On Liberty and Security

A great deal has been written in the last few years about the extent to which we can or should trade liberty for security. Precisely because so much has been written, it may seem unlikely that anything new can be said now. But in a recent book review, Jeremy Waldron describes the nature of the tradeoff with a clarity that struck me as unprecedented. Although his observations seem obvious in retrospect, I have not seen anyone make them before, which suggests to me that perhaps they only seem obvious because they are so keen.

Waldron is reviewing “Less Safe, Less Free” by David Cole and Jules Lobel, and he writes in the October 25 New York Review of Books that when we think about the tradeoff between liberty and security, “[o]ne crucial distinction is between trade-offs involving only our own personal situations and interpersonal trade-offs involving others.” He develops the distinction as follows:

A simple case of a personal trade-off is this. I accept the burden of a legal requirement to wear a seatbelt, restricting my freedom to sit in my car as I like, because I am convinced that this will make me safer, less liable to injury or death in the event of an accident. If we all do this, then each of us is safer though each of us is a little less free. We can think of it as a straightforward trade-off, once we understand what happens to human bodies in automobile collisions. It’s something like buying more potatoes (safety) and less meat (liberty) when we find that meat is more expensive than we thought.

Another similar case, slightly less straightforward, is when we all accept a restriction on liberty not because our own actions pose a threat to our own safety, but because it is possible that some of us may pose a threat to the others and we don’t know who. This is the logic of the airport security system; and it too seems to make innocuous sense. We all accept certain restrictions in the expectation that we will all enjoy greater security. Again, the trade-offs affect our own well-being: each of us bears the cost and each of us reaps the benefit.

Quite different, however, is the interpersonal case, in which we sacrifice not our own liberty but the liberty of a few people in our midst in order that the rest of us may be (or at least feel) more safe. A passenger notices some Muslim men praying before boarding an aircraft. She makes a fuss and the Muslims are removed from the flight. Some liberty is lost, and perhaps some security is gained. But the person who gains the security is not the person who lost the liberty. This is utterly unlike the trade-off by which one wears a seat belt in order to gain more security. It’s a different game: a game of majorities and minorities.

It is different but of course it’s not unusual. For there are winners and losers all the time in politics: a new highway benefits some restaurant owners at the expense of others whose establishments languish boarded up along the route of the old road. But the stakes are much higher in the trade-off between liberty and security. For what is traded off in that case is not just economic interests or mundane freedoms, like the freedom to drive without a seatbelt. Often what is traded off is something that was previously regarded as a right, and the loss of that right may simply be imposed on the people affected. Members of a minority are detained without trial, or spied upon, or beaten or humiliated during an interrogation, and all to make the rest of us more secure. This is troubling because rights are supposed to be guarantees given to individuals and minorities about the outer limits of the sacrifices that might reasonably be required of them. Rights are supposed to restrict trade-offs, not be traded off themselves.

I think this might go a long way toward explaining the insouciance with which some thoughtful people regard the military detention of Muslim citizens or the torture of suspected enemy combatants. The vast majority of us can safely regard those people as Other, and many of us literally cannot imagine being subject to the burdens under discussion. Similarly, when the topic is warrantless interception of calls to or from foreign powers, it is reasonable to suppose that people who make no international calls will think this a small price to pay whereas people with families or business associates in the Middle East may take a different view.

Unfortunately, unless we’re quite explicit about the interpersonal nature of the trade-off, and our reasons for it, then our acceptance of burdens borne by others may often haunt us later. FDR’s preventive detention of Japanese American citizens during World War II now strikes us as shocking at least in part because it was so explicitly aimed at a particular ethnic minority. But it did not, thank goodness, establish any precedent for the preventive detention of other citizens, and perhaps its widely accepted status as an extreme aberration in a free society owes something to the fact that the us-versus-them character of that policy was unmistakable.

By contrast, if we endorse warrantless surveillance of suspected terrorists, or preventive detention of suspected enemy combatants (whom the current administration would of course simply call “terrorists” and “enemy combatants,” leaving it to those pesky ACLU types to cavil about the presumption of innocence), we are diminishing the rights of an open-ended class that might theoretically include any of us even though the vast majority of us can be confident we will not be included in actual practice. People thinking of the specific facts of any one case may be willing to make the trade-off because they think they are dealing only with other people’s liberty, when in fact the decisions we make in such cases now are likely to have a permanent ratchet effect on the extent of the liberty we pass down to our children. Unless we think rigorously in terms of classes and distinctions and general principles, the equilibrium we reach as a society may well depend less on the relative importance of liberty and security than on widespread failure of imagination.

3 Responses to “On Liberty and Security”

  1. Timothy Peach Says:

    Granulous, this is not an overworked topic in my opinion, and your discussion above is a good one, although as usual it goes on forever and makes butterfly wings out of everything.

    There is a simple truth here which is that safety costs something in terms of personal freedom. It always does and always will, and as a society we cannot put an absolute value on either safety or freedom. We have to find a balance.

