The Calibration of Rights

Have we slid inadvertently into a two-tier approach to liberty?

It is widely accepted that in order to protect our freedom we must acknowledge that it must be curtailed by balancing it against security imperatives. In The Freedom of Security: Governing Canada in the Age of Counter-Terrorism, Colleen Bell argues the opposite. Our notions of freedom do not act as a counterweight to security but rather add to its mass and power; ideas about security and freedom, says Bell, are mutually reinforcing.

From Orwell’s 1984 to Atwood’s The Year of the Flood, novels have often made us look afresh at the relationship between security and freedom and their impact on human existence. For many readers, The Freedom of Security will have a comparable effect. Bell emphasizes security’s intrinsic contradictions. Most importantly, the more resources a society expends on security, the more its members tend to obsess about threats real or imagined, often with the active participation of the security apparatus explicitly created to lessen such fears. (The heavily exaggerated threat of Saddam Hussein’s putative cache of weapons of mass destruction in the lead-up to the Iraq War is a perfect example.) And while security concerns are often privileged as being “above” politics, they are by their very nature highly political.

Canadians are conditioned to reason that only certain freedoms are acceptable: we have the freedom to write op-eds in newspapers, but not the freedom to march into the prime minister’s office. More significantly, Bell argues that we have constructed rules, laws and understanding that justify providing full freedoms only to people whom we have decided deserve them: citizens but not foreigners, supporters of liberal democracy but not its opponents, native-born white Canadians but not all racialized immigrants. The security mechanisms we have created manage our conceptions of the different degrees of allowable freedom and on whom we want to confer them.

Bell challenges head-on the idea that western democracies like Canada make rational choices to protect their citizens’ freedoms. The Charter of Rights and Freedoms may say that rights are guaranteed unless the violation is (in the words of the Charter) “demonstrably justified in a free and democratic society.” But the reality is that freedoms and rights are defined by their limits. Liberal democratic states pick and choose among freedoms to eliminate those that are considered excessive. Liberal states value the protection of reputation and the freedom to access goods, but not the freedom from poverty or the freedom to engage in civil disobedience.

There is nothing all that path-breaking in the theoretical propositions advanced in Bell’s book. The thinker to whom she acknowledges the greatest debt, Michel Foucault, has outlined how complex any society’s hierarchy of freedoms can be. But Bell’s critique is seductive in its contemporary relevance and illustrations. She cites Canada’s Anti-terrorism Act, which permits detentions without trials and arrests for being a member of an organization that may have, or have had, or may in the future have terrorist links. In defending this legislation, Liberal Cabinet minister Irwin Cotler argued that the first freedom is the freedom to be alive. If some procedural rights have to be expunged from our laws, it is worth it to deal with a “potential existential threat.” In other words, securing freedom for the majority means that the rights of certain minorities have to be curtailed: the only choice in a democracy is to calibrate with care how many restrictions on minorities’ rights are needed to keep the apparent threats at bay. Such reasoning has infused challenges to this legislation. Has the calibration been adequate? Are the restrictions really necessary? Is the balance right?

Bell shows that the range of applicable issues is far broader. She calls into question our unbending faith in the concept of citizenship as well as our implicit acceptance of the inherent difference of non-citizens. As long as we accept this difference, we invite the security apparatus to define people who are in and the others who should stay out. In today’s atmosphere of heightened fear of internationally based terrorism, challenging sovereignty’s reliance on the concept of citizenship is an ambitious project. What is particularly striking, notes Bell, is our increased reliance on the exclusion of foreigners to anchor the security machine. For a country like Canada, which relies on immigration for growth and prosperity, this is particularly troubling.

In earlier times, there was a movement to diminish as much as possible the distinctions between citizens and non-citizens: the citizenship test was easy and designed to welcome everyone into the fold. Not so now. Our politics of exclusion have gained momentum: we are about to create different kinds of refugees, some likely to spend twelve months in incarceration, others still allowed to enter Canadian society immediately. We have transformed our immigration policies to prefer temporary foreign migrant workers to permanent immigrants. Bell is right to encourage us to rethink these harsh measures. It devalues our most basic concepts of equality and dignity when we confer benefits to certain individuals and deny them to others, especially when non-citizens can be deprived of due process rights and when exceptions to the presumption of innocence and basic fairness are now possible.

Even those who are citizens are distinguished in terms of the extent of the freedoms they enjoy. Sometimes, these distinctions are glaringly obvious. For example, Bell meticulously analyzes the tragedy of Abdullah Almalki, who was tortured in Syria based on Canadian information. In doing so, she highlights the conflicting responses of the Canadian government, with some officials trying to free Almalki while others preferring he be kept under the authority of the Syrian government. Sometimes the hierarchy of freedoms for different citizens is subtler. Bell deals with Canada’s Cross-Cultural Roundtable on Security, in which various new immigrant communities have been co-opted to help maintain the security apparatus. She describes how, in the fight against terrorism, leaders in these communities are invited to work with security forces to “out” the potential terrorists among them. Under the guise of presumed consent, strategically targeted communities are invited to define themselves as cooperative new Canadians in order to be accepted and respected. Bell’s claim is not that this process is necessarily wrong, but that it signals how security concerns are integrated so deeply in our collective consciousness that we voluntarily succumb to its demands. “Security is our responsibility,” as the slogan says. There is no motto that invites us to take responsibility for equality or for liberty.

