Civil Liberties and Lesser Evils, Essay Example

The article “Lesser Evils” (2004) by Michael Ignatieff argues that civil liberties in America must be sacrificed in order to successfully wage a war against global terrorism. The article explores the relationship between rights and security, specifying to some degree which rights should be sacrificed and which rights should be preserved. The result of this approach is to arrive at a hierarchy of rights that is justified, by the author, as being necessary to preserve the more immediate and essential right of security. According to Ignatieff, the rolling back of fundamental rights such as habeas corpus, the right to privacy, and the right to a fair and speedy trial are viewed as being impediments to national security when viewed against the backdrop of a the so-called “war on terror.” Ignatieff goes so far as to suggest that the civil liberties at the core of American democracy provide potential terrorists with the perfect opportunity to exploit and ultimately compromise our physical safety, economic prosperity, and national identity.

While Ignatieff acknowledges that these claims may seem extreme, he also points out that the potential for radiological or nuclear attack by terrorists is so great that the seeming hyperbole is actually an understatement. In Ignatieff’s estimation, we have no way of estimating the true impact of a large-scale terrorist attack involving the use of weapons of mass destruction. The only thing we can count on is that such an attack would be devastating to America. In addition to causing massive casualties and property damage, such an attack would undermine American confidence and cause a state of panic and paranoia to smolder across the nation. The relationship between rights and security is one that prioritizes security because without security, no other rights can be guaranteed. Ignatieff writes that “Armageddon is being privatized, and unless we shut down these markets, doomsday will be for sale. Sept. 11, for all its horror, was a conventional attack. We have the best of reasons to fear the fire next time.” (Ignatieff, 2). His point is that the consequence of a failure of security could be so catastrophic as to destroy America.

One interesting element of Ignatieff’s argument is that he bases it to a large extent on Constitutional grounds. This effectively puts him in the position of using the Constitution as a justification for ignoring the Constitution. For example, Ignatieff asserts that “disagreement about the trade-off between liberty and security is a permanent characteristic of any free society.” (Ignatieff, 6). While this may appear to be a self-evident statement, Ignatieff goes a step further by insisting that “The founding fathers designed the Constitution to enable our institutions to adjudicate such fundamental disagreements of principle.The key innovation of American government was the system of checks and balances.”(Ignatieff, 6). As the following discussion will show, Ignatieff’s argument involves the endorsement of policies that directly circumvent the system of checks and balances. This is especially true with respect to his perspective on the expansion of Presidential authority, which involves endorsing not only an increase in the power of the executive branch, but a decreasing of power for the judicial branch.

This is evident in the specific rights that Ignatieff notes are worth sacrificing for the sake of national security. What Ignatieff proposes is a strategy that he describes as a “lesser evil” approach. Although this strategy involves radical infringements against civil liberties, it does so with a focused and narrowly targeted range. In order to fully appreciate the argument presented in the article it is necessary to constantly keep Ignatieff’s idea of security-over-liberty firmly in mind. This is true whether the intention is to support his argument or to attempt a counterargument. For instance, Ignatieff specifies that the “lesser evil” strategy allows for “preventive detention, where subject to judicial review; coercive interrogation, where subject to executive control; pre-emptive strikes and assassination, where these serve publicly defensible strategic goals.” (Ignatieff ,11). The alert observer will notice that with this simple statement, Ignatieff has abolished a good portion of the Bill of Rights. What he is arguing in favor of is in effect: imprisonment without trial, torture without trial, and execution without trial.

In case the preceding observations were insufficiently clear about the degree to which the “lesser evil” strategy destroys civil liberties, there are Ignatieff’s thoughtsin regard to judicial oversight and review. Ignatieff writes that “everything has to be subject to critical review by a free people: free debate, public discussion, Congressional review, in camera if need be, judicial review as a last resort.” (Ignatieff ,11). In other words, the idea of checks and balances has now given way to the idea of “last resorts.” This approach creates a hierarchical struggle between the arms of government and with it a hierarchical ranking of rights. By creating such a hierarchy, there is an implication that some rights are expendable while others must be protected. The United States Constitution is designed to specifically resist the formation of a top-to-bottom government or distribution of power.

