SPEAKING
FREELY Security vs liberty: completing or
conflicting? By Hossein Aghaie
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
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They that give up
essential liberty to obtain a little temporary
safety deserve neither liberty nor safety. [1]
- Benjamin Franklin
Throughout
history there has been a fierce debate over the
supposedly paradoxical relationship between
demands for security and preserving civil rights
in different societies. The overarching
assumptions suggest that people must give up a
modicum of freedom to gain a certain level of
security, or "the
democratic society is
one which has always aimed to strike the right
'balance' between liberty and security." [2]
The breadth and depth of the contestation,
however, harkens back to the literary theory
propounded by the absolutist Hobbes and the
liberal Locke in the seventeenth century. [3]
Whereas Hobbes posited that the sovereign should
have a wide range of authorities, and that the
quest for security tilts the 'balance' in favor of
security, [4] Locke held that "the natural liberty
of man is to be free from any superior power on
earth," [5] thus shifting the 'balance' towards
liberty.
Over the past decade, the
tension, or even perhaps contradiction, between
security concerns and the preservation of civil
rights has become an issue of paramount importance
within the European Union. The development of the
Area of Freedom, Security and Justice (AFSJ) after
the Amsterdam Treaty in 1999 marked EU's progress
towards safeguarding the rights of individuals and
strengthening of security for European citizens.
Nevertheless, some scholars argue that the areas
of freedom and justice have been trodden by the
pervasive proclivity for and intrusion of security
in the face of new security challenges. [6] In
this essay, I seek to explain growing tensions
between protection of civil rights and security
concerns in contemporary Europe. I will argue that
the quandary Europe finds itself in today is how
to effectively establish equilibrium between
security concerns and the preservation of
fundamental rights of citizens while remaining in
strict compliance with the EU Charter of
Fundamental Rights and the rule of law. The paper
does not denigrate Hamilton's idea in The
Federalist Papers that the quest for security at
times propels liberal states to resort to
illiberal undertakings. [7] More accurately, it
places a high premium on the need for preventing
the implementation of illiberal security actions
in the name of liberty from becoming norms in the
realm of international security. Succinctly put,
the (inevitable) proliferation of illiberal
practices which pose a threat to individuals'
freedom may in itself constitute a form of
security concern.
Civil rights concerns
in EU security policies In the wake of the
9/11 attacks, a raft of security measures,
including the US Patriot Act and the 2001
Anti-Terrorism, Crime and Security Act in the UK
led to widespread exogenization of security
problems, which required closer cooperation
between the US and EU institutions and member
states as part of collective efforts to combat
terrorism. [8] As regards the EU's response to
post-9/11 security challenges, the member states
held differing views on the scope and scale of
their cooperation with the European Police Office
(Europol), the European Judicial Cooperation Unit
(Eurojust). [9] Nevertheless, as the EU expanded
its internal security policies, it conducted more
counter-terrorism measures under an Action Plan in
2001, which was then replaced by a more coherent
Counter-Terrorism Strategy following the bombing
attacks in Madrid and London in 2004 and 2005
respectively. [10] According to Rees, the
transatlantic internal security relationship has
been characterized by three overriding policy
areas: implementing laws and judicial activities;
cooperation in border security, and data sharing.
[11]
The EU-US discord over the handling
of security threats reached its acme in 2004 when
the two sides bickered over cooperation on sharing
Passenger Name Records (PNR). [12] Even though
Washington and Brussels finally agreed to share
passenger name records, the case for PNR prompted
grave concerns about privacy violations, and
further heated up the debate over the 'balance'
between security and liberty. The PNR agreement
came under harsh scrutiny mainly because of
objections pertaining to a (possible) breach of
Article 8 of the European Convention of Human
Rights. Questions arose as to the grounds upon
which a concept such as PNR, which was initially
introduced for air travel and booking of flights
became politicized or perhaps manipulated in
support of a wider international security order
that ironically ran counter to civil rights.
