How to protect civil liberties

[Annie]

This is in the Spectator magazine. An interesting insight into right-wing thinking on this subject.

How to protect civil liberties
Alan Dershowitz


Harvard

It is five years since the attacks on the World Trade Center and the Pentagon, but Western democracies have not even begun to address seriously, and in a nuanced way, the moral and intellectual challenges posed by the relatively new phenomenon of mass-casualty suicide terrorism. The traditional paradigm by which we have long confronted harmful conduct — waiting until the harm occurs and then punishing the harm-doer to deter others — cannot work with the suicide terrorist who welcomes the ultimate punishment. A new paradigm, relying more on anticipatory and preventive measures, must be considered. But such measures carry with them considerable dangers to civil liberties. The debate thus far has been largely an unilluminating clash of ideological extremes with one side arguing against any compromise with the old deterrent-civil liberties model, and the other side insisting that the need to prevent mass-casualty terrorism trumps traditional concerns over civil liberties. What has been missing from the debate thus far is a willingness to adapt old approaches to new realities.

What then are the new realities? They include both the terrorist acts that succeeded as well as those that failed. We tend to remember the former better than the latter. Yet we can learn much from both. For a mass-casualty terrorist attack to succeed, it requires careful planning, creativity, exploitation of vulnerabilities and considerable luck. For a terrorist plot to be thwarted — as were the alleged trans-Atlantic airplane plot and an earlier trans-Pacific plot — it also requires careful planning, creativity, exploitation of vulnerabilities and luck.

The terrorists, however, have considerable advantages. They can fail dozens of times, as they have. But one mega-success more than makes up for all the failures. Moreover, they have unlimited human resources, because radical Islam has created a unique culture (or religion) of death in which suicide is glorified, the suicide bomber becomes a posthumous rock star with posters and place names, and his (and increasingly her) family is favourably compensated and treated as royalty. Thus, instead of being deterred by the fear of punishment, the suicide terrorist is incentivised by the promise of posthumous reward. Finally, although democracies benefit from an asymmetry of weapons, terrorists more than make up the difference by their asymmetry: terrorists have no moral limits on what they are prepared to do, while democracies must adhere to their high moral and legal standards in combating terrorism. Accordingly, democracies have to fight terrorism ‘with one hand tied behind their backs’ (to borrow an apt phrase from Israel’s chief justice Aharon Barak).

If democracies could use ‘both hands’ — if they were not limited by moral and legal constraints — it would be relatively easy to combat terrorism. This has been proved over and over again by tyrannies that have been able to stop terrorism cold in its tracks. Hitler and Stalin simply arrested or executed all potential terrorists (and many others on the pretext that they were terrorists). They tortured suspects into confessing and inculpating others (sometimes truthfully, often falsely). They surveilled everyone, using family members and friends as spies (imagine what they would have done with modern technology). They deterred terrorists who were themselves prepared to die by punishing their kith and kin (as when Reinhard Heydrich was killed by a Czech terrorist and Hitler ordered the mass murder of the entire village of Lidice). They criminalised all advocacy of terrorism (and even peaceful advocacy of change). They restricted movement in and out of the country and required everyone to carry identification cards (‘Your papers, please!’). Perhaps most important, they exercised total control over the media and forbade reporting of terrorist acts (thereby denying terrorists the ability to communicate widely their ‘propaganda by deed’).

No democracy could be, or should be, willing to employ such tyrannical methods. But if mass-casualty terrorism were to become rampant, there would be demands by the public to take extraordinary preventive measures that would almost certainly violate moral and legal norms. Thankfully, neither Great Britain nor the United States has reached this point yet, and the measures taken to date — increased surveillance, border controls, intensity of interrogation, airport security — have not diminished the ‘feel of freedom’ for most citizens (at least for those who do not fit the ‘terrorist profile’). But if either nation were to experience repeated 9/11s or 7/7s — especially if such mass-casualty terrorist attacks could have been thwarted by extraordinary measures that could have been taken but were not — the public outcry for adopting such measures would become deafening (to say nothing of the outcry for all-out war against any nation suspected of supporting the terrorists — recall Afghanistan). That is why effective prevention of terrorism, by means consistent with basic moral and legal norms, is so important for the preservation of civil liberties. Put another way, the greatest threat to civil liberties today may well be additional successful acts of mass-casualty terrorism. That is why 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. So, although it would be possible to prevent future acts of mass-casualty terrorists by taking extreme measures that would eviscerate the feel of freedom, we should not succumb to such tyrannical temptations. But we must begin to discuss other ways of achieving significant victories in the war on terrorism without replicating the immorality of our enemies.

