Modern Threats to Civil Liberties

Civil liberties are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation. Though the term differs amongst various countries, some examples of civil liberties include; the freedom of torture and death, the right to liberty and security, freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, freedom of speech, the right to privacy, the right to equal treatment and due process and the right to a fair trial, and the right to life.

The formal concept of civil liberties dates back to the English legal charter Magna Carta 1215, which in turn was based on the pre-existing documents namely the English Charter of Liberties, a landmark document in English legal history. Accordingly civil liberties are indeed human rights and human rights are regarded as inherent and universal in the human person.

In looking at civil liberties and their reconciliation with the security of the state, a paradox is presented: is it that acts of terror thrive in the freedom of democracies. Civil liberties are conducive to the planning and execution of acts of gross violence, designed to destabilize or destroy state structures, and to advance particular ideological ends. Innumerable themes are illustrative of the difficult juxtaposition of civil liberties and national security, in which a delicate balance may be less in evidence than a passion for erosion of civil liberties in response to perceived crises.

Detention without charge for years for suspects and extensive privacy incursions for the ordinary citizen have been considered necessary by states involved in a war on an intangible enemy – terror. But as the enemy is intangible so too are the contours of the front-line. Accordingly states engaged in wars against terrorist groups risk becoming engaged in a permanent state of emergency on their own soil. And so it is that the threat of terrorism in turn can pose a threat to the fundamental rights and freedoms which characterize democracy, the civil liberties and human rights upon which democratic societies are based. The greatest success the terrorist can achieve is to persuade the democratic state to abandon its democratic values.

Derogable and Non-Derogable rights and the Torture debate

Human rights are recognized as intrinsic and universal, as inhering on the human person, but that is not to say that such rights cannot be limited under any circumstances, a pragmatic reality that is recognized by the demarcation of derogable and non-derogable rights. Some rights can be limited or derogated from under certain circumstances. For example, Article 4 of the International Covenant on Civil and Political Rights (ICCPR) outlines the rights which may not be derogated from in any circumstance, irrespective of the existing public emergency. The rights which are more in the civil liberty realm, such as the rights to personal liberty and to trial in due course of law can be derogated from in time of nation-threatening emergency but only to the extent strictly required by the exigencies of the situation. See Section 45 of the Constitution. The European Convention on Human Rights has a similar opt-out clause in Article 15, with the same rights to freedom from torture and from slavery being non-derogable.

The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (UNCAT) states at Article 2:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

The fight against Terrorism and its effect on personal liberty

Speaking shortly after the 9/11 terrorist attacks in New York, the American Supreme Court Justice, Sarah D. O’Connor remarked:

“We are likely to experience more restrictions on our personal liberty than has ever been the case in our country.”

Following the terrorist attacks on the twin towers of the world trade center, CONGRESS had sanctioned the use by the President of “all necessary and appropriate force” against terrorists and their allies. It is these steps taken by various world leaders to effectively combat terrorism that infringes on civil liberties. It seems as though the government in a bid to make us feel safer, ironically expose us to various human rights violations at the same time. The major talking points in relation to the fight against terrorism and how they in turn threaten civil liberties are thus:

Torture as an interrogation tool

The torture debate is arguably outside the civil liberties realm. The right not to be tortured is a fundamental right rather than a mere civil liberty. However, against the backdrop of the debate on torture, a more insidious process of civil liberty erosion is occurring, which seems a comparatively lesser evil. But civil liberties lost are soon forgotten, as a process of normalization occurs to blend extraordinary measures into the legal system.

The use of torture as a State – sanctioned tool of interrogation sounds outlandish and improbable; yet it has gained prominence even amongst the so called civilized states. Furthermore, even academics seem to endorse the use of torture, which clearly infringes on human rights; a leading Harvard academic, Alan M. Dershowitz has suggested in his book “Why Terrorism Works” that “torture warrants” could be used to obtain information on potential terrorist attacks. The use of evidence obtained through torture has even been considered by the British government. In A and Others V. Secretary of State for the Home Department (No. 2) [2005] 3 WLR 1249, the appellants challenged the finding by the Special Immigration Appeals Commission (SIAC), which in turn had been upheld by the Court of Criminal Appeal, that the fact that evidence had, or might have been, procured by torture inflicted by foreign nationals without the complicity of the British authorities was relevant to the weight of the evidence but did not render it legally in admissible. The House of Lords rejected this proposition, holding Per Lord Bingham of Cornwall:

“It trivializes the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where or by whom, or on whose authority the torture was inflicted. To question that I would give a very clear negative answer.”

Though the use of evidence obtained through torture was ultimately rejected, the mere fact that the issue advanced to the House of Lords stage, and was not flatly rejected by all concerned as an evidentiary option from the outset, must give pause for thought and reason for concern, as do many of the measures designed for what has been described by former American President, George W. Bush as ‘a new kind of war’.

Detention without Charge

Various statutory provisions around the globe protect a person’s right to fair hearing, which encapsulates the right to a trial within reasonable time in respect to criminal proceedings. One of such provisions is Section 36 (4) of the 1999 Constitution.

Clearly, the continued practices of detention of terrorism suspects without charge, violates fundamental rights and civil liberties. In Rasul V. Bush 524 US 446 (2004), the court considered whether American courts had jurisdiction to hear the habeas corpus applications of foreign nationals who were detained at Guantanamo Bay. This case arose from the holding of two Australian citizens and twelve Kuwaiti citizens, without charge and without access to counsel, in the US Naval Base at Guantanamo Bay in Cuba.

