Abstract:
Like many, Michael Ignatieff recognizes that balancing civil liberties and national security in times of emergency seems to require us to infringe upon the liberties of some in order to preserve the liberties of others. In these cases, he argues we ought only to infringe upon civil liberties in light of adversarial review, placing strict limitations on our actions, using sunset clauses, and fully accepting that our actions will sometimes result in immoral behavior. He Claims that this approach to balancing civil liberties and national security in times of emergency is superior to those offered by staunch pragmatists and strict libertarians because it encompasses the benefits and avoids the pitfalls of both. I find, however, Ignatieff's approach to be problematic because it fails to take seriously important Substantive measures for achieving justice in times of emergency. I conclude that Ignatieff's procedural measures coupled with the substantive measures of truthfulness, faithfulness, and solidarity result in a superior policy for balancing civil liberties and national security in times of emergency because they ensure the cases of those accused of wrongdoing meet the pedigree tests for procedural and substantive justice, even in times of emergency.
I. Introduction [1]
The ideas of... political philosophers, both where they are right and when they are wrong, are more powerful than is commonly understood. Indeed, the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are [more than others] the slaves of some defunct [political philosopher]. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back... Sooner or later it is ideas, not vested interests, which are [most] dangerous for good or evil. [2]
One easy way to demonstrate the truth of Keynes's Claim is simply to call attention to the role that political philosophers play in influencing the state in times of emergency. For example, when terrorists succeed at attacking western democracies, democratic leaders find themselves caught in between, on one hand, staunch pragmatists who push for doing whatever it takes to ensure the safety of the state, and, on the other hand, strict libertarians who push for maintaining civil liberties at all cost. Staunch pragmatists argue for abridging civil liberties by highlighting the threat that terrorism poses to the State. The problem, however, is that staunch pragmatists are Willing to sacrifice all civil liberties and all democratic processes in the name of national security. They thereby turn democracy into tyranny by increasingly granting power to those responsible for the security of the State. In this way, they lose the very State they seek to protect to former democratic leaders turned absolute dictators. The irony here is that, in attempting to combat terrorism, staunch pragmatists allow those responsible for protecting the State to commit violations of civil liberties and those suspected of being terrorists to become the poster-children for the preservation of civil liberties. This is one of the unfortunate ironies of the way in which liberal democracies have responded to post-9/11 terrorism. For example, in seeking to protect America from future terrorist attacks, the Bush Administration launched a war on terror that resulted in some of the most egregious violations of civil liberties and human rights since Senator Joseph McCarthy's Red Scare. To be sure, we now know that the Bush Administration approved of torture, rendition, and they unjustifiably denied habeas corpus rights to those deemed enemy combatants. [3]
Strict libertarians fare no better. They argue for the preservation of civil liberties at the cost of allowing the State to remain vulnerable to future terrorist attacks. They do this by minimizing the threat terrorism poses to the State. The problem, however, is that strict libertarians are unwilling to sacrifice any civil liberties or democratic processes for the security of the State. They thereby turn civil liberties into lassos and use them to bind the hands of those responsible for protecting the State. In this way, they lose the very State they seek to protect to those Willing to perpetrate acts of terrorism against it. The irony here is that, in protecting civil liberties, strict libertarians lose their civil liberties whenever terrorists succeed and terrorists gain their civil liberties whenever strict libertarians succeed. The Obama Administration has been fiercely criticized on these grounds, particularly after it announced that it would grant trials to all enemy combatants at Guantanamo bay. In short, the criticism is that many of those tried and released from Guantanamo Bay have rejoined the war on terror, fighting against the United States. To be sure, Adballah Salih al-Ajmi was released from Guantanamo Bay in 2005, and, in April of 2008, he blew himself up in a suicide terrorist attack against US troops in Iraq. Even worse, the Pentagon reports that there are as many as sixty-one former Guantanamo bay detainees who have rejoined the war on terror. [4] Hence, by holding trials for those held at Guantanamo Bay the Obama Administration will inevitably release some prisoners who will rejoin the war and fight against the United States.
Given the problems with staunch pragmatism and strict libertarianism, it seems that the only viable option for protecting the State against terrorism and civil liberties against tyranny, is to adopt a philosophy that advances a lesser evil approach, one that synthesizes the advantages of staunch pragmatism and strict libertarianism while avoiding the disadvantages of both. Or, at least, this is what Michael Ignatieff would have us believe in The Lesser Evil: Political Ethics in the Age of Terror. As Ignatieff explains it, sometimes circumstances require that national security trumps civil liberties, and, at other times, circumstances require that civil liberties trump national security. Either way, he proposes that we adjudicate between their conflicting Claims to hegemony by weighing the staunch pragmatist's justifications for abridging civil liberties against the strict libertarian's justifications for not abridging them. In addition, he argues that if we must violate civil liberties we ought to do so in light of adversarial review, placing limitations on how we abridge civil liberties, using sunset clauses, and fully accepting the fact that our actions will sometimes result in immoral behavior. [5] In the end, he concludes that his policy for balancing civil liberties and national security deserves the right of hegemony because it encompasses the benefits and avoids the pitfalls of staunch pragmatism and strict libertarianism.
I admit that Ignatieff's reforms are important measures for achieving procedural justice. The problem, however, is that he places too much faith in the efficacy of procedural measures while failing to take seriously important measures for achieving substantive justice. I illustrate this by highlighting the fact that the cases against Chinese-Americans during the exclusion, Japanese-Americans during the internments, those suspected of being Communists during the Red Scare, and African-Americans during segregation met the pedigree tests for procedural justice and yet failed to meet the pedigree tests for substantive justice. This was possible because those who were responsible for putting the "wheels of justice" into motion were apathetic to the plight of minorities, afraid to stand up for those being persecuted, or they straightforwardly accepted and passively or actively participated in the injustices. Either way, no amount of procedural measures can remedy such problems. For these reasons, I conclude that Ignatieff's procedural measures coupled with the substantive measures of truthfulness, faithfulness, and solidarity result in a superior policy for balancing civil liberties and national security in times of emergency because they better ensure that the cases of those accused of wrongdoing meet the pedigree tests for procedural and substantive justice, even in times of emergency.
