The Liberty-Security Dichotomy Discourse

oatsandsugar —  June 16, 2012 — Leave a comment

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

The discourse on emergency provisions is often framed as a trade-off between liberty and security. Do you believe this presumed dichotomy is always accurate? How does the socio- economic condition of a given state and society affect your assessment?

Emergency provisions are the departure from the ordinary constitutional or legal order in response to extraordinary circumstances.[1] A structured system managing emergency powers (constitutional, legislative, judicial, or even merely cultural[2]) allows for flexibility in response to a crisis.  Traditionally, such a system would increase the power of one organ of government,[3] expedite the decision-making system,[4]or reduce civil protections[5] to allow for an effective preventative policing system.  As Ramraj points out: creating a system that allows for States of Emergency not only provides a source of legality for the extraordinary empowerment of states, but also restrains the state by limiting the application and scope of such powers.[6]  However, there has been increasing academic focus on the potential misuse of states of emergency by governments.  As such, there has been a shift in analysis from Emergency powers as a tool to restore constitutional order to a dichotomy: a balancing act between liberty and security.

This essay will analyse this hypothesised dichotomy doubly.  First, this essay will discuss where the idea may hold: liberal democracies, focussing on the US experience with terrorism.  Secondly, this essay will discuss where the idea fails: where non-liberal polities and developing nations implement states of emergency – focussing on the Chinese and East Timorese experiences.

[Assemblage of the Statue of Liberty in Paris.]

Liberty and Security are not always dichotomous, especially in non-liberal polities

Liberal Polities

The United States, terrorism and the trade-off between liberty and security

Since the status quo of liberal democracy is a peaceful society where the rule of law is respected and rights are protected, a focus on preserving these rights is natural.[7]  This essay will discuss the US system, as an example, to show how rights may be infringed by states of emergency, and whether there is a direct relationship between liberty and security.

The US system of emergency provisions is quite complex.  On its face, it seems that there is little scope for emergency powers in the US constitution.[8]  However, in practice, the US judiciary[9] and legislature[10] has allowed emergency provisions in quite a few circumstances.  The cases outlined in the Chesney article[11] outline the convergence of criminal and military legal practice.  On the one hand, pressure has been used successfully to require increasing standards for military detention – arguably an increase in liberty for the captured with a potential decrease in security for the nation.[12]  On the other hand, procedural requirements for civilian, criminal prosecution have decreased.[13]  These decreases include allowing guilt by association[14] as well as increasingly accommodating government requests for secrecy, even to the detriment of the accused.[15]  In the spirit of the American liberal ideology, it began to extend rights to military trials (that more often than not, involve non-nationals). However, in the name of security it reduces protection in the criminal system (which targets domestic crimes, usually involving nationals).  Thus, here, a Liberty-Security analysis highlights an absurd result: liberty is becoming the focus of external efforts, and security the focus of internal efforts, quite the opposite of that which is expected.

Thus, the US system shows that a Liberty-Security analysis can be interesting.  However, whether the two are dichotomous is not clear, since there is merely a correlation shown.  More importantly, there has been no proof that the decrease in liberty allowed for in the emergency provisions has had any effect on increasing security: in reality, the decrease in legitimacy caused by the provisions outweigh the small gains in possible prosecutions caused by these provisions.

Non-Liberal Polities and Developing Democracies

China and East Timor: assumptions in the liberty-security model

This section will analyse the dichotomy hypothesis from two angles: where there is no government aspiration towards liberalism (China) and where the rule of law is still to be established (East Timor). In both situations, the dichotomy between security and liberty is not central to the population, and the relationship between the two is even more tenuous than in the US.

China has developed a different social contract to that which is standard in liberal polities.  In China, under Mao, China’s fear of resorting back to the lawlessness of the early 1900’s (colonisation by Japan, civil war), the Party ruled with an iron fist, and the populace accepted that.  Even where it wasn’t, any dissent was briskly dealt with, often without any resort to legal authority for such actions.[16] Since the Cultural Revolution, and, especially in the past 30 years, a new social contract has taken the forefront.  Whilst fear in the populace was the motivator before, now, economic growth has allowed the government its power.[17]  Thus, the goal of the government, with the implicit consent of the populace, is maintaining economic growth.  One way it has managed to do this is by instituting rule by law.[18] Whilst, at times, groups of people in China have shown that they value liberty, it seems that it is not the central focus of the populace, or at least of their pragmatic relationship with the current political system.  Thus, if liberty is a secondary goal to economic growth,[19] this essay argues that a Liberty-Security analysis is not the most appropriate measure for China’s use of emergency powers.

