If it was not so late and if I had not had such a long day, I would launch myself into a rooftop-raising rant about this. But it is late and I am weary and, besides all of that, I am beginning to wonder precisely what good a rant from me (or anybody else for that matter) would do anymore:
Home Secretary David Blunkett wants new anti-terrorism laws to make it easier to convict British terror suspects.
He has discussed lowering the standard of proof required by a court and introducing more pre-emptive action.
Possible plans, revealed on his six-day trip to India and Pakistan, also include keeping sensitive evidence from defendants and secret trials before vetted judges.
Is there any significance to the fact that David ‘Mugabe’ Blunkett elected to unveil his sinister plans on a trip to South Asia? Was he driven into delirium by the heat and the dust? Or maybe a particularly acute case of Delhi-belly left him feeling all bilious and vengeful.
But civil rights groups have condemned the proposals as shameful and an “affront to the rule of law”.
It’s not an ‘affront’, it’s a point-blank dismissal. ‘Lowering the standard of proof’? ‘Pre-emptive action’? ‘Secret trials’? ‘Vetted Judges’? What next? Trial by Ordeal, Ducking stools, Iron Maidens and The Rack?
The truly frustrating thing here is that not only is Big Blunkett unlikely to be opposed to any meaningful degree (the Conservatives are already weighing in on his side) but his ripping up of our last remaining bulwarks of civil liberty is probably going to make him more popular. That is because civil liberties are unpopular. They are merely the boring obsession of pot-smoking hippies and wishy-washy do-gooders; a shielding sanctuary behind which terrorists and child-molestors can hide from justice.
So, go ahead, Mr Blunkett, kick the crap out of them. With a bit of luck nobody will miss them until they have gone (by which time it will be too late).
Trial by Ordeal may indeed be back next. From yesterday’s Guardian (a leader celebrating the 20th anniversary of Trivial Pursuit as a valuable informal contributor to education):–
There are a lot of comments that could be made on that brief extract. [As ever, I am not making this up.] What’s apt to this discussion is that a once-great liberal newspaper is under the impression Morton’s Fork is a “fine intellectual gambit”, and that an intellectual gambit is the same thing as a tool of reason. No wonder the public is incapable of seeing the dishonesty of Home Office conspiracy rhetoric.
Not to worry. The Telegraph has been waging a free country campaign for a couple of year now. We can expect robust opposition from them.
Can’t we?
Where is Rumpole in these dark hours?
Enh. Call me the contrarian, but can we see the specifics of the proposals before we decide that Torquemeda has been resurrected?
After watching all the bloviating about the Eville Patriot Act here in the States, extensive research has shown me that most of it are common-sense reforms that do little real damage to civil rights and actually enhance civil rights protections in a few areas. Thus making all the bloviators look quite humiliated, for they angrily opposed the whole damned thing before even knowing what all was the hell in it.
What is a “secret trial?” One in which the public is not allowed to be present? That is troubling. On the other hand, “lowering the standards of evidence,” the immediate question that comes to mind is, have they been raised over the last few decades to unreasonable levels, to a point where catching the guilty is sometimes impossible?
It would be best, I think, to read the concrete proposals, and what limitations, if any, are put upon them, before deciding that this is all a return to the dark ages. It is also quite possible that further discussion and debate will make unacceptable proposals acceptable.
I we are going to change “beyond a resonable doubt ” to “on the balance of probabilities” why don’t we do away with the trial system as a whole and take the accused down to the bookies instead.
Eamon Brennan
David, you have worked yourself into a self righteous lather over this issue, but ask yourself what the substantive issue is. Is it the ‘rights’ of some people will be reduced. Where were you when Irishmen were being interned without trial and subject to secret trials?
I am relativitist and believe that as a society we should have the rights we can afford conditional on our ability to solve the problems we face.
If you are not interested in solving the terrorism problems we face then by all means insist that some right over-rides the pragmatic response.
I am personally willing to forgo both ‘rights’ and privacy in order to make myself and my society safer.
Mr Carr, you are obviously guilty. Of what, I cannot tell you, because it would be dangerous for you to know. But I must still sentence you to reading every page of the Guardian, cover to cover, every day, for ten long years.