But, before I articulate these arguments, I offer substantial philosophical analyses of John Locke's political philosophy. I do so for two reasons: first, Locke's political philosophy was instrumental in the development of liberal democracies and therefore it offers us a unique insight into how such democracies were designed to respond to threats of terrorism, and, secondly, Locke's political philosophy provides much of the basis for Michael Ignatieff's lesser evil philosophy; so, by better understanding Locke's political philosophy, we gain a better understanding of Ignatieff's political philosophy. Here, I show that a problem inherent in John Locke's political philosophy also appears in Ignatieff's lesser evil philosophy. For this reason, I conclude that neither Locke nor Ignatieff articulates an acceptable policy for balancing civil liberties and national security in times of emergency. In the end, the policy I advocate that liberal democracies accept for balancing civil liberties and national security is one that meets both the procedural and substantive pedigree tests for achieving justice, even in times of emergency.
II. John Locke and the Philosophy of Human Rights [6]
To put it straightforwardly, Lockean human rights refer to liberties, powers, and titles of rational agents. But, of course, in order to understand exactly what this means we must explicate some of Locke's terminology, particularly his terms liberties, powers, and titles. This will require us to examine several of Locke's texts, particularly the First Treatise of Government, the Second Treatise of Government, the Essays on the Law of Nature, and An Essay Concerning Human Understanding.
By liberty, Locke means freedom from the authority of others. [7] By freedom, he means one's ability to act according to one's will within the boundaries of law; or, in this case, within the boundaries of the law of nature. [8] For example, in the Second Treatise of Government, he argues that humans are "naturally in... a perfect State of freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave... of any other man." [9] He continues: "though this [is] a State of liberty it is not a State of license: though man... has... liberty to dispose of his... possessions... he has not liberty to destroy himself or... any creature in his possession but where some nobler use... calls for it." [10] Hence, according to Locke, liberty consists in one's freedom to act within the confines of the law of nature without asking for permission from others.
By power, Locke means authority to act by virtue of the rights bestowed upon one. [11] Here, it might be helpful to think of Lockean power as one's authority to act by virtue of some power-conferring source, such as the law of nature or the consent of those who are to be governed. For example, Locke argues that the natural power to execute the law of nature "is... put in every man's hands whereby he has a right to punish" anyone who transgresses against the law of nature. [12] For, "in transgressing against the law, the offender declares himself to live by another rule than that of reason." [13] In which case, "every man... by the right he hath to preserve mankind in general, may restrain, or, where it is necessary, destroy" the transgressor. [14] Similarly, in chapter four of the Second Treatise, he argues that "the liberty of man in society is to be under no... legislative power but that established by consent... nor under the dominion of any will or restraint of any law but what the legislature shall enact according to the trust put in it" by those who are to be governed by it. [15]
Lastly, by titles, Locke means Claims to freedom, equality, and property, and to the affirmative actions of and to non-interference from others. For example, in chapter five of the Second Treatise, Locke supposes that "the world [was]... given to the children of men in common." [16] He then argues that "labour... makes men distinct titles to several parcels of" it. [17] More importantly, this allows him to conclude that "as much as a man tills, plants, improves, [and] cultivates... so much is his property... which another had no title to, nor could without injury take from him." [18] Here, it is important to note that Locke articulates two caveats regarding titles, the first of which is that those who appropriate property must leave as good and enough for others, and the second is that extreme poverty gives the poor titles to some of the excesses of the rich. Of course, these caveats are designed to place restrictions on the uncharitable accumulation of property. To be sure, in chapter five of the Second Treatise, Locke famously argues that humans may appropriate property as they will so long as they leave as good and enough for others. [19] And, in chapter four of the First Treatise, he argues that the law of nature gives the needy charity rights, that is, titles, to so much of the surplus of those who have excess that will keep them from extreme want. [20]
It is equally important to notice that Lockean human rights are always correlative with duties. [21] This can be seen in Locke's discussions of rights and duties in An Essay Concerning Human Understanding and the Essays on the Law of Nature. For example, in the Essays on the Law of Nature, Locke argues that in "order to understand from whence [a] bond of law takes its origin, we must understand that no one can oblige or bind us to do anything unless he has a right... over us." [22] Similarly, in An Essay Concerning Human Understanding, he tells us that "a general is one that hath power to command an army and an army under a general is a collection of armed men obliged to obey," [23] Most notably, however, in the same work, he argues that words such as power/obligation, right/duty, and so on, "are all reciprocal... and contain In them a reference of two things, one to the other." [24] "Yet," he continues: "because one of the two things often wants a relative name, importing that reference men usually take no notice of it, and the relation is commonly overlooked." [25] Therefore, although Locke does not explicitly say that rights and duties are correlatives his discussions of rights and duties clearly indicate that he holds such a position. And, as we shall see shortly, liberal democracies adopted Locke's convention of making rights correlative with duties. But, for now, we should move on to Locke's discussion of obligation.
According to Locke, a duty is an obligation. By obligation, he simply means liability. [26] Liability, Locke tells us, consists in being susceptible to punishment for failing to fulfill one's obligation. [27] For humans, such a liability arises from the fact that they are rational beings who can act within the bounds of the law of nature. [28] By the law of nature, Locke means the rule or law of reason. For example, in the Second Treatise, he writes: "the State of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it." [29] Hence, the law of nature "indicates what is and is not in conformity with" reason, and therefore, it informs humans of what they ought and ought not to do. [30]
Now, we are in a position to determine what Lockean human rights entail. For Locke, human rights consist of the liberties, powers, and titles of a rational being, and, since Lockean human rights are always correlative with duties, they also entail that all rational beings have duties to refrain from interfering with right-holders, and, under certain conditions, all rational being have duties to act affirmatively to assist right-holders. Or, rather, to put it in a way that is consonant with my foregone analysis, to say that one has Lockean human rights means that one is a rational being who possesses liberties to act within the boundaries of the law of nature; powers to act by virtue of the law of nature; and titles to freedom, equality, and property. Correlatively, it means that all other rational beings have duties to refrain from interfering with the right-holder, and, under certain circumstances, all other rational beings have duties to assist the right-holder.
