Civil Liberties in Emergencies
Civil Liberties in Emergencies
One of the most controversial topics in political theory and analysis is the relationship between the individual and the state. There are a number of rival theories offering different accounts for the justification, development, impact, and origin of the state in relation to its inhabitants. One of the more common interpretations, which had considerable impact on the creation of democracies in the seventeenth and eighteenth centuries, is based on the idea of the "social contract" as developed by philosophers such as Plato (428–348 or 347 b.c.e.), Thomas Hobbes (1588–1679), John Locke (1632–1704), Jean-Jacques Rousseau (1712–1778), and Immanuel Kant (1724–1804).
These philosophers imagine a hypothetical "state of nature" before any political authority. All individuals are on their own in the sense that there is no higher authority that would command their obedience or protect their interests and possessions. Since their self-interested behavior might lead to conflict between them, individuals agree to establish institutions that define and impartially enforce binding decisions on individuals so that their lives are preserved in a physically and economically more secure environment. They enter a voluntary agreement, the social contract, to create a state to which they hand over their power and whose laws and actions they pledge to abide by. In return, the state guarantees the protection of individuals' civil liberties at home and against aggression from abroad.
Authority needs to be backed up by legitimate coercion, of course, if the state is to be able to ensure that its laws are obeyed and transgressors are punished. Most Western democracies possess features to guarantee the legitimacy of such powers. Although their location, content, and degree of specificity might vary between states, they almost always include constitutional governments, regular elections, a competitive party system, and checks and balances between the executive, legislative, and judiciary. These arrangements exist to safeguard state authority from becoming excessive.
However, in cases when a state faces enemies who refuse to accept the state's legitimate force, reject the rule of law altogether, and threaten to go to any lengths in order to pursue their self-interested goals, the state might respond by granting measures that exceed the conventional limits on the use of state power. Such emergencies pose an increased threat to national security, territorial integrity, or public safety, and the state might feel compelled to introduce responses that help overcome the difficulties posed for normal detection methods within criminal justice.
terrorism as emergency
Emergencies can come in many forms, such as armed conflicts with other states, internal civil unrest, or terrorist aggression. Among them, terrorism stands out as the most menacing threat to modern-day liberal democracies. After World War II (post-1945), democracies have displayed a low propensity to wage war with each other and have settled civil unrest mainly within established democratic procedures. By contrast, terrorism is a phenomenon that more frequently induces states to call for emergencies. It also has been found to be much more difficult to contain.
Terrorism, then, should be of predominant concern. Unfortunately, it is difficult to offer a precise and universally acceptable definition of what the concept actually entails. The term is politically powerful, but difficult to analyze because the phenomenon ranges across a wide spectrum of actors, methods, organizations, and beliefs.
Although terrorism is usually equated with political subversion by non-state actors against governments, many terrorist groups overlap with state-employed specialists in coercion such as armies, police, militias, and paramilitaries. Conversely, violent non-state actors are not always seen as terrorists. If violence is a byproduct of a struggle during which the aggressors are also pursuing other, more routine varieties of political claim making, then politicians and the public are often inclined to recognize them as liberation movements engaged in an ostensibly legitimate struggle against an unjust oppressor. Examples include the Irish Republican Army (IRA), the Kosovo Liberation Army (KLA), and the Palestinian Liberation Organization (PLO). Similarly, the methods that terrorist groups use—from kidnapping, murder, and mutilation to bombings and armed attacks—are already criminalized in most liberal democracies.
Governments therefore have considerable leeway in defining what terrorism actually entails. The more generic and expansive their definition is, the more likely acts of otherwise legitimate civil disobedience or "regular" criminal behavior will be interpreted as activities against which special investigative powers are justified. An important requirement for emergency measures is that they respond to a "clear and present danger." In other words, a threat should be clearly definable so that measures can be directed specifically toward it, and a threat should be present so that the measures can be revoked once it ceases to exist.
the protection of civil liberties
The concept of civil liberty derives from the idea of individual freedom, which can refer to one's capacity to take advantage of opportunities ("freedom to"), as well as the absence of impediments, constraints, or interferences ("freedom from"). The civil liberties that typically are impacted when states react to emergencies are part of the fabric of most democratic regimes :
- The right to privacy and informational self-determination , which refers to the right of individuals to be protected against intrusion into their personal lives and to prevent the unauthorized acquisition or publication of secret personal information.
- The right to freedom of the person, which guarantees that citizens are able to go about their business without the need to explain to an authority what they are doing, and without the fear that they may be subject to arbitrary challenge or arrest.
- The freedom of speech, which refers to the possibility for individuals, or groups of individuals, to promote a particular idea or point of view, through direct speech, books, articles, pamphlets, newspapers or broadcasting.
- The right to property, which is related to the right to privacy stated above and is usually justified on the grounds that individuals have a right of private space.