The case of the EU-US SWIFT Agreement also
raised similar concerns and doubts about the
willpower of the Union's institutions, namely the
European Parliament's (EP's) legal powers to
resist against the cacophony of calls for
stringent counter-terrorism measures at the
expense of civil rights. [13] Having been regarded
in the past as the champion of human rights and
data protection, the EP, once acquired increased
role and legal power under the Lisbon Treaty,
showed little resistance to US demands, and this
"seems to have led the EP to abandon or at least
compromise on its principles." [14]
In the
meantime, uncertainty abounds with regards to the
future prospects of civil liberties and security
in Europe, as the EU remains divided on the issue
of using full-body scanners at the airports. In
2011, the European Union issued a ruling banning
the use of X-ray body scanners in all European
airports for "Health and Safety" concerns. [15]
However, some British, Dutch and French officials
voiced support for using full-body scanners. [16]
Such proposed measures conjure up in mind the
words once uttered by the Director-General of MI5
during Tony Blair's premiership, "... we value
civil liberties and wish to do nothing to damage
these hard-fought for rights. But the world has
changed and there needs to be a debate on whether
some erosion of what we all value may be necessary
..." [17]
Liberty vs security: lost in
the paradox But the debate surrounding the
legitimacy and feasibility of sacrificing a
certain level of civil rights for the sake of
better security has deep roots in history. The
search for a security-liberty balance provides
important insights on the relationship between
realist and liberal thinking, as mentioned in the
introduction of the essay. The supposed balance
has often been described as a zero-sum game,
indicating that more security means less freedom.
In a similar vein, some thinkers suggest that the
idea of balance is basically a "liberal myth", and
that liberalism's innate desire is essentially
security, not liberty. [18]
In contrast to
the traditional view that liberals are defenders
of liberty against security, Mark Neocleous
repudiates this view, arguing that even the
liberal Locke cherished the notion of a liberal
discourse in which security took precedence over
individual civil rights. [19] Neocleous
corroborates his ideas by focusing on the Locke's
account of 'prerogative', which authorizes rulers
to act 'of their own free choice', and grants to
the sovereign discretionary powers, which might
even be used against the law for the common good.
[20]
Keeping in mind the above-said, I
argue that the conundrum here is not whether
security should take precedence over liberty or
vice versa, given an interwoven interplay between
concerns arising from the two concepts. The
dilemma can be characterized more accurately by
the contestation between the two opposing views of
"modern welfare liberalism and communitarianism."
[21]
Whereas the former focuses on the
prominence of individual rights over any concept
of the common good, the latter posits that the
common good takes priority over notions of
individual liberty. [22]
My contention
forged on the overriding and undeniable stature of
law is that since democratic states are duty-bound
and morally attached to the idea of preserving
fundamental civil rights in parallel with adoption
of effective security measures, then the common
good is the extent to which they remain strictly
adhered to the rule of law in their security
practices.
To back up my argument, I offer
two reasons: First, the more the security concerns
become the right pretext for exerting illiberal
security practices, the greater the likelihood
that the security becomes politicized, thus
providing opportunist leaders wide latitude to
exploit or manipulate security issues for
political gains. The risk here is that, under such
circumstances, some leaders would place their
decisions above the law. Second, illiberal
security actions that tend to erode civil and
political rights, such as the PNR and SWIFT
Agreements in the EU, run the risk of introducing
norms over the long haul, allowing for more
stringent and illiberal practices, which can be
easily labeled as security concerns.
Only
when the vast majority of people give their
consent are the governments entitled to resort to
measures that may in short term deprive them of
some civil liberties. Of particular importance is
how to avoid abrupt decisions and precipitous
reactions to security threats in order to preserve
the rule of law and fundamental human rights upon
which the EU has been founded. The Hague Program
security did take priority over freedom [23], yet
the Stockholm Program, and the EU Internal
Security Strategy and the Lisbon Treaty shifted
the focus to the stern commitment to safeguard
rights and freedoms and addressing the causes of
insecurity in contemporary Europe. [24] The latter
was a great milestone and achievement in terms of
preserving civil rights in Europe.