Lastly, it is crucial to note that human rights are so fundamental for Locke that they provide the ground for legitimate government. [31] In fact, Locke tells us that "though in the State of nature [all] have [human rights]... the enjoyment of them is very uncertain and constantly exposed to the invasion of others." [32] So, in order to preserve their human rights, humans "willingly give up the equality, liberty, and... power they have in the State of nature" to be governed "by established standing laws," judged by "indifferent and upright judges," and to assist the State in the employment of force for the protection of their lives, liberty, and property. [33] Hence, whenever the State exceeds its authority "and makes undue use of its force," it "ceases... to be" legitimate. In which case, "it may be opposed as any... man who by force invades the rights of another." [34]
III. John Locke and the Making Civil Liberties
John Locke's political philosophy had an immediate impact. In fact, it was so influential that its impact reached up as high as British Parliament. More importantly, many in Parliament immediately acquiesced with Locke's two fundamental contentions: that the State is only legitimate insofar as it is grounded in, restricted by, and protects the human rights of its subjects and that, whenever the State fails to protect the human rights of its subjects or over-extends its power, particularly when its failures or over extensions result in human rights violations, it acts without authority, and therefore, it may be altered or altogether abolished by its Citizens.
Those in Parliament who acquiesced with Locke's two fundamental contentions immediately sought to establish them in British law. To that end, they successfully revolted against King Charles I and II, created the English Bill of Rights which codified human rights into British law and thereby created civil liberties for all British Citizens. What is also important to notice is that Parliament adopted the Lockean convention of making rights and duties correlatives. Hence, the liberties articulated in the English Bill of Rights are correlative with the state's obligations to refrain from interfering with the civil liberties of its Citizens. Even more, Parliament fully expected every monarchy after William and Mary to acquiesce with the English Bill of Rights; otherwise it could expect to be overthrown by force. Alas! The British revolutionaries had succeeded in establishing a liberal democracy in which the Citizens possessed civil liberties that could not be infringed upon by the State and the State incurred obligations based on the civil liberties of its Citizens.
Fortunately, Locke's influence did not stop at the shorelines of Great Britain. Many in America simply took it for granted that the civil liberties established by Parliament extended to them. In fact, when King George failed to extend the same civil liberties to the colonists as he had extended to those in Britain the colonists took it as an assault on their fundamental human rights. On these grounds, they protested vehemently against King George, drafted the Declaration of Independence, and successfully defended their human rights in the Revolutionary War of 1776. Shortly thereafter, they drafted the American Bill of Rights which codified human rights into American law and thereby created civil liberties for American Citizens. The Americans also adopted the Lockean Convention of making rights and duties correlatives. Hence, the liberties articulated in the American Bill of Rights are correlative with the state's obligations to refrain from interfering with the civil liberties of its Citizens. Alas! As it had been England so was it in America: revolution had given birth to a liberal democracy in which the Citizens possessed civil liberties against which the State could not infringe and the State incurred correlative obligations based on the civil liberties of its Citizens.
The French were not to be outdone. By 1789, the excesses and privileges of the absolute monarchs were enough to convince the French revolutionaries that Locke's contention that the State is only legitimate insofar as it is grounded in, restricted by, and protects the human rights of its Citizens was correct. On these grounds, they stormed the Bastille, revolted against King Louis the 16th, drafted the Declaration of the Rights of Man, and established a constitutional democracy which granted civil liberties to the Citizens against which the State could not infringe. Hence, the French too adopted Locke's Convention of making rights and duties correlatives. More importantly, however, although the French's transition from absolute monarchy to liberal democracy was not without upheavals, when the dust of the revolutions had finally settled, the French had established a liberal democracy grounded on the enlightenment principles of liberty, equality, and fraternity; and, even to this day, few, if any, question the French's commitment to respecting the fundamental human rights of all. in fact, because of the French's commitment to and sacrifices for human rights Paris is widely regarded as the birthplace of the rights of men. [35]
IV. John Locke and the Proper Balance of Civil Liberties, National Security, and Justice in Times of Emergency
Nevertheless, there seems to be times when the State must infringe upon the civil liberties of some in order to preserve the civil liberties of others. Locke is keenly aware of this problem. In fact, he offers an extensive discussion of it in the fourteenth chapter of the Second Treatise. He writes: "since... the lawmaking power... is usually too numerous and too slow for the dispatch requisite to execution; and because it is impossible to foresee, and so by laws to provide for all accidents and necessities" that may arise in times of emergency the prerogative to act for the public good is placed in the hands of the executive. [36] In this way, the executive is able to act for the public good "without the prescription of law," and, in some cases, "even against it." [37] Hence, Locke's policy for dealing with the threat of terrorism is simply to place power in the hands of the executive so that he/she can respond to the threat.
Locke prevents the executive from violating the civil liberties of the majority with impunity with the threat of rebellion. [38] He tells us that whenever the executive oppresses his/her Citizens to such a degree that the majority is affected by and grows tired of it they will and may justifiably rebel and alter or altogether abolish the government. [39] We've seen examples of this in the above discussions of the British, American, and French revolutions. The problem, however, is that Locke's policy has no provisions for preventing the executive from violating the civil liberties of minorities with impunity, particularly when the majority is unaffected by the plight of minorities, apathetic to the plight of minorities, or straightforwardly acquiesces with the executive. It might be easier to see this in light of a contemporary example. Here, I'll borrow an example from the archives of American jurisprudence. The turn of the 20th Century marked the beginning of the struggle between democratic and communist states. In America, the real fighting started just before WWI and reached its apex during the 1950's. As a way of garnishing public support for the fight, American politicians began using anti-communist conceptual frameworks, propaganda, and stereotypes. At the same time the U.S. Congress enacted a series of laws such as the Smith Act of 1940, designed to make it illegal to
knowingly or willfully advocate, abet, advise, teach, print, publish, edit, issue, circulate, sell, distribute, organize, help to organize, or attempt to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government. [40]
Lawyers for the Department of Justice then used laws like the Smith Act to indict, prosecute, imprison, and deport thousands of resident aliens, and to imprison hundreds of American Citizens.
