Introduction: Security and Human Rights: The Search for a Language of Reconciliation

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Introduction Security and Human Rights: The Search for a Language of Reconciliation

LIORA LAZARUS and BENJAMIN J GOOLD

THE ATTAINMENT OF security and the protection of human rights are not necessarily antithetical, either as a matter of fact or principle. Nevertheless, since 9/11 the words ‘security’ and ‘human rights’ have, in the collective imagination, now come to connote an almost insuperable opposition. Anyone who engages in the debate over security and human rights is almost immediately confronted by this dichotomy, tacit in the political call for a ‘new balance’ and explicit in newspaper editorials calling for the retreat from human rights. Prompted by the urgency or supposed ‘exceptionalism’ of our times, politicians, judges and intellectuals are all addressing the central dilemma of this dichotomy: how are we to protect freedom (through security) without denying its essence (by violating human rights)? For liberals, the search for a new language of reconciliation between security and human rights has arguably become one of their most urgent intellectual challenges. Indeed, there is a growing sense in the academy internationally that the stakes of the thoughts and arguments on this question have been raised.¹

The challenge of how best to safeguard freedom and democracy without squandering them is not simply a product of the threats arising out of 9/11 (or perceptions of them). It is a challenge that has always existed at the centre of the liberal democratic enterprise. It is this pursuit that animates democratic politics, and the tension that spurs its philosophical refinement. Moreover, if we are to remain squarely within the liberal democratic tradition, many would argue that security and human rights must be reconciled.² National and individual security strikes at the heart of sovereignty: the capacity to maintain security, and demonstrably so, is a litmus test of the functionality of the modern state.

From both Lockean and Kantian perspectives, what distinguishes a liberal democracy from a totalitarian state is that the attainment of security through the exercise of democratic sovereignty is justified ultimately by the pursuit of liberty (which itself cannot be exercised in conditions of grave insecurity).³ Human rights, as positive articulations of the constituents of liberty, are the benchmark by which liberal democracies are judged. Constitutions, parliaments and courts act to protect them and to constrain the executive’s overweening assertions of authority. Security as the precondition for liberty, and human rights as the constituents of liberty, are thus both inherent parts of the broader liberal democratic project:

[W]e must find ways of reconciling security with liberty, since the success of one helps the other. The choice between security and liberty is a false choice … Our history has shown us that insecurity threatens liberty. Yet if our liberties are curtailed, we lose the values that we are struggling to defend.⁴

Given the evident relationship between the maintenance of security and the preservation of rights within the liberal tradition, we might well ask why a language of reconciliation has become so politically elusive. If it is not the case that the pursuit of security and respect for human rights are necessarily irreconcilable, is the tension between the two a product of our collective inability to agree on a set of assumptions, terms and rules for discussion? Or have the rules of the game, or at least the rules of the debate, really changed?

I. SECURITY, RIGHTS AND THE ‘NEW NORMALCY’

A time of terror may not be the ideal moment to trifle with the most time-tested postulates of government under law. It is certainly not a good time to dispense lightly with bedrock principles of our constitutional system.⁵

Despite the wisdom of Katyal and Tribe’s warning, the claim that 9/11 ushered in an era of ongoing emergency that demands fundamental political, legal and constitutional reordering has acquired a seemingly irresistible currency. We are, it is said, in a continuing ‘state of exception’,⁶ the end of which, due to the nature of the super-terrorist threat,⁷ we cannot identify. In short, what was previously viewed as the exception, a time of unprecedented crisis calling for appropriately exceptional measures, has now become the norm. The claim is not the preserve of only neo-conservative US politicians, such as Vice President Dick Cheney, who argue that ‘emergency is the “new normalcy”’.⁸ Supposedly left-wing European leaders also argue that the ‘rules of the game have changed’.⁹ Similarly, the idea that we are facing the ‘normalization of emergency conditions’¹⁰ and that the ‘age of terror’ calls for unprecedented measures is now taken increasingly seriously within the academy across an ever-extending range of the political spectrum.¹¹ Even those more sceptical of these exceptionalist claims recognise that ‘there seems to be a general acceptance in the wake of the terrorist attacks of September 11, 2001 that some adjustment in our scheme of civil liberties is inevitable’.¹²