In China, a constitutional legalism was put in place primarily for the sake of legitimacy.  However, this essay will argue that the system of emergency powers allowed Chinese constituents their current legal liberties – a situation whereby security and liberty were not dichotomous, but, rather, complementary.  In 1976, the Chinese government uses the army, without legal basis, to establish order.  In 1982, a new constitution was put forth with Emergency Provisions.  Deng Xiaoping used these provisions as opposed to arbitrary rule, as part of a commitment to law.  Thus, whilst during the application of the emergency provisions (such as in the response to the 1989 student protests) liberties may have been sacrificed for the good of the state – but these liberties would not exist if the government did not have the flexibility of emergency provisions to tempt it to rule by law, rather than rule arbitrarily.   Even though China’s aims are not the rule of law, or liberality, there has been further reform to the Emergency Provisions system, with the “Law on Martial Law,” “Emergency Response Law”[20] and the 2004 constitutional amendment increasing the controls on the government. [21] Thus, in the Chinese case, the population was only granted liberties in peace-time, as well as in emergency, because the government felt comfortable granting them because of the availability of emergency provisions.

East Timor was born in conflict,[22] in the shadow of a hostile Indonesia and a long history of colonisation.  The nation, however, had aspirations of constitutionality.[23]  The two times where a state of emergency was declared were in response to existential threats.[24]  The state declared emergency legally.  However, these provisions were also created to minimise the impacts on the liberty of the populace – e.g. a curfew was put in place instead of other more draconian measures to restrict movement.[25] Further, the emergency powers allowed constitutionally were extremely strictly controlled, in order to prevent abuse: time limitations were in place, the Human Rights Ombudsmen could not be closed and other controls were still in place.[26]  Thus, the damage to liberty in the name of security in emergency laws was to be controlled.  In the US, the threats countered by emergency provisions exchange security for liberty within the state system, in a country like East Timor, the threats to the nation are existential.  If the emergency provision fails, the state may fail, and any liberties or aspirations to the rule of law would be jeopardized.

China and East Timor differ significantly from the US, and any analysis of emergency provisions should reflect these differences.  A simple Liberty-Security analysis would fail to reveal the complexity in China’s “legal experiment” or East Timor’s this nascent democracy. In the US, we can judge the Liberty-Security dichotomy in a simple binary system: where the emergency provisions are in force and where they aren’t.  In the case of China, the analysis must be more nuanced:  one must judge the balance between liberty and security on a different binary system, where the emergency powers are in force, or where the government ceases to experiment in legality and returns to a Mao-like arbitrary rule.  Similarly, in East Timor, the analysis must take into the account that without the use of emergency provisions, the state may cease to exist, with any aspirations to liberal democracy, any rights gained so far and any semblance of rule of law going with it.   Without the emergency provisions, rights and protections tangential to the legal order protected by the provisions would disappear: thus, the hypothesis of dichotomy fails in the case of China and East Timor.

Conclusion

The hypothesis of dichotomy is not universal, but may have a limited application

This essay has shown that in liberal democracies such as the US, the hypothesis of dichotomy may hold: emergency provisions do tend to increase security and, at the same time, reduce liberties.  However, even in the case of the US, this analysis proved simplistic – in sacrificing liberties in the name of security, the US may have increased its security threats by losing legitimacy.  Further, in the face of non-liberal polities and aspiring democracies, this dichotomy does not hold except for in the simplest of analyses.  In China, without access to emergency provisions, the government may not have even aspired towards rule by law.  In East Timor, the rule of law may have fallen apart were it not for emergency provisions.  In each case, the liberty and security increase hand in hand, not in the inverse manner proposed by this hypothesis.  This result may be explained by the normative goals of the government and the socioeconomic zeitgeist of the nation applying emergency laws, as well as the magnitude of the threat.  In the US, with a normative underpinning in the rule of law, and a country rich and developed enough to be resilient, the analysis may prove an effective tool for the populace and academia to judge proposed emergency provisions – is the citizen willing to give up this liberty to protect against that security threat?  In China, which lacks such a normative underpinning (instead being focussed on real and tangible increases in output) such an analysis fails to account for the fragility of the government’s attachment to law.  In East Timor, a nation in a fragile socio-economic state – where there is little resilience in the rule of law, such an analysis fails to account for the loss of liberty associated with the loss of the rule of law.

The dichotomy hypothesis may be an important tool, but it is a tool with a scope limited to established liberal democracies with the rule of law and socioeconomic sophistication.  The inverse relationship between liberty and security in emergency provisions may be helpful, but it is by no means universal.

After the jump: Footnotes, Bibliography and Related Articles


[1] David Dyzenhaus, 17.

[2] David Dyzenhaus, 22; Oren Gross and F. Ní Aoláin, Law in Times of Crisis, 57.

[3] For example, the French “State of Siege” in response to financial crises of the 1920s empowering the executive. Oren Gross and F. Ní Aoláin, Law in Times of Crisis, 29.

[4] For example, the German system of creating a sub-council of the legislature to make decisions in a time of crisis (“the Joint Committee”). András Jacab, 457; Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] (“GG”)  Part IVA, Art. 115D, Art. 115E; Ebrahim Afsah, ‘Constitutional Accommodation in Germany’ (8 March 2012).

[5] For example, eliminating the right of access to the writ of habeaus corpus during the emergency, as allowed for in the US Constitution “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” United States Constitution  Art. I, § 9, clause 2.

[6] Victor Vridar Ramraj, ‘No Doctrine more Pernicious?, 3.

[7] There is the critical question: “can liberalism survive an emergency?” Victor Vridar Ramraj, ‘No Doctrine more Pernicious?, 6.