Professor Lloyd Barenblatt was one such citizen. From 1947 until 1950, Lloyd Barenblatt was a graduate Student at the University of Michigan studying psychology. He was also a Student activist and a member of the Communist Club at the University of Michigan. Upon graduating, Barenblatt landed a job as a professor of psychology at Vassar College. Nevertheless, in 1954, he was subpoenaed to testify before a Subcommittee of the House Un-American Activities Committee. [41] While under oath, Professor Barenblatt invoked his Fifth Amendment right against self-incrimination and refused to answer the subcommittee's questions about his activities when he was a member of the Communist Club. He was subsequently arrested and convicted of contempt of Congress. Barenblatt ultimately appealed his conviction to the US Supreme Court, arguing that his conviction violated his First and Fifth Amendment rights to peaceably assemble, speak freely, and to refrain from self-incrimination. Unfortunately the Court disagreed. It concluded that "Congress has wide powers to investigate and legislate against communist activity," that because communism posed a serious threat to the United States "the balance between civil liberties and [national security] had to be Struck in favor of [national security]," and that Barenblatt's First and Fifth Amendment rights had not been violated. [42]
Notice, however, that if the Court had ruled otherwise it is likely that Americans would have been outraged. I say this because Barenblatt used provocative language during the height of the red scare, and, as many scholars have pointed out, Americans generally support the efforts of their government during times of emergency, particularly when those efforts are directed at minorities who use their freedom to articulate undemocratic or unpatriotic points of view. [43] In part, public support for actions such as those of the Subcommittee's results from the fact that those in power often invoke and play upon dualist conceptual frameworks such as Americans versus foreigners, democrats versus communists, freedom-fighters versus terrorists, and patriots versus traitors, racist slurs, propaganda, and stereotypes in order gain support for their policies. [44] Theodore Roosevelt, for example, invoked the patriot versus traitor conceptual framework during WWI, arguing that "'either a man is a good American and therefore is against Germany, or he is not an American at all.'" [45]
The use of such conceptual frameworks, racist slurs, propaganda, and stereotypes undoubtedly invokes fear in some, thereby making them afraid to speak out against the injustices perpetrated against minorities. Others are unaffected by and uninterested in the plight of minorities. Their apathy results in a kind of de facto support of actions such as those of the Subcommittee's. Still, others straightforwardly support actions such as those of the Subcommittee's. In these cases, support for actions such as those of the Subcommittee's results from the fact that some Americans accept conceptual frameworks, racist slurs, propaganda, and stereotypes. These Americans secretly or openly harbor prejudices against minorities and those who "sympathized" with them. Unfortunately, their prejudices sometimes lead them to passively or actively participate in the injustices. Either way, the result is the same: Americans are not asked to choose between their civil liberties and their national security but rather between their national security and the civil liberties of others, i.e., foreigners, communists, terrorists, and traitors. [46]
Of course, similar points can be made using examples from the Chinese exclusion, the Japanese internment, the period of racial segregation, and the post-911 era. But there is no need to belabor the point. Likewise, similar points can be made using examples from other liberal democracies, particularly Great Britain and France. But, again, there is no need to belabor the point. What is more important to notice is that the Barenblatt case highlights a serious problem in Locke's philosophy, namely, it lacks provisions for preventing the executive from violating the civil liberties of minorities with impunity when the majority is unaffected by the plight of minorities, apathetic to the plight of minorities, or straightforwardly acquiesces with the executive. In this respect, Locke's political theory is no different from staunch pragmatism. As I have shown, it suffers from problems similar to those highlighted in the introduction. Hence, Locke fails to articulate an acceptable policy for balancing civil liberties and national security in times of emergency.
V. Ignatieff and the Proper Balance of Civil Liberties, National Security, and Justice in Times of Emergency
Like Locke, Ignatieff is keenly aware of the fact that civil liberties and national security sometimes conflict in times of emergency. To be sure, he argues that sometimes circumstances dictate that national security trumps civil liberties, and, at other times, circumstances dictate that civil liberties trump national security. Either way, he proposes that we adjudicate between their conflicting claims to hegemony by weighing the staunch pragmatist's justifications for abridging civil liberties against the strict libertarian's justifications for not abridging them. In this way, he argues that whenever terrorism presents a serious threat to the State we can abridge civil liberties in order to deal with the threat, and, conversely, whenever terrorism fails to present a serious threat to the State we can deal with the threat without abridging civil liberties.
Additionally, Ignatieff argues that, in cases when national security trumps civil liberties, we ought only to abridge civil liberties in light of adversarial review, placing limitations on how we abridge civil liberties, using sunset clauses, and fully accepting the fact that our actions will sometimes result in immoral behavior. [47] These procedures, Ignatieff assures us, will help prevent our lesser evils from becoming greater ones. For example, the process of adversarial review will help ensure that our leaders' justifications for abridging civil liberties meet the highest standards of scrutiny, like legislative review, judicial review, and the scrutiny of a free press. The requirement that we place limitations on our abridgements of civil liberties will allow us to place perimeters on our actions. Such perimeters will keep us from accepting an anything goes philosophy. The use of sunset clauses will allow us to prevent our leaders from acquiring absolute power. This will prevent democratic leaders from becoming tyrants. And lastly, Ignatieff tells us that once we have accepted the lesser evil philosophy we must also accept that we have engaged in an
exercise in moral risk. We can legitimately do so only if we actually know what we are doing and do not try to pretend that the necessary character of an evil act excuses its moral dubious character. Thus, killing an innocent person to save the lives of hundreds of others might be a lesser evil, but the act would still be wrong. [48]
Hence, as Ignatieff would have it, the way to solve the problem I highlighted in Locke philosophy is to place procedural constraints on the actions of democratic leaders so that they cannot run roughshod over the civil liberties of minorities in times of emergency.
