November 10, 2011

Liberty and Security: Hostile Allies

We do not purchase one at the expense of the other.

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin

They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the Statue of Liberty. Every student of American history knows them. And every lover of liberty has pondered them, knowing that they speak to that great truth about the constitution of civilized governments: that we empower government to protect us in a devil’s bargain from which we will lose in the long run.

Very few people who quote these words, however, have any idea where they come from or what Franklin was really saying when he wrote them.

They appear originally in a 1755 letter Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly’s efforts at the behest of the family, which had appointed him and did not want its lands taxed.

 Security versus Liberty  
 Photo credit: Citizensheep, via flickr

The “essential liberty” to which Franklin referred was not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security. And the “purchase [of] a little temporary safety” of which Franklin complained was not the ceding of power to some government Leviathan in exchange for a promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor.

Franklin was complaining of the choice facing the legislature between being able to make funds available for defense and maintaining its right of self-government—and he was criticizing the governor for suggesting that it should be willing to give up the latter to ensure the former.

In short, Franklin was not describing a tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade. Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned.

***

The idea that liberty and security exist in balance hangs over America’s entire debate about national security. The metaphor of balance lives pervasively in our rhetoric. It lives in our case law. It lives in our academic discourse. It lives in our efforts to describe our reality. It lives in our aspirations. It lives in the calls to shift the balance in perilous times by giving up liberty in the name of security, and it lives as well in the calls to restore the balance by abandoning security measures said to injure freedom.

As Philip Bobbitt puts it,

There is a virtually universal conviction that the constitutional rights of the People and the powers of the State exist along an axial spectrum. An increase in one means a diminution of the other... . . A corollary to this conviction is the widely held belief that intelligence and law enforcement agencies constitute a threat to civil liberties.

The balance metaphor lives, paradoxically enough, even in our attempts to reject it. Opponents of new security measures will often vocally eschew the balance metaphor—insisting that we can be both “safe and free” or, as President Obama put it in his inaugural address, that we can “reject as false the choice between our safety and our ideals.”

The image of balance arises especially vividly in the context of surveillance, where every augmentation of government power is said to come at some cost to liberty. The relationship between surveillance and liberty has taken on special importance as the internet has continued its exponential growth and as personal data concerning individuals has proliferated. The question of how aggressively governments can police and monitor the use of communications and other technological architectures has necessarily arisen alongside these platforms—with the balance metaphor invariably hovering over the discussion.

Proponents of more aggressive surveillance justify such steps as necessary and imposing only allowable costs in light of some compelling governmental or societal security need. Opponents criticize them as excessive enhancements of governmental power, which we take at the expense of freedom or privacy. We seldom stop and ask the question of whether and when our surveillance programs are really coming at the expense of liberty at all or whether the relationship might be more complicated than that—indeed, whether some of these programs might even enhance liberty.

We should ask these questions because the balance metaphor is incomplete to the point of inducing a deep cognitive error. Any crude notion of a “balancing” between security and liberty badly misstates the relationship between these two goods—that in the vast majority of circumstances, liberty and security are better understood as necessary preconditions for one another than in some sort of standoff. The absence of liberty will tend to guarantee an absence of security, and conversely, one cannot talk meaningfully about an individual’s having liberty in the absence of certain basic conditions of security. While either in excess can threaten the other, neither can meaningfully exist without the other.

Franklin saw the liberty and security interests of Pennsylvanians as aligned.

In place of balance, I wish to propose a different, more complicated, metaphor, one drawn not from the scales of justice but from evolutionary biology—albeit from an archaic source in that field. In 1929, the evolutionary biologist Julian Huxley, the science fiction writer H. G. Wells, and Wells’ son, G. P. Wells, jointly authored a nine-book, three-volume treatise on the life sciences and evolution. Entitled The Science of Life, the work is primarily of historical interest nowadays. It contains a ferocious defense of evolution, contending that it is a fact beyond reasonable argument. It reflects a skeptical attitude toward vogue racial attitudes of the time. It also contains an embarrassing enthusiasm for the eugenics movement. And buried in this lengthy tome is the following paragraph:

The phrase “hostile symbiosis” has been used to describe the state of our own tissues—all of the same parentage, all thriving best when working for the common good, and yet each ready to take advantage of the rest, should opportunity offer. There is a profound truth embodied in the phrase. Every symbiosis is in its degree underlain by hostility, and only by proper regulation and often elaborate adjustment, can the state of mutual benefit be maintained. Even in human affairs, partnerships for mutual benefit are not so easily kept up, in spite of men being endowed with intelligence and so being able to grasp the meaning of such a relation. But in lower organisms, there is no such comprehension to help keep the relationship going. Mutual partnerships are adaptations as blindly entered into and as unconsciously brought about as any others. They work by virtue of complicated physical and chemical adjustments between the two partners and between the whole partnership and its environment; alter that adjustment, and the partnership may dissolve, as blindly and automatically as it was entered into.

