The Statute Of Liberty

Governance  |  7 January 2011  | print

The siege on personal liberty in the name of greater security and counter-terrorism undermines an essential state of human existence

The heart of democracy is individual liberty. In most democracies, and certainly in the three that claim some form of historical or numerical primacy—the United States, the United Kingdom and India—personal freedoms are increasingly under siege as law enforcement agencies seek ever wider and more Draconian powers against citizens. The justification is only one: terrorism.

In December 2010, the UK police asked for new counter-terrorism stop-and-search powers for use even against people not suspected of criminal involvement. An earlier law, Section 44 of the Terrorism Act 2000, was struck down in Europe for violating human rights. It was later repealed by the Home Secretary. Still, the Metropolitan force lobbied for its reintroduction, though in a slightly modified form. Coming from a country that seems to be the only one where the rule of law actually means something, this is doubly worrying.

Across the Atlantic, President Obama has (yet another) dilemma on his hands. Faced with new restrictions on the transfer of Guantanamo detainees, the President’s legal advisors are actually considering a recommendation that would allow him, by executive fiat, to bypass those restrictions, essentially giving him a wide set of powers including the power to transfer detainees to other countries or bring them into the United States for trial.

This is a direct carry over from post-9/11 America under Bush and Cheney and their introduction of a quite extraordinary counter-terrorism program. In The Dark Side, a riveting account of ‘how the war on terror turned into a war on American ideals’, Jane Mayer says:

“Few would argue against safeguarding the nation. But in the judgement of at least one of the country’s most distinguished presidential scholars, the legal steps taken by the Bush Administration in its war against terrorism were a quantum leap beyond earlier blots on the country’s history and traditions: more significant than John Adams’s Alien and Sedition Act, than Lincoln’s suspension of habeas corpus during the Civil War, than the imprisonment of Americans of Japanese descent during World War II. Collectively, Arthur Schlesinger Jr argued, the Bush Administration’s extralegal counterterrorism program presented the most dramatic, sustained, and radical challenge to the rule of law in American history.”

The English barrister and jurist, Phillipe Sands, says much the same thing in Lawless World, describing how Bush and Blair between them usurped the law and put suspected terrorists in what Sands describes as a “legal black hole”.

The most insidious aspect of any program like this is that it cloaks itself in the respectability of law by making legal the most heinous violations of human rights. Binayak Sen was convicted recently not only under the Indian Penal Code but also under the abomination called Chhattisgarh Special Public Security Act, one of a raft of counter-terrorism statutes that pervert the fundamental canon of every justice system by assuming you are guilty until proved innocent. Add to this the state-sponsored militia and vigilante group called the Salwa Judum, one that is guilty of the most horrific atrocities, and you have all the makings of a despotic regime.

II

Terrorism warps our perceptions of right and wrong and makes us accept the unthinkable. In a February 2008 interview on the Law in Action programme on BBC Radio 4, Justice Antonin Scalia of the US Supreme Court, no stranger to egregious assertions, equated torture in detention with ‘smacking someone in the face’ and maintained that this was okay if it helped you find the hidden bomb about to blow up Los Angeles.¹

It is necessary, we are told. It is for your own safety. It is for your own good. We need these powers to protect you. These are small sacrifices for the greater good. If you want security, you must give up a few liberties. And, there is nothing to fear if you have nothing to hide. But we all have something to hide, and what I consider innocuous might well seem threatening to another. The worst argument is that these are ‘new’ threats not foreseen by our constitutional fathers, and they demand new responses.

This is the most complete bilge. Aggressors of every stripe have existed since the dawn of civilization; only our definitions have changed. Were those who fought for our Independence terrorists? The British rulers of the time thought so. Was Cromwell a terrorist? Tom Paine? And what about that most endearing and lovable terrorist of all, Robin Hood? In their time, each carried the same label we now apply to modern terrorists. This is not a defence of terrorism. It is not to excuse their horrific attacks on civilians. Nor is it right to lump the perpetrators of 9/11, 26/11, the Lockerbie and 7/7 London bombings together with Paine and Cromwell (or Robin Hood). Yet they all represented ‘new’ threats to which the governments of the day had no adequate response. Despite this, and till recently, individual liberty was never the sacrificial lamb that modern governments have made it.

III

Terrorists most often succeed against governments that are not weak but incompetent. Weak governments and nations hold no attraction for a terrorist because they represent nothing worth attacking. Seemingly strong nations are alluring precisely because every act of terrorism exposes their vulnerable underbelly and too often shows the fragility and hollowness of their strength. To confer unbridled powers on incompetent governments does not aid the security of the nation. It does undermine liberty.

