Ira Katznelson and Ewa Atanassow of The Governance Report 2017 probe ways to balance liberty and security in an op-ed in the Süddeutsche Zeitung.
The recent terror attacks in London and elsewhere thrust the question of balancing security and liberty to the forefront of public debate. In response to the attack, Prime Minister Theresa May called for strengthening the counter-terrorism and intelligence police, and promised to bolster what is already among the most powerful surveillance systems in Europe.
Emergency conditions threaten to become the new global norm. Since the 2001 terror attacks, the United States has been under state of national emergency, introduced and annually extended by executive order. A massive array of new security instruments has been deployed through statutes and orders by Presidents Bush, Obama and Trump.
This is a prevailing pattern. France, too, has been under a “state of siege” since the Paris attacks in November 2015, allowing security services to act outside judicial oversight. After the Berlin attacks last December, the German government called for strengthening the state and security reforms the public seems prepared to embrace.
What toll does living under long-term security threats take on liberal values and basic freedoms in democratic societies?
In The Governance Report 2017 (Oxford University Press), we probe the ways in which democracies can reconcile liberty and security. We aim to identify instruments that ensure security without compromising constitutional and moral principles.
Carl Schmitt, a post-WWI German philosopher and critic of liberalism, considered liberal democracies ill-equipped to deal with security. This, he argued, required stepping outside the rule of law, the cornerstone of liberal order. But a group of American thinkers forged an alternative, based on a long history of liberal thought and practice, including the English philosopher John Locke and the most trenchant of the American Founders, Alexander Hamilton.
Locke and Hamilton understood that realistic liberalism — ensuring security without compromising civil liberties — was vital for the existence of representative republics. Alongside institutional solutions, they raised vexing questions about the meaning of emergency, the duration of exception, the status of law and of constitutional boundaries.
These questions underpinned both Schmitt’s indictment of liberalism and the responses of his American critics, the political scientists Carl Friedrich, Frederick Watkins, and Clinton Rossiter. Reeling from the collapse of the Weimar Republic and two world wars, these realists understood that liberal democracies urgently required formulas for crisis government and executive capacity.
Unlike Schmitt, they rejected extra-legality as a policy orientation that could turn temporary measures into a new norm. They stressed that delegations to the executive had to be specific, targeted, and limited in time. Only substantive and temporal constraints, and a clear distinction between exception and norm, should govern emergencies.
These guidelines remain compelling today, but the structural, institutional, and ethical conditions that underpin them no longer exist. Over 70 years, the partition between ordinary and exceptional times has become increasingly porous. Nuclear weapons, the Cold War and terrorism have led to a cumulative delegation of power to the executive.
After Vietnam, Congress made efforts to restore legislative oversight, yet in practice deferral to the president has proved the rule. 9/11 deepened this trend. In its wake, Congress swiftly delegated enormous capacity to the executive branch to fight terror, followed by unprecedented executive actions authorising assassinations and the indefinite detention of terrorism suspects. This has narrowed legislative power, widened executive prerogatives, and shrunk the rights of citizens and foreign prisoners.
Conditions of ‘exception’ have become wider in scope, more heterogeneous, and seemingly durable features of contemporary democracies. The centrepieces of law and constitutional rights enshrined to protect basic freedoms have been profoundly transformed by responses to the permanence of exigency. Today’s challenges can’t be resolved with past solutions. With this shift in the landscape of the liberal state, it has become ever-more urgent to consider how to strengthen liberal ideas and policies for governing emergency.
We suggest four general guidelines for finding effective solutions consistent with fundamental principles of constitutionalism:
1: Political actors should clearly define temporary action and permanent policy. Even with persistent threats, they can bolster this traditional division by requiring a fixed time period and formal renewal for legislative acts and executive delegations.
2: Neither leaders nor institutions should be continuously exempt from oversight. Policies of exception must not grant invisibility or isolation from democratic practices. Each branch of government— judiciary, legislature and executive — must be subject to information-sharing, judgments and supervision.
3: Prudential standards and definitions of necessity should govern policy decisions that anticipate and respond to security risks. The quest for such standards has a long history within liberal thought. The German émigré scholar Frances Lieber, and advisor to President Lincoln, advocated a “reasonable person standard” for emergency actions. Failing to meet this standard, he said, “the act becomes unlawful.”
4: No less important are judgment and appraisal after the fact. A process of calm learning and evaluation, tied to sanctions when liberal norms have been violated, is especially valuable. Unlike the US, Great Britain has a tradition of public inquiries in matters of national security, such as the recent seven-year Iraq Inquiry. The inquiry criticized the UK’s entry into the war and put the government and those in power when the war began under pressure to accept responsibility.
The tensions between security and freedom can never be permanently resolved. Instead, the goal should be a resilient framework within which these inherent conundrums are negotiated and allayed. Liberal polities possess the conceptual and institutional resources to build such a framework. There are many promising models and successful examples upon which constitutional democracies can unfurl their institutional imaginations. This gives cause for cautious optimism.
A German version of this op-ed appeared in the Süddeutsche Zeitung on 23 June 2017.
Ira Katznelson is Ruggles Professor of Political Science and History at Columbia University and President of the Social Science Research Council in New York.
Ewa Atanassow is Junior Professor of Political Thought at Bard College Berlin.
Their contribution to the Governance Report 2017 was titled Governing Exigencies: On Liberal Democracy and National Security.