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.