I said in an earlier post that “religion” should be confined to the theistic religions. That is sensible when the issue is the role of faith-based morality in public policy. But in other contexts a broader sense of the word, to denote the embrace of a system of thought that is not responsive to scientific or pragmatic argument and hence is dogmatic, and that occupies a central place in the ideology of its adherents, can be illuminating. I am increasingly struck by the aptness of the term to the type of civil libertarian who will have no truck with tradeoffs between security and liberty. The choicest recent example of this outlook happens to be found in the opinion by an English judge, Lord Hoffman of the House of Lords, in a decision invalidating a post-9/11 British law allowing indefinite detention, without a hearing, of aliens suspected of terrorism who can’t be deported, either because no nation will accept them or only a nation in which they would be exposed to torture or other serious harms.
The case is A v. Secretary of State, [2004] UKHL 36, [2004] All ER(D) 271 (Dec. 26, 2004). I am not interested in whether it was decided correctly—one would have to know more about English and international human rights law than I do to opine responsibly on that question—but only in the mindset illustrated by Lord Hoffman’s opinion. Noting that “the power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial,” he says that “nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.” This is a pious fraud, ignoring a long history of abuses of civil liberty by British police and security agencies, documented by the English legal historian A. W. Brian Simpson in his book In the Highest Degree Odious and by others. And Hoffman quickly retrenches by adding that the draconian laws enacted to curb the Irish Republican Army, laws similar to those challenged successfully by “A,” were justifiable because “it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole.” He acknowledges that “the threat of…atrocities" similar to the 9/11 attacks on the U.S. “in the United Kingdom is a real one.” But he denies that it is “a threat to the life of the nation….Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.” Actuallly, there is more doubt that the United Kingdom will survive Islamist terrorism than there was that it would survive the Irish Republican Army, the aims of which were modest compared to those of Osama bin Laden and his associates and which did not aspire to the possession of weapons of mass destruction. Hoffman adds that “terrorist violence, serious as it is, does not threaten our institutions of government.” But considering how fiercely the British authorities responded to the 9/11 attacks one imagines that their response to a similar or worse attack on Britain would leave little of the institutional framework of civil liberties standing; and Hoffman surely regards that framework as an important part of “our institutions of government.”
He concludes with what has become the first article in the civil liberties common book of prayer: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, come not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” What he is saying is that terrorism is not a “real threat,” but the enactments of a democratic legislature (“laws such as these”) are. Terrorism that kills thousands of people (in time, it could be millions) is less menacing than laws that cut back on “traditional laws and political values,” even if the “traditions” are only a few years old. An ordinary sensible person would think that terrorism on the scale enabled by modern technology and inflamed by religio-political fanaticism can do more harm to a nation than a law authorizing the indefinite detention of nondeportable aliens suspected of being terrorists. To think otherwise is to be in the grip of a dogma that flaunts its defiance of common sense. Credo quia absudum est.
Civil liberties have real benefits that are entitled to considerable weight whenever measures to increase public safety are proposed. But in Lord Hoffman’s opinion, as in similar pronouncements by American civil libertarians, the effort is to place the existing level of civil liberties beyond pragmatic assessment by according them transcendent value compared to which considerations of physical survival are made to seem petty.
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