Why are you guilty? Because my mate Sid, you know, the bloke from MI6, says he has incontravertible evidence that you are GUILTY. He got this evidence from the same bloke who told him Saddam had massive arsenals of WMDs, all pointed at England on the end of long-range missiles, ready to be launched in just 4 minutes.
Unfortunately, MI6 can’t reveal this evidence, or the source, as it’s also too dangerous for you to know, but they’re quite convinced about it. So. My friend. It’s the Polly Toynbee treatement, for you.
Guards, take him away.
Ha ha ha…..(echoes of malevolent voice, saying ha ha ha)
I am personally willing to forgo both ‘rights’ and privacy in order to make myself and my society safer.
“They that can give up esssential liberty to obtain a little temporary safety deserve neither liberty nor safety.” — Benjamin Franklin
You may be willing to give up rights and freedom for illusionary or temporary safety, Phil, but many people or not, such as me and I’m sure most or all of the Samizdata crew. But you’d be perfectly (“personally”) willing to sell their rights down the river for your safety. Coward.
Luckily I don’t live in your already heavily liberty-imapired country.
Where were you when Irishmen were being interned without trial and subject to secret trials?
In my case, too young to vote, unfortunately, but I have opposed every renewal of the former Prevention of Terrorism (Temporary Provisions) Act over 20 years. Long enough to realise “sunsetting” doesn’t work before something worse was made permanent. (And also to notice that the special powers weren’t actually effective against terrorism.)
Alfred E. there is a whole bunch of presumptions here and I am only inclined to refute a few.
You equated ‘rights’ and liberties and note the inverted commas.
Twas always thus and the notion that some how ‘rights’ transcend a decent and well ordered society is the worst kind of pernicious tranzi nonsense.
If you do a search on my name here at Samizdata you will find a number of guest posts which will demonstrate my libertarian views and my capacity to argue a position.
Otherwise, you can attack my personal integrity, but at least I know I have it.
regards
Phil,
you can have my freedom and my rights when you pry them from my cold, dead fingers, and you wont come by that without a cost. The purpose of a government is not to protect its people, but to protect the freedom of its people. At times this means organizing a military force to unite the strength of the people against a great outside threat. At times it means enforcement of law on those inside the country that have been proven to be in violation.
This makes the government less efficient at protection, but avoids a conflict of interest in protection of liberty by taking of liberty. Is my life riskier as a result? Yes, and so be it, freedom brings risk and opportunity, I will take my chances. This is part of the reasoning behind the right to keep and bear arms. There is always risk, and the government cannot protect you from that risk without taking your freedom, so you must be free to manage that risk on your own. This freedom also makes for greatly reduced crime since it is such a fine deterent. Armed societies are not violent, they are free.
I am personally willing to forgo both ‘rights’ and privacy in order to make myself and my society safer.
Begs a few questions:
1. A bit hard to see how you are personally made safer by forgoing your rights and privacy. Or do you think it is only other people’s rights that are being disposed of?
2. What do you mean by “my society”?
3. If there’s a conflict between your safety and that of your society which wins?
4. What if there’s a mismatch between your conception of society and Mr Blunkett’s successor’s?
5. How are you so confident there’s a trade off to be had?
6. Or that one is actually on offer? Even if diminution of civil liberty and/or privacy is a necessary condition of gain in some to-be-defined form of security, that by no means implies that they are same thing.
7. How much? Granting that a trade off is available, what’s your rate of exchange? The unqualification of “both” suggests you’ll give up any and all liberty for some nominal safety. You cannot be serious!
Contrariwise, I’m inclined to believe our freedom is our safety, collectively as well as individually. Open institutions undermine criminal conspiracy and closed ones reinforce it. (Witness the survival of Russia’s Thieves within Code right through the Soviet era.)
Guy H – I lived in Belfast in the early 70s while a student at Queens and I feel I can comment on terrorism first hand. I watched the carpet factory blaze and wandered throught the area at the time where the Official IRA man made his name as the Pastry-cook.
I was and still am reasonably sympathetic towards the IRA. But to equate the IRA with Islamic terrorism completely misses the point. The IRA basically wanted civil and economic ‘rights’ for the catholic popualtion of NI. The islamic terrorist want to destroy our society.
