Can't live with Big Brother: Can't live without him

Five years after 9/11, Alan Dershowitz writes that we still haven't found the right balance between security and civil liberties

11 septembre 2001

It is five years since the attacks on the World Trade Center and the Pentagon, but Western democracies have not even begun to address seriously the moral and intellectual challenges posed by mass-casualty suicide terrorism.
The traditional paradigm by which we have long confronted harmful conduct -- waiting until the harm occurs and then punishing the harm-doer to deter others -- cannot work with the suicide terrorist who welcomes the ultimate punishment. A new paradigm, relying more on anticipatory and preventive measures, must be considered.
But such measures carry with them considerable dangers to civil liberties. The debate thus far has been largely an unilluminating clash of ideological extremes with one side arguing against any compromise with the old deterrent-civil liberties model, and the other side insisting that the need to prevent mass-casualty terrorism trumps traditional concerns over civil liberties. What has been missing thus far is a willingness to adapt old approaches to new realities.
In this new battle, the terrorists have considerable advantages. They can fail dozens of times, as they have. But one mega-success more than makes up for all the failures.
Moreover, they have unlimited human resources, because radical Islam has created a unique culture (or religion) of death in which suicide is glorified, the suicide bomber becomes a posthumous rock star with posters and place names, and his (and increasingly her) family is favourably compensated and treated as royalty. Thus, instead of being deterred by the fear of punishment, the suicide terrorist is incentivised by the promise of posthumous reward.
Finally, although democracies benefit from an asymmetry of weapons, terrorists more than make up the difference by another asymmetry: Terrorists have no moral limits on what they are prepared to do, while democracies must adhere to their high moral and legal standards in combating terrorism.
Accordingly, democracies have to fight terrorism "with one hand tied behind their backs" -- to borrow an apt phrase from Israel's chief justice, Aharon Barak.
If democracies could use "both hands" -- if they were not limited by moral and legal constraints -- it would be relatively easy to combat terrorism. This has been proven over and over again by tyrannies that have been able to stop terrorism cold in its tracks. Hitler and Stalin simply arrested or executed all potential terrorists (and many others on the pretext that they were terrorists). They tortured suspects into confessing and inculpating others (sometimes truthfully, often falsely). They surveilled everyone, using family members and friends as spies (imagine what they would have done with modern technology). They deterred terrorists who were themselves prepared to die by punishing their kith and kin (as when Reinhard Heydrich was killed by a Czech terrorist, and Hitler ordered the mass murder of the entire village of Lidice). They criminalized all advocacy of terrorism (and even peaceful advocacy of change). Perhaps most important, they exercised total control over the media and forbade reporting of terrorist acts (thereby denying terrorists the ability to communicate widely their "propaganda by deed").
No democracy could be, or should be, willing to employ such tyrannical methods.
But if mass-casualty terrorism were to become rampant, there would be demands by the public to take extraordinary preventive measures that would almost certainly violate moral and legal norms. Thankfully, neither Great Britain nor the United States has reached this point yet, and the measures taken to date -- increased surveillance, border controls, intensity of interrogation, airport security -- have not diminished the "feel of freedom" for most citizens (at least for those who do not fit the terrorist "profile"). But if either nation were to experience repeated 9/11s or 7/7s -- especially if such mass-casualty terrorist attacks could have been thwarted by extraordinary measures that could have been taken but weren't -- the public outcry for adopting such measures would become deafening.
That is why effective prevention of terrorism, by means consistent with basic moral and legal norms, is so important for the preservation of civil liberties. Put another way, the greatest threat to civil liberties today may well be additional successful acts of mass-casualty terrorism. And so those who love liberty must be at the forefront of efforts to prevent terrorism, even if such efforts require some compromises of the maximalist civil liberties paradigm.
Striking the right balance would be easier if our government had earned more of our trust over the years. But most governments -- even most liberal democracies -- have tended to abuse extraordinary powers given to them during emergencies.
In the United States, the Kennedy administration misused its national security powers to bug the hotel rooms of Martin Luther King. The Nixon administration abused its taxing power to audit its political enemies. The Roosevelt administration detained more than 100,000 Japanese-Americans following Pearl Harbor. The Churchill government in Britain also misused its authority to detain enemy aliens during the early years of the second world war. And the worst abuses have probably never been revealed. We do not know what we do not know, for example, about how far the Bush and Blair governments have gone in their electronic surveillance programmes.
