Security vs liberty: the terms of a flawed but persistent discourse
As France awakens from its second terrorist attack in less than a month (25 September; and 16 October), political discourse has once again moved to a security-first approach. As the shock of the decapitation of a history teacher weaved through the population, French president Macron declared on Sunday evening that “fear must change sides”, and promised a series of “immediate measures” to ensure that “Islamists will not sleep peacefully in France”.
An avalanche of reactionary measures
The French government announced on Sunday 18 October, less than 48 hours after the second attack, that it would expel all ‘irregular’ foreigners with a fiche S (i.e. identified as Islamist radicals by domestic intelligence services). Right-wing political parties call for “arms, not tears” and the “use of force” instead of “lighting candles”, while on the left others urge the expulsion of all Chechens with links to Islam from France. In government, the Minister of Education is asking for the end of anonymity on social media; the Minister of the Interior is trying to dissolve Muslim associations, councils, and a mosque; and the government is planning to add further administrative powers of control to the already controversial legislative project on “separatisms”. Further and most worrisome, dozens of searches and arrests “without a direct link to the attack” have been conducted since Monday 19 October, and are planned to continue in order “to bring material to intelligence services” and “send a message”.
Among the avalanche of reactionary measures and calls for increased armament, expulsions, arrests, surveillance, and force more generally, the only question that matters is inaudible: does the protection of security really require the sacrifice of the rule of law and human rights?
Security vs liberty: A flawed compromise
The debate on a trade-off between security and liberty, which had its heyday after 11 September 2001 and is now embedded in political discourse, rests on an illusion. The deception lies in a unique but irremediable flaw: the proposed compromise is not a trade-off between the security and freedom of the same person. It is rather a trade-off between the rights of a few (the others), for the benefit of state institutions (national security).
In contrast, the notion of human security, considers the state not as an impartial guardian of the security of individuals, but as a subjective part of the security threat. The additional powers granted to governments to cope with terrorism may thus complement the terrorist threat to human security. As John Locke pointed out in 1689, the means given to the state to fight our enemies (terrorists) could very well be used by the government to fight its own enemies (political opposition, minorities, etc.). The increased exercise of state power to strengthen national security therefore does not necessarily diminish the terrorist threat, but has the potential to seriously undermine human security and the rule of law.
While states have positive obligations to guarantee the human rights of persons under their jurisdiction against interference by private parties (e.g. terrorists), it would be absurd to infer that, in order to fulfil these positive obligations, the negative obligations of the state not to violate these rights could be diminished. Concretely, this means that counterterrorism policies, that is to say the increased powers of the state to fight terrorist threats, cannot legitimately have as aim or effect the reduction of human security, i.e. the security of the individual against state power and other threats. From a human security perspective, therefore, national security cannot legitimately take precedence over human security.
Trading whose liberty – for whose security?
Under the trade-off discourse, state power is strengthened so that it can fight terrorism and make its people, or more likely the nation, more secure—but at the cost of making its people less free. As explained by Jeremy Waldron, advocates for trading off liberty for security often stress the ‘social good’ aspect of security: ‘we’ accept being a little less free in order for ‘us’ to feel a little more secure. This trade-off discourse was at the heart of the post-9/11 counterterrorism approach, and still is today, as we see in France. However, it ignores the fact that what is at stake is an interpersonal trade-off, that ‘we’ and ‘us’ are not the same subjects. As some people’s rights are sacrificed in the name of national security, human security decreases for everyone in the face of enhanced state powers.
The sense of security justifying adherence to the trade-off discourse is security against violent attacks, as well as the easing of anxiety or apprehension caused by the prospect of such attacks. When citizens fear an attack, they expect their government to act and respond. The more radical the response, the more it reassures the population psychologically – this phenomenon is called action bias. However, this does not mean that the safety of individuals has benefited in any way from this governmental exercise of power. On the contrary, in exchange for such psychological reassurance, civil liberties could be compromised, the rule of law undermined and security as a social good damaged.
If we assume that freedom is the ultimate goal of human security – in the sense that individuals are only free to enjoy their rights when they are secure that the state will not arbitrarily and unnecessarily prevent them from doing so – then it becomes clear that any discussion of trade-off can only have its source in national security, that is, the security of government institutions.
An unnecessary sacrifice
The use of an alleged dilemma between security and freedom to justify measures that infringe on fundamental rights is always misleading: the trade-off can only benefit the security of state institutions. In addition, fear of future threats to national security then justifies its continued strengthening, rendering governments incapable of restoring the rights and freedoms they have sacrificed in its name, and thereby irreparably damaging the rule of law and the protection of human rights.
This approach is futile, and deleterious. Empirical research has repeatedly shown that stigmatising and discriminatory measures (and measures in violation of human rights more generally) constitute one of the main drivers of terrorism and violence, and are thus counter-productive. Yet, as evidenced by the political reaction to the recent attacks in France, human rights-compliant approaches rarely are on the agenda despite their proven effectiveness to fight the terrorist threat.
Sophie Duroy is a Ph.D. Researcher in the Law Department. Her current research focuses on the regulation of intelligence activities under international law. Her most recent publication ‘Remedying violations of human dignity and security: state accountability for counterterrorism intelligence cooperation’, in Human dignity and human security in times of terrorism (Springer, 2019).