Its a completely different situation.
OK Guy, I normally avoid really obvious put downs of peoples arguments, but in this case.
You have to get on one of 2 airplanes to a particular destination. One of the airplanes has been rigorously checked and screened as well as only allowing passengers with secure and verified identities.
The other airplane has no checks and anyone can get on the plane.
Which one do you choose?
And by the way its September 11!
Why then, Phil_Bradley, did you draw the comparison in the first place.
I tend to agree that the threats are different. What the IRA’s wanted at various times has been pretty variable. (Those still living in the pockets of paramilitary rule (of either flavour) remaining in Northern Ireland may not feel so warm as you do.) But certainly the IRA campaigns were different from the Islamist’s–far more clearly organised, and laying claim to some genuine support in their main areas of operation for a start.
“You have to get on one of 2 airplanes to a particular destination. One of the airplanes has been rigorously checked and screened as well as only allowing passengers with secure and verified identities.
The other airplane has no checks and anyone can get on the plane.”
Given the demonstrated ‘abilities’ of those who are charged with that ‘rigorous’ checking and screening, it’s unlikely that there is any substantive difference in the saftey of either plane. As demonstrated several times after 9-11, the passengers of a plane are a far greater threat than the screeners, and far more effective, to boot.
I also note that you are unable (or unwilling) to respond to Guy’s list of questions.
Unless you can demonstrate, a priori, and with evidence, that a proposed limitation on personal freedom and rights will clearly and proximately improve the safety of the INDIVIDUALS in society, then you MUST err on the side of freedom
Guy, I really shouldn’t dump on you, because I get the impression you are some kind of elected officcial whereas I am not and consequently I can say things you can’t.
The IRA did some indefensible things but bear in mind that what they wanted was entirely consistent with with our liberal democratic ideals. Apart from some left wing lunacy, that was probably no worse than say the Mayor of London comes out with. You can fault their methods but its hard to fault their objectives.
What the islamic terrorists want is entirely hostile to our society and value system. We should be implacable in our opposition to them. Literally our society is at sake.
Guy, I really shouldn’t dump on you, because I get the impression you are some kind of elected official whereas I am not and consequently I can say things you can’t.
The IRA did some indefensible things but bear in mind that what they wanted was entirely consistent with with our liberal democratic ideals. Apart from some left wing lunacy, that was probably no worse than say the Mayor of London comes out with. You can fault their methods but its hard to fault their objectives.
What the islamic terrorists want is entirely hostile to our society and value system. We should be implacable in our opposition to them. Literally our society is at stake.
Well if I know that no one will be searching me before I get on the aeroplane and I am in America I will choose the second. Chances are I will have something better than a box cutter in my jacket pocket.
It would be easier to fight terrorism in an anarchy. Anyone who found a terrorist, whould just shoot them. Distributed search beats scarce “experts” even if they are honestly expert.
Oh and btw, the plane thing. Which would have prevented 9/11 better? “Security”? Or ordinary passengers being allowed, even encouraged, to carry pistols loaded with plane-safe “frangible” ammo?
People simply wouldn’t hijack planes full of armed passengers. It would be not merely suicide, but ignominious, ineffectual suicide.
Misconcieved “security” provided the opportunity for the 9/11 murders.
If all passengers were handcuffed butt naked to the seats, the terrorists wouldn’t even have needed box cutters, a sharpened matchstick would have done. And the third plane would have hit the white house, no “lets roll”.
“Guy, I really shouldn’t dump on you, because I get the impression you are some kind of elected official whereas I am not and consequently I can say things you can’t.”
Nope. And Nope. I came fourth in the only parliamentary election I ever stood in. Were I currently in a position of power you should be more keen to test my views than otherwise, but I’d have no more responsibility to agree with you.
OK OK I’ll answer the questions!
1. A bit hard to see how you are personally made safer by forgoing your rights and privacy. Or do you think it is only other people’s rights that are being disposed of?
A: I’m sorry but its kind of obvious! Ever watched a police show on TV? They find out stuff about people which equals invading their privacy.
2. What do you mean by “my society”?
A: The society I live in.
