By Arun Arya:
The 21st century began with a major terrorist attack on the World Trade Center and Pentagon on September 11, 2001. It created a precarious situation around the world. It led to seismic changes as new anti-terror laws were formulated. New techniques for intercepting information and massive infrastructure of surveillance in the form of keeping tabs on electronic traces of its population to counter terrorism took place.
Formulation of such laws occurred within a decade. David Jenkins has referred to it as the ‘long decade‘, where legal systems evolved in reaction to global terrorism. Several legal scholars have tried to understand the nature of the surveillance state and the consequences of counter terrorism measures upon the rights and liberties enshrined in the constitution. Intense debates took place amongst legal scholars around the conundrum between ‘security and freedom.’
Jeremy Waldron warns about giving up our civil liberties and striking a new balance between liberty and security as he writes, “We must be sure that the diminution of the liberty will, in fact, have the desired consequence- or if the desired reduction in risk is only probable, not certain, then we must be as clear as we can about the probability.” Reducing liberty consequently increases the power of the state, which may be used to cause harm or diminish liberty in other ways. Such power in the hands of the state is seldom used only for emergency purposes and is always liable to abuse. Instead of trading off liberties for purely symbolic purposes, there should be assessments about the effectiveness of such trade-offs.
Waldron revealed the ‘image of balance between liberty and security,’ and the concerns about consequentialism. It received stark criticism from Adrian Vermeule and Eric Posner and it was said to be merely reflecting the institutional and causal hypothesis between political psychology and its effects on policymaking. Both scholars advocate a trade-off thesis between security and liberty. They draw examples from the 9/11 Commission report which claimed 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 and welfare, and neither good can simply be maximised without the other. Restriction of liberty is a prerequisite to increasing security, One of the characteristics of emergencies or terrorist attacks are the defensive measures where the government opts to increase intelligence gathering and monitoring. Also, on such occasions, the executive, which is swift and vigorous gets institutional advantages along with secrecy and decisiveness. In contrast, the judges are at sea and the evolved legal rules are seens as obstructive and possessing limited information and limited expertise.
The post-9/11 hysteria also struck Richard Posner. He contends that rights should be modified according to circumstances and that we must find 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 wax and 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” and the government must exploit digitisation in defence of national security. The dangers of data mining such as leaks should be prevented through sanctions and other security measures to minimise the leakage of such information outside the community involved in providing 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 completely flawed and argues 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”.
In the United States of America 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 a few quarters. It is held as the guardian of constitution and human rights. Martin Scheinin argues that it is the judiciary whose inherent constitutional responsibility is to protect procedural fairness against government limitations by strengthening judicial review. 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 is confronting is how to strike a 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 by the introduction of technologies of surveillance. Rather, it also involves freedom to access welfare schemes and entitlements, freedom from misgovernance and corruption. With this idea, the grand biometric identification project was 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.
In the aftermath of 15 years of September 11, 2001, there is 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 liberal democracy.