About a decade before the American Revolution, England’s Great Commoner, William Pitt the Elder, laid down one of the more eloquent boundary lines between the individual and the state. “The poorest man may in his cottage bid defiance to all forces of the Crown,” he said. “It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!”
Pitt’s rhetoric is one of the more enduring expressions of the Anglo-American tradition of civil liberties – the idea that people should be allowed to go about their lives unmolested unless they pose a threat to the freedom and safety of others. At their purest, these freedoms are protected regardless of race, religion, sex or class. Yet since 19 jihadists turned four airliners into suicide missiles, both the United States and the United Kingdom curtailed foundational liberties and undermined the rule of law in favor of aggressive security policies whose proponents claim prevent further attacks.
The eventual pushback against these policies on both sides of the pond inevitably occurred, coalescing around traditional party politics over the last two years. In 2008, then-senator Barack Obama won the White House, promising a return to American values and causing even some libertarians to cheer [1] that basic liberties would be restored. On the campaign trail, [2] Obama promised to revisit the Patriot Act, eliminate warrantless wiretaps and shut down the prison facility at Guantanamo Bay, Cuba.
A similar desire for change crossed the Atlantic last year. Conservative Prime Minister David Cameron took residence at 10 Downing Street and formed a coalition government with the Liberal Democrats, pledging to restore the country’s commitment to individual rights and the rule of law. Both the Conservative Party and the Liberal Democrats were blunt in their criticism – far more so than American politicians – that their country had degenerated into a “surveillance state” under the rule of New Labour’s Tony Blair and Gordon Brown. In their respective 2010 campaign manifestos, each party pledged to beat back Big Brother, with the Liberal Democrats promising to “protect and restore your freedoms.” [3]
But only one country’s government seems serious about its pledge to uphold a semblance of classical liberal values: Britain’s odd coalition of Conservatives and Liberal Democrats. First, Home Secretary Theresa May allowed the power of police to detain terrorism suspects without charge to revert back to a maximum of 14 days, from 28 days, after the extended power expired[4] – which still represents an extraordinary police power in a democracy. (For instance, in the US, Germany and South Africa, a person can only be detained for 48 hours before he or she must be released. Even Russia is more liberal in this regard, limiting precharge detention to five days.)
Then, less than 48 hours later, May released the government review of the country’s most controversial counterterrorism and security policies, which she began last summer when the coalition took power.[5] In the foreword, May stated that the UK has gone too far down the road toward authoritarianism. “We must,” she wrote, “correct the imbalance that has developed between the State’s security powers and civil liberties, restoring those liberties wherever possible and focusing those powers where necessary.”
Besides allowing precharge detention powers to return to the former lower maximum of 14 days, May said the government would end police’s counterterrorism power to stop and search, without suspicion, any person in certain defined public areas. According to the review, the power to stop and search without suspicion was abused and fueled distrust and anger from the UK’s Asian-Muslim communities without verifiable results. Between 2007 and 2010, police recorded 392,000 stop and searches. Despite this sizable campaign, the power has never resulted in a conviction for a terrorist offense. May recommended that stop and search be more tightly constrained and based upon a police officer’s reasonable suspicion. Curtailing this power in particular could help the UK government’s relationship with its minority Muslim population. In an equality impact assessment accompanying the report, the Home Office noted that stop and search policy changes will likely improve relations with UK Muslims, considering that they “feel that the current power is used unequally against them as a group.”
May also recommended real change in local authorities’ ability to covertly surveil the public without any judicial oversight. While the power was intended to address serious crimes and terrorism, May notes that local governments used the power to catch citizens whose dog relieved itself in the wrong place, or to check whether a family resided in the right school district. Under May’s recommendations, local authorities can use surveillance powers when reserved only for what Britons consider serious crimes – those that carry at least six months in jail – and only after receiving a magistrate’s approval.
