ABSTRACT
In perhaps no sphere of Western policy have the implications of the perception of the ‘new threats’ created by 9/11 and its aftermath been so controversial – and so radical – as in what we might term the relation between traditional assumptions about civil liberties and the allegedly changed character of opponents, and therefore of the security measures necessary to meet the threat. In both the United States and the United Kingdom wholly new legislative and executive powers have been deemed to be warranted – for example the creation of the whole apparatus of homeland security in the United States and the new antiterror laws in the United Kingdom (Bamford 2004). On top of this, however, has been the decision by Western and other governments to use techniques – let us say ‘quasi judicial’ techniques – that have long been regarded with suspicion in Western politics, or indeed have been completely foresworn – at least in theory. Perhaps the most notorious of these was the perceived relaxation of the attitude to torture by the Bush administration in the United States. This phenomenon is well attested to by the creation of the internment camps such as that at Guantánamo Bay (Greenwood 2002), a deliberately ‘extra-legal’ area outwith formal US jurisdiction, yet wholly controlled by the US Government and by the now well documented practice of ‘extraordinary renditions’ where suspected or captured terrorists are flown to countries without the usual ‘liberal’ legal restrictions for ‘interrogation’ as well as by the less formal, but perhaps equally revealing behaviour of some in the detention camps like Abu Ghraib. The chief point at issue here is an old one: What are states entitled to do to protect their security? Whilst we might agree with Oliver Wendell Holmes that ‘a constitution is not a suicide pact’ there is, inevitably and always the question of where to draw the line. Whilst the administration of President Obama has set its face against these policies on coming into office, it is worth adding that as of the time of writing, the Guantánamo centre is still in operation (although some inmates have been moved and high profile civil trials promised for others) and the policies in other respects continue to emphasise security to an unprecedented extent. Witness, for example, the policies introduced after Christmas 2009, following the attempt to blow up an airliner landing in Detroit, which many experts saw as largely window dressing and likely to be counter-productive. Indeed what
is fascinating about the Obama administration is the overt condemnation and official banning of techniques of torture such as ‘waterboarding’, but an overwhelming reliance and escalation of the use of drones for ‘selected assassinations’ on those deemed or perhaps even known to be guilty of threatening the security of the United States and its allies. According to some reports of the 99 drone attacks perpetrated in Pakistan since 2004, some 89 of them have taken place after January 2008 (Macintyre 2010). There were many who think that in these changed and challenging times we must err on the side of caution and that we must indeed interrogate our enemies. The Harvard Law scholar, Alan Dershowitz, has infamously argued for the incorporation of torture into US law under specific circumstances through the creation of what he called ‘torture warrants’ (Dershowitz 2003, 2006); the distinguished legal scholar Richard Posner, in an express echo of Holmes’ dictum, has published a book arguing for a hawkish line on the question of ‘security’ versus ‘liberty’ (Posner 2006). Yet, it is not only the domestic legal arguments that can and should be made here. The rules of war – both general and civil – have long included a complete ban on torture. Yet in the aftermath of the 9/11 attacks, during what became known as the ‘war on terror’, defences of ‘coercive interrogation’ became, if not commonplace, seemingly much more respectable than they had previously been. For many who were critical of this development, this seemed unprecedented. Yet the historical memory is faulty. There have been other contexts, and other situations, in which similar brutal reactions can be noted. To assess the applicability of such attempts in the current context it might perhaps be the case that we should examine historical cases where the fear of threats resulted in brutality and the suppression of human rights. One such case is Northern Ireland and, as I have tried to argue elsewhere (Kennedy-Pipe and Mumsford 2009; Kennedy-Pipe 1997), the lessons of the British experience in Northern Ireland are certainly not irrelevant to our current situation (see, for example, English 2003; McGuffin 1973). One might cite other historical examples, involving the French in Algeria and in South East Asia, and the Americans in Vietnam. In fact one of the current problems of the engagement of liberal states in war is precisely that balance between winning a socalled hearts and minds campaign and the use of torture. We know that when news of torture leaks to the general population there may be a rallying to the ‘rebels’ as in Ireland in 1971-2 but there may also be a very negative effect on home populations which dislike what is ‘done’ in their names. As Rupert Smith has argued, this was certainly the case with the French campaigns in Algeria when the French population, whatever its affection for Algeria as an extension of France, did not wish to see brutality exercised in the name of France (Smith 2005: 246). Perhaps the most disturbing aspect of contemporary debates is, as has been pointed out recently (Rengger 2009), that even relatively liberal figures, like Philip Bobbitt (Bobbitt 2008), have argued that the threat is now such that it requires rethinking many of our previous assumptions and that some rebalancing of liberty versus security might well be necessary (though Bobbitt does not
countenance torture) but, as Nicholas Rengger also points out – and as he and I argued in detail elsewhere (Kennedy-Pipe and Rengger 2006) – these kinds of claims rest fundamentally on the truth of the grounding claim that the situation in the post 9/11 era represents something so radical and new and that the threats we face in this context are so severe, that the legal restraints we in liberal states claim to abide by do not apply. However, as we argued in that other essay, this claim cannot be sustained. I do not want to repeat the arguments of that essay here. Rather, I want to try and look at some of these specific claims and assess them, before turning to why I think – independently of the balance of the arguments about security and liberty – they are, in fact, a mistake in the context of a liberal society, even when – indeed especially when – that society is under serious and sustained attack. And, indeed, if I am honest the reasons are ultimately not ethical – rather they are prudential; it is in our interest not to take the path some would urge upon us. More of that later. Now what about the arguments themselves?
