Terror versus Liberty: Lucia Zedner On Subjecting Security Concerns To Ethical Standards of Criminal Justice
‘Security measures we welcome today may in time be turned against us.’
In Securing Liberty In The Face Of Terror, Lucia Zedner not only highlights the fault lines of ‘balancing’ security response to terror and liberty but also argues for subjecting counter-terror policies to the procedural protections long established in criminal law.
Zedner aims to highlight the perils of balancing which has dominated the discourse on how to tackle security concerns that terrorism poses while giving due recognition to civil liberties. She argues that the balancing approach creates a binary opposition of liberty and security which then obscures the complex issues that come into play while addressing liberty and security concerns. She says:
‘Balancing is presented as a zero-sum game in which more of one necessarily means less of the other. Achieving a balance is put forward `as if it were self-evidently a worthy and respectable goal’ whereas, as Ashworth argues, it might properly be regarded as `a rhetorical device of which one must be extremely wary’. Although beloved of constitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake’
Zedner then goes on to explain as to what tips this balance, in whose interest, and what lies in the scales. She argues that even when it is not made explicit, the claims of ‘public interest’ or ‘national security’, which are often presented as us versus them, mostly end up winning over individual claims to liberty:
‘What criminal justice legislation makes explicit, anti-terrorist legislation
tends to obscure under the claim that pursuing security is of universal benefit. But since it is a necessary presumption of security measures that there are those who threaten, it follows that some stand within the orbit of protection and some are excluded. Given that sectional interests lurk below the surface of any claim to balance competing goods, we need in every case to ask not only what but whose interests we are weighing.’
It is also highlighted that these security measures are not only focused on enemy combatants, but they can also end up curtailing the liberties of other individuals by arguing that their welfare must also lie in the aggregate interest of promoting security; asking innocent people to comply with demands for arrest, surveillance or interrogation.
This is where criminal justice helps us in scrutinising as to what exactly are we trying to balance, and how and why certain values and interests must be included, and in which context. By explaining the objective (hypothetical state of absolute security) and subjective (psychological state independent of objective threat) conditions of security, Zedner argues that security is such a slippery and open-ended concept that assurance of liberty should work as a powerful counterweight to it:
‘The deployment of security as a pursuit is potentially hazardous therefore because it presumes an endless quest, which must continually anticipate and forestall the next challenge by pre-emptive measures. Security becomes a moving target. Attempts to reach it are liable to a ratcheting-up effect, or what Gross calls `increasing dosages’, as each new challenge exposes existing vulnerabilities and legitimates the introduction of yet more powerful countermeasures.’
While highlighting the importance of ensuring due process for securing liberty, Zedner goes on to highlight the concerning practice of judicial deferment where judges show a tendency to let the executive decide the matters of security, especially in times of heightened threat. She identifies five sources of this practice of judicial deferment: judges regard decisions pertaining to security as expert matters in which they have no expertise, judges regard decisions concerning security as political matters that require parliamentary accountability, deference to ministerial responsibility, judicial scrutiny is diminished during the time of crisis, and judges are persuaded by the need of ‘public protection’. She says:
‘Taken together, the arguments against deference provide strong grounds for insisting that judges should neither capitulate to political demands for subservience nor allow governments more than a narrow margin within which to enact rigorously justified derogations from adherence to civil liberties. In place of judicial deference, the closest and most critical judicial scrutiny ought to be applied to all derogations… One means of achieving this is to institute a culture of judicial mistrust in which all derogations are regarded as inherently suspect and in need of robust justification.’
Zedner further argues that instead of as but `mice squeaking under the chair in the Home Office, judges should strongly address the matters pertaining to security and work on tipping the balance towards liberty.
Finally, Zendner argues that the established principles of due process in criminal law can be used as criteria to monitor anti-terrorism measures. She says:
‘Using the criminal law renders transparent any attempt to water down these safeguards, not least in respect of the standard of proof. It requires that the offence be clearly specified so that the accused know the nature of the charges laid against them. It requires that any material evidence be admissible in court and, as such, places strict constraints upon the manner in which intelligence is gathered. It requires that the accused be granted access to evidence collected against them, the right to confront witnesses, legal representation, and confidentiality in communications with lawyers.’
Zedner argues that special provisions shall be made to address terror concerns which shall not be mixed with the substantive criminal law or be allowed to percolate into new criminal justice legislation which has a tendency to normalise what was issued as an emergency measure.
Moreover, she argues, to ensure compliance with the principle of due process, such measures that derogate liberty should have statutory backing, should be time-limited, and proportionate to the threat posed to the society:
‘To require that security measures have a firm basis in law, be necessary, proportionate, parsimonious, targeted, and temporary provides a pragmatic basis for delimiting their tendency to erode civil liberties. To be effective this must be coupled with adequate provisions to ensure accountability through independent scrutiny of legislation and continuing external oversight. Finally, to ensure powers are used fairly, a robust set of formal complaints procedures, legal challenge through the appeal system, and provision for redress and remedy need to be added to the mix.’
Lastly, Zedner concludes by emphasising on the need to stop looking at security as an end in itself and rather ask the question — ‘ what do we need the security for?’ This would help in identifying the values and objects that need to be secured — and one such object is liberty itself.
Complement this with Jeremy Waldron on Security and Liberty: The Image of Balance, and Jean Floud on Dangerousness and Criminal Justice