These high-tech intercepts may be absolutely essential to the efforts to thwart mass-casualty terrorism, and if we trusted our governments, there could be reasonable compromises that would allow our intelligence agencies to get the bad guys without violating the privacy of the good guys (or the not-so-bad guys).
Instead of thinking about high-tech intercepts as a black and white, either/or issue, we could deconstruct the problem and consider it in a more nuanced way. For example, we could distinguish between the monitoring phase of electronic intercepts and the use and disclosure phases. If we trusted our intelligence agencies -- the way we trust our doctors, for example -- we might be comfortable allowing them to monitor communications for the sole purpose of detecting terrorist plots. Only information relevant to such plots would ever be disclosed to anyone. All innocent communications would be permanently erased, while suspicious ones would be secured solely to check them against future communications.
Smart patients tell doctors everything about their lives -- even the most private and seemingly irrelevant details -- because we trust their promise of confidentiality and because we understand that what may seem trivial to a lay person could be significant to the trained ear. We have no such trust in our governments, even though the stakes for us may be even higher: not only our own lives, but those of our children and grandchildren. We learn from experience that when governments possess information, they tend to use it or to disclose it for political or even personal advantage.
Experience also teaches us that information secured for the limited purpose of preventing only terrorism will often be used by the government to prosecute other less serious crimes, such as drugs, pornography and fraud. It is difficult for law enforcement to ignore evidence of crime once it has it, even if it was empowered to receive it for only a limited purpose.
This history of creeping expansion and misuse of power creates an understandable sense of mistrust that animates much of the opposition to changes that might increase the effectiveness of measures to prevent terrorism, ranging from surveillance, to profiling, to interrogation methods designed to gather preventive intelligence rather than evidence for use at trials.
Distrust and scepticism are healthy attributes of a democracy, but they should not blind us to the possibility of new and creative approaches that may accord governments more of the powers necessary to improve terrorism prevention, while at the same time decreasing the potential for abuse. For example, in the area of electronic surveillance, the intelligence services could be given broad authority to monitor electronic communications by means of filtering systems that sounded the alert any time words, phrases or concepts that were suggestive of a terrorist plot were used.
They would then have to obtain specific authority from a court -- which could be done within minutes -- to actually listen in on the conversation or read the content of the email. If the monitored words suggested an imminent attack, the intelligence agencies could immediately move to the next step of overhearing and reading, but they would then have to obtain after-the-fact judicial authorization within 24 hours.
If the listening and reading turned up nothing incriminating, the records of the intercepts would be destroyed or preserved in a secure manner.
In an ideal world, this would give the government what it needed, without denying innocent people much of their functional right of privacy. Some innocents would have their private communications listened to or read by intelligence officers, but the information contained in them would never be disclosed or misused -- if the intelligence officials selected for this delicate task were carefully vetted for their non-partisan commitment to security, and if structures were put in place to assure confidentiality.
In the area of profiling, the major concern is racial, religious and ethnic discrimination. But if profiles were constructed on the basis of multiple individualized factors -- such as travel history, criminal record, association with terrorist groups, recent money transfers -- these factors could be combined with relevant racial, religious and ethnic characteristics to help identify individuals more likely than others to pose a danger of terrorism.
When it comes to interrogation, we might want to distinguish between questioning for purposes of securing evidence for criminal trials and questioning designed to produce preventive intelligence. In a criminal case, we live by the principle that it is better for 10 guilty defendants to go free than for even one innocent to be convicted. The opposite is true in preventive intelligence. It is better for ten false leads to be followed than for even one true lead to be missed.
This difference might lead to different rules for conducting criminal and preventive interrogations. The U.S. Supreme Court recently hinted that it might be receptive to such a distinction.
These are but a few examples of how we might begin to change the debate about the appropriate steps to be taken in the face of the successful and unsuccessful mass-casualty suicide terrorist attacks that continue to threaten us. Benjamin Franklin famously said, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." The operative words are "essential liberty" and "a little temporary safety." But we must decide which liberties are so essential to a democracy -- such as freedom of dissent -- that they must never be compromised, and which are amenable to some compromises in order to help secure a great deal of long-term safety.
Let that debate begin.
- Alan M. Dershowitz is a professor of law at Harvard. His most recent book is Preemption: A Knife that Cuts Both Ways.

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