Justice

In times of emergency we are often told that a state must balance the need to ensure national security against the need to preserve individual liberty and rights. How do we reconcile these often competing interests?

Comments

This is a very important concern in the post-9/11 political world. Still, we need to be clear about the perspective from which we are looking at the problem. One important perspective is that of the government, which has the best available information about the threats to national security (or rather to the legitimate interests contained under this horribly vague and overly capacious label). Another important perspective is that of us citizens. Your use of the word "state" might indicate that you are interested in the former perspective. But your reference to "we" suggests the latter perspective, and so I will read "state" in the sense of "country" rather than "government".

On this reading, the trade-off is really somewhat different from what you suggest. By giving the government exceptional authorities and moral support, we are losing both knowledge and control of whatever trade-offs it makes in our name. For the rights and liberties our government will curtail first and foremost are rights to information. It will understandably and justifiably conceal what it knows about the threats so as to deny our enemies the advantage of knowing how much it knows. And it will understandably but typically unjustifiably conceal its violations of basic rights and liberties.

The problem today is not merely that citizens are being deprived of their rights (as when our phone calls and other communications are being tapped by the government), but also that this is done at the sole discretion of the executive with no one else knowing which of our rights are being disregarded, how frequently, or for what reasons. It is the government's position that it needs to respect our rights only insofar as such respect is, in its judgment, consistent with "national security." The problem today is not merely that people are held for years on end without charge or trial or access to medical or legal help in secret detention facilities spread over perhaps a dozen foreign countries. The problem is also that we citizens do not know how many are being held in this way, who, where, and under what conditions.

We have made a trade-off that deprives us of knowledge of what we have traded off in terms of individual rights and liberties. The photographs from Abu Ghraib, documenting the use of dogs and electric wires, give us some inkling, to be sure. But the government may well succeed in blocking further photographs even while the torture gets worse. And what incentive does it have to bear the embarrassment of releasing innocent prisoners bearing the marks and traumas of years of abuse when the world does not know that it ever detained these people? It is likely that thousands of detainees will never resurface because they are innocent. The preferred alternative solution is rendition. In the words of former CIA officer Robert Baer: "If you send a prisoner, for instance, to Egypt, you will probably never see him again, the same way with Syria."

In conclusion, we have given away, or lost, so much by way of our basic democratic rights and liberties that we are in no position to assess the balancing you query. We have no way of assessing the security benefits we may be deriving from all the secret eavesdropping, detentions, and torture. By allowing the government to do the balancing for us, we citizens have put ourselves completely in the dark. However ignorant, we remain morally responsible of course for what our government then does in our name. I am very doubtful that any gains in security from our being so ignorant are at all significant relative to the unmerited harms our government inflicts in our names. And the idea that our chosen ignorance renders us any less responsible (a popular idea in Germany after World War Two) is, of course, fallacious. We must urgently take back our democratic right to know the basic facts about our government's curtailment of basic rights and liberties. Only then can we begin to think about the balancing you query.

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