- The right to movement, which refers to the general right of residence as well as the freedom to come, go, and also to remain on the territory of a country. The emphasis here is on immigration control and asylum processes.
- The right of association and assembly, which refers to the possibility of individuals to impart information and ideas. Given most people's lack of access to the media in order to disseminate their views, the right to assembly provides the opportunity to participate in democratic debate.
- The jurisdiction of the secret services, which refers to the proper distinction between the threat of subversive action—which might require countermeasures that are accountable to the public—and civil dissent, the handling of which is to remain in the realm of a publicly accountable police force.
Most Western democracies have been afflicted with domestic terrorism, defined here as terror where the aggressors' and victims' homelands are identical. The motivation for this type of terrorism is usually one of either political ideology or national self-determination of a minority population. Such has been the case for the Basque secessionist organization Euskadi ta Askatasuna (ETA) in Spain; the left-wing terrorism perpetrated by the Marxist-oriented Brigade rosse and its right-wing opponents in Italy; the antiestablishment operations of the left-wing Rote Armee Fraktion (RAF) in Germany; and the confrontation between Protestant Unionist and Catholic Republicans over the question of whether or not Northern Ireland should remain part of the United Kingdom. By contrast, the few incidences of domestic terrorism in the United States—such as the bombing of a government office building in Oklahoma City in April 1995—follow a more diffuse pattern: Their motivations seem to be rooted in aimless vengeance rather than political or ideological conviction.
The strategy and tactics that these states have employed to neutralize their respective terrorist threats have varied widely. Some have been reactive, while others have been proactive or preventive. Some have been short-term, and others long-term. However, only a few have been overtly coercive. This is because when emergency measures—such as extended stop and search powers or the suspension of requirements to search property—are introduced, the state is in danger of potentially undermining the social contract that sustains its legitimacy to rule. The crucial relationship between state legitimacy and the use of coercion in emergencies is that the latter can be either a response to or a provoker of a breakdown in the former.
If legitimacy appears to be eroding because society, or sections thereof, no longer grant the state the exclusive authority to use force, then the state might try to restore obedience by increasing coercive pressures. Such pressures, however, might cause further violence, brought about by a populace that deems the oppression to be unjustified and excessive. One such example is Britain's short-lived policy of interning, and subsequently abusing, terrorist suspects in Northern Ireland during the 1970s, which alienated the public from the authorities, severely compromised intelligence gathering in that region as a result, and further polarized an already fractured political environment.
Therefore, winning hearts and minds can be an essential component of an effective strategy against domestic terrorism. When the government is not responsive to the economic and political needs of the population and the conflicting interests between the executive and the population are allowed to widen, then terrorists are more likely to find active and tacit antigovernment support. Hence, limiting the civil liberties of the masses in order to identify, detain, and punish a few transgressors is not usually a feasible option for democratic governments, which have to forego potentially more effective antiterrorist measures as a result.
The danger of losing public support and undermining the legitimacy of the state is only imminent, however, if the threat is posed by an enemy who comes from within. A different assessment has to be made when a terrorist incident involves perpetrators from another country. In such cases of transnational terrorism, a state is less at risk of terrorists exploiting the grievances of its inhabitants; an external aggressor lends itself less convincingly to the role of "defender of the people" if the same people are actual or potential victims of that aggression.
Given the possible existence of domestic collaborators, or "sleeper cells," however, the measures a government tends to employ inside its territory to contain an external menace do not differ greatly from those aimed at domestic terrorists. Yet, when the possibility of an alliance between terrorists and the public does not serve as a disciplining constraint on governmental action, then the legislative response to an outside threat poses a potentially greater risk to civil liberties than in domestic scenarios.
The response to the events of September 11, 2001, is a useful case to illustrate this point. September 11th marked a particularly striking example of transnational terrorism, with the attacks by hijacked aircraft on the twin towers of New York's World Trade Center and the Pentagon building in Washington, D.C. The loss of approximately three thousand lives in a single incident was overwhelming, and the nature, planning, and scale of the attacks were unprecedented for Western democracies. Preliminary findings suggested that the attacks could be linked to al-Qaeda, a movement that is based on loose networks across national borders rather than tightly organized cells and motivated by religious and cultural ideals rather than national self-determination or a particular political ideology.
The attacks spurred a rapid implementation of new antiterrorism legislation by states eager to safeguard themselves against the repetition of similar events on their own territories. U.S. legislation, which culminated in the USA Patriot Act in October 2001, is indicative for many other countries how civil liberties have been curtailed beyond what is usually possible in cases of domestic terrorism.