Such is the currency of these propositions that previously marginal arguments have become plausible, while positions that formerly attracted a broad political consensus have come to be seen as naïve or passé. In this environment, Michael Ignatieff’s promotion of ‘lesser evils’,¹³ Alan Dershowitz’s support for the legal regulation of torture,¹⁴ Oren Gross’s endorsement of transparent illegality¹⁵ and Bruce Ackerman’s endorsement of ‘suspicionless’ preventative detention under an ‘emergency constitution’¹⁶ have become the central arguments with which we must engage.

Whereas 10 years ago such arguments might have settled at the fringes of scholastic debate, the shoe is now very much on the other foot: constitutional and international human rights once claimed a privileged moral status, their limitation always requiring justification; but claims to security now appear to receive less scrutiny than the assertion of rights that may restrict measures in its pursuit. Whatever the empirical merits of the argument that we have entered an ‘age of exception’—and it is far from clear how one would ever prove this—one thing is becoming apparent: the claim is shifting the foundations of political and constitutional debate. It has become the tacit challenge against which we must formulate our propositions.

As a consequence of the status of the perpetual emergency claim and statements about the uniqueness of our present conditions, those who claim that we already have the structures and institutions in place to deal with the threat at hand¹⁷ risk being accused of a blind adherence to absolutism, perfection or idealism.¹⁸ According to Ignatieff, for example,

the belief that our existing rights and guarantees should never be suspended is a piece of moral perfectionism … To claim that there are no lesser evil choices to be made is to take refuge in the illusion that the threat of terrorism is exaggerated.¹⁹

Whereas in the past those concerned with questions of security within liberal democracies may have stopped short of calling for the suspension of rights altogether, in the current climate the idea that certain human rights can be ‘turned off’ when necessary has come to be regarded by many as a thoroughly reasonable reaction to the dangers allegedly faced by democratic societies. In effect, the exceptionalism argument has become pivotal, so much so that liberals and human rights organisations must either rebut claims that our conditions are unique, or respond to these supposedly exceptional conditions by adjusting our institutions, practices, procedures and laws:

The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril—the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution—is upon us.²⁰

For many, then, the search for reconciliation between security and human rights is really a search for a language that can claim a purchase on the political, legal and popular imaginations within the existing climate of exceptionalism: a language that engages with the assertion of exceptionalism and the claims of unique crisis, while blunting its worst implications.

Of course, the currency of the exceptionalism claim has deeper social and political roots than the iconic collapse of the New York World Trade Center towers. Two factors in particular underpin the social receptivity of the claim to exceptionalism. The first of these relates to what David Garland and others within the realm of criminal justice have referred to as the emergence of a ‘culture of control’.²¹ According to these writers, late modern states are increasingly characterised by aspirations towards ‘public protection’, the ‘containment of danger’ and the ‘management of risk’, all of which arise out of a perceived and politically exploited condition of social ‘insecurity’.²²

During the late 1980s and throughout the 1990s, as governments began to shift attention away from the elimination of crime—a problem that they had come to regard as insoluble—to strategies aimed at its management and containment, a new discourse emerged about the role of the state. Instead of presenting themselves as primarily responsible for addressing the problem of crime, states instead began focusing on making people feel safer and more secure while also arguing that responsibility for such security had to be shared with institutions and organisations outside of the state realm. Within political discourse, fear of crime and questions of insecurity were elevated in status, so that the pursuit of ‘security’—a term often invoked but rarely defined by politicians—became an overriding social aim.