What I find problematic about Ignatieff's philosophy is that he places too much faith in the efficacy of his procedural measures while failing to take seriously important substantive measures for protecting minorities in times of emergency. For example, in chapter one of the Lesser Evil, he asks: "if a war on terror requires lesser evils, what will keep [the lesser evils] from slowly becoming greater ones? The only answer [he tells us] is democracy itself." [49] Of course, by democracy, he means democratic procedural measures like the ones articulated in his lesser evil approach. He uses the Red Scare to illustrate the point. He writes: "if McCarthy persecuted innocent people in open proceedings, he was also brought down by open proceedings." [50] What is unique about democracies, he continues: "is that their Systems of checks and balances and the division of powers assume the possibility of venality or incapacity in one institution or the other." [51] Therefore, "the ultimate safety in a democracy is that decisions filter down through a long process" of review and therefore they "stand less of a chance of being wrong." [52]
Here, it seems that Ignatieff ignores the facts that those who pursued innocent Chinese-Americans during the exclusion, Japanese-Americans during the internments, those accused of being Communists during the Red Scare, and African-Americans during segregation did so in open proceedings in full light of democratic review. Even worse, the judgments of those who persecuted innocent minorities were often upheld by the U.S. Supreme Courts of their day. [53] Hence, contrary to what Ignatieff would have us believe, McCarthy's mistake was not that he pursued innocent people in open proceedings under the scrutiny of democratic review, but rather, he openly pursued the wrong innocent people, namely, middle-class, European-American Citizens and soldiers who did not sympathize with those accused of being Communists. In doing so, he caused those in the majority to fear that the government was going to unjustly target, pursue, and jail them for simply exercising their rights to peaceably assemble, speak freely, and to refrain from self-incrimination. If McCarthy had not pursued those in the majority his career probably would have gone the way of Alexander Palmer's. In the 1920's, Alexander Palmer led anti-communist raids that unjustly targeted foreigners. After the raids, Palmer submitted a bid for the Democratic nomination for President. After losing the bid to James Cox, Palmer opened a legal practice and ended his career practicing law. He died in 1936 at the age of sixty-four. By contrast, after the Red Scare, McCarthy's career was subject to serious public scrutiny, censorship, and ruin, and McCarthy quickly spiraled into alcoholism. He died in 1957 at the relatively young age of forty-eight.
More importantly, however, what I find surprising about Ignatieff's lesser evil philosophy is that it allows politicians to use deception and perfidy. To be sure, Ignatieff teils us that
it is not always possible to save human beings from harm without killing other human beings; not always possible to preserve full democratic disclosure and transparency in counterterrorist operations; not always desirable for democratic leaders to avoid deception and perfidy, not always possible to preserve the liberty of the majority without suspending the liberties of the minority. [54]
He goes on to say that, in times of emergency, "the facts are never presented to the public simply as neutral propositions available for dispassionate review," but rather, they are "stretched to justify whatever case for action is being made." [55] If this is true then there is no reason to think that democratic leaders will not Stretch the facts in order to gain public support for policies that target innocent minorities, particularly when those minorities use their rights to articulate undemocratic or unpatriotic points of view.
What's even more surprising is that Ignatieff seems to agree with me on this point. He writes: the "lesser evil philosophy... accepts as inevitable that... it is not always possible to preserve the liberty of the majority without suspending the liberties of the minority." [56] He continues:
almost all liberal democracies have used September 11th to substantively expand the coercive powers of the criminal law and the police. What needs explaining [however] is not that political figures exploit emergencies to suit their own ends, since they always will, but why they can usually count on substantial public support. Unless we assume that the public are dupes, we need to consider the possibility that strong measures, harmful to civil liberties, actually appeal to majority opinion. [57]
Contrary to what Ignatieff thinks, the fact that democratic leaders lie, institute anti-terror policies that target minorities, and gain public support for their policies is not surprising, novel, or requires great explanation. My analysis of how politicians use dualist conception frameworks, racist slurs, propaganda, and stereotypes explains why "strong measures" that are "harmful to the civil liberties" of minorities are often consonant with the will of the majority. So, there's no need to re-articulate those arguments here. [58]
What is more important to notice is that Ignatieff's philosophy suffers from the same problem that undermines that of Locke's, namely, it fails to prevent politicians from running roughshod over the civil liberties of minorities in times of emergency. As I mentioned above, the essential problem is that Ignatieff places his faith in the efficacy of procedural measures for preventing politicians from using their power to gain support for policies that wrongfully target innocent minorities. He writes: "historical evidence... shows that few countries have met the terrorist threat without taking measures in haste that they repent at leisure. This is exactly why the strategies of pre-commitment discussed in the previous chapters... are so important" for preventing us from repeating the mistakes of the past. [59] Of course, by strategies of pre-commitment he means the aforementioned procedural measures.
But no amount of procedural measures can prevent substantive injustice. Notice, for example, that the cases against Chinese-Americans, Japanese-Americans, those accused of being Communists, and African-Americans met the conditions for procedural justice. To be sure, the defendants had lawyers, their cases were heard at different levels by different courts, and the arguments on both sides were subjected to adversarial review; and yet their cases still resulted in gross substantive injustices. This is because their cases were clouded by the aforementioned dualist conceptual frameworks, racist slurs, propaganda, and stereotypes about minorities. And, as I argued above, those who were responsible for putting the "wheels of justice" into motion were reluctant to call attention to the injustices because they were afraid of being label as "sympathizers," they were unaffected by or apathetic to the plight of minorities, or they straightforwardly accepted the dualist conceptual frameworks, racist slurs, propaganda, and stereotypes about minorities and passively or actively participated in the injustices. Either way, the result was the same: the cases against Chinese Americans, Japanese Americans, those accused of being Communists, and African-Americans met the pedigree tests for procedural justice but failed to meet the pedigree tests for substantive justice.
Of course, Ignatieff would undoubtedly attempt to avoid my objection by illustrating that his lesser evil philosophy incorporates substantive measures that protect minorities in times of emergency. For example, in chapter one of the Lesser Evil, he writes: the lesser evil philosophy accepts "established standards of due process, equal protection, and basic dignity... These standards are more than procedures, anchored in legal tradition," they are substantive measures that reflect our "pre-commitments" to maintaining free and democratic institutions that respect "individual dignity." [60] More importantly, he continues: the lesser evil philosophy maintains that "persons can be detained only for what they have done, not for who they are or for what they think, profess, or believe." [61] Therefore, "it is invariably wrong to arrest or detain on the principle of guilty by association, based on race, ethnicity, or religious affiliation." [62] In which case, Ignatieff would conclude that the lesser evil philosophy does not fail to take seriously important measures for achieving substantive justice.
However, here, I suspect that Ignatieff is simply paying lip-service to important measures for achieving substantive justice, such as respect for human rights. I say this for two reasons: first, in The Lesser Evil, Ignatieff repeatedly argues that human rights can be overridden in times of emergency. In fact, he criticizes the opposing view, calling it the "angelic option" and explaining that "it is tempting to suppose that [in] moral life [we] can avoid [acting on a lesser evil philosophy] simply by avoiding evil means altogether." [63] But, he continues: "no angelic option may exist." [64] In which case, in times of emergency, we may find that "either we fight evil with evil or we succumb" to those who are Willing to perpetrate evil against us. [65] Of course, this is where Ignatieff and I fundamentally disagree. Contrary to what Ignatieff argues, defending ourselves does not require us to resort to evil, particularly when the evil in question requires us to violate the fundamental human rights of innocent people. I shall explain why resorting to such evil plays to the advantage of the terrorists shortly. For now, it is important for me to finish evaluating Ignatieff's position.
