The search for a balance between individual liberties and collective security is not a novel one but it has taken a greater significance since September 11, 2001. The changes in the external threats to a nation seem to require a change in the ways a state ensures security for its citizens. Nevertheless, the implementation of a security measure is usually accompanied by a negative effect on civil liberties. Meisels argues that security is a prerequisite for individuals to fully enjoy their civil liberties (Meisels 2005: 170). However strengthening measures of security domestically at the expense of civil liberties can be problematic. A balance will inevitably either favour liberties or security and it will be argued that it should be inclined towards civil liberties.
Terwilliger et al. cite the changing face of warfare where the opposing side, which used to be exclusive to another state, can now comprise of groups or individuals (Terwilliger 2005). This change in the form of the enemy requires a change in the ways a state responds to threats internationally and also domestically. In the domestic sphere specifically, this transformation requires a greater reduction in civil liberties to aid the state in providing security for its citizenry. In the theoretical social contract scenario, security is ensured by the state by giving up some freedoms (Meisels 2005:162).
The essential question however, is of how much and of which liberties. For example for Meisels there is a difference in the degree of importance between procedural rights and liberties such as the right not to self-incriminate (to ensure the right to self-preservation) (Meisels 2005:174). For Meisels torture and self-incrimination are two items that essentially should not be permitted in exchange for security and would be the ones that individuals would be the least likely to forfeit (Meisels 2005:174). However it is problematic that other rights and liberties of individuals could be sacrificed for the security of the collective.
It should be noted that this loss of civil liberties would be for society as a whole but would harm, by means of application mostly members of certain groups only. In the instance of terrorism, they are members of particular ethnic and religious minority groups. Cohen provides examples of the negative impact of Canadian security measures against individuals, particularly that of Liban Hussein (Cohen 2002: 3-5). Torture and self-incrimination did not occur but other detrimental effects did (Cohen 2002: 3-5). Though racial profiling is not an official method, it invariably will occur due to the nature of the perceived threats and the perception of who poses said threats.
The balance towards security would be unfavourable mainly to certain groups whereas the balance towards liberty would be equal in its effects. Allowing for lessening of rights as per privacy for example would likely target certain groups rather than society as a whole. Lending credence to the latter form of balance is the failure of present security methods in being successful in their aims. Racial profiling has been documented to have little or no benefit to security measures and to have had negatively effected civil liberties (Anon 30). Furthermore it perhaps even is a disadvantage to security due to a misuse of resources based on misconceptions about minorities and the perceived threats (Anon 29).
Additionally by declaring “war” on terrorism, there is a lesser reluctance to sacrificing liberties for the sake of security. Huddy et al. discuss research as per a greater support for government policies even those that diminish liberties when a threat is felt to national security (Huddy 2007: 132). Not only does this support extend to foreign policy but also domestic policy in terms of ensuring security by targeting certain groups and lessening their rights (Huddy 2007: 132, 150). The shift to security on the balance spectrum as discussed almost invariably harms certain groups more than others; this differential application is problematic as it wrongly victimizes members of particular groups and does so without any beneficial results. However the effect of the perceived threats allows for sacrifice of liberties despite the unfavourable results.
Terwilliger et al argue that it is the uncertain and unforeseeable nature of the future that ensures the constitutional rights of governments to undertake security measures (Terwilliger 2005). The rights and abilities are present because of the impossibility to accurately predict the future. Posner seems to argue in a similar tone by stating that it is the failures of past governments who underestimated threats that led to let to events such as Pearl Harbour and September 11 (Posner 2001).
Though this can be interpreted as warranting a sacrifice of some liberties for greater security it can also be interpreted as the opposite. Because of the impossibility of predicting the future, no amount of sacrifice could ever be sufficient for security. On the premise of unpredictability of the future, many civil liberties could be curtailed with little or no beneficial results in terms of security but with much detriment to rights and freedoms.
Justice Jackson is cited as stating, “the US constitution is not a suicide pact”, that in the interests of security, civil liberties may be lessened. One example of such a view would be the use of War Powers during times of a security breach; it would however be temporary in nature with reverting back to the previous state of civil liberties after the threat has ceased. But in the current instance of terrorism where the threat posed is portrayed as always present and being of a clandestine nature, it is questionable how long such a reduction would persist.
If according to Meisels liberties require the presence of security then too much security could essentially reduce many liberties. There would be very little freedoms and rights to cherish and use to one’s benefit if they are no longer guaranteed due to constant threats to security. By making use of fear and insecurities of the citizenry to implement greater security measures, security itself would begin to pose a threat to civil liberties. Rather than being properly balanced, security would become the enemy of civil liberties instead of being the protector and guarantor of such liberties. This would especially be true for those most effected by the measures i.e. due to racial profiling. There would an alteration to rights and freedoms for all to rights and freedoms for only a few. A proper balance would incline more towards rights and freedoms to ensure their protection from strict, unnecessary and discriminatory security measures that have little or no benefit to national security and civil liberties. A preferable balance would ensure liberties and security for all rather than for a few.
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Works Cited:
Anon. “Wrong then, wrong now: Racial profiling before and after September 11, 2001” for Leadership Conference on Civil Rights Education Fund, October 2006, http://www.civilrights.org/publications/reports/racial_profiling/ack.html
Cohen, Stanley. "Liberty and Security - Can We Have Both?" A paper prepared for the conference of the International Society for the Reform of the Criminal Law on “Technology and Its Effects on Criminal Responsibility, Security and Criminal Justice”, Charleston, South Carolina, December 10, 2002.
Huddy, Leonie et al. “The Political Consequences of Perceived Threat and Felt Insecurity” in The Annals of the American Academy, vol. 614, November 2007, pp. 131-153
Meisels, Tamar. "How Terrorism Upsets Liberty", Political Studies, vol. 53, no. 1(2005), pp. 162-181.
Posner, Richard. "Security Versus Civil Liberties," Atlantic Monthly, vol. 288, no. 5 (December 2001), pp. 46-8
Terwilliger, George et al. “The War on Terrorism: Law Enforcement or National Security?” for The Federalist Society, February 15, 2005, < http://www.fed-soc.org/publications/pubID.107/pub_detail.asp>
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