3. If there’s a conflict between your safety and that of your society which wins?
A: Obviously the safety of my society over-rides my personal safety but only in a utilitarian sense. That is a society has no value except to the extent to contributes to the welfare of its members.
4. What if there’s a mismatch between your conception of society and Mr Blunkett’s successor’s?
A: Don’t understand the question!
5. How are you so confident there’s a trade off to be had?
A: To me, its something so obvious that it doesn’t bear discussion. In summary the effectiveness of law enforcement is directly related to the strength of identity. Increase the strength of identity and you will make people more secure. Its obvious!
6. Or that one is actually on offer? Even if diminution of civil liberty and/or privacy is a necessary condition of gain in some to-be-defined form of security, that by no means implies that they are same thing.
A: Since we don’t agree there is trade-off. I can’t answer this question.
7. How much? Granting that a trade off is available, what’s your rate of exchange? The unqualification of “both” suggests you’ll give up any and all liberty for some nominal safety. You cannot be serious!
A: I can easily turn this argument on its head and say ‘At what point in your loss of safety do you choose to forgo your liberties and privacy’. Sorry but its a non-argument.
And BTW I will fight tooth and nail for my liberties, but my privacy doesn’t bother me. I’d happily have 24 hour surveillance of me.
Phil_Bradley writes:
I was and still am reasonably sympathetic towards the IRA.
What? Can I clarify? Sympathetic towards the constant and deliberate murderers of innocent men, women, and children, over decades?
Your other points may or may not be valid, but I stopped reading right there.
The 9/11 hijackers were successfully and validly identified prior to taking their plane. Their travel documents were in order.
Phil Bradley poses the following hypothetical question:
“You have to get on one of 2 airplanes to a particular destination. One of the airplanes has been rigorously checked and screened as well as only allowing passengers with secure and verified identities.
The other airplane has no checks and anyone can get on the plane.
Which one do you choose?”
I would chose the second airplane. There’s no need for hestitation or careful consideration here, the choice is obvious.
In fact, if it actually were possible to make such a choice in the real world I’d start flying again!
And of course, when the state has the power to try people in secret at the request of the Home Secretary and convict them on the balance of probabilities, it is obvious that those powers will obviously never be used by a corrupt Home Secretary to jail his political opponents.
This is so obvious that it obviously doesn’t bear discussion!
Re: arming passengers – see this thread on Ipse Dixit.
Since we (by which I mean Western society in general) are threatened by organized groups who intend to use our own social structures (respect for individual liberties, due process, etc) against us, what do those who are against taking any special measures to counteract terrorism propose?
If you have intelligence that tells you person X is planning a terrorist attack, do you have to wait until they carry it out to arrest them, since they haven’t actually committed a crime until then?
And once you arrest them, are you required to compromise your intelligence sources so that you can convict them to the same level of proof required for, say, shoplifting?
If we can’t provide that level of evidence against terrorists, due to the very nature of the struggle that is taking place, then what are we to do? Roll over and die?
“1. A bit hard to see how you are personally made safer by forgoing your rights and privacy. Or do you think it is only other people’s rights that are being disposed of?
A: I’m sorry but its kind of obvious! Ever watched a police show on TV? They find out stuff about people which equals invading their privacy.”
AA: Which is done, ideally, only after due process and probable cause, not just because ‘they wanna’. Also with appropriate checks and balances that provide for public knowledge of, and adequate recourse for, any violations of those two clauses.
“2. What do you mean by “my society”?
A: The society I live in.”
AA: That’s an evasion, and a tautology. For me, the goal is to create and enable a society that one actually ‘wants’ to live in, and that is a society where the individual freedoms of the members of that society are PARAMOUNT, and any restrictions on those freedoms can be defended, with evidence, as actually EFFECTIVE at mitigating the harm they are claimed to mitigate, and are imposed only as much as is required to actually mitigate that harm.
“3. If there’s a conflict between your safety and that of your society which wins?
A: Obviously the safety of my society over-rides my personal safety but only in a utilitarian sense. That is a society has no value except to the extent to contributes to the welfare of its members.”
AA: That’s actually close to a correct answer, except that it is INDIVIDUAL safety that determines the safety of society, not the other way around. Also, contrary to the beliefs of many, the most effective safety for individuals as well as for society, is the maximum amount of freedom for those individuals.