The second reason why I suspect that Ignatieff is simply paying lip-service to human rights is that, in Human Rights as Politics and Idolatry, he argues that human rights are nothing more than rhetorical political devices that politicians use to galvanize the troops in pursuit of various causes. [66] On this score, however, any rhetorically persuasive politician could make an appeal to our human rights as a way of justifying egregious violations of the human rights of others. Elsewhere, I have offered an extensive critic of Ignatieff on this very ground. [67] So there is no need to recapitulate my argument here. What is important to notice, however, is that Ignatieff's philosophy does not seem to commit him to respecting the human rights of all.
Even if Ignatieff is not simply paying lip-service to human rights the above attempt to avoid my objection only illuminates a greater problem in his lesser evil philosophy, namely, it is straightforwardly contradictory. For, on one hand, he argues that the lesser evil philosophy accepts that politicians will use deception to manipulate tacts to justify policies that preserve the civil liberties of the majority at the expense of the civil liberties of the minority, and, on the other hand, he argues that the lesser evil philosophy accepts commitments that prevent politicians from using deception to manipulate tacts to justify policies that preserve the civil liberties of the majority at the expense of the civil liberties of the minority. [68] Hence, either Ignatieff's lesser evil philosophy fails to take seriously important substantive measures for protecting minorities in times of emergency, in which case it succumbs to the aforementioned criticism that undermines Locke's philosophy, or it is straightforwardly contradictory, in which case it is untenable on logical grounds. At this point, it seems that Ignatieff can either admit that he fails to take seriously important substantive measures for protecting minorities in times of emergency, or he can admit that he contradicts himself. Either way, I conclude that Ignatieff fails to articulate an acceptable policy for balancing civil liberties and national security in times of emergency.
VI. Swaying in the Balance: Civil Liberties, National Security, and Justice in Times of Emergency
Fortunately, however, all is not lost. As I pointed out earlier, Ignatieff's procedural measures, along with those that already exist, are sufficient for achieving procedural justice. So, I have nothing new to add here. For this reason, I shall focus exclusively on some important substantive measures that liberal democracies can employ to ensure that the cases of those accused of wrongdoing achieve substantive justice. The first of which is truthfulness. Notice that Michael Ignatieff's philosophy succumbs to my objections, in part, because he allows politicians to use deception. The way to avoid this problem is to require that those in power remain truthful. The requirement of truthfulness will prevent politicians from using deception in times of emergency to manipulate the facts to justify policies that unjustly target minorities, even when those minorities use their freedoms to articulate undemocratic and unpatriotic points of view.
Ignatieff and others who argue for deception in counter-terror operations seem concerned that a truthfulness requirement will obligate politicians to disclose sensitive information to the public in times of emergency. But this is simply not true. A truthfulness requirement only obligates public officials to disclose sensitive information to other public officials or committees who can be required to keep the information confidential but nevertheless act on it. For example, in the case of Hamdi v. Rumsfeld the Bush Administration refused to disclose all of its evidence for fear that such a disclosure would alert the terrorists to American counter-terror tactics. This, however, unfairly hampered Hamdi's ability to defend himself. After all, one can hardly defend oneself from evidence that one doesn't even know exists. In response to the Bush Administration, Justice Sandra Day O'Conner argued that, in cases where sensitive information is an issue, special committees of lawyers, judges, and public officials can be convened to review the credibility of the information and the cases can proceeded from there. Of course, utilizing such committees allows liberal democratic governments to disclose sensitive information without alerting terrorists to their counter-terror tactics and it allows the attorneys of those accused to challenge the credibility of the information, thereby providing a defense.
Secondly, we must require that public officials remain faithful to the rule of law. Again, notice that the policies of John Locke and Michael Ignatieff are susceptible to my objections because they allow politicians to violate laws in order to fight evil with evil. [69] This is particularly problematic because it makes our responses to terrorism dependent on the actions of terrorists. The problem with getting caught in an exchange of evil for evil is that it confuses the just with the unjust, thereby allowing the terrorists to present themselves as freedom-fighters, defending their human rights and civil liberties from democratic leaders turned tyrants. Such a presentation will only serve to assist the terrorists in gaining sympathy for their efforts, thereby allowing them to gain more support for their cause. We ought not to assist them in such efforts.
Ignatieff and others who argue for fighting evil with evil seem to be worried that if we do not allow ourselves to use evil means to combat terrorism we will inevitably lose the war on terror. But notice that this is exactly the kind of paranoia to which the terrorists hope we will succumb. Here, it is worth pointing out that terrorist attacks like those perpetrated on 9/11 in America or 7/7 in Britain were not strong enough to undermine either country. If, however, terrorists can force political officials to become paranoid then they will start to engage in unjustified and widespread oppressive practices against those they perceive as terrorists. This will only help the terrorists gain support from states and other individuals. In which case, the threat of terrorism from abroad will increase. Even worse, if democratic leaders grow paranoid enough to turn their oppressive practices against their own Citizens, as McCarthy did during the Red Scare, they will unwittingly sow the seeds of rebellion within their own soil. At which point, liberal democracies will be faced with the possibility of terrorism from within. Either way, allowing our political officials to utilize evils means to combat terrorism will only multiply our foreign and domestic enemies, and thereby increase the possibility that we will suffer another terrorist attack.
Third, we must require that public officials remain in solidarity with all innocent people, irrespective of race, ethnicity, religion, sex, and age. Here, it is important to notice that just after 9/11 people of all nations, races, ethnicities, religions, sexes, sexualities, and ages rallied behind America in its fight against terrorism. Simply put, the vast majority of people hate terrorism as much as we do. Like us, they want to see terrorism come to an end. And, like us, they are Willing to do what they can to assist us in our efforts to bring terrorism to an end. Unfortunately, however, whatever solidarity we had was only ephemeral. It dissolved quickly after the Bush administration started articulating and acting on the aforementioned freedom-fighter versus terrorist conceptual framework, lying about weapons of mass destruction (nuclear weapons) in Iraq, and violating the fundamental human rights of those accused of being enemy combatants by committing ethnic profiling, rendition, and torture. Here, my point should be obvious: truthfulness and faithfulness serve to increase our solidarity with others in the fight against terrorism.