It would also be relatively easy to combat terrorism if our government had earned more of our trust over the years. But most governments — even most liberal democracies — have tended to abuse extraordinary powers given to them during emergencies. The Kennedy administration misused its national security powers to bug the hotel rooms of Martin Luther King. The Nixon administration abused its taxing power to audit its political enemies. The Roosevelt administration detained more than 100,000 Japanese–Americans following Pearl Harbor. The Churchill government also misused its authority to detain enemy aliens during the early years of the second world war. And the worst abuses have probably never been revealed. We do not know what we do not know, for example, about how far the Bush and Blair governments have gone in their electronic surveillance programmes.

These high-tech intercepts may be absolutely essential to the efforts to thwart mass-casualty terrorism, and if we trusted our governments, there could be reasonable compromises that would allow our intelligence agencies to get the bad guys without violating the privacy of the good guys (or the not-so-bad guys).

Instead of thinking about high-tech intercepts as a black and white, either/or issue, we could deconstruct the problem and consider it in a more nuanced way. For example, we could distinguish between the monitoring phase of electronic intercepts and the use and disclosure phases. If we trusted our intelligence agencies — the way we trust our doctors, for example — we might be comfortable allowing them to monitor communications for the sole purpose of detecting terrorist plots. Only information relevant to such plots would ever be disclosed to anyone. All innocent communications would be permanently erased, while suspicious ones would be secured solely to check them against future communications.

Smart patients tell doctors everything about their lives — even the most private and seemingly irrelevant details — because we trust their promise of confidentiality and because we understand that what may seem trivial to a lay person could be significant to the trained ear. We have no such trust in our governments, even though the stakes for us may be even higher: not only our own lives, but those of our children and grandchildren. We learn from experience that when governments possess information, they tend to use it or to disclose it for political or even personal advantage. Recall the way the Bush administration allegedly misused secret information to discredit the husband of a CIA agent who had written a report critical of Bush policy. Experience also teaches us that information secured for the limited purpose of preventing only terrorism will often be used by the government to prosecute other less serious crimes, such as drugs, pornography and fraud. It is difficult for law enforcement to ignore evidence of crime once it has it, even if it was empowered to receive it for only a limited purpose.

This history of creeping expansion and misuse of power creates an understandable sense of mistrust that animates much of the opposition to changes that might increase the effectiveness of measures to prevent terrorism, ranging from surveillance, to profiling, to interrogation methods designed to gather preventive intelligence rather than evidence for use at trials.

Distrust and scepticism are healthy attributes of a democracy, but they should not blind us to the possibility of new and creative approaches that may accord governments more of the powers necessary to improve terrorism prevention, while at the same time decreasing the potential for abuse. For example, in the area of electronic surveillance, the intelligence services could be given broad authority to monitor electronic communications by means of filtering systems that sounded the alert any time words, phrases or concepts that were suggestive of a terrorist plot were used. They would then have to obtain specific authority from a court — which could be done within minutes — to actually listen in on the conversation or read the content of the email. If the monitored words suggested an imminent attack, the intelligence agencies could immediately move to the next step of overhearing and reading, but they would then have to obtain after-the-fact judicial authorisation within 24 hours. If the listening and reading turned up nothing incriminating, the records of the intercepts would be destroyed or preserved in a secure manner.

