How much liberty should we be willing to give up in order to make ourselves safe from terrorist attack? Few deny that some trade-off is necessary. The terrorists who attacked New York and Washington on September 11, 2001, took advantage of the liberties we enjoy and some of those liberties need to be curtailed if other terrorists, following their example, are not also to take advantage of them with similar or even more terrible results.
But trading off liberty against security has a treacherous logic. It beckons us in with easy cases—the trivial amount of freedom restricted when we are made to take our shoes off at the security checkpoint before we board an airplane is the price of an assurance that we will not be blown up by any imitators of Richard Reid. But it is also a logic that has been used to justify spying without a warrant, mass detentions, incarceration without trial, and abusive interrogation. In each case, we are told, some safeguards and rights that were formerly regarded as civil liberties have to be given up in the interests of security. But after a while we start to wonder what security can possibly mean, when so much of what people have struggled to secure in this country—the Constitution, basic human rights, and the rule of law—seems to be going out the window.
When logic betrays us, we have to retrace our steps—sometimes in a fussy and pedantic sort of way. So let’s think carefully about the trade-off between liberty and security. One crucial distinction is between trade-offs involving only our own personal situations and interpersonal trade-offs involving others.
A simple case of a personal trade-off is this. I accept the burden of a legal requirement to wear a seatbelt, restricting my freedom to sit in my car as I like, because I am convinced that this will make me safer, less liable to injury or death in the event of an accident. If we all do this, then each of us is safer though each of us is a little less free. We can think of it as a straightforward trade-off, once we understand what happens to human bodies in automobile collisions. It’s something like buying more potatoes (safety) and less meat (liberty) when we find that meat is more expensive than we thought.
Another similar case, slightly less straightforward, is when we all accept a restriction on liberty not because our own actions pose a threat to our own safety, but because it is possible that some of us may pose a threat to the others and we don’t know who. This is the logic of the airport security system; and it too seems to make innocuous sense. We all accept certain restrictions in the expectation that we will all enjoy greater security. Again, the trade-offs affect our own well-being: each of us bears the cost and each of us reaps the benefits.
Quite different, however, is the interpersonal case, in which we sacrifice not our own liberty but the liberty of a few people in our midst in order that the rest of us may be (or at least feel) more safe. A passenger notices some Muslim men praying before boarding an aircraft. She makes a fuss and the Muslims are removed from the flight.1 Some liberty is lost, and perhaps some security is gained. But the person who gains the security is not the person who lost the liberty. This is utterly unlike the trade-off by which one wears a seat belt in order to gain more security. It’s a different game: a game of majorities and minorities.
It is different but of course it’s not unusual. For there are winners and losers all the time in politics: a new highway benefits some restaurant owners at the expense of others whose establishments languish boarded up along the route of the old road. But the stakes are much higher in the trade-off between liberty and security. For what is traded off in that case is not just economic interests or mundane freedoms, like the freedom to drive without a seatbelt. Often what is traded off is something that was previously regarded as a right, and the loss of that right may simply be imposed on the people affected. Members of a minority are detained without trial, or spied upon, or beaten or humiliated during an interrogation, and all to make the rest of us more secure. This is troubling because rights are supposed to be guarantees given to individuals and minorities about the outer limits of the sacrifices that might reasonably be required of them. Rights are supposed to restrict trade-offs, not be traded off themselves.
David Cole is a professor of law at Georgetown University, a legal affairs correspondent for The Nation, and a frequent commentator on constitutional and civil liberties issues on public radio and television. Very early on in the discussion of these matters he distinguished himself by refusing to accept the bromide that we were all giving up some of our freedom in order to make all of us more safe. At the end of 2002, Cole published a short piece in the Boston Review entitled “Their Liberties, Our Security,” which traced not just the unequal impact but the discriminatory intention of many of the liberty-affecting measures imposed after September 11.2
Cole focused particularly on the Justice Department’s preventive detention of thousands of young men of Arab and Muslim descent living in the United States in 2001 and 2002, and its enactment of a new regulation extending the time they could be held and interrogated before they had to be charged or released. Cole reminded his readers that the Constitution does not permit detention for purely investigatory purposes. But we gave up this protection for men whose religion, ethnicity, or appearance reminded us of the September 11 hijackers, imposing on an entire class of residents who were not citizens deprivations of rights that we would not tolerate if they were imposed on ourselves. “As a way of striking the difficult balance between liberty and security,” said Cole in his article, “sacrificing foreign citizens’ liberties is undoubtedly tempting…. We can avoid the difficult trade-offs, and have our security and our liberty, too.”