[8] The only references to them in the Constitution are regarding War Powers and the right of the government to restrict the right to habeas corpus.United States Constitution  Art. I, § 9, clause 2; Article I, § 8, Clause 11; Article 2, § 1, Clause 8.

[9] Whilst the Judiciary did not allow the executive or legislature to act outside their constitutional powers in emergencies, they did allow a broadened scope for such powers.  Further, the decisions of the courts regarding due process and Terror suspects may be considered emergency provisions.Michal R. Belknap, 79; Robert Chesney and Jack Goldsmith, 1079; Wilson v. New, 243 US 332 (1917).

[10] There are more that 250 statutes which have an “emergency” character, or are considered “emergency provisions”. Ebrahim Afsah, ‘Economic Emergencies’ (26 April 2012).

[11] Robert Chesney and Jack Goldsmith, 1079.

[12] Ibid.,  1108 to 1119.

[13] Ibid.,  1081.

[14] Through funding or participating in known foreign terrorist groups, through a RICO (Racketeer Influenced and Corrupt Organizations Act) scheme or as of more recently, guilt through conspiracy.Robert Chesney and Jack Goldsmith, 1097; 1082 and 1079 (Funding, RICO and Conspiracy respectively).

[15] Ibid.,  1106.

[16] “During the chaos of the Cultural Revolution that began in 1966 and lasted for several years, military rule was imposed in some areas and institutions in order to restore order, but the concept of jieyan was not employed.” Albert H. Y. Chen, ‘Emergency Powers, Constitutionalism and Legal Transplants, 79.

[17] Ebrahim Afsah, ‘Functional Logic of Accommodation: Emergency Law in Non-liberal Polities’ (23 April 2012).

[18] I hesitate to use “rule of law” because it implies certain normative qualities (respect for liberty and rights as an example) which are not satisfied in China. Jacques deLisle, 347.

[19] Eric X. Li, 1.

[20] Which provided for limited emergencies, another check on government abuse of power.

[21] Jacques deLisle, 342; Ebrahim Afsah, ‘Functional Logic of Accommodation: Emergency Law in Non-liberal Polities’ (23 April 2012).

[22] Albert H. Y. Chen, 21.

[23] Ibid.,  30.

[24] During horriffic riots in 2006, and after an assasination attempt on the President, in 2008.

[25] Albert H. Y. Chen, 32.

[26] Ibid.,  33.

Bibliography

Articles, Books

  • Belknap, Michal R., ‘Historical Observation: New Deal and the Emergency Powers Doctrine ‘ (1983) 62(1) Texas Law Review 67
  • Chen, Albert H. Y., ‘Emergency Powers, Constitutionalism and Legal Transplants: The East Asian Experience’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010) 21
  • Chesney, Robert and Jack Goldsmith, ‘Terrorism and the Convergence of Criminal and Military Detention Models’ (2008) 60(4) Stanford Law Review 1079
  • deLisle, Jacques, ‘States of Exception in an Exceptional State: Emergency Powers Law in China’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010) 342
  • Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006)
  • Fenwick, Mark, ‘Emergency powers and the limits of constitutionalism in Japan’ in Victor V. Ramraj and Arun K. Thiruvengadam (eds), Emergency Powers in Asia (Cambridge University Press, 2010) 314
  • Article15 of the European Convention on Human Rights’ (2011) 12(10) German Law Journal 1764
  • Gross, Oren and F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006)
  • Gross, Oren and Fionnuala Ní Aoláin, ‘Models of accommodation’, Emergency Powers in Theory and Practice (Cambridge University Press, 2012) 17
  • Jacab, András, ‘German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse’ (2005) 7(5) German Law Journal 453
  • Li, Eric X., ‘Why China’s Political Model Is Superior’, New York Times (New York), 18  February 2012
  • Miller, Russell, ’40/68 – Germany’s 1968 and the Law’ (2009) 10(3) German Law Journal 223
  • Ramraj, Victor Vridar, ‘No Doctrine more Pernicious? Emergencies and the Limits of Legality’ in Victor Vridar Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press, 2008)
  • Ramraj, Victor Vridar, ‘The Emergency Power Paradox’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010)
Cases
  • Wilson v. New, 243 US 332 (1917)
Treaties, Legislation, Constitutions
  • Die Verfassung des Deutschen Reichs [The Constitution of the German Reich]
  • Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany]
  • United States Constitution
  • Affsah, Ebrahim, ‘Revision Lecture’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, Copenhagen University, 3 May 2012)
Lectures
  • Afsah, Ebrahim, ‘Functional Logic of Accommodation: Emergency Law in Non-liberal Polities’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, University of Copenhagen, Class 3, Week 8, 23 April 2012)
  • Afsah, Ebrahim, ‘Economic Emergencies’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, University of Copenhagen, Class 11, Week 17, 26 April 2012)
  • Afsah, Ebrahim, ‘Constitutional Accommodation in Germany’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, Copenhagen University, Class 5, Week 10, 8 March 2012)
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oatsandsugar

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LLM candidate at Cornell Tech. Consultant for King & Wood Mallesons and Project Evangelist for Legalese.

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