Insofar as this shift coincided with a gradual surrendering by states of primary responsibility for other important public matters (such as health, transport and education), it contributed to the emergence of a new, neo-liberal conception of government. No longer is the state the unquestioned provider or guarantor of public services or certain accepted social rights, but rather it is one player amongst many. Whether this change was the product of the state’s awareness of its own impotence—its inability to ‘solve’ the problem of crime and other social ills—or an inevitable product of wider changes in governance brought on by the forces of late modernity is open to discussion. Regardless of the reasons behind the shift, the move to disperse responsibility for society’s problems usefully freed politicians from having to answer for many of the failures of modern government. At the same time, however, the admission that the state could no longer be the primary provider of security, despite the political elevation of this aim, also threatened to undermine state legitimacy.

It is in this complex and contradictory neo-liberal political environment that Western political responses to the attacks of 9/11 need to be read. In countries like the United States and the United Kingdom, the threat of super-terrorism starkly exposed the limits of the state’s capacity to provide security for its citizens. But equally, this threat presented governments with a novel opportunity to develop new and powerful rhetorical arguments, in particular the claim to exceptionalism, in favour of increased state power. Seen in this light, the popularity of exceptionalism is a product of a social transformation whereby the legitimacy of late-modern states has become increasingly bound up with their role as the guarantor of security and with a politics of security that seeks both to allay and exploit communal feelings of insecurity and fear.

The second factor underpinning the apparent effectiveness of the exceptionalism argument relates to what we term the ‘politics of rights scepticism’. Alongside the rise of human rights discourse since 1945 and its seeming international ubiquity after the end of the Cold War,²³ there has been a strong philosophical scepticism of the moral foundation of human rights claims and considerable political controversy regarding their judicial and constitutional protection.²⁴ Although human rights have been the benchmark of the liberal democratic ideal, there are deep controversies as to how they should be realised, under what institutional conditions they should be pursued, and which specific rights may be branded as sufficiently fundamental to trump majoritarian desires.

Rights-sceptic arguments are the product variously of republican criticisms of the constitutional and political legitimacy of judicial review;²⁵ pragmatic empiricist, post-modern and conservative rejections of the idealist pretensions of enlightenment rationalism;²⁶ socialist and communitarian objections to the egoistic individualism and atomistic legalism to which rights give rise; left-wing suspicion, particularly in the United Kingdom, of the elite judiciary;²⁷ and critical pragmatic arguments regarding the emancipatory potential of human rights discourse.²⁸ This complex amalgam of political, philosophical and pragmatic objections to human rights has generated a debate internal to rights discourse that has made it particularly vulnerable to the competing and increasingly powerful discourse of security.

In essence, then, two divides need to be bridged if we are to find some way of reconciling the pursuit of security with a respect for fundamental human rights. On the one hand, we must critically engage with the politics of security in late modern states—a politics in which appeals to security are increasingly used by governments and politicians as a rhetorical device for the expansion of state power. This necessitates the development of an understanding and critique of the conditions in which security discourse—and its displacement of liberal values and human rights—occurs. As a number of authors observe in this volume, although much of the current debate over security can be traced to the events of 9/11, many of the arguments and policies that have emerged over the past five years have their origins in longstanding political and social trends. Looked at in this way, the preoccupation with security is best understood as a cipher for a range of diverse concerns, and as such it is crucial that we retain a meta- or sociological perspective on the apparent conflict between rights and security. We must in other words engage with the social phenomenon of security, the social conditions in which security discourse exists and the philosophical foundations of security claims.

Equally, however, we must also address deeper philosophical concerns that strike at the very heart of the human rights project. For it is not so much that security and rights have to be reconciled per se, but rather that the present concern with collective security and the persistent claim to exceptionalism have exposed and heightened a number of fundamental tensions that are inherent to modern liberal democracies. In broaching the question of how to reconcile security and human rights, we are in effect also asking how to balance between the individual and the collective, between the political and the legal, and between political sovereignty and the rule of law. Thus, the pursuit of the mutual attainment of security and human rights since 9/11 has provoked a re-engagement with questions that are central to democratic orders and has peeled back any veneer of political consensus that may have surrounded them. The current fight is then not only about security and rights, it is also about the essential institutional, procedural and substantive principles that we think a legitimate democracy ought to have. Clearly, conservatives, civic republicans, communitarians and classical liberals will all have different answers to what constitutes legitimacy in this context.