These powers take away something that is fundamental to our existence. Another US Supreme Court judge, Justice Louis Brandeis said:

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”²

This lack of understanding is manifested in different ways, most dramatically in the restrictions on transborder movement. British visa procedures require us to submit our pugmarks, all ten fingers (and, presumably, in short order, prints of our toes, shapes of our ears and scans of our retinas ). Never mind that there are more home-grown terrorists in Britain trying to stay inside than on the outside trying to get in.

In late 2009, our Home Minister proposed yet another innovative counter-terrorism measure, his 60-day visa rule: tourists would not get another visa within 60 days of their visit to India. NRI would face a similar restriction (the subsequent ‘slight’ relaxation made little difference). This prompted the then Minister of State for External Affairs, the twitter-happy Mr Shashi Tharoor to ask whether the tourist restriction prevented terrorism, pointing out that the26/11 terrorists did not have visas. Writing in the Hindu, Siddharth Vardarajan demanded that the Department of Bad Ideas, the section of the Home Ministry which proposes these jaw-dropping ideas, be dismantled. The DOBI figured that this kind of restriction would stop another David Headley in his tracks. That Headley travelled on a business visa, to which these restrictions don’t apply, didn’t matter just so long as a large number of innocents were harassed. As the mutton-heads fell through the looking glass other directives followed, piling the bizarre on the absurd. In February 2010 the Home Ministry dusted off a 1999 directive from the BJP days denying visas to scholars from eight red-flagged countries (Afghanistan, Bangladesh, China, Iran, Iraq, Pakistan, Sri Lanka and Sudan) without prior security clearance from the Ministry of Home Affairs. After all, who knows what horrors greybeard professors might perpetrate armed with their lethal dissertations? That they could bypass all these restrictions simply by applying for a tourist visa occurred to no one.

IV

Terrorists pander to authoritarian regimes. The road to perdition is always paved with claims of necessity. India’s latest contribution to this is the National Intelligence Grid, or NATGRID, a nation-wide intelligence network that our Home Minister plans to link to Mr Nandan Nilekani’s Unique Identity (UID) project, a DNA data bank and nearly 21 other database sets, all to be placed in the hands of intelligence agencies without any corresponding legislative changes to monitor how and where and when this information can be used. This Big Brother scenario operates on a single, fatally flawed and thoroughly reprehensible presumption: every one of us is a potential ‘terrorist’, a threat to the nation. As Usha Ramanathan says, this is a governance of suspicion, a rule of fear.³ Forget privacy, and forget that it is a fundamental right. Its invasion is a necessity.⁴

The error lies in the assumption that individual freedom is the enemy of collective safety. But liberty is not merely personal, though it is primarily that. It describes the state of an entire nation. These freedoms were not easily gained, as the histories of the French Revolution and the American War of Independence show. “Give me liberty or give me death” is not populist rant. What it means is this: give me liberty for without it I might as well not live.

More than death or destruction, acts of terrorism feed a fear of uncertainty. We assuage that fear by incrementally surrendering our freedoms. This is a war only terrorists can win. Terrorists do not need the physicality of bombs when they can so easily maim our minds. When they do, the terrorist has already won. Soon the armed gunman is replaced by another breed of terrorists, whose reach and influence are far greater and more damaging: our governments and ourselves. We do not know the enemy outside. The enemy within has a face we know too well, and it is the one in our mirrors.

35 years ago when Indira Gandhi—in a bizarre disembowelment of history, now widely touted as a paragon of virtuous governance—did the unthinkable and plunged India into her darkest period after Independence, the Indian Express carried this obituary:

O’Cracy: D.E.M. O’Cracy, beloved husband of T. Ruth, Father of L. I. Berty, father of Faith, Hope and Justice, on June 26

Then, democracy was killed with a single stroke. Today, it is being poisoned bit by bit.

V

The Statue of Liberty in New York’s harbour is of Libertas, the Roman goddess of freedom. In one hand she has the torch we know so well, representing enlightenment and progress. In the other is not just a book. It is a tabula ansata, a tablet evoking the law. There is an inscription on the tablet and it is the date of the American Declaration of Independence. The Statue of Liberty, a gift from France to America, represents not just an ideal but an essential state of human existence. It actually means something. And so does every statute of liberty. We cannot afford to lose either.