Civil liberties and terrorism

This article was published in Take Issue! in February 2002. It's a little dated now, but I think I stand by most of what I wrote then.

As part of the "War on Terror" many governments around the world have proposed and even implemented new "emergency" legislation to deal with the threat of terrorism. Some of this new legislation is fundamentally at odds with the principles of liberty that are part of democratic society. In the UK, this new legislation is the Anti-Terrorism, Crime and Security Act 2001 which continues the work of the Terrorism Act 2000 (you can find the text of the two Bills by starting from http://www.homeoffice.gov.uk/atoz/terrorists.htm).

Civil liberties are important because they protect the innocent, not the guilty. The requirement that police officers need a warrant before they can arrest someone or search people or premises, the right to a trial by jury, the right to be innocent until proven guilty - all of these are designed to protect innocent people from undue interference in their lives and harassment by the state. In the UK we no longer have any of these rights. For example, the Terrorism Act 2000, now part of UK law but drafted before the September 11 attacks, states that "A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist." (In other words, you now no longer need to be seen committing a crime to be arrested without a warrant.)

The basic principle underlying these rights is that it is better to let a genuine criminal escape accusation or imprisonment than to wrongly accuse or imprison an innocent person. To judge the merits of this principle, imagine yourself wrongly accused or imprisoned because the government thought it better to cast the net wide.

It is likely that minority groups will be disproportionately affected by the new legislation. The Forum Against Islamophobia and Racism (www.fairuk.org) in their submission to the Home Affairs Select Committee warned that the effect could be "Increased discriminatory treatment (and perception of discriminatory treatment) of Muslims by law enforcement agencies… The Macpherson and Denham Reports have recently confirmed the likelihood of 'institutional racism' within these institutions. These tendencies may take an anti-Muslim form following September 11."

This would be deeply wrong and disturbing in its own right, but the danger in allowing one group, in this case Muslims, to be singled out in this way could be even greater as the example of Jews in Nazi Germany clearly shows. For us to oppose government only when our liberty is directly threatened is not enough to safeguard democratic society. We have to take an interest in the liberty of everyone.

Many believe that although overturning civil liberties is undesirable, it is justified in response to the threat of terrorist attacks. The Human Rights Act and the European Convention on Human Rights (ECHR) allow for some restrictions on freedom if the threat is convincingly established and the restrictions are proportionate to the threat. To some it might seem obvious that, given that some 3,000 people died in the World Trade Center attacks, the danger is convincingly established and so enormous that the government's measures are proportionate.

However, in 1998 in the UK 3,501 people died in accidental road deaths. There is a convincingly established danger here, and yet what would be the reaction if the government proposed legislation suggesting that anybody that the police thought might cause an accident could be immediately arrested and have their car confiscated (without any restrictions)? Or if they proposed banning driving after 8pm? Surely it would be considered as an unacceptable infringement of civil liberties? Certainly it would not be considered a proportionate response. Instead, we would demand that the government find other more acceptable ways of combating this problem. Why treat the threat of terrorism differently?

One possible reason is the enormous destructive potential of biological, chemical and nuclear weapons. However, this would not be a good reason for infringing our civil liberties. If there was an imminent and predictable danger that would result in mass deaths and that could actually be stopped by an infringement on civil liberties, that would be reason to do so. However, if the danger is not imminent and predictable, one that will perhaps never go away and that anyway would not be stopped by restricting civil liberties, then we should oppose it.

It is not imminent and predictable because there have been a tiny number of known uses of biological or chemical weapons by terrorist organisations compared to the thousands of yearly conventional terrorist attacks. These few have resulted in a tiny number of deaths compared to conventional terrorist attacks (for example the Aum Shinrikyo group killed a total of 19 people in two sarin gas attacks in Japan, one of the very few successful biological terrorist attacks).

More importantly, the fact that the threat of terrorism will not go away (at least in the foreseeable future) means that restrictions on civil liberties as a short term measure would not even stop the danger. To be effective, restrictions on civil liberties would have to be long term, this would be a radical and disturbing change in the way our society works.

The government was elected to serve the interests of everyone and they have enormous expertise and experience to draw on. This might suggest we should place our trust in them in such an important matter. Although this might seem plausible it is based on a rather hopeful understanding of the way our democratic institutions work.

The primary motivation, in a democratic society, for any government's actions is re-election. This is really not controversial. It is the point of democracy to force the government to govern in such a way as to get them re-elected. It accounts for both the good and the bad aspects of it.

This amoral (not immoral) motivation of government is not because it is composed of amoral individuals, probably quite the contrary. A government can be forced into taking certain actions even if the majority of the members of that government are opposed to them, precisely because we live in a democracy.

Two of the major groups that need to be appeased to be re-elected are the voters and the business community. Voters need to be appeased because they directly decide who gets to be in power. The business community needs to be appeased because they have an indirect influence in at least three important ways: Firstly because policies which were unfavourable to profits would cause businesses to move to more profitable countries, which would in turn make the government unpopular with voters. Secondly, because of their influence in the national media and hence on public opinion. Thirdly, because all major parties rely heavily on corporate funding. Note that none of these require corruption or conspiracies on the part of the government or the business community, they simply arise naturally.

In response to terrorism the government has to ensure that they are seen to be doing something about the threat of terrorism. This is very different from undertaking policies which might actually reduce the threat of terrorism, many of which would be unpopular, particularly in the business community (such as an ethical foreign policy, antithetical to profit), or too long term to be of any use in terms of re-election. Simply visibly "doing something" about terrorism is all the government need do, since voters have no way of evaluating the effectiveness or not of different policies - partly because terrorist acts in the West are rare and much of the data on terrorist activities is secret, making it impossible to use evidence to judge the efficacy of the policy taken, and partly because the enormous complexity of the factors that cause terrorism make it impossible to evaluate untested policies. In the absence of a deeper understanding of terrorism, the simplest and most effective strategy for re-election is to decisively and visibly "do something", regardless of whether that something will help or not.

Our responsibility, as citizens of an as yet imperfect and fragile democracy, should be both to seek to understand the threat of terrorism at a deeper level, and to demonstrate to the government that we are sufficiently concerned about civil liberties that it would cost them votes to pursue their current policies.

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