In developing a defence of human rights, if we are unable to be clear about why the rule of law matters and why rights are worthy of respect—regardless of the threats of terrorism—then it is unlikely that liberals will be able to resist arguments aimed at curtailing legal safeguards in the name of security or assuaging the fears of the majority. In this pursuit, it is not safe merely to fall back on previously accepted political presumptions. Given the broader context in which this debate is occurring, defenders of rights are correct to be wary of baldly asserting concepts that, in these times, have become question-begging. We have to find new ways of articulating established beliefs and must engage in new theoretical discussion with a sharpened agenda. As Conor Gearty argues,

without a reworking of what the term ‘human rights’ means today, designed to give it contemporary intellectual confidence, some theoretical zest, then the time might come when firing the human rights argument will be greeted neither with warmth nor dismay but rather with blank indifference, or (which is worse) mute incomprehension: whatever can that term mean?²⁹

In other words, if we are properly to defend human rights, we need fully to engage with them.

In attempting to re-enter and realign the debate in this way it is important also to recognise that there are disciplinary as well as political and philosophical divides that must be overcome. Within the academy, different disciplines have developed their own responses to the challenges of security in the years since 9/11, often with little knowledge of or reference to the responses of related fields. While all of these responses, from human rights scholars and practitioners, international lawyers, international relations scholars and criminologists, are important and legitimate, the absence of a shared language, or even a commonly held understanding of the challenge, has perhaps undermined the effectiveness of the liberal response. Partly, this is because of the variance in the questions or pursuits that different disciplines hold as legitimate.

For legal scholars, the defence of the rule of law, legal institutions, the integrity of legal rules and the specificity of rights reasoning feature foremost. For sociologists, criminologists and international relations scholars, on the other hand, questions of the effectiveness of human rights discourse and policy or underlying changes in the social and political landscape may hold centre stage. Hence, this book brings together those disciplines at the forefront of the conflict between rights and security. By encouraging interdisciplinary communication, it is hoped that we can not only learn from each other and gain greater insight into this conflict, but also ensure that we are able both to critique security whilst fully engaging with human rights and to find a collective strategy that is expansive and coherent. While certain disciplines may naturally favour an engagement with either rights or security, it is important that the two approaches overlap. If we are to develop a language of reconciliation between security and human rights—or even simply think about them effectively—then it is important to ensure that those involved in these different debates are aware of each other and to work to enhance the analysis that takes place at the margins and in the overlap between the two.

II. ENGAGING SECURITY

1. A Sociology of Security

When attempting to find a language of reconciliation between security and human rights, or, put another way, when searching for some basis upon which liberals can engage with those who promote the pursuit of security, it is important to return to the question of what is actually at stake. Just as those in favour of increased security and restricting certain rights continue to critique the ‘human rights project’, so too must liberal scholars and rights advocates continue to scrutinise the claims of the security lobby. Although many accounts of the tension between rights and security rightly focus on definitions of torture, the serious dangers of preventative detention and the requirements of a fair trial, the current concern with security must also be seen in terms of longstanding and potentially disturbing structural changes that are taking place in modern society. This volume contains a number of contributions that seek to engage with the claims of the security lobby and to place them within a broader sociological critique.