The very foundation of American democracy is that government emerges from the people as the people’s representatives. According to the Constitution and the Bill of Rights, the highest priority of the federal government is to provide protection for the unalienable rights that are guaranteed by the Constitution and its amendments. While the federal government also holds a responsibility to protect the nation and provide for the common defense, nothing in the original Constitution or Bill of Rights suggests that this responsibility supersedes the federal government’s first responsibility to protect and preserve individual liberty. WhatIgnatieff argues is that the degree of threat that exists from global terrorism is so high that these two priorities should be inverted so that the federal government’s task of providing for the national defense becomes its highest priority and protecting civil liberties is left as a secondary concern.

The justification for a hierarchy of rights goes beyond this simple dynamic. In Ignatieff’s estimation, the protection of civil liberties is not only something that is of less importance than the issue of national security, the preservation of rights actually works against the prosecution of the war against terror and undermines the federal government’s ability to provide for the national defense. The logic here is much more complex than it might first appear to be because, as the article points out, the strategy of “lesser evil” is one which posits the potential of abandoning all traditional ideas of war and national security. For this reason, Ignatieff writes that “In traditional wars, there are rules, codes of warriors’ honor that are supposed to limit the barbarity of the conflict, to protect civilians from targeting, to keep the useof force proportional” (Ignatieff ,10) whereas in a terrorist conflict, none of these rules apply. This is a method by which the undermining of our society is initiated by the terrorist actors: they begin to assault our ideals of justice and civility while simultaneously probing us for weakness and opportunistic military targets that are meant to kill, terrify, and undermine society.

The plain fact is that terrorists fail to adhere to any conventional ideas of limits or morality in warfare. For the terrorist, such ideas as limiting strikes to military targets or restricting forces to proportional levels are simply laughable. The terrorist, argues Ignatieff, is ruthless and opportunistic. In order to defeat global terrorism a two-pronged strategy must be used. One prong is the direct attack against and destruction of the physical bases and strongholds of terrorist organizations along with the extermination of their leadership; the other prong is defensive in nature and involves the concept of eliminating (or greatly reducing) the number of soft-targets that are available for terrorists to strike. Using the two-prong strategy is the only way that protection against terrorism in the near-term future and far-term future can be simultaneously pursued. Ignatieff asserts that “The difference between us and terrorists is supposed to be that we play by these rules, even if they don’t … There is no warrior’s honoramong terrorists.” (Ignatieff, 10). Such considerations bring about profound moral questions, some of which reverberate beyond the strict parameters of law.

For example, if the terrorist enemies are prepared to use any means necessary in order to attack and destroy our country, then does it follow that we, as a nation, enjoy the right to return this behavior in kind? The answer, according toIgnatieff is: yes, and he goes a step beyond simple affirmation by suggesting that whatever Constitutional or moral consequences result from our returning in kind are less significant than the weaknesses we leave exposed by not responding outside of traditional means. Ignatieff writes that, by his estimation, the moral failure is strictly on the part of the terrorists. He states “The real moral hazard in a war on terror emerges precisely here, in the fact that no moral contract, no expectation of reciprocity, binds us to our enemy. Indeed, the whole logic of terrorism is to exploit the rules, to turn them to their own advantage.” (Ignatieff ,10). The big question with this statement is whether or not the word “rules” can reasonably be expected to be interchangeable with the words “civil liberties” in Ignatieff’s view. If so, this means that Ignatieff views civil liberties as a weapon to be used by terrorists against the society they are meant to protect.

This is a fascinating reversal of what might be considered the default or traditional view that civil liberties were the ideals to be defended and the idea of “defense” in the abstract held little relevancy. The viewpoint that is put forward by Ignatieff is that since terrorism poses a potentially apocalyptic threat against society, we may as well begin to dismantle the Constitution and the Bill of Rights immediately so that we can at least preserve our economy and our lives. This viewpoint is one that places fear of terrorism above the fear of state tyranny. It is a viewpoint that can be quite easily demonstrated to run contrary to both the spirit and letter of the United States Constitution and the documents associated with the American Revolution. The issue of national defense, and specifically defense against a WMD attack by terrorists, is the whole of the justification for creating a hierarchy of rights that all but demands the eradication of some rights formerly guaranteed by the Constitution.

