In Response to the Ottawa Citizen

Saturday’s (July 1) Ottawa Citizen included an editorial by Leonard Stern entitled ‘The right not to be blown up’ (Page B6, July 1, 2006). A link to the text of this article is not currently available.

The main thrust of Stern’s editorial is an attack on a hyperbolic or straw-man vision of civil liberties advocates in the context of the ‘war on terror.’ He references some writings about the ACLU from – of all places – The Onion, to imply that this group and other civil liberties advocates would demonstrate in support of the rights of Nazis to torch their (the ACLU’s) own headquarters. While Stern throws in the caveat that “OK, this is an exaggeration, though not a huge one,” the reader can see that his argument is of the ‘trade civil liberties for increased security’ variety, and that he takes issues with individuals and (particularly) groups who think otherwise. As a group, the NSWG has been working on the concept of a ‘security-civil liberties continuum’ for some time now, with the specific goal of ascertaining whether and to what extent such a trade-off process could exist. To date, we haven’t been able to identify examples that support this logic as anything more than a hypothesis, and, on the contrary, an abundance of examples that demonstrate an erosion of civil liberties leading to increased experiences of insecurity.

The popularity of Stern’s talking points among many commentators should give us pause to consider the way that we, as a society, are approaching security problems. What follows is a series of quotes from his editorial, with some counter-points and material for consideration.

Stern: “One group that I find especially doctrinaire is the civil libertarians, who are
more afraid of counterterrorism than of terrorism”

Anyone with even a rudimentary knowledge of history – Canadian, American, European, etc. – should know that there is good reason to be highly suspect of state security activities (indeed, of all state activities – since when did obedient consent become a laudable model for democratic citizenship?). Mr. Stern could use a good trip to the library. I suggest using the search strings “Cold War + RCMP surveillance of gays,” “RCMP + Dirty Tricks,” “internment,” “McCarthy,” “APEC,” or “rendition,” for starters. It wouldn’t hurt to pick up and read Gary Kinsman et al’s (2000) ‘Whose National Security?’ either. Counterterrorism in the contemporary context often involves new powers of policing, intelligence-gathering, surveillance, and detention. There are plenty of recent examples of these powers being abused in different parts of the world, and therefore plenty of reasons for responsible citizens to be circumspect about the implications of their use here in Canada. But even if there were no such examples – even if we had never heard of security certificates, the KIHC facility, rendition, racial profiling, shoot-to-kill policies, broad-brush illegal surveillance, ‘torture lite,’ or anything of the sort – history alone teaches us that it is unwise to remain silent or complacent in the midst of a state national security campaign.

Additionally, I take issue with Stern’s use of an either-or logic in this statement, something that is too often seen in the polarizing, binary discourses (good-evil, us-them) of our time. His admonition of civil libertarians for ‘fearing’ (not the right word, really) counterterrorism more than terrorism implies that a reasonable person cannot be concerned about both activities, which is absurd. Security campaigns and terrorism – particularly in the contemporary mass-mediated context – have a symbiotic relationship, built on a foundation of insecurity, fear, and spectacle. Surely Stern would agree that the generation of public insecurity (which is an essential product of national security campaigns) is a force of tremendous power. Raise a terror alert level, and you can change the behaviour of a city; terrify the public enough (something that both states and terrorist groups engage in – along with the media), and you can generate support for a war. The state, by invoking national security prerogatives, can effect changes that would otherwise be impossible. Additionally, given the secretive nature of security intelligence information, it is often impossible for non-state actors to challenge government claims about terrorism and national security. It is entirely possible that state security agencies are doing their level best to counter an existing threat and communicate its nature with the public truthfully. We all hope this is the case. But why assume it? Why, given the lessons of history, the power of insecurity, the prerogatives of secrecy, and opportunities for the abuse of power, would a member of the press take issue with those who choose to keep a watchful eye on the state? This is not a matter of being “with us or against us,” as some would like to portray it; it is possible, and eminently reasonable, for members of the public to be concerned about terrorism and concerned about the counterterrorism activities of the state, and suggestions that one should focus on the former and ignore the latter are at best dangerously naïve.