Notes: 1. Franklin,
Benjamin. (1818) Memoirs of the life and writings
of Benjamin Franklin, London : H. Colburn, Vol. 2,
p 270 2. Neocleous, M. (2007) 'Security,
liberty and the myth of balance: Towards a
critique of security politics', Contemporary
Political Theory, 6(2), p 132. 3. Ibid, p
134. 4. Ibid. 5. Locke, John. (1988) The Two
Treatises of Civil Government, (1690) , Cambridge:
Cambridge University Press, PDF of the text
available at
http://epublish.biz/pdf/Two_Treatises_of_Government.pdf 6.
Drulแkovแ, Radka. (2006) 'Post-democracy within
the EU: Internal security vs. human rights -
unavoidable conflict?', University of Economics in
Prague, p 17, text available at
www.ceeisaconf.ut.ee/orb.aw/class=file/action.../Drulakova.doc 7.
Hamilton, Alexander; Madison, James & Jay,
John. The Federalist, accessed May 2, 2012 at
http://usgovinfo.about.com/library/fed/blfed8.htm 8.
Zhyznomirska, L. "The European Union's 'Home
Affairs' Model and Its European Neighbours: Beyond
the 'Area of Freedom, Security and Justice'?",
Comparative European Politics, 2011, Vol: 9(4-5),
p 2. 9. Rees, Wyn. (2011) The US-EU Security
Relationship: The tensions between a European and
a Global Agenda, (Basingstoke: Palgrave
Macmillan), p 160. 10. Rees, Wyn. (2011) The
US-EU Security Relationship: The tensions between
a European and a Global Agenda, (Basingstoke:
Palgrave Macmillan), p 161. 11. Ibid. 12.
ึzcan, Mehmet & Yilmaz, Fatma. (2007)
'Pendulum Swings in between Civil Rights and
Security: EU Policies against Terrorism in Light
of the PNR Case', Journal of International Law and
Politics, Vol. 3, No: 12, pp 97-116. For more
details, see :
http://www.usak.org.tr/EN/makale.asp?id=1298 13.
Ripoll Servent, Ariadna & Mackenzie, Alex.
(2011) 'Is the EP Still a Data Protection
Champion? The Case of SWIFT', Perspectives on
European Politics & Society, Vol. 12, No: 4, p
390. 14. Ibid, p 401. 15. DiSalvo, David.
'Europe Bans Airport Body Scanners For "Health and
Safety" Concerns', The Forbes, viewed on May 1st ,
2012 at
http://www.forbes.com/sites/daviddisalvo/2011/11/15/europe-bans-airport-body-scanners-over-health-and-safety-concerns/ 16.
Ibid. 17. 'Head of MI5 warns of the need to
erode civil liberties in the fight against
terrorism'
http://www.statewatch.org/news/2005/sep/05MI5-speech.htm 18.
Neocleous, M. (2007) 'Security, liberty and the
myth of balance: Towards a critique of security
politics', Contemporary Political Theory, 6(2), p
131. 19. Ibid, p 135. 20. Neocleous, M.
(2007) 'Security, liberty and the myth of balance:
Towards a critique of security politics',
Contemporary Political Theory, 6(2), p 135. 21.
Beck, Albert. (1997) 'Freedom to do that which is
right', Acton Institute, accessed on May 1st, 2012
at
http://www.conservativeforum.org/EssaysForm.asp?ID=12098 22.
Ibid. 23. Balzacq, Thierry & Carrera,
Sergio. (2006) Security Versus Freedom?: A
Challenge for Europe's Future, Ashgate Publishing
Limited, p 18. 24. Council of the European
Union, 2010. Internal Security Strategy for the
European Union: "Towards a European Security
Model", 5842/2/10, text available at
http://register.consilium.europa.eu/pdf/en/10/st05/st05842-re02.en10.pdf
Speaking
Freely is an Asia Times Online feature that allows
guest writers to have their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
Hossein Aghaie is a master
student at Linkoping University majoring in
International and European Relations
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