This passage seems to me to capture the essence of the relationship between liberty and security—one of profound mutual dependence yet, simultaneously, mutual danger and hostility. An adjustment to one partner in the symbiosis may aid both, may harm both, may advantage one with respect to the other. It may cause the relationship to adjust, to reformulate, or to dissolve. But like the symbiosis between the sea anemone and the clown fish, the relationship is not one of simple balance. Whatever hostility there may be, there is also dependency.

In considering any step that may alter the equilibrium between the two partners in this symbiosis, one has to consider several questions we tend to blur together but which are actually distinct from one another. The first question is whose liberty and whose security stand to be affected by the step? An individual’s liberty and security interests will almost always align rather precisely; relatively few measures will make Person X more secure but also make her less free. Rather, most measures that enhance the security of Person X will also enhance her liberty, and vice versa, for the simple reason that Person X is freer to do as she pleases if she is more physically secure. There are exceptions to this rule, of course. But they are actually rare.

The far more common clash between liberty and security is that the same measure that makes Person X more secure and free will come at the expense of the liberty and security of Person Y. That is, we are not trading off an individual’s liberty against security. We are trading off one person’s liberty and security against another’s; by making Person Y less safe and less free, we hope to make Person X more so. In other words, while we often talk about liberty and security in general, this formulation is actually mischievous and tends to skate over important choices concerning whose liberty and whose security we in fact care about and whose we are willing—even eager—to throw over the side of the boat.

To cite an extreme example, let’s say that Person Y is a serial rapist and that Person X is a member of the universe of potential rape victims in Person Y’s community. In this situation, the liberty and security interests of both individuals will be congruent with one another. Person Y will be freer and more secure if he is not caught. Person X will be freer and more secure if he is. Their interests, however, are also diametrically opposed to one another’s. Society simply has to choose for whom it has solicitude. Decent societies make the choice that Person Y’s liberty and security is an evil insofar as it endangers the liberty and security of Person X and all other persons like her. In such a case, the choice presents an easy call.

Liberty and security are necessary preconditions for one another.

That call becomes far less easy when we consider the same question without having positively identified Person Y as a serial rapist but if, say, we merely suspect him of being one. Then we are considering the liberty and security interests of, on the one hand, the universe of possible criminal suspects against the liberty and security interests of, on the other hand, the universe of possible rape victims. Here we face hard choices between the interests of different groups in society for whom we have genuine and competing concerns—the wrongly-accused and the potential victims of the rightly-accused. And this is, indeed, a project of balancing. But critically, it is not chiefly a project of balancing liberty against security. It is, rather, again a project of balancing one person’s liberty-and-security against another’s, and that balancing is hard not because liberty and security are in conflict but because our information is insufficiently perfect to enable confident decision-making as to whom we want to protect more rigorously.

Second, while we often speak of liberty and security as simple quantities, both goods are multivariate and can be assessed across a number of different axes. A plethora of different things can threaten either. To be precise when we speak of what a given measure is likely to do to the relationship, in other words, we need to identify what liberty is threatened and what sort of security we are attempting to augment. For example, it is relatively common for street crime to be low in totalitarian countries. The individual may thus face no security threat in the form of mugging or murder but a very great one in the possibility of being sent to a labor camp.

Conversely, in a society with very weak government, a person may face no threat of political oppression yet receive no protection either from non-state predatory forces like drug-trafficking gangs or religious extremists. Meanwhile, a strong government that keeps order domestically and does not oppress its people may yet have inadequate military power to prevent foreign invasion and the conquest of its cities, and thus may ultimately protect neither the liberty nor the security of its citizens all that well. It is possible for a given step to increase security in some respects while making people more vulnerable in others, or to augment liberty in some ways while constricting it in others.

Third, the granularity with which one looks at the relationship matters a great deal when one speaks of either liberty or security. The same security measure might legitimately be said to affect liberty positively or negatively depending on the focal length of the lens through which one views it. That is, are we primarily concerned with the liberty and security of individuals or are we primarily concerned with the aggregated liberty and security of society in general?

