Securing Liberty in the Face of Terror: Reflections from Criminal Justice

Date01 December 2005
DOIhttp://doi.org/10.1111/j.1467-6478.2005.00336.x
AuthorLucia Zedner
Published date01 December 2005
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 4, DECEMBER 2005
ISSN: 0263-323X, pp. 507±33
Securing Liberty in the Face of Terror:
Reflections from Criminal Justice
Lucia Zedner*
Post-9/11 the equilibrium between security and liberty has been subject
to intense political and philosophical interrogation. The metaphor of
balance, although perilous, is so pervasive as to demand scrutiny of
what lies in the scales, what tips them, and in whose interest. Though
international and constitutional lawyers have dominated the debate
about balance, the experience of criminal just ice suggests that
articulating a principled approach provides greater prospects of
protecting rights against unwarranted erosion. This more modest
approach imposes structural and procedural safeguards through the
twin engines of judicial oversight and unremitting defence of due
process. In this way it may be possible to enhance collective security
against terrorism without diminishing individual security against the
state.
INTRODUCTION
Post 9/11 the pursuit of security against international terrorism poses no
small threat to the very liberties it purports to protect. Legal and political
debate has therefore been dominated by one question: how to balance
security and liberty. The debate has been made newly urgent by the London
bombings of July 2005. This article enters the fray with the modest aim of
interpolating insights, both positive and negative, derived from the everyday
terrain of criminal justice. This disciplinary transfer is a deliberate attempt to
507
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Corpus Christi College, University of Oxford, Oxford OX1 4JF, England
lucia.zedner@law.ox.ac.uk
Sincere thanks for their criticisms and suggestions on earlier drafts to Antony Duff, Lisa
Gourd, Oren Gross, Nicola Lacey, Ian Loader, Liora Lazarus, and James Nickell; the
participants at the Colloquium on the Moral and Legal Aspects of Terrorism, Oxford,
March 2005, in particular Timothy Endicott, John Tasioulas, and Adam Tomkins; and the
anonymous reviewers of this journal. I am also very grateful to the British Academy for
the two-year Research Readership during which this article was written.
lower the pitch of the debate from one about `winning the war on terror' to
the proper way to proceed against those suspected of wrongdoing, however
serious. A subsidiary motive is to insulate the criminal process itself from the
risk that its values will in turn be diluted by the normalization of measures
developed in respect of terrorism.
The perils and promise of balance as a metaphor for the relationship
between security and liberty can also be clearly seen in parallel debates in
criminal justice. Critical scrutiny of the ways in which the concept of balance
has been deployed in the sphere of criminal justice reveals its limitations and
potential for abuse but also its residual merits as a means of teasing out what
is in play. It discloses further questions about what goods we value, what we
are weighing, in whose interests, and with what consequences. This process
of clarification reveals complex issues in play that are obscured by the binary
opposition of liberty and security.
If recourse to criminal justice reveals the perils of balancing, it also
provides an alternate or principled approach to resolving the tensions
between security and liberty. As Ashworth has argued:
Rather than discussing a `balance' at each stage of the process, this approach
would be to meet the challenge of ensuring or maximizing respect for rights
with a minimum loss of convictions of the guilty.
1
The principled approach relies upon the incorporation into domestic law of
clearly enunciated rights, safeguarded through rules of procedure and evid-
ence, and asserted where necessary by legal challenge through the courts.
The larger emergence of a human rights culture devoted to their protection,
and the insistence that fundamental rights are in principle non-derogable, has
the capacity to delimit security measures that might otherwise violate basic
freedoms.
Yet the issues are more complicated than a blunt assertion of rights
suggests. The possibility of derogating from fundamental rights in excep-
tional circumstances is recognized even by rights absolutists. The scope for
derogation in respect of lesser rights raises the question when, why, and in
what degree departure is permissible. In respect of conflicts of rights, the
need to weigh competing claims is difficult to avoid. The principled
approach presupposes a willingness to contemplate acquitting the guilty in
order to preserve the integrity of the process. When acquittal raises the risk
of catastrophic terrorist attack, this prospect is more than usually contro-
versial. Critics argue that although a principled approach is ordinarily
defensible, these are not normal times and that in war different sensibilities
must apply. This article critically examines the claim as to war and the perils
of abandoning due process rights for those who are cast as `enemy
combatants'. Drawing on the more impassive logic of criminal justice, it
508
1 A. Ashworth, The Criminal Process: An Evaluative Study (1998, 2nd edn.) 315±16
and 306 ff.
ßCardiff University Law School 2005

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