Just as liberal democracies pick and choose which freedoms to give and on whom to confer them, they also pick and choose which risks they will recognize. Indeed, the mass media and politicians portray risks along the lines that they think they can control. This means a focus on controlling crime (such as policing youth and the underclass), but also abandoning the idea of controlling environmental risks. Indeed, we have come to accept that many more people will probably die as a result of climate change than as a result of terrorist attacks, and that many more may develop diseases as a result of pollution than will be killed or maimed by criminals. Nevertheless, our conceptions of security are defined through our political leadership, and we rarely challenge them.

In the meantime attempts are underway to depoliticize and even commercialize the practices aimed at enhancing security: “experts” now define what security is, how much of it is needed and how much it will cost. To illustrate the point, Bell narrates her own personal experience in applying with a private firm for a Nexus pass to facilitate air travel. She is subjected to a host of biometric procedures—an experience that leaves her feeling coerced despite her ostensible consent:

After discussions between supervisors and employees over my failure to adhere to World Bridge protocols [that is, first contacting the firm on its out-of-service 1-900 number], I was ushered through a string of largely empty offices and then through series of forms, which indicated that all my personal information could be shared with other governments and that, if my documents were lost in transit, World Bridge could not be held responsible … I was also informed that World Bridge “processing rates” would be hundreds of dollars more than the pre-contracted rates from the days when Western states managed their own mobility regimes.

This episode illustrates well the malleability of consent in the context of security. When the police ask people whether they consent to provide their DNA samples so that they can be eliminated from a list of murder suspects, it is argued that those who agree have consented. But we know that the opportunity to refuse is impossible: the brave soul who objects is bound to remain on the suspect list. Such privacy-invading approval processes are more and more popular. In a decade’s time most good jobs may require candidates to be “Nexus approved.” Most of us, Bell suggests, will submit to more such invasive searches to prove that we deserve to be trusted. Who knows what type of recourse, if any, will exist for unfair or erroneous decisions?

Yet politicians and civil society seemingly lack the means to counter such disturbing trends. Although Bell does not discuss the incident in her book, there are few better examples of the power of security assessments by so-called experts run amok than the policing exercise during the G20 and G8 summits in Ontario in 2010, which saw close to a billion dollars in expenditures to secure the three days of meetings. In preparation, the security sector requested exceptional powers and an astronomical budget so that it could temporarily redefine many aspects of day-to-day life in the G20 summit’s host metropolis of Toronto as well as in Muskoka where the G8 summit was held. For a week, Toronto was stripped of its downtown activities, a large fence dividing its core, and those working for affected businesses were searched on their way to work. Similar actions were undertaken in the town of Huntsville and surrounding areas. Police were even able to lobby for war-type measures, with the Ontario government designating part of the fenced area a public works site. This brought the area under the Public Works Protection Act, a statute dating from World War Two that gives the police powers to arrest, detain and interrogate anyone who approaches a designated site.

Since the G8 and G20 summits, many groups have vociferously criticized such security measures and the public at large seems to have recognized that security in this case may have gone too far. Nevertheless, it took months of hard work from the media and others to shift the perceptions that the mass arrests, kettling, arbitrary detentions and illegal searches that took place in Toronto were necessary. Bell’s arguments shed useful light on this experience. Based on her thesis, it is not that the police and the security apparatus went too far, but rather that we are willing to accept and welcome their demands. In the environment that was created, it was easy to portray demonstrators as inherently dangerous. Those apprehended by the police had to prove they were “good” citizens whose notions of dissent accorded with liberal democratic values rather than other outlooks such as anarchism. Using Bell’s analysis, they had to prove, before anything else, that they were deserving of liberal democratic liberties.

The Freedom of Security is a challenging book. Its theoretically infused introduction will turn some off: lawyers may cringe at minor inaccuracies in legal language, historians may lament the lack of references to the other Canadian-based wars on terror such as the FLQ crisis and the 1950s-era anti-communism laws in some provinces, security professionals may feel judged or portrayed incorrectly. Given her desire to present her thesis as fundamentally different from the traditional security versus freedom analysis, Bell risks oversimplifying the positions of the multiple actors engaged in challenging, current security legislation. For example, many human rights activists do not object to the use of the language of security to protect socio-economic rights. For these activists, financial security is essential to the exercise of democratic rights such as freedom of expression and the right to vote. Also Bell does not aim to explain how we might disengage from our current obsession with security. The strategies she does offer—individuals adopting a conceptual refusal of sovereignty and accepting risk as a feature of life—are hardly incisive forms of resistance. But she is a generous author: she pursues her thinking uncompromisingly and shares her research with an eloquence rare in academic treatises.

Most importantly, she invites us to think anew about an important aspect of contemporary political life. Security practices are now so imbedded in our ideas of freedom that we are unable to disengage from them. We are no longer able to fully appreciate how security intrudes in our lives as we travel, play, work or participate in the political process. We accept being screened, videotaped, photographed and viewed naked through a body scanner, with little more than an occasional whisper that it all costs too much money, but without much resistance. We accept that people can be deported, racially profiled or detained for years without trial, again with the occasional nod to due process rights, but with scant protest. By forcing us to confront these unattractive facts and to recognize just how insidious security has become, Bell does her readers a considerable service.