Ian Loader argues in his chapter that it is important to keep sight of what he refers to as the ‘cultural lives’ of security and rights. He seeks to uncover the social and political conditions that enable the rhetoric of security to override the rhetoric of rights. In particular, Loader examines three examples from English criminal justice politics that pre-date 9/11: miscarriages of justice, public responses to closed-circuit television (CCTV) and the rise of ‘anti-social behaviour orders’ (ASBOs), which are designed to sidestep established procedural protections. By identifying and examining some of the key rhetorical strategies that have been employed by politicians and others, Loader reveals how they are able to ‘mobilise a populist appeal to the idea of security, while presenting rights claims as the concern of remote special interest groups willing to play fast and loose with the safety of their co-citizens’.³⁰ Part of the story rests, Loader suspects, in the general distaste for rights within certain cultures (notably English culture), as well as a political concern that rights undermine collective values by insisting on a division between individuals on the one hand and their communities on the other hand. Aside from the fact that one of Loader’s stated aims is to encourage deeper investigation into the question of how best to advance human rights in this environment, he also contributes to the larger discussion on reconciliation by arguing that such rights must be situated within a ‘solidaristic and egalitarian practice of security’. Security, in the sense that Loader views it, is a central value of the good society—and therefore also rights-regarding.

Like Loader, Benjamin Goold highlights the larger social and political implications of the current drive towards more security. He argues that it is important for us to resist many of these demands—in particular the claim that more and better state surveillance is needed—if we are to preserve our existing concepts of privacy or at least retain some measure of control over the way in which we construct and develop our identities. For Goold, 9/11 is significant because it provides the ongoing expansion of state surveillance in countries like the United States and the United Kingdom with a new, seemingly irrefutable justification, namely the pursuit of security. As a consequence, traditional notions of identity based on narrative understandings of personal development are now under serious threat from an emergent administrative form, the ‘categorical identity’. Although this shift may be less obviously alarming than calls for use of torture or the suspension of the right to a fair trial, it is nonetheless deeply problematic. In particular, Goold’s analysis suggests that the widespread expansion in surveillance that is currently being driven by the rhetoric of security has amplified various underlying, ongoing sociological changes that have made the public increasingly willing to surrender their privacy and submit to demands for greater state power.

In essence, what unites Loader and Goold is an appeal for perspective on the current preoccupation with security and a call for a more textured external critique that recognises that the apparent conflict between security and rights has its origins in deep social and political changes that pre-date 9/11. Whereas Loader points to the broader social and political contexts that shape the cultural lives of security and rights, Goold also asks us to look beyond the immediate dangers of security to larger developments in the role of surveillance in modern democratic states. To a lesser extent, both authors also share a willingness to engage with the practical claims of security, suggesting that the way forward to reconciliation may involve a mixture of approaches, some legal and political, others rhetorical. While not going so far as to endorse a pragmatic response to the politics of security, the chapters by Loader and Goold argue that if liberals are to play an effective part in the public debate over the future of human rights, we must engage with the broader context in which security is being pursued and develop a robust ‘sociology of security’.

2. Exploiting the Language of Risk

If liberals are to resist the worst excesses of security, or at least to be able to respond to its demands, then it is also unavoidable that they will have to engage with the language of risk. One way in which this can be done is, as Bernard Harcourt does in this volume with respect to racial profiling, to test the effectiveness of new counter-terrorism and security measures on their own terms. Harcourt thus turns the rhetoric of security back upon itself, demanding proof that rights-restricting policies or programmes will in fact provide more security. In contrast to liberals who have refused in the past to countenance profiling because of the strong belief that such techniques are by definition discriminatory and therefore simply wrong, Harcourt instead demands that advocates of such methods prove that they in fact work to reduce the threat of terrorism. As he notes, since 9/11 the racial profiling of Muslim men has been advocated by a range of commentators and law enforcement agencies, despite the fact that there ‘is no empirical evidence whatsoever, nor a solid theoretical reason why racial profiling would be an effective measure—rather than a counterproductive step resulting in detrimental substitutions and increased terrorist attacks’.³¹ More disturbingly, Harcourt argues that, far from deterring terrorists, profiling may in fact undermine the legitimacy of other antiterrorism measures and, crucially, ‘encourage the recruitment of terrorists from outside the core profile and the substitution of other terrorist acts’.³²