The majority of the Supreme Court held that the legality of the detention of aliens can be examined where such detentions occur in territory over which the US exercises plenary and exclusive jurisdiction but not ultimate sovereignty. The court found that the habeas statute creates federal court jurisdiction over the claims of an American citizen held at the base, and the statute draws no distinction between Americans and aliens held in federal custody. Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.

The distinction displays the willingness of the American Supreme Court to examine critically the position adopted by the government on issues of national security, and to assert judicial control over executive and legislative action in this area.

State Policy and its effects on Fundamental Rights and civil liberties

Speaking at a video conference with the Council of Europe, seated in Strasbourg, France, on the 8th of April, 2014, renowned whistle blower, Edward Snowden remarked:

“Technology represents the most significant threat to civil liberties in modern times…”

He made this statement in relation to the discoveries he made on the interception of confidential telephone and information exchanges between high level human rights staff by American and British Security Agencies. He laid emphasis on the implications of these practices on the safety and welfare of human rights staff and how data-mining practices violate European Privacy laws. Apart from the UK and the USA, other countries like Belgium, France, Ireland, Italy, Australia, New Zealand, Canada, India, South Africa, Chile, Peru, Turkey, amongst a host of others, equally have anti-terrorism legislations.

It can be convincingly argued that sacrificing privacy rights makes citizens less free without making them more secure, and amounts to destroying freedom in order to defend it. Among the extensive surveillance measures contained in legislation such as the USA PATRIOT ACT, are provisions which allow for the tracking of internet usage and for access to educational, business, financial records and private correspondence. The act which is an acronym for, ‘Uniting and Strengthening America by Providing Appropriate Tools Required to intercept and Obstruct Terrorism.’ is among a number of American legislative measures designed to remove the impediments that individual privacy rights pose to investigations. It permits the interception and monitoring of communications and communications records, and searches without notice. These powers are largely exercisable without a warrant. The Act gives relevant law enforcement agents the right to conduct secret searches (Section 213) and increased powers to wiretap communication devices, intercept communications, to employ pen registers and trap devices (Section 216) and to access previously confidential records. The Patriot Act does not allow judicial oversight because it limits or restrains the judiciary’s role as a check on the executive branch.

The only Senator to oppose the Patriot Act, Senator Russ Feingold, made a statement at the Act’s Bill stage in which he referred to the past suspensions of civil liberties in the US, and how the experiences have stained their history.

In Britain, the Anti-Terrorism Crime and Security Act 2001 (ATCSA) provided for the detention of non UK nationals if their presence in the UK was believed to be a risk to national security and they were suspected of being terrorists (Section 23). This section of the ATCSA was held by the Special Immigration Appeals Commission to be discriminatory on nationality grounds, as suspected terrorists of British nationality could not be detained under the provisions.

The UK case of A and Others V. Secretary of State for the Home Department (2004) UKHL 56 (the case should not be confused with of A and Others V. Secretary of State for the Home Department (No. 2) [2005] which relates to the use of evidence obtained by torture in British courts) was based on the assertion by the government of the existence of ‘a time of war or other public emergency’ in which derogation from the European Convention was both permissible and necessary. The House of Lords was of the view that the measures introduced by the government were disproportionate.

The case began with 9 men who challenged a decision of the Special Immigrations Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security. Of the 9 appellants, all except 2 were detained in December 2001; and the others were detained in February and April 2002 respectively. All were detained under the ATCSA. Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals.

The government proposed derogation (on the basis of a public emergency threatening the life of the nation within the meaning of Article 12 of the ECHR) from the right to personal liberty guaranteed by Article 5 (1) of the ECHR, and with Section 23 of the ATCSA.

The House of Lords held by a majority:

• That the right to liberty was among the most fundamental, and that Section 23 of the ATCSA did not rationally address the threat to security, was a disproportionate response, and was not strictly required by the exigencies of the situation.
• The court further held that there had been no derogation from the prohibition on discrimination, and the appellants were treated differently on nationality grounds from UK nationals suspected of terrorism. The measure, it was found, unjustifiably discriminated against non-national suspects, and such treatment was inconsistent with the UK’s international treaty obligations to afford equality before the law and to protect the human rights of all individuals within its territory.
• That whilst their detention was lawful under the ATCSA 2001, Section 23 was incompatible with the articles of the ECHR. As a consequence, the House of Lords made a declaration of incompatibility under Section 4 of the Human Rights Act 1998, and allowed the appeals.

The significance of this ruling was that Parliament decided to replace Part 4 of the ATCSA 2001 with the Prevention of Terrorism Act 2005. This allows anyone of any nationality to be subjected to a control order.

Conclusion

It is in times of emergencies that civil liberties can be lost, and their absence becomes normalized and accepted as a full-time feature of the legal landscape. It is because of this process of normalization that actions taken in the defense of the security of the state must be restrained in their application, limited in a way that echoes the derogation provision of the ECHR, no more extensive than demanded by the exigencies of the situation, and which do not go beyond it.

Civil liberties have assumed a new role and shape due to technological changes, e-surveillance and conflict of laws in cyberspace. A new category of civil liberties hasemerged that is known as civil liberties protection in cyberspace. Further, securing cyberspace while protecting privacy and civil liberties has also become a challenge for various countries.

The United States Supreme Court has also held that generally, the cell phone of an arrested person cannot be searched without a warrant. The European Court of Justice has also held that individuals have a right to be forgotten in cyberspace. Even the United Nations Third Comm ttee has approved the text titled; Right to Privacy in the Digital Age.’