Stern: “Those for whom “free speech” is an inviolable abstraction, like God or love,
are usually intellectuals, and as George Orwell observed, some ideas are so
stupid that only intellectuals can believe them.”

I’m not sure which Orwell texts Mr. Stern has read, but I am reasonably certain that Orwell would take issue with someone citing his words to downplay the importance of freedom of speech and civil liberties. I find the above concerning, doubly so as it comes from a member of the national press. ‘Extreme civil libertarians’ are not the only people who should be hearing alarm bells when the editors of newspapers start to take shots at free speech. Stern’s argument here focuses on the issue of hate speech or radicalism, particularly as it pertains to religious preaching. This is, of course, an issue that requires much attention, debate, and consideration in Canada – and it is an issue that we have tackled several times in the past, in relation to pornography, supremacist rhetoric, and other such acts. What is required, when dealing with matters concerning the Charter, is a great deal of caution, lest the solutions to problems turn out to be problematic in their own right. Nothing good can come of treating a strong stance on free speech as “stupid,” even if one is opposed to this position. Again, looking to history, we see that restrictions on free speech often have corollary impacts on the freedom of the press, something which should be of concern to the editor of a major newspaper. The post-September 11 context is one in which many rights and liberties have become embattled, particularly because so many of our elite (including intellectuals and editorialists) have bought into the notion of a ‘barter system’ where ‘abstractions’ like liberty can be traded for other ‘abstractions’ like security. Indeed, Stern and other proponents of this logic may want to spend some time searching for official or operational definitions of ‘security’ in current government policy before declaring that certain positions on rights are too abstract.

Stern: “Even after the recent arrests of a dozen-plus suspected jihadists near
Toronto, some activists warned that the real “clear and present danger” to the
Canadian way of life is not terrorism but anti-terrorist initiatives such as
security certificates and increased screening of immigrants.”

This reads like a quote by US President George Bush, who is well known for basing speeches around vague (read: straw-man) responses to what ‘some people’ have said. And it again invokes an either-or logic to imply that one cannot be concerned about terrorism and counterterrorism at the same time. If the cases against the 17 men arrested in Toronto hold up in court (something that is yet to be seen), it will be a major success for Canadian security agencies – doubly so because the operation that led to the arrests was apparently ‘by-the-book’ and legitimate, and because it led to charges under the Canadian Criminal Code. In any event, the 17 arrests have nothing – repeat, nothing – to do with the issue of immigration security certificates, which is currently before the Supreme Court. Even the state has been careful not to readily conflate the two matters. The differences between the C-36 sections of the Criminal Code (used in the case of the Toronto arrests) and the security certificate provisions of the immigration and refugee protection act are profound, and Mr. Stern, who claims to be ‘on the terrorism beat’ should know this. Many of the advocates speaking on behalf of the men being held on security certificates – and several of the men and their families – have repeatedly gone on record asking for the members of the ‘secret trial five’ to be charged under the Criminal Code, rather than held indefinitely on an outdated administrative mechanism.

Canadian citizens cannot be detained on immigration security certificates (which are designed to effect the swift deportation of non-citizens), which means that this mechanism could not have come into play in the recent Toronto situation. If anything, the apparent (again, we still don’t know) success of the Toronto investigation is ample demonstration that there is reason to question the need for the security certificate process. If the security certificate mechanisms were struck down in their entirety tomorrow, it would have absolutely no bearing on the counter-terrorism mechanisms employed in the Toronto arrests. Ergo, one could express real concern about the security certificate regime and, at the same time, express support for mainstream counter-terror activities. It is not an all-or-nothing matter of either supporting ALL actions taken in the name of national security or opposing them in their entirety, as Stern seems to be implying.