    Conservatives tend to be comfortable curtailing the liberties of Others, and liberals (in my experience) want no incursions of any sort on anyone’s most refined sense of liberty, while also expecting perfect safety (and screeching the loudest when some soft point is exposed by an event).

    We have an open society, and should damned well make sure it stays that way. And it will come at a cost. We will never be as safe as we could be, because we shouldn’t be exacting excessive costs in liberty from ANYONE to achieve those safety levels. It’s a matter both of morality and diminishing marginal utility.

    I don’t believe there are bright lines here. Profiling is not off limits, it must just be reasonable. Judgment must be afforded (but monitored) to those who are charged with gathering intelligence about our enemies at home and abroad. We have to be tolerant of the occurrence of instances of overreaching (although we must correct them) in pursuing security because excessive defense of “freedom” will leave us overexposed, which will lead to events that will make the pendulum swing back violently toward Us and Them.

    But this is America, and liberty is our cornerstone. We surrender it grudgingly, when the benefits outweigh the costs.

  2. Mark Patton Says:

    I wonder if Waldron isn’t over-hyping his supposed dichotomy. I don’t see any real categorical difference–at least not a difference that can support the moral or philosophical weight Waldron seems to want it to bear. (Disclaimer: I’m not a NYRoB subscriber, and now that they’ve moved their site behind a subscriber wall, I can’t ready the full articles anymore. So I’m going only on the excerpt provided here.)

    Just to take a couple corollaries to his “seat belt” example, I wonder how he’d view drunk driving laws–specifically drunk driving laws in Utah. A drunk driving law is a restriction on liberty, and it protects non-drinkers (and drinkers) from the danger posed by those who engage in risky behaviors. In a teetotaling community, say Utah, drunk driving laws are mostly what Waldron seems to want to call “interpersonal” bargains–the citizens of Provo happily rely on the police to stop intoxicated drivers, and presumably most of those drivers are members of the non-Mormon minority, even though the increased safety on the roads is largely enjoyed by the non-drinking Mormon majority. Is this somehow insidious?

    If it is, isn’t the criminal law similarly insidious? Most people don’t commit violent crimes, and I would guess they’re dissuaded not primarily by fear of facing 5-10 in the state pen but by some personal moral code. But this majority wants the laws enforced against those who do commit violent crimes, and they want violent offenders incarcerated (as opposed to fined, whipped, or being punished some other way) in order to protect the non-violent majority. (I realize justifications for criminal penalties are complicated, with retributive and deterrent motivations in the mix. But the the choice of incarceration over, say, public scourging would seem to reflect an emphasis on disabling the criminal over pure deterrence and retribution.) Should the majority worry about the morality of these laws because they restrict the liberty of the few (more than necessary for pure deterrence purposes) in order to protect the many? Or is this simply a matter of being a realist about human nature and the risks of recidivism; what the Crim Law professoriat once called “an intelligent Bayesian?”

    I suspect that what makes Waldron really uncomfortable is that some of what he calls “interpersonal” restraints on liberty constrain certain people less because of what they do and more because of who they are. To the extent we restrict behaviors that increase the risk to the general public, or scrutinize behaviors that strongly correlate to increased danger to the general public, such measures seem justified, whether or not it is a majority or a minority that feels the impact of those measures. The need for sensitivity is greater where the behavior or in question is not strongly correlated to danger to the public–say merely being of middle eastern descent–and perhaps Waldron’s only point is that we are less likely to be appropriately vigilant because we tend to look at who is impacted (Muslims) rather than the category being relied upon to identify the targeted population (religion), and where the group actually impacted is associated in the public mind with anti-social behavior (“All terrorists who attack the west are Muslims”) the majority tends to be unperturbed (“You know, if the ‘good Muslims’ could control their fanatical friends they wouldn’t have so many problems…”).

  3. Mark Grannis Says:

    Mark, I think it is significant that your examples all involve conduct that we wish to prohibit and punish for its own sake, whereas Waldron’s are all preventive. You may have been led astray by his choice of seat belt laws, which of course do involve the possibility of criminal punishment if you are stopped, just as it’s a crime to run past security in an airport. But seat belt laws and drunk driving are not really comparable; for example, it’s hard to imagine a guest at a holiday party making small talk by recounting his drunk driving arrest, whereas people might well do that if they got a ticket for not wearing a seat belt on the way to the party. Waldron’s example would be clearer if instead of a seat belt law he were discussing a hypothetical law that said cars manufactured after 2007 should be equipped with a device that prevents them from starting unless the seat belt is fastened. But given that tickets for not wearing a seat belt are almost never issued without some other offense having been committed, I think it is still reasonably clear that seat belt laws are preventive in a regulatory sort of way rather than a malum-in-se sort of way.

    Once you leave the category of preventive restrictions on liberty, I think you’re right that it makes no sense to think of the “interpersonal tradeoff” between those who like to commit crimes and those who prefer that crimes not be committed. But that’s not really representative of the creeping restrictions on our liberty that people have experienced in the last six years. We do not, for example, conduct more warrantless electronic surveillance now than we used to because a majority of us now feel that electronic communications are bad.

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