In an ideal world, this would give the government what it needed, without denying innocent people much of their functional right of privacy. Some innocents would have their private communications listened to or read by intelligence officers, but the information contained in them would never be disclosed or misused — if the intelligence officials selected for this delicate task were carefully vetted for their non-partisan commitment to security, and if structures were put in place to assure confidentiality.

In the area of profiling, the major concern is racial, religious and ethnic discrimination. But if profiles were constructed on the basis of multiple individualised factors — such as travel history, criminal record, association with terrorist groups, recent money transfers — these factors could be combined with relevant racial, religious and ethnic characteristics to help identify individuals more likely than others to pose a danger of terrorism.

When it comes to interrogation, we might want to distinguish between questioning for purposes of securing evidence for criminal trials and questioning designed to produce preventive intelligence. In a criminal case, we live by the principle that it is better for ten guilty defendants to go free than for even one innocent to be convicted. The opposite is true in preventive intelligence. It is better for ten false leads to be followed than for even one true lead to be missed. This difference might lead to different rules for conducting criminal and preventive interrogations. The US Supreme Court recently hinted that it might be receptive to such a distinction.

These are but a few examples of how we might begin to change the debate about the appropriate steps to be taken in the face of the successful and unsuccessful mass-casualty suicide terrorist attacks that continue to threaten us. Benjamin Franklin famously said, ‘Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.’ The operative words are ‘essential liberty’ and ‘a little temporary safety’. But we must decide which liberties are so essential to a democracy — such as freedom of dissent — that they must never be compromised, and which are amenable to some compromises in order to help secure a great deal of long-term safety. Let that debate begin.

Alan Dershowitz is a professor of law at Harvard. His most recent book is Preemption: A Knife that Cuts Both Ways (Norton, 2006).

[Annie]

And this was my comment. Please don't leap on me for not going into 9/11 and 7/7 more specifically - I'm trying to build a link with them, and then hit them with it. Softly, softly, catchy monkey......

To: The Editor
The Spectator Magazine

Re: Comment on the Alan Dershowitz article: "How to Protect Civil Liberties"

Dear Sir,

I agree with Mr Dershowitz's broad sentiment that there has to be a balance between civil liberties and protecting the citizens of this country.

However, such a balance relies on our being able to trust the UK intelligence agencies not to abuse their powers. This is impossible until our government is able properly to hold them to account. This it has manifestly failed to do in recent years. To cite just a few examples:

- the woeful lack of accurate intelligence used to justify the invasion of Iraq;
- the testimony of MI5 whistleblower, David Shayler, who disclosed a number of crimes committed by both MI5 and MI6. These included illegal files held on 100,000s UK citizens, personal information held and used against leading members of the government, the illegal phone tapping of a prominent journalist, innocent people wrongfully convicted, MI5 lying to government to cover up its failure to thwart IRA attacks, and the illegal funding by MI6 of Al Qaeda in an assassination attempt against Colonel Gaddafi of Libya in 1996;
- the testimony of GCHQ whistleblower, Katherine Gun, who disclosed the plan to spy on our allies in the run up to the Iraq war;
- the persecution of whistleblowers such as Dr Kelly and Dr Jones of the MoD;
- the prosecution and/or intimidation of any journalist brave enough to report the disclosures of whistleblowers; and
- the government's failure to investigate fully the intelligence failures in the run up to the 7/7 bombings in London last year. This despite the fact that new resources and powers have been thrown at the agencies in recent years. It is astonishing that there has yet to be a meaningful enquiry into the biggest attack on UK soil.

We have laws in this country designed to regulate the interception of communications, most recently the Regulation of Investigatory Powers Act, but again, the spies have a history of lying to ministers and abusing the system.

We are also faced with restrictions on our rights to demonstrate freely outside Parliament, the internment without trial of individuals for the first time on the UK mainland outside war, and the use of information by the intelligence agencies obtained under torture.

Our traditional and hard-won freedoms have already been eroded to an alarming degree. Until we have real, meaningful oversight and accountability of the spies, we should be extremely cautious of giving them yet more powers.

Yours faithfully,
Annie Machon
Former MI5 Intelligence Officer.