Stern: “To protect this most fundamental human right – the right to life, that
is, the right not to be blown up – other rights may have to be curtailed.”

Maybe. This is the logic that is advanced by Michael Ignatieff and other commentators who see civil liberties as a possible obstruction to successful security measures. But we have no proof that this is the case (or even a solid explanation of how it might be), and when something as important as fundamental rights are at stake, the need to see evidence before taking action is even greater than is usually the case. Moreover, if we shake off the media-induced fixation with the spectacle of terrorism for a few minutes, we can see that there are a great many threats to the fundamental right to life experienced by Canadians today, most of them far more immediate and probable than bombings. Human security is threatened by things other than terrorism, and in more profound ways. As a society, we have tackled and continue to tackle much more serious social problems, using a range of responses. Occasionally, these activities have led to limited restrictions on certain civil liberties. But it is only in the context of contemporary terrorism that we see a tremendous willingness on the part of so many to support the curtailment of rights. Cass Sunstein, in his excellent book Laws of Fear, explores the logic and psychology that underlies this type of thinking. In essence, the uncertainty that surrounds assessments of the risk posed by terrorism, coupled with the availability of images of past catastrophes, leads to a willingness to demand extraordinary action in pursuit of security, out of proportion to the nature of the threat – up to and including the curtailment of liberties out of some vague promise that increased security will ensue. Stern’s analysis is a clear example of this. Additionally, generalized statements to the effect that civil liberties must be lessened for security to be increased fail to acknowledge that theoretical reductions in the liberties of all citizens often equate to practical reductions in the liberties of certain groups only. This is another hard-learned lesson of historical security campaigns.

Finally, we should note that the advance of security technologies over the next decade will inevitably lead to a number of situations where the sanctity of civil liberties will clash with the agendas of national security campaigns. The growth of biometric technology, RFID implementation, and expanded capacities for surveillance come to mind. With these developments on the horizon, we must be doubly cautious when asserting positions on civil liberties. If the ‘lesser evil’ or ‘necessary curtailment’ model becomes accepted as unproblematic in the current context, it will lead to weaker grounds for defence against future encroachments.

Stern: “When the threat is removed, the civil liberty that was infringed can be
restored.”

This is the logic that underlies ‘temporary emergency’ legislation, something Giorgio Agamben explores in his work State of Exception. For a historical example of such a temporary restriction, we can look to the controversial invocation of the War Measures Act by Prime Minister Trudeau during the October Crisis. But there are a great many differences between the temporary suspension of civil liberties that occurred in 1970 and the much more pervasive climate of exceptionality that characterizes the contemporary national security climate. As many have noted, what we are now seeing is the normalization of powers that were previously exceptional, and the ‘permanence of the temporary.’ We won’t be seeing any temporary restrictions of the magnitude of the War Measures Act in this context; rather, extraordinary powers have become part of post-September 11 policies and laws and the power to temporarily restrict liberties has become worryingly unremarkable. At issue is the capacity of the state to effectively restrict liberties and the nature of the mechanisms that allow for such actions. History again teaches us that states given the power to temporarily restrict liberties in times of crisis have a tendency to expand both the definitions of ‘temporary’ and ‘crisis’ beyond what the public would consider reasonable. This is particularly important to bear in mind in the current context, where the state is the sole institution with the power to define the nature of the terrorist threat (based on confidential information).

Stern: “Civil libertarians forget that without security, there can be no freedom.”

I won’t bother addressing this comment in detail, as others have already done so. Suffice to say that – when coupled with a blind trust in the government – this way of defining the relationship between security and freedom is a sure path to an authoritarian state. Terrorism can kill individuals, damage property and infrastructure, and disrupt daily life and economic activities – but it cannot threaten the fabric of democratic society, the Charter, or the rule of law. Only states can do that, and only if we let them.

- Mike