How Terrorism Upsets Liberty
| Date | 01 March 2005 |
| DOI | 10.1111/j.1467-9248.2005.00522.x |
| Published date | 01 March 2005 |
| Subject Matter | Article |
How Terrorism Upsets Liberty
Tamar Meisels
Tel-Aviv University
As terrorism increasingly penetrates Western democracies, liberals and libertarians are obliged to
ask themselves whether contending with it justifies restricting civil liberty and, if so, to what
extent. Neither personal security nor individual liberty is ever fully realised – both are a matter of
degree – and they are often perceived as being at odds with each other. Hence it has been sug-
gested that we reconsider the existing trade-off between them, or reassess their ‘rate of exchange’.
While such questions are sometimes raised by left-leaning liberals, they are in fact particularly
acute for liberals on the right, or libertarians, who would normally resist any increase in govern-
ment intervention. Right-wingers who advocate ‘hands off’ policies on all other occasions now
call for an increase in government intervention as regards security measures. Many left-liberals,
on the other hand, are reluctant to concede any further power to the state in order to combat
terrorism.
This paper explores the issue of whether increased terrorist threats require a
diminution in liberty rights as the price of security.1In the USA many of the aggres-
sive measures against terrorism taken by the Bush administration since 9/11, such
as The Patriot Act, have stirred considerable debate about ‘striking a new balance
between security and liberty’. I begin by discussing Jeremy Waldron’s reservations
about this notion of ‘striking a new balance’, and join him in calling into question
the applicability of the balance metaphor. Instead, I suggest that when considering
a reduction in civil liberties in exchange for greater safety we should think in terms
of a theoretical social contract determining the relation between security and
liberty under different circumstances. On classical contractarian assumptions,
the contract is entered precisely for security reasons. There can therefore be no
balance, since personal safety is a prerequisite of liberty. The paper concludes by
discussing which readjustments of civil liberties might be acceptable and which
would not.
The Image of Balance
In his ‘Security and Liberty: An Image of Balance’, Jeremy Waldron cautions
against a recent trend in political rhetoric that calls for striking a new balance, as
it were, between security and liberty in the wake of 9/11. Though he refrains from
offering totally conclusive judgments, he points to some serious problems with this
common argument, which advocates downgrading civil liberties in view of height-
ened security threats (Waldron, 2003). For non-utilitarians of the Rawls, Dworkin,
or Nozick type, he explains, rights appear practically impervious to social utility
arguments of this contemporary type (Waldron, 2003, pp. 196–8). If one accords
liberty lexical priority over social goods, or regards rights as ‘trumps’ or side
POLITICAL STUDIES: 2005 VOL 53, 162–181
© Political Studies Association, 2005.
Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
HOW TERRORISM UPSETS LIBERTY 163
constraints, then rights may be overridden only under very special circumstances
– primarily when this is necessary to protect the rights of others (Waldron, 2003,
pp. 197–8). On these accounts, security interests can justify a curtailment of liberty
if security itself is construed as an individual right, whose protection may at times
necessitate overriding liberty rights (Waldron, 2003, p. 198). No one, after all, con-
ceives of individual rights as altogether absolute. Nevertheless, Waldron points out
that, even if we concede security the status of a right, the curtailment of liberty
demands far weightier and more structured supporting arguments than are com-
monly supplied by the advocates of ‘striking a new balance’ between liberty and
security in the post 9/11 US. On a practical level, such arguments would have to
show that the abridgment of rights in question would indeed result in a substan-
tial increase in individual security. The need to ‘do something’ for symbolic pur-
poses or to pacify an outraged public or satisfy psychological distress cannot justify
the curtailment of liberty (Waldron, 2003, pp. 208–10). On a more theoretical level,
proponents of the balancing argument cannot assume that their proposal can be
understood straightforwardly in a near-literal sense that implies a simple equation
between liberty and security (Waldron, 2003, pp. 192–4, throughout). Arguments
favoring an abrogation of rights need to address the special nature of the rights in
question and the ordered priorities of moral theory, and to pay special attention to
all the intricacies of various possible relations between one person’s rights and
another’s (Waldron, 2003, p. 200).
Beyond this, Waldron draws our attention to two troubling features of restricting
civil liberties in the name of combating terror. The first concerns the distribution
of liberty; the second concerns the traditional liberal fear of government. First:
‘Though we may talk of balancing our liberties against our security ... the real
diminution in liberty may affect some people more than others’ (Waldron, 2003,
p. 194, my emphasis). At least as regards the curtailment of procedural rights – for
example those that concern arrests, wire tapping, or investigations – the recent
diminution of liberty in the US already applies more to alien residents than to US
citizens and permanent residents. Furthermore, any future curtailment of civil lib-
erties as a response to 9/11 is bound to affect ‘members of a fairly visible ethnic
group’ (i.e. Arabs) far more than other US residents (Waldron, 2003, pp. 200–4).
Similarly, in any other ethnically mixed society the effects of restricting civil rights
in the hope of apprehending more terrorists are likely to be distributed unequally.
‘So ... justice requires that we pay special attention to the distributive character of
the changes that are proposed and to the possibility that the change involves in
effect, a proposal to trade off the liberties of the few against the security of the
majority’ (Waldron, 2003, p. 194).
A second reason to worry about abdicating any of our civil liberties in exchange
for more security is that reducing liberty means increasing government power, and
this is traditionally cause for liberal concern. ‘The protection of civil liberties is not
just a matter of cherishing certain freedoms that we particularly value. It is also a
matter of suspicion of power, an apprehension that power given to the state is
seldom ever used only for the purposes for which it is given, but is always and
endemically liable to abuse’ (Waldron, 2003, p. 205). Liberalism, says Waldron, is
born at least in part of ‘apprehension about what may be done to us using the
overwhelming means of force available to the state’. Following Judith Sklar, he
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