[Mark Gobell]

Annie

I would like to congratulate you on your polite, restrained yet susbstantive response to Alan Dershowitz.

Interpreting the Spectator piece at face value, just for a moment, my initial reaction would be to ask "OK, Alan, but who will watch the watchers ?"

Unfortunately, my trust that Mr Dershowitz encourages his UK readers to consider, does not extend to him.

This article, like all such articles from clever minds like Mr Dershowitz, is carefully designed. It is a clear call for a new agenda, which for it's author is familiar territory.

The "trust thrust" in this article clearly postulates trusting our security services like we trust our doctors. Mr Dershowitz obviously goes private.

He apparently laments the notion that if only our governments had enjoyed our trust then combatting terrorism would be easier.

We could easily reason that on the issue of terrorism most citizens blindly do accept the Hobson's choice of "trusting" their government, if only by default.

The message here then might well be just that, with a little more "nuanced" presentation to win over those hand wringing liberals on issues such as surveillance and pre-emptive intelligence.

He suggests that the mass-suicide terrorists are not constrained as democratic security services are so therefore our societies are, as Mr Dershowitz and Israel continue to tell us, operating with one hand behind our collective backs.

So we must free ourselves from these constraints and accept more surveillance, reduce the impediments of "moral and legal constraints" just like Hitler and Stalin, whose methods he devotes an entire paragraph.

Dismissing this historical tyranny as unsuitable in a "democracy", he tells us that we would be begging for it in the face of expanded mass-sucide terrorism.

Good point. I agree. Most would and are. But a growing number do not buy your mass-suicide word count Mr D.

Need I be reminded that the esteemed Mr Dershowitz openly advocates the use of torture.

Whilst appearing to acknowledge the importance of freedom and liberty he seduces us into drawing distinctions about what freedoms we need to consider as "essential" in the context of "temporary safety".

I imagine Benjamin Franklin would be eagerly eyeing Mr Dershowitz's knife that cuts both ways, but I suspect Mr Dershowitz knows that Mr Franklin is indeed dead, as do those for whom this agenda item was intended.

[Annie]

Yeah - my letter's in this week's Spectator. Slightly truncated, and they took out the details of Dave's disclosures, but still....

Letters to the Editor



The spies who lie

From Annie Machon
Sir: I agree with Alan Dershowitz’s broad sentiment that there has to be a balance between civil liberties and protecting the citizens of this country (‘How to protect civil liberties’, 2 September).

However, such a balance relies on our being able to trust the UK intelligence agencies not to abuse their powers. As a former MI5 intelligence officer, it is clear to me that this is impossible until our government is able properly to hold the agencies to account. This it has manifestly failed to do in recent years. To cite just a few examples: the woeful lack of accurate intelligence used to justify the invasion of Iraq; the testimony of the MI5 whistleblower, David Shayler, who disclosed a number of crimes committed by both MI5 and MI6; the testimony of GCHQ whistleblower, Katherine Gun, who disclosed the plan to spy on our allies in the run-up to the Iraq war; the persecution of whistleblowers such as Dr Kelly and Dr Jones of the MoD; the prosecution and/or intimidation of any journalist brave enough to report the disclosures of whistleblowers; and the government’s failure to investigate fully the intelligence failures in the run-up to the 7/7 bombings in London last year. This despite the fact that new resources and powers have been thrown at the agencies in recent years. It is astonishing that there has yet to be a meaningful inquiry into the biggest terrorist attack on UK soil.

We have laws in this country designed to regulate the interception of communications, most recently the Regulation of Investigatory Powers Act, but again, the spies have a history of lying to ministers and abusing the system.

We are also faced with restrictions on our right to demonstrate freely outside Parliament, internment without trial of individuals for the first time on the UK mainland outside war, and the use of information by the intelligence agencies obtained under torture. Our traditional and hard-won freedoms have already been eroded to an alarming degree. Until we have real, meaningful oversight and accountability of the spies, we should be extremely cautious of giving them yet more powers.
Annie Machon
by email