Post 9/11

Trading-off Civil Liberties

P Arun

The opening of twentyfirst century began with a major terrorist attack in World Trade Centre and Pentagon on September 11, 2001 which created a precarious situation around the world. It led to seismic changes around the world by introducing new anti-terror laws which also unveiled new techniques for interception and massive infrastructure of surveillance in the form of keeping tabs on electronic traces of its population to counter terrorism.

Those several legal changes occurred within a decade, which David Jenkins called as a "long decade" where legal systems evolved in reaction to global terrorism. Several legal scholars have tried to understand the nature of surveillance state, and consequences of counter-terrorism measures upon rights and liberties enshrined under the constitution. It was intense debate which comprised conundrum between security and freedom, though constitution guarantees to protect individual freedom.

Jeremy Waldron in his Torture, Terror, and Trade-Offs (2010) cautions about giving up civil liberties and striking a new balance between liberty and security as he states, "we must be sure that the diminution of the liberty will in fact have the desired consequence". Reducing liberty consequently increases the power of the state, which may be used to cause harm or diminish liberty in other ways. The matter of suspicion of power under the state is seldom ever used only for emergency purposes and always liable to abuse. Instead of trading off liberties for purely symbolic purposes and a consequential gain, there should be assessments about the effectiveness of such trade-offs.

Waldron who revealed the image of balance between liberty and security, and concerns about consequentialism, received stark criticism as merely reflecting the institutional and causal hypothesis about political psychology and its effects on policy making by Adrian Vermeule and Eric Posner. Both scholars in their book Terror in the Balance: Security, Liberty and the Courts (2007) advance a trade-off thesis between security and liberty. They draw example from 9/11 Commission report which found that more aggressive screening and profiling at immigration points could have prevented the attacks. Therefore, they argue that both security and liberty are valuable goods that contribute to individual well-being or welfare, and neither good can simply be maximized without regard to the other. It is a prerequisite that in order to increase security, liberty requires to be restricted. One of the characteristics of emergencies or terrorist attacks is the defensive measures where the government opts to increase intelligence gathering and monitoring. Also, during such period the executive which is swift and vigorous get the institutional advantages along with their secrecy and decisiveness. In contrast, the judges are at sea and the evolved legal rules seem inapposite and even obstructive possessing limited information and limited expertise.

The post-9/11 hysteria also struck Richard Posner who contends in his Not a Suicide Pact : The Constitution in Time of National Emergency (2006) that rights should be modified according to circumstances and there must be a pragmatic balance between personal liberty and community safety. He argues that "if we do not allow the Constitution to bend, it may break". He finds the direct connection between liberty and security as there is an automatic direct balance between them—a 'fluid hydraulic balance'. It shifts continually as threats to liberty and safety were on the wane. He contemptuously disdains civil libertarians and sees the fundamental rights of liberty and privacy as 'mischievously' blocking appropriate national security measures. According to him, "privacy is the terrorist's best friend" therefore, the government has a compelling need to exploit digitization in defence of national security. The dangers of data mining such as leaks should be prevented through sanctions and other security measures to minimize the leakage of such information outside the community of national security.

The trade-off thesis sees the balance between security and liberty as a zero-sum trade-off. However, Daniel Solove finds this argument as completely flawed and argues in his book Nothing to Hide: The False Tradeoff between Privacy and Security, that the balance between privacy and security is rarely assessed properly. Instead he argues that the real balance should be between "security measure with oversight" and "regulation and security measure at the sole discretion of executive officials".

Particularly in the US and the West in general, the role and responsibility of judiciary in times of counter-terrorism and surveillance is considered to be crucial despite criticisms from few quarters, it is held as the guardian of constitutionalism and human rights. Martin Scheinin holds that it is judiciary inherent constitutional responsibility to protect procedural fairness against government limitations by strengthening judicial review and in order to play a greater role it needs to counter 'pull of deferentialism' which erodes the particular responsibility of judges. In this scenario one of the fundamental problems, that judiciary around the world and particularly in India it is confronting to balance security and freedom.

In India, the concept of freedom does not merely revolve around providing security from potential terrorist attacks, which were actually addressed by several legislative reforms and introducing technologies of surveillance. Rather, it also involves freedom to access welfare schemes and entitlements, freedom from misgovernance and corruption. With this idea, the grand bio-metric identification projects were initiated. However, such an idea diluted the notion of privacy because there is a general agreement that there is 'nothing to hide' and that it is a "false trade" off of privacy in the name of welfare. In this context, it is not merely revolving around balancing thesis or trade-off thesis on 'national security vs. individual privacy,' but it is also about 'entitlements' and 'citizenship' as being identified as members of the state.

Aftermath of 15 years of September 11, 2001 the major dissonance revolving around security and liberty in this era of global terrorism. The response from democratic regimes is quite alarming and raises several questions on nature of surveillance and democracy in this twenty-first century. The question revolves around the conundrum to fight against terrorism under the liberal constitutional framework or by trading-off civil liberties which are protected under the liberal democracy.

Vol. 49, No.17, Oct 30 - Nov 5, 2016