The title of a new book that he has written with Jules Lobel, a professor of law at the University of Pittsburgh, suggests that Professor Cole now wants to take this analysis a step or two further. Less Safe, Less Free argues that the trade-off is not just unprincipled and unequal, but a fraud. We sell our freedom (or someone’s freedom) to make ourselves safer, but it turns out that we are worse off in regard to safety than we would have been without the trade. It is as though we gave up the meat (or someone’s meat) without getting any more potatoes.
Even here, it is necessary to proceed carefully with this treacherous talk of trade-offs. Earlier we asked: “Whose freedom is being sacrificed?” Now, as we assess the argument of Less Safe, Less Free, we have to ask, “And who, exactly, is turning out to be less safe?”
For it is not only the liberty of a minority that is affected by measures taken to combat terrorism. Sometimes their personal safety is affected as well. On July 22, 2005, a Brazilian electrician, Jean Charles de Menezes, was shot dead by police officers in Stockwell tube station on the London Underground. Those who shot him said they thought he looked and acted like one of the terrorist suspects they were watching in anticipation of a possible repetition of the attacks in London earlier that month. But Mr. Menezes was not a terrorist; he was an entirely innocent and legal resident of the United Kingdom, and he was at the time doing nothing that justified firing on him. He was made radically less safe as a result of Britain’s anti-terrorist measures, which included instructions to police to use deadly force to prevent perceived terrorist activity.
The same can be said about those who have been beaten and tortured—some beaten and tortured to death3—by American security forces. The infliction of pain during interrogation renders a person not just less free—though he has to be made unfree (held down) in order to be tortured—but less safe, less secure in a very straightforward sense. The security that we all crave is security against violent attack, but that is exactly what many people lose when they are imprisoned in Guantánamo Bay or in “black” US prisons in Eastern Europe, or when they are “rendered” by US agents to countries like Syria for torture by foreign authorities. Their security is sacrificed in order to make the rest of us more safe.
Cole and Lobel begin their book with the story of Maher Arar, a Canadian engineer, innocent of any involvement in terrorism.4 In September 2002, Arar was apprehended at JFK Airport while changing planes for Montreal. He was held for two weeks in Brooklyn while US officials investigated charges that he had ties to al-Qaeda. Then, while his lawyer was lied to about his whereabouts, Arar was flown on a US government–chartered jet to Jordan and driven to Syria, imprisoned there for a year in a grave-like cell, and tortured by Syrian authorities (for several days beaten for hours with a frayed electrical cable).
The former US attorney general Alberto Gonzales has said that there were assurances from Syria that Arar would not be tortured. But this is very odd. We don’t trust the Syrians’ word on anything else and had the administration wanted to ensure that Arar’s deportation would not result in his torture, they could have sent him to Canada, whose passport he held and where he resided as a citizen. As Cole and Lobel point out, the only conceivable reason for sending Arar to Syria was so that he would be tortured, and tortured in circumstances where no legal recourse was possible.
People like Maher Arar and hundreds of others who have been abused by our interrogators are not more secure from terror as a result of the Bush administration’s security strategy. On the contrary, they are terrorized by us: their terror has been instrumentalized by officials of our government supposedly for our benefit. We may be more secure as a result, but it is a shameful thing to know that our safety has been purchased on the back of a waterboard or at the end of a frayed electrical cable.
But Cole and Lobel go further than this in questioning the security side of the liberty–security trade-off. Apart from the people who have suffered pain and death at the hands of the American authorities, is it even true that the rest of us are safer as a result of these measures?
"Six Muslims Removed from Plane Claim Discrimination, Call for Boycott," Chicago Tribune, November 22, 2006.↩
Boston Review, December 2002/January 2003. This piece was later republished in David Cole's book Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003), reviewed in these pages by Anthony Lewis, October 23, 2003.↩
"In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths," The New York Times, May 20, 2005.↩
“Six Muslims Removed from Plane Claim Discrimination, Call for Boycott,” Chicago Tribune, November 22, 2006.↩
Boston Review, December 2002/January 2003. This piece was later republished in David Cole’s book Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003), reviewed in these pages by Anthony Lewis, October 23, 2003.↩
“In U.S. Report, Brutal Details of 2 Afghan Inmates’ Deaths,” The New York Times, May 20, 2005.↩