The final and most draconian state power May reviewed was control orders. Introduced as emergency legislation in 2005, control orders allowed the government to place terrorism suspects under virtual house arrest without charge. Controlled suspects could be relocated, placed under curfew for up to 16 hours a day, electronically tagged for tracking, barred from traveling to certain areas and forbidden from using communication tools like cell phones and the Internet. The idea behind control orders was to restrict the ability of suspects to engage in terrorist activity when the government could not charge them with a crime or deport them. This method of control inverted the British tradition of actually charging suspects with a crime before limiting their basic freedoms, denied suspects their right to a fair trial and placed them in legal limbo. As May’s review acknowledged, “control orders can mean that prosecution and conviction (a principal purpose of our counter-terrorism work) becomes less not more likely.”
Control orders also, many argue, made Britain less safe. Of the 45 people put under control orders, seven disappeared. The civil rights organization Liberty called these disappearances “not just embarrassing for the Government, they also pose a potentially grave threat to our security” – which is why, in their 2010 manifesto, the Liberal Democrats pledged to “scrap control orders” because “the best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms.”
Despite the Liberal Democrats pledge and May’s acknowledgement that the current control order regime can be dangerous to liberty and security, the coalition decided to revise, rather than eradicate, control orders. The new powers, which have been rebranded Terrorism Prevention and Investigation Measures (T-Pim) and are already derisively known as “control orders lite,” will ease restrictions on terrorism suspects, end forced relocation and place tighter regulations on the government. For instance, Britain’s High Court will now review all T-Pims imposed on suspects by the Home Secretary and will have the power to “quash or revoke” them if they are found unjustified.
Nevertheless, individuals not charged with a crime can still find themselves electronically tagged and their freedoms restricted. T-Pim is obviously still a very dangerous state power that far exceeds democratic norms of due process and straightjackets individual rights. As Thomas Jefferson wrote Anglo-American Thomas Paine in 1789, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” In other words, punishment cannot come before conviction by one’s peers.
Naturally, civil libertarians and critics fret that the recommendations don’t go far enough, and appropriately so in regards to control orders. However, as Queen’s Counsel Matthew Ryder wrote [6] in the Guardian, while the counterterrorism review is a small step, it is a necessary and heartening one.
“There is renewed confidence in giving proper weight to civil liberties concerns,” he wrote of the government. “If this filters down to how surveillance and anti-terrorist powers are exercised in practice, there will be real change.”
Ken Macdonald, a former director of public prosecutions known for his liberal-left politics, provided independent oversight of the Home Office’s review and concluded that May’s review achieved the “government’s primary aim of rolling back State power.”[7] In his report’s introduction, he made his sympathies clear.
“The first duty of the State is to protect its citizens and so it is rarely difficult to justify increasing State power,” he wrote. “But the promise of total security is an illusion that would destroy everything that makes living worthwhile.”
Despite their shortcomings, May’s reforms show that compromise between Conservatives and Liberal Democrats has tipped the balance between civil liberties and security back toward the citizenry. While Parliament still needs to debate the review’s recommendations, the coalition government has the votes necessary to pass May’s reforms. This type of principled civil libertarianism, however, has not surfaced among the US’s political class. The White House’s promise to close down Gitmo has been abandoned, meaning preventive detention continues[8]; warrantless wiretapping goes on[9]; and the Patriot Act looks likely to be renewed[10], despite recent resistance among some Democrats and Republicans – about one-third of them Tea Partiers[11].