The act gave rise to particular concerns about the lowered standards for obtaining search warrants that had previously been set by American legal precedent but with the act were effectively shielded from independent judicial review (curtailing the right to private property); the collection of personal patron information and borrowing records from public libraries (curtailing the freedom of the person); ethnic profiling; the creation and storage for fifty years of electronic records of finger prints and photographs for every single visitor to the United States (curtailing the right to privacy); and the erosion of the strict legal separation between violence and mere advocacy of violence, which had previously been protected through the First Amendment if said advocacy was abstract and the violence was not an imminent consequence of it (curtailing the right to free speech).
On the spectrum of criminal activity, a country's domestic laws can be stretched in two directions by such measures: an upstream dissolution of the line between crimes and acts of war, and a downstream dissolution of the line between crimes and minor public order disturbances.
al-qaeda ("the base")
When the Soviet Union invaded Afghanistan in 1979, an Islamic resistance movement (supported and financed by the United States) flourished in an effort to expel the Soviets. The Saudi-born Osama bin Laden (b. 1957) became a leader of the movement and helped found the Makhtab al-Khidamat (MAK), or "Services Office," which recruited and trained some 10,000 Muslim fighters for the war. MAK was so successful that it became a prototype for the al-Qaeda terror network, which bin Laden launched in the late 1980s.
Bin Laden later joined forces with an Afghan Islamist extremist faction known as the Taliban and established his headquarters on Afghan soil. Since then, training camps for extremist militants, or jihadis, have sprouted up throughout the world. The goal of al-Qaeda is to establish a Muslim state based on its specific interpretation of Islamic law, and it believes that those who do not share its interpretation are not real Muslims. Al-Qaeda has made itself the enemy of those it perceives to be active enemies of Islam, primarily secular or Shiite governments of predominately Muslim states, and has declared "jihad," or holy war, on the United States, as the supporter of oppressive authoritarian governments in Muslim countries. U.S. officials believe al-Qaeda is responsible for several serious attacks against the United States, including the 1998 destruction of the U.S. embassies in Kenya and Tanzania and the suicide bombing of the U.S.S. Cole in 2000. The World Trade Center and Pentagon attacks of September 11, 2001, which killed thousands, are also blamed on al-Qaeda.
An upstream conflation occurs because crimes usually are dealt with by civil agencies, whereas acts of war are countered by military agencies. Once the events of September 11th were no longer described as "terrorist attacks" but as "acts of war," and stateless terrorists were equated with "terrorist states," the so-called "war on terrorism" became a matter for both police and the military. Once such a shift occurs, previously distinct areas of responsibility for internal and external security become blurred, with the latter commanding much less rigid levels of democratic scrutiny and investigative constraints. Information gathering on American soil, for example, can now be carried out by U.S. foreign intelligence services, which are subjected neither to Fourth Amendment principles nor the Electronic Communications Privacy Act. Procedural safeguards, too, are often suspended—such as the principle of "innocent until proven guilty."
The downstream conflation occurs between crimes and public order disturbances. Traditionally, a public order disturbance is deviant behavior that is not a criminal offense, such as those caused by graffiti writers, beggars, troublesome tenants, or protestors. What constitutes deviant behavior, however, is contingent upon a society's perception of public order and security. Psychologically, security is compromised by fear, which is a product of an individual's subjective interpretation of an objective situation. In addition, fear is more readily fuelled
by a (real or perceived) threat that is unidentifiable, foreign, and not containable by domestic law enforcement.
When searching for domestic collaborators in such conditions of uncertainty, the focus of state coercion then shifts from what a suspect has done to what he or she might do, or the threat that the suspect could pose to security and the government's ability to rule. As is well known from nonterrorist scenarios, countermeasures are then deployed on the basis of probabilities and risk assessments rather than actual events, and suspects are identified not on the basis of an actual crime but because they correspond to a certain surveillance profile, move in certain circles, or hold certain opinions.
The result is a significant increase in the surveillance of citizens' lawful conduct. For example, any law-abiding citizen wishing to send money to relatives in a state where terrorist groups are active could be accused of sponsoring terrorism. The same applies to activists who chain themselves in front of trains transporting nuclear waste, or farmers protesting against agricultural policies by blocking motorways with tractors. Any form of political pressure exerted on governments that is not channeled through parliamentary processes may be regarded as unduly compelling a government into a course of action that it would not have taken otherwise.
In times of emergencies citizens look to their government to ensure security and restore calm. Yet, the incursive legislative measures that appear to restore calm in the short term are not necessarily good for the country in the long run. From a strategic perspective it is dangerous to conflate the various forms of disobedience and criminal behavior into an undifferentiated terrorist threat that would require an extended governmental response. Threat identification and discrimination is an essential component to a sound antiterrorism strategy, which is about making intelligent choices within the constraints of limited resources. Failure to discriminate between greater and lesser threats invites miscalculation, and potentially more damaging, strategic exhaustion.
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Walker, Clive. Blackstone's Guide to the Anti-Terrorism Legislation. Oxford, UK: Oxford University Press, 2002.