Unfortunately, however, the converse is also true: deceitfulness and unfaithfulness serve to undermine our solidarity with others. To be sure, minorities who are innocent victims of our anti-terror policies can hardly be expected to assist us in our efforts to fight against terrorism, particularly when we are fighting against other minorities who they have reason to believe might also be innocent victims of our anti-terror policies. This is particularly troublesome for our counter-terror efforts because the best way to undermine terrorist organizations is through infiltration. In which case, liberal democracies need Muslims, Arabs, and other minorities to assist them in their counter-terror efforts. Hence, our anti-terror policies that unjustly target minorities hurt both them and us. Fortunately, however, many of our politicians are working arduously to restore some solidarity with minorities by reaffirming at least two democratic values: truthfulness and faithfulness. For example, President Barack Obama has demonstrated his commitment to truthfulness by releasing the CIA memos incriminating the Bush Administration for committing torture; and President Obama has demonstrated his commitment to faithfulness by apologizing for the transgressions of the Bush Administration and reaffirming his Administration's commitment to respecting American laws and the fundamental human rights of all. Hopefully he will be successful at rebuilding our solidarity with others around the world.
Finally, these reforms should be taken as best practices for all liberal democracies. I say this because they are consonant with and can be codified into the laws of liberal democratic states. The United States Constitution, for example, allows political officials to be impeached for committing misdemeanors. [70] This includes deliberately falsifying information. Although lying and deception seem to be minor infringements they can have serious long-term consequences for the State and its Citizens. For example, the Bush Administration's deception about weapons of mass destruction (nuclear weapons) in Iraq has resulted in the lost of thousands of lives and billions of dollars. Even worse, since America is not likely to be completely out of Iraq for years the numbers are only going to get larger.
One advantage of my reforms is that they establish serious consequences for public officials who rely on conceptual frameworks, slurs, propaganda, and stereotypes regarding minorities in order to get their policies accepted. This, of course, is desirable because it decreases the probability that we will accept unfair policies based on prejudice, propaganda, or stereotypes. A second advantage of my reforms is that they prohibit us from formulating responses to terrorism based solely on the actions of terrorists. This, of course, is desirable because it decreases the probability that we will get caught in an exchange of evil for evil. [71] A third advantage of my reforms is that they do not require us to maintain that we will never suspend civil liberties in times of emergency. Quite the opposite, if the time comes when we must suspend, say, the right to habeas corpus, we will do so within the confines of the law, thereby preventing our public officials from acting like tyrants. [72] For these reasons, I conclude that Ignatieff's procedural measures coupled with the substantive measures of truthfulness, faithfulness, and solidarity result in a superior policy for balancing civil liberties and national security in times of emergency because they ensure that the cases of those accused of wrongdoing meet the pedigree tests for procedural and substantive justice, even in times of emergency.
VII. Conclusion
In the final analysis, it is worth noting that Michael Ignatieff presented us with idealized versions of pragmatism and libertarianism, and therefore, it was quite easy for him to undermine them on the practical grounds that staunch pragmatism suffers from the Problems associated with giving absolute power to public officials in times of emergency and that strict libertarianism suffers from the problems associated with failing to place any restrictions on civil liberties in times of emergency. In actuality, however, neither pragmatists nor libertarians would defend such positions, especially not in times of emergency. In fact, they would articulate more moderate practical versions of their positions that would result in policies that could adequately balance civil liberties and national security in times of emergency in ways that make sense.
To be sure, pragmatists would argue that the State must first ensure its survival and therefore it is pragmatically incumbent on its political officials to do what is necessary to bring terrorism to an end. Notice, however, that nothing about this commits pragmatists to the position that, in times of emergency, political officials ought to scramble to grab absolute power and become dictators. Quite the contrary, common sense pragmatists would simply argue that political officials ought to place the appropriate limitations on civil liberties and then return the State to normal when the emergency is over. By contrast, libertarians would argue that the State must protect the life, liberty, and property of its Citizens and therefore its political officials ought to do what is necessary to bring terrorism to an end. Notice, however, that nothing about this prevents libertarians from arguing for appropriate limitations on civil liberties. Quite the contrary, common sense libertarians would simply argue that political officials ought to place the appropriate limitations on civil liberties and then return the State to normal when the emergency is over. At bottom, the real difference between the theories is the way in which their proponents attempt to justify their positions: whereas pragmatists seek to ground their position in a theory about the necessity of protecting the State from harm, libertarians seek to ground their position in a theory about the necessity of protecting the civil liberties of subjects from encroachment. Either way, my point is that liberal democracies need not accept a lesser evil philosophy in order to articulate adequate policies that balance civil liberties and national security in times of emergency.
More importantly, notice that once pragmatists and libertarians accept the procedural and Substantive reforms that I have defended above they are likely to forego the idealized versions of their positions offered by Ignatieff. This is good for at least two reasons. First, whether we accept pragmatist or libertarian justifications for acting, we could avoid appealing to racial prejudice, ethnic profiling, and so on. In which case, we could avoid trials influenced by conceptual frameworks, etc., as we deal with those accused of being enemy combatants. In this way, we could avoid repeating the mistakes that America made during the Chinese exclusion, Japanese internment, Red Scare, and segregation. Secondly, whether we accept pragmatist or libertarian justifications for acting, we could avoid the problems associated with the idealized versions of these positions articulated by Ignatieff. In which case, we would place ourselves in the position to accept a moderate version of either position, one that could balance civil liberties and national security in ways that make sense. For these reasons, liberal democracies ought only to accept policies for balancing civil liberties and national security that meet both procedural and substantive pedigree tests for achieving justice.
Notes
I will use the phrase "times of emergency" throughout this paper. By "times of emergency," I mean times in which a nation is under the threat of terrorism.
John Maynard Keynes, The General Theory of Employment, Interests, and Money, 1964, 383. Ital. mine.
