ABSTRACT
Counterterrorist arguments that justify the erosion of individual rights frequently depend on the claim a balance can—and should—be struck between security and freedom. But this analogy, under both consequentialist and rights-based analysis, is at best misleading and at worst structurally wrong. Calculations from utility resting on the immediate dangers posed by terrorism do not give appropriate weight to (a) the long-term effects of inroads into individual rights, (such as individual harm, blocked political, social, and legal mechanisms), and (b) precedent-setting in a tightly-interwoven structure of individual rights and state power. Constitutive rules further delimit the types of measures that can be introduced, regardless of the “tradeoffs” considered in balancing security and freedom. In the rights-based realm, arguments related to expanded state powers, distributive justice, and practical effect undermine the analogy.