“4. What if there’s a mismatch between your conception of society and Mr Blunkett’s successor’s?
A: Don’t understand the question!”
AA: Not hard to understand. There’s already a fair amount of behaviour that seeks to specify different levels of protection for whatever is the ‘preferred’ version of a societal construct (based on perceived wrongs, etc.).
“5. How are you so confident there’s a trade off to be had?
A: To me, its something so obvious that it doesn’t bear discussion. In summary the effectiveness of law enforcement is directly related to the strength of identity. Increase the strength of identity and you will make people more secure. Its obvious!”
AA: ‘It’s obvious’ is ALWAYS used in an argument when the arguer cannot actually defend their proposition. Your strength of identity argument is meaningless. Even an infinitely strong and identifiable force will not automatically translate to greater security (where we are discussing the security of anyone other than that force itself), especially when the motives of that force are diametrically opposed to the tenets of an actually free society.
“7. How much? Granting that a trade off is available, what’s your rate of exchange? The unqualification of “both” suggests you’ll give up any and all liberty for some nominal safety. You cannot be serious!
A: I can easily turn this argument on its head and say ‘At what point in your loss of safety do you choose to forgo your liberties and privacy’. Sorry but its a non-argument.”
AA: Never. As long as I am truly free to act, (and equivalently, all other members of society are equally free to act), then there is no need to surrender any freedom or privacy to ensure my safety (or that of society). A proper legal framework with true due process does not require the submission of freedom to safety.
“And BTW I will fight tooth and nail for my liberties, but my privacy doesn’t bother me. I’d happily have 24 hour surveillance of me. ”
Willingly surrendering some of that liberty to the state for some ephemeral (and ineffective) sense of safety does not strike me as ‘fighting tooth and nail’.
“Since we (by which I mean Western society in general) are threatened by organized groups who intend to use our own social structures (respect for individual liberties, due process, etc) against us, what do those who are against taking any special measures to counteract terrorism propose?”
I’m not opposed to special measures, I only require that they actually be effective (and clearly demonstrated as such, not merely wishful thinking), and that they impose the ABSOLUTE minimum restrictions as allows that effectivity.
“If you have intelligence that tells you person X is planning a terrorist attack, do you have to wait until they carry it out to arrest them, since they haven’t actually committed a crime until then?”
Planning a terrorist attack (or any other plan that demonstrates clear intent of harm), is already a crime. You don’t have to wait for the actual attack.
“And once you arrest them, are you required to compromise your intelligence sources so that you can convict them to the same level of proof required for, say, shoplifting?”
Where there is a clean necessity for protecting an intelligence source, there is already a mechanism in place to accomodate that. Public accountability is NECESSARY to ensure proper use of power, and the cases where secrecy legitimately overrides accountability are FAR fewer than the state would have you believe.
“If we can’t provide that level of evidence against terrorists, due to the very nature of the struggle that is taking place, then what are we to do? Roll over and die? ”
There is nothing about the compromises proposed by the ‘safety over freedom’ collective that even slightly improves that situation. If the evidence exists, use it. If it doesn’t, using secret trials and lack of due process to manufacture it does far more harm.
Where there is a clean necessity for protecting an intelligence source, there is already a mechanism in place to accomodate that. Public accountability is NECESSARY to ensure proper use of power, and the cases where secrecy legitimately overrides accountability are FAR fewer than the state would have you believe.
What is the mechanism? Is the accused terrorist’s lawyer entitled to see the evidence and its source? How will you simultaneously use evidence obtained via classified means in a trial and protect the source of that evidence? How will you do it without violating the due process rights of the accused – especially in a trial whose proceedings are completely open to the public – and still protect the intelligence source?
I would choose the second plane, and Id probably have time to choose it for the return trip before those that went for option A got off the ground.
The issue with terrorist actions are the actions themselves, not the motivations. Just because I agree with someones intentions, does not mean I give them a pass. The IRA have engaged in terrorist activities, regardless of their reasoning, it is an improper action. It could be argued that the Palestinians are simply looking for freedom from oppressors, etc. but I will not condone their activities either.
