Financial Times
Published: March 11 2005
George W. Bush's administration struts the international stage in the shadow of Guantánamo. Tony Blair's government is assailed for discarding Britain's ancient freedoms. Liberty and security. Citizens of liberal democracies take both for granted. Yet civil rights and public safety have often seemed in angry conflict since the fall of New York's twin towers on September 11 2001. Today Spain marks the anniversary of last year's bombing of Madrid. Intelligence agencies across Europe are on high alert. The question, though, still poses itself. What price due judicial process against the danger of new, and perhaps even more deadly, attacks?
As the debate has unfolded absolutists have seized the comfortable chairs. Governments, privy to secret intelligence denied to their citizens, claim a monopoly of wisdom. Their duty is to protect the state. If that requires some erosion of individual liberties, so be it. Freedom rests on security. Unspoken is the fact that politicians also need an alibi. Another outrage and voters will punish brutally any leader deemed to have been soft.
On the other side of the barricades stand the guardians of our liberties: good parliamentarians, human rights lawyers, pressure groups in the noble cause of resisting creeping state tyranny. Purists among them dismiss the idea of a balance to be struck between freedom and security. The former is the handmaiden of the latter. Rights are absolute. To interfere with them is to cede victory to terrorists.
Many of the rest of us find ourselves somewhere in no-man's land. We expect political leaders to do all that is required in our defence. We can see that al-Qaeda represents an unprecedented threat. If the Iraq war taught us that intelligence agencies are fallible, there is abundant evidence of the terrorists' intent. Yet we rightly cherish our liberties. Democracy rests on more than occasional visits to the polling station. Without the rule of law, votes are worthless. And the rule of law demands fair judicial process. We want security and freedom.
It gets more complicated. The politicians who tell us that people must sometimes be detained without proper recourse to the courts are not all tyrants. Our legal systems and their standards of proof were not designed for people plotting to kill themselves in the cause of murdering innocents. Yet the consequences of anti-terrorist measures may be perverse. Arbitrary justice will heighten the alienation of the communities in which the extremists trawl for recruits.
If most of the above seems obvious enough, I have rehearsed it because these awkward realities seem too often lost in an argument conducted from its two extremes. The truth is that it is much easier to see when governments have got the balance wrong than to calibrate the scales ourselves. However carefully we think about it today, the calculations would probably not survive a new atrocity tomorrow.
In the US, the balance has tilted unequivocally towards security. Understandably so. America was, and is, the principal target of Islamist terrorism. Al-Qaeda's murderous attack on the US homeland on September 11 2001 delivered a profound shock to the national psyche. America sees itself as at war, and has invested in Mr Bush's administration extraordinary powers to fight that war.
Yet for all that the reaction is explicable, America has paid a heavy price for the suspension of civil liberties. Guantánamo, and secret facilities elsewhere, were established to put suspects beyond the reach of the US constitution. The despatch of alleged terrorists to regimes practised in torture - known as "rendition" - and the clandestine activities of the CIA have the same purpose. In the eyes of much of the rest of the world the effect has been to rob the US of the moral high ground, to demean its democracy and to undermine its mission of spreading freedom.
How can Mr Bush denounce the tyranny of the Syrian regime and then allow the CIA to send people to be tortured in Damascus? How can the US administration uphold freedom and the rule of law as universal values and then fight in its own courts to deny the basic principles of justice to those detained indefinitely in the legal black hole of Guantánamo?
I have heard American friends say such draconian measures are proportionate to the threat. But I am not sure they appreciate how badly America's standing and influence has been tarnished, above all by the distinction made between US citizens and foreign nationals. If rights are universal, they are universal.
The controversy that has raged in Britain in recent weeks over new terrorist legislation is of a different order. There is no British Guantánamo, and the courts have already ruled illegal the detention without trial of a small number of foreign nationals. The government intends to introduce restrictions on movement, curfews and other controls on those suspected of aiding and abetting terrorism.
The principles at stake, though, are much the same. Mr Blair has himself to blame for the furore. He seems to prefer populist applause over civil liberties. Though a lawyer by training, he has always been careless of the vital distinction between the rule of law and the laws passed by any particular administration.
The government's original proposal that the executive (rather than the courts) be given authority to limit freedoms on the grounds of "reasonable suspicion" offends against all rules of justice.
Some of the worst aspects of the proposed legislation have been ameliorated by the insistence of the House of Lords on judicial oversight. Buteven if Mr Blair is acting on the advice of his intelligence chiefs, the proposals still curtail civil liberties. The suspicion lingers that they are a first rather than a last resort, as much as anything a device for the government to insulate itself from the political fallout from the attack it fears.
Amid such conflicts, citizens should start from a position of scepticism. However good the intentions of intelligence agencies and politicians, they will always have an incentive to prefer security over liberty. Yet the other side of this coin must be a willingness to admit that governments face real dilemmas. Respect for due process might sometimes hand advantage to the terrorists. The cost of preserving liberty may then be counted in the loss of innocent lives. If we expect the politicians to prize liberty above security, we must be willing also to accept the consequences.