Democrats Uphold Our Liberties - Not Destroy Them
Since the events of 9/11, some former libertarians have advocated
levels of repression that no civilised society wants or needs
by Henry Porter
It is five years since the Twin Towers fell, five years during which
we have seen awful sequels to 9/11, some big mistakes made by the West, but
also a few triumphs of detection, notably by the British police and
intelligence services.
It has all gone past in a flash and perhaps the unusual anxiety of the
period has prevented us from acknowledging an important fact. The West has
been largely unchanged by the menace of Islamist terror and so the aim of
the jihad launched from the caves of Afghanistan has, thus far, been largely
thwarted.
This is not to ignore the people who lost their lives and limbs, or
their families, nor is it to advocate complacency in what is going to be a
long campaign. But it is to say that the great democratic project started by
John Wilkes in England during the 1760s and a decade later by his admirers
in the American colonies will not fall to the suicide bombers, nor even to
the fear of the worst that they can do. The energy and resourcefulness of
Western capitalism is far from exhausted and the convictions of the liberal
democratic systems on which modern capitalism depend are too deep rooted for
that. It is not 410AD. Alaric and the Visigoth hoards are not at the gates
of Rome.
This, oddly, is a controversial view. Hot-heads still abound on both
sides of the Atlantic declaring that the clash of civilisations is nigh. Not
satisfied with the mayhem created in Iraq (where there were 80 people killed
in 14 separate incidents in one day last week) and the destruction done in
South Lebanon and to Israel's reputation, they feverishly pore over maps of
Iran muttering about appeasement.
The pre-emptors are every bit as dangerous as the terrorists because
they both react to and feed off each other's fantasies of total victory. We
need to grasp the true scale of the threat and understand that it is chronic
and yet it is smaller than almost anyone will allow (the number lost to
terrorist atrocities in the West since 9/11 is less than a tenth of the toll
in Iraq). We also need to appoint leaders who can see that the
radicalisation of Muslim populations in the West is so far Osama's greatest
achievement and that the condition of the Palestinian people is a running
sore.
The neocon firebrands are not to be trusted on domestic policy,
either. At the same time as insisting that they are defending Western
freedom, they declare war on it. They urge us to exchange liberty for
security while implying that to do so somehow increases the state's powers
to fight terrorism.
By the way, this is not new in Britain. After the French Revolution in
1789, William Pitt's government imprisoned and deported radicals and then
suspended the Habeus Corpus Act. In 1798, newspapers were put under the
supervision of magistrates. Though the government didn't realise it, Britain
was nowhere near revolution partly because of the very freedoms that Wilkes
had won in the decades before. This repressive episode was all about
unreasonable fear as well as a failure to understand the real threat, which
was Napoleon.
One of the modern advocates of removing freedom from the people and
donating power to the state is Professor Alan Dershowitz who, until 2001,
had seemed a benign, if humourless, liberal. A professor of law at Harvard,
he was the man who got Claus von Bulow off a murder rap and told the story
in a book which was made into a celebrated film starring Jeremy Irons. After
the 9/11 attacks, Dershowitz wrote an article for the LA Times arguing that,
in some cases, judges should issue a torture warrant to allow the FBI to
gain information.
He said torture would happen anyway in the war on terror - he was
certainly right about that - so it should be authorised and thus controlled
by law. This might have been a subtle liberal ploy to expose the torture
lobby, but Dershowitz went on TV looking like Animal, the wildman drummer
from The Muppet Show and, although he claimed he was simply trying to get
the debate going, it became clear that he was all in favour of torture.
Last week, Dershowitz was trying to get another debate going. The
Spectator published an essay by him under the headline 'The greatest threat
to civil liberties would be another atrocity like 9/11'. It is an odd piece
that pretends to support the greater interest of liberty while doing the
opposite. He says that all true libertarians must forsake some freedom in
order to stop a really authoritarian reaction later on. '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.'
This last phrase refers to liberal fundamentalists, although I cannot
think of one who believes that all rights are unqualified, that all freedoms
are absolute. And I don't know any liberal who would deny the police powers
to fight terrorism, but I know plenty who regard the opportunism of
governments these days as hostile to the interests of freedom.
Dershowitz goes on to make some weird points, one of which is a system
in which governments have access to all electronic communication and we
trust them not to read the stuff that isn't relevant to the detection of
terrorists. Yeah, right, as my children say.
After talking a bit about racial profiling, he moves discreetly to the
subject of interrogation. I quote him in full. '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 that 10 false leads to be followed than one true
lead to be missed.' It is easy to agree with that, but then he says: 'This
difference might lead to different rules for conducting criminal and
preventive interrogations.'
'Criminal and preventive interrogations' is a phrase to play with.
It's redolent of the clunky euphemisms deployed by the Stasi in East Germany
and, given Dershowitz's flirtation with legally sanctioned torture, it would
be wise to treat his views with caution.
Dershowitz wants to retain the glow of his youthful libertarianism at
the same time as slyly advocating the removal of freedoms and rights, those
which he says are 'amenable to compromise', another innocuous sounding
phrase which clinches his suspension from the club of true democrats.
The points that he fails to make are these. Libertarians are just as
interested as he is in hunting down terrorists, but they believe that it
should be done within the law as it stands, because to do otherwise is to
attack the very values that we are defending. The British police and
intelligence services have, it seems, scored a considerable success while
operating within these civilised constraints.
Second, he does not mention that the US and British governments have
used the threat of al-Qaeda to extend their powers in areas which have
nothing to do with defending their citizens against terrorists. Look at the
ID cards legislation, the measures to stop people demonstrating in
Parliament Square and those in the Civil Contingencies Act which increase
ministers' powers at the expense of Parliament.All these laws were hurried
through Parliament by Tony Blair with the vague implication that they were
giving the state the tools it needed to fight this unique 21st-century
threat, which is baloney.
Third, Dershowitz doesn't understand that governments are not
naturally inclined towards the interest of the citizen. If they are given
powers, they will almost always find a way to abuse them, as demonstrated by
his own government in the recent wire-tapping scandal and at Guantanamo.
Freedom and order are inextricably linked. You cannot have freedom
without order and good government but, more importantly, you cannot have
order and good government without freedom. Freedom is the thing which
patrols and constrains government and that is why it is not amenable to
compromise and will not suffer such notions as 'preventive interrogation'.
Guardian Unlimited © Guardian Newspapers Limited 2006
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