persons enjoys. Whatever the details may be, as a legal regime it could never be a power without limits, which is just another term for arbitrariness.
Detaining so-called enemy combatants in camps or prisons outside the United States or denying habeas corpus or other basic rights to foreigners only does not make things better. Of course, distinctions between aliens and citizens are by no means prohibited. Citizens have the right to vote, aliens do not. Citizens have a right to enter their country, aliens do not. Aliens need a permit if they want to work, citizens do not etc.
But this distinction does not apply when it comes to basic human rights. Fully in line with this the American constitution, in the Fifth and the Fourteenth Amendment, does not speak of citizens but uses the terms no person or all persons.
It is a standard in European constitutional law that the reach of constitutional provisions is not limited to the territory of the state. It is limited to the government of the state and does not bind governments of other states. But constitutional obligations bind the government and all state agents or persons acting on behalf of the state wherever they act. Thus, in a European view, detaining suspects in Cuba, in Afghanistan and elsewhere would not deprive them of their rights vis-à-vis the government. Likewise it would not be permitted to hand persons over to countries where, for instance, the prohibition of torture is routinely disregarded.
Practices for which the names of Guantanamo or Abu Ghraib stand have damaged the reputation of the United States and the credibility of its commitment to democracy, the rule of law and human rights more than anything else, the Iraqi War included. If Abu Ghraib may be seen as an abuse by some individuals not attributable to the country or its government, this is not possible for Guantanamo. Practices like the Guantanamo detentions do not help to win the so-called war on terror. In order to fulfil its function as the leading power of the world the United States cannot rely on military force only. They need credibility and moral support as well. Guantanamo, however, has the opposite effect.
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.