Consider, for example, an aggressive enhancement of government surveillance powers—one that offers intelligence operatives significant new leads in pursuing terrorists but that also produces as a necessary byproduct a certain degree of snooping on innocent people. One might, I suspect, respond to this program very differently—whether one is inclined to oppose it or to defend it—if one is primarily thinking about individuals than if one is primarily concerned with a more gestalt vision of the security and liberty of society at large. In the former case, one would tend to see the question in terms of a conflict between the liberty and security of the surveillance subjects, on the one hand, and the liberty and security of potential victims of terrorism, on the other.

One might ask: Is the imposition on the liberty and security of the former group worth the added protection it offers to the latter group? In the second case, by contrast, one would tend to look at more macro questions of the scope of government power: Do we feel freer and safer in a society in which government has this power or in one in which government lacks it? Those are very different questions, and they may not produce the same answers.

Another way of thinking about this point is that while we tend to evaluate the liberty of a society in terms of its protection of individual rights and, indeed, tend to conflate individual rights and aggregate liberty, these are not quite the same thing. The summary execution of the serial rapist would likely increase aggregate liberty in some meaningful sense, but it is not the act of a society that respects individual rights. Perhaps oddly, the law does not concern itself with aggregate liberty—the ability of the public in general to do as it pleases—but with the specific rights of individuals.

In American constitutional law, for example, free speech does not exist as a general right of the public to communicate as much or as widely as it desires but as an individual right not to have government restrict one’s speech. Similarly, the Fourth Amendment does not protect privacy in the way that many Europeans think of the term but restricts government from engaging in certain conduct with respect to individuals. The result is that it is possible, common even, for a step both to enhance the general liberty of a society and to conflict with the specific guaranteed rights that society promises to some individual. In such instances, it may be proper to talk about balancing, but once again, we are not really balancing liberty against security; we are, rather, balancing societal liberty against an individual’s rights.

Could surveillance programs actually enhance liberty?

In short, how liberty and security interact in their hostile symbiosis will depend not merely on whose liberty and whose security one values but on the threats to each that one perceives as salient. Sometimes, the problem will be that government is too strong, but the converse problem will often arise as well.

***

Franklin’s comments on liberty and security are not the only famous words on the subject frequently quoted out of context. Another such abused quotation is Justice Robert Jackson’s warning that “There is danger that, if the [Supreme] Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Jackson’s words are often cited as a kind of flip side of Franklin’s—with Franklin assumed to have been warning that one should not give up liberty in the name of security and Jackson assumed to have been warning conversely that one protects liberty too strongly at great risk to security. The trouble is that just as Franklin was saying something else entirely, Jackson was not saying anything this crude either—which is probably why the rest of his remarkable passage tends to get left out.

Jackson wrote this line in the last paragraph of his dissenting opinion in the free speech case, Terminiello v. Chicago—which the court handed down in 1949, a few years after Jackson returned from his stint as chief prosecutor at Nuremberg. The question of how civilized societies should deal with totalitarian movements was still very much on his mind when he confronted the case of a fascist-leaning priest in the United States who had given a vile and fire-breathing speech to a group of sympathizers at an event where communist protesters were present. The event had nearly turned into a riot, with the two mobs squared off against one another. The priest was later charged with disorderly conduct and fined $100. The Supreme Court overturned the judgment on free speech grounds, on the theory that all Terminiello had done was speak. Jackson saw things differently.

For Jackson, the issue was that two totalitarian movements which did not believe in liberty were squaring off against one another, and for liberty to exist, the police in a democratic culture simply had to have the authority to prevent things from spiraling out of control into mob violence. Jackson insisted that confronted with such movements, “The choice is not between order and liberty. It is between liberty with order and anarchy without either.” Only then did he write his famous words.

Like Franklin, Jackson was actually denying a stark balancing of liberty interests and security interests. He was asserting an essential congruence between them. Both Franklin and Jackson were, after all, arguing for the ability of local democratic communities to protect their security—and liberty—through reasonable self-government.

First Amendment law has long-since passed by Jackson’s specific point about what sort of utterances should and should not trigger liability for their propensity to cause violence. But his larger point stands. In the hostile symbiosis between liberty and security, one is not maximized at the expense of the other. They are locked together—embracing, choking, supporting, and endangering each other. The doctrinaire embrace of one to the other’s detriment will always ultimately disserve both.


Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution and codirector of the Harvard Law School–Brookings Project on Law and Security. His most recent publication is Speaking the Law (Hoover Institution Press 2013), cowritten with Kenneth Anderson. He is the cofounder of the Lawfare blog.


This essay was adapted from a longer paper by the author titled “Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security” (Harvard Law School-Brookings Project on Law and Security).


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