The Bush Administration has been committing rendition since 9/11. For example, see El Masri v. Tenet 437 F. Supp. 2d (E.D. Va. 2006). Fortunately, the new Director of the CIA formerly decommissioned all of America's secret prisons around the world. In addition, the Bush Administration has been denying habeas corpus to those deemed enemy combatants. For example, see Hamdi v. Rumsfeld 548 U.S. 557 (2006). Moreover, the Bush Administration approved of torture in CIA interrogations of enemy combatants. News sources all over the US reported yesterday (April 17, 2009) that the Obama Administration released memos from the Bush Administration approving the use of torture in CIA interrogations of those suspected of being enemy combatants. See http://breakingnews.ie/print/eyauqlaueyau/.
For example, on Wednesday, January 19, 2009, CNN reported that as many as 18 confirmed former Gitmo detainees have rejoined the fight against the US but this number could be as high as 61.
Michael Ignatieff, The Lesser Evil, 2004, 4-9.
John Locke actually uses the term natural rights and not human rights in the Second Treatise. I acknowledge that there is some controversy about whether or not natural rights are equivalent to 20th Century human rights. Johannes Morsink does an excellent job of offering an analysis of this debate Inherent Human Right Philosophical Roots of the Universal Declaration, 2009. Nevertheless, I do not seek to engage in or settle this particular debate in this work. I only mean that for Locke and for 20th Century theorists natural and human rights refer to the most fundamental rights humans possess.
John Locke, Second Treatise, in: Two Treatise of Government, ed. by Laslett, P., 1963, 6.57.
Ibid., 2.4.
Ibid.
Ibid., 2.6. Ital. Locke's.
Ibid., 1.2-3. Locke also offers a lengthy discussion of various powers that follow from authority in A Letter on Toleration, in: Two Treatise of Government, ed. by Laslett, P., 1963.
Ibid., 2.7.
Ibid., 2.8. Ital. mine. For Locke, the law of nature and the law of reason are one and the same. See the Second Treatise, in: Two Treatise of Government, ed. by Laslett, P., 1963, 2.6.
Ibid.
Ibid., 4.22. Ital. mine.
Ibid., 5.39.
Ibid. Ital. mine.
Ibid., 5.32. Ital. mine.
Ibid., 5.32-36.
John Locke, First Treatise, In: Two Treatise of Government, ed. by Laslett, P., 1963, 4.41-42. Ct. Es says, essay 6, ed. W. Von Leyden, 1965, 193-195.
John Dunn, in the "Political Thought of John Locke," in: Locke's Theory of Rights, ed. J. Simmons, and many others articulate the position that Lockean rights and duties are correlative.
John Locke, Essays, essay 6, ed. W. Von Leyden, 1965, 181. Ital. mine.
John Locke, An Essay, ed. R. Woolhouse, 1997, 2.28.3. Ital mine.
Ibid. Ital. mine.
Ibid.
John Locke, Essays, essay 4, ed. W. Von Leyden, 1965, 181-182.
Ibid.
John Locke, Second Treatise, in: Two Treatise of Government, ed. by Laslett, P., 1963, 6.57-60.
Ibid., cf. 2.6 and 2.8. Ital. mine.
John Locke, Essays, essay 1, ed. W. Von Leyden, 1965, 111.
John Locke, Second Treatise, in: Two Treatise of Government, ed. by Laslett, P., 1963, 2.12.
Ibid.
Ibid., 9.131.
Ibid., 18.202.
For example, see Johannes Morsink, Inherent Human Rights, 2009, 19.
John Locke, Second Treatise, in: Two Treatise of Government, ed. by Laslett, P., 1963, 14.160.
Ibid.
Ibid., 14.168.
Ibid., cf. 14.168 and 18.202.
Smith Act, 18 U.S. Code § 2385 (2000). The Smith Act has been amended. Here, I have cited the most recent version of it.
The House Un-American Activities Committee was convened to investígate communist infiltrations of various sectors of American society. The subcommittee that called Barenblatt was investigating the Communist infiltration of the American education System.
Barenblatt v. United States, 360 U.S. 109 (1959). Barenblatt also argued that his freedom of association was violated. The Court also reject this claim. Since the Barenblatt trial there has been a series of rulings outlawing convictions based on "un-American activities." For example, see Yates v. United States, 354 U.S. 298 (1957). However, Barenblatt's conviction has never been overturned.
For example, see Michael Ignatieff, The Lesser Evil, 2004, 57, and David Cole, Enemy Aliens, 2003, 48.
This is probably true of the political leaders of every country.
David Cole, Enemy Aliens, 2003, 112.
Michael Ignatieff, The Lesser Evil, 2004, 32. Ignatieff gets this idea from Ronald Dworkin in "The Threat to Patriotism," in: Understanding September 11, ed. Craig Calhoun et al, 2002, 273-285. Of course, the term "our" refers to Americans, and the term "their" refers to non-Americans.
Ibid., 4-9.
Ibid., 13.
Ibid., 10.
Ibid.
Ibid., 11.
Ibid., ital. mine.
For example, see Chae Chan Ping v. United States (1889), Plessy v. Ferguson, 163 U.S. 537 (1986), and Korematsu v. United States, 323 U.S. 214 (1944). After the controversies subsided, these decisions were over-turned by subsequent Supreme Courts.
Ibid., 21. Ital. mine.
Ibid., cf. 3. Ital. mine.
Ibid., 21.
Ibid., 59. Ital. mine.
See my above discussion, 15-16.
Michael Ignatieff, The Lesser Evil, 2004, 57.
Ibid., 18.
Ibid., 10.
Ibid.
Ibid., 19.
Ibid.
Ibid.
Michael Ignatieff, Human Rights as Politics and Idolatry, 2003, 20-22.
Eric Smaw, "An Analysis of the Philosophy of Universal Human Rights: Hobbes, Locke, and Ignatieff." International Philosophical Quarterly, vol. 48, num. 189, March 2008.
See pp. 10-11 above.
For example see, John Locke, Second Treatise, in: Two Treatise of Government, ed. Laslett, P., 1963, 14.160; and, Michael Ignatieff, The Lesser Evil, 2004, 19.
For example see Article 2, section 4 of the United States Constitution.
Michael Ignatieff, The Lesser Evil, 2004, 19.
For example, see the US Constitution, Article 1, section 9, paragraph 3.