In response, notable civil libertarians have pummeled President Obama’s record on civil liberties and privacy. In a widely circulated quote from June 2010, American Civil Liberties Union (ACLU) Executive Director Anthony Romero told liberal activists: “I’m disgusted with this president.” [12] Recently, Glenn Greenwald, a former constitutional attorney and blogger at Salon.com, outlined why he is dismayed by the Obama White House by comparing the similarities – state secrets, targeted killings, indefinite detention, renditions, denying habeas corpus rights – between the Bush and Obama White Houses:
[T]his continuity extends beyond specific policies into the underlying sloganeering mentality in which they’re based,” writes Greenwald. “[W]e’re in a Global War; the whole Earth is the Battlefield; the Terrorists want to kill us because they’re intrinsically Evil (not in reaction to anything we do); we’re justified in doing anything and everything to eradicate Them; the President’s overarching obligation (contrary to his Constitutional oath) is to keep us Safe; this should all be kept secret from us; we can’t be bothered with obsolete dogma like Due Process and Warrants, etc. etc.[13]
Nevertheless, there’s still a small cause for hope among American civil libertarians, and it resides in alliance. Unlike in the US, coalition politics in the UK allowed for the compromise necessary to tackle an issue so easy to politicize for partisan gain: counterterrorism policies instituted after 9/11. Similar ideas of partnership that allowed the British coalition government to roll back state powers are now being openly considered by progressives and libertarians in the US.
“I believe in coalitions,” Rep. Ron Paul (R-Texas) told Judge Andrew Napolitano, host of Fox Business Channel’s Freedom Watch, in an appearance with former Green Party presidential candidate Ralph Nader recently.[14]
During an earlier interview with Napolitano, Nader said the libertarian-progressive alliance has already begun, pointing to Paul’s joining forces with Socialist Sen. Bernie Sanders (I-Vermont) to audit the Federal Reserve and cut military spending. And across the web, especially at The Freeman, leading American libertarians like Sheldon Richman and Steven Horwitz[15] have been highlighting the common values and beliefs shared by progressives and libertarians. In a piece for a UK libertarian web site, Richman described left-libertarianism fraternally[16], painting it as a movement that loves liberty and opposes all forms of cronyism and privilege. Nader calls this coalescing popular front “the most exciting new political dynamic”[17] in America today. According to Paul, Nader, Richman and Horwitz, progressives and libertarians both understand that America’s diminishing freedoms are not the product of terrorist threats, but of a welfare-warfare state run amok.
There’s a strange sense of history repeating itself in all of this. Nearly 250 years ago, the embers of liberty that first burned brightly in English hearts jumped the great ocean and caused a fire that changed history. The real question now is whether a small, motley group of Americans once again is up for taking British ideas and radicalizing them for a New World.
[1] https://www.cato-at-liberty.org/obama-civil-liberties-the-left/
[2] https://www.barackobama.com/pdf/CounterterrorismFactSheet.pdf
[3] https://www.libdems.org.uk/our_manifesto.aspx
[4] https://www.homeoffice.gov.uk/media-centre/news/pre-charge-detention
[5] https://www.homeoffice.gov.uk/media-centre/news/pre-charge-detention
[6] https://www.guardian.co.uk/commentisfree/libertycentral/2011/jan/28/control-orders-protection-of-freedoms-bill?INTCMP=SRCH
[7] https://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/report-by-lord-mcdonald?view=Binary
[8] https://www.nytimes.com/2011/01/20/us/20trials.html
[9] https://www.nytimes.com/2010/04/04/opinion/04sun1.html?_r=1
[10] https://voices.washingtonpost.com/44/2011/02/patriot-act-extension-to-be-br.html
[11] https://www.slate.com/blogs/blogs/weigel/archive/2011/02/08/patriot-act-authorization-fails-eight-gop-freshmen-vote-no.aspx
[12] https://www.politico.com/blogs/joshgerstein/0610/ACLU_chief_disgusted_with_Obama.html
[13] https://www.salon.com/news/opinion/glenn_greenwald/2011/01/18/cheney/index.html
[14] https://www.rawstory.com/rs/2011/01/ron-paul-ralph-nader-agree-on-progressive-libertarian-alliance/
[15] https://www.thefreemanonline.org/headline/feature-not-bug/
[16] https://libertarianalliance.wordpress.com/2011/02/04/sheldon-richman-on-the-libertarian-left/
[17] https://www.rawstory.com/rs/2011/01/progressive-libertarianism-the-exciting-political-dynamic-ralph-nader/
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