The parallel to this, is the encroachment of freedom in the name of security. I do not fear surveillance as I have nothing to hide, but I seriously oppose it. I oppose it on principle and I oppose it due to lack of trust. I do not trust our leadership enough to give them that sort of power, there is too much risk of corruption at the top, history proves that beyond doubt. I am sure the intentions of those trying to improve security are great, but the intentions of their successors may not be. To accomplish something “good” in the wrong way does not justify anything. I do not believe the ends justify the means. I also do not believe the means jsutify the ends. There is a balance. I cant do what seems right at the moment and expect it to be ok in spite of results. Nor can I focus on the end goal and justify any means of reaching that goal.
I have certain principles that I do not allow to bend for the sake of a goal or a action in the pursuit of that goal. Its called a moral code, a belief system, and we all have one. One of the foundational principles I have is freedom. That desire for freedom means that I will not support or engage in any action that takes my freedom, regardless of how “effective” it might seem to be. Nor will I support or engage in the pursuit of a goal, the end result of which is a destruction of my freedom. You can argue all day about the effectiveness of security measures, but it will not change the minds of those who disagree on principle.
Wow, if the secret trials with secret evidence bit does go through, I shall surely weep.
What the F— ever happened to ‘the Ancient Rights of Englishmen?”
It’s already effectively illegal to defend oneself in one’s own home in the UK, and now they are going to take away the right to know who your accuser is, and to see all of the evidence against you?
Note that the Jose Padilla case in the US is effectively over the same question, and so far the courts in the US have ruled that citizens on our own soil are not subject to such rough treatment, but others are fair game.
“What is the mechanism? Is the accused terrorist’s lawyer entitled to see the evidence and its source? How will you simultaneously use evidence obtained via classified means in a trial and protect the source of that evidence? How will you do it without violating the due process rights of the accused – especially in a trial whose proceedings are completely open to the public – and still protect the intelligence source?”
The defense lawyer (and the defendant) MUST be allowed to see the evidence (at the very least) and should be allowed to see the source of the evidence where there is any reasonable way to allow that as well. Anything else simply provides for the state to say, ” You’re a terrorist, simply because we say so, and we won’t even give you the tools to prove us wrong.”.
The bona fides of the evidence can be determined (and allowed to be argued by the defense), without compromising the specific intelligence asset, where that is required. There is precedent for a closed trial in some cases, where the trial itself and the evidence is available only to those in the courtroom. Even so, the best choice in almost ALL circumstances is a public trial with public oversight. The closed or secret trial MUST be the exception, not the rule, and the need for such a trial must be argued for substantively, on a case by case basis, with a compelling justification, and not as the default mode. If that benchmark cannot be met, then the trial MUST be public, as the public interest supersedes any but the most stringent needs for source protection.
Too much here to answer directly, but I’m intrigued by a couple of points in this discussion.
A. People seem to be much more worried by the idea of secret trials than either the change in the burden of proof or the state approving judge and both counsel , both of which strike me as more fundamental attacks on fairness.
B. There’s no coherent answer been offered to my query about the “society” that is supposed to be being defended. My point was that that an open society is not a unitary thing with a fixed identity and definition, but a shifting pattern of relationships between individuals and institutions with no clear boundaries.
It is possible, indeed probable that my conception of “the society I live in” is different from that of Phil_Bradley, especially since I think of myself as living in several nested and overlapping societies (London, English, Western, Blogistani, etc.) I don’t want disjunctive boundaries to be drawn in secret by the state. The power to determine the nature of the (presumed unitary) society we live in appears to being arrogated to Secretary of State for the Home Office. The Home Office defines its role thus: “Building a safe, just and tolerant society”. There can be only one.
While Phil_Bradley may share Mr Blunkett’s vision, it is obscure to me whether he wishes to stand by whatever the Home Office determines to build in the future.
These appear to be the same sorts of laws which have people up in arms over American treatment of terror suspects. Will those same people be up in arms over this?
Yeah, I download hundreds of songs EVERYDAY I have a total of about 9,000 and counting, I dare you butt lobsters to do anything about it, Infact if you have a problem with me, Ill challenge you to a yugioh duel and battle you in real
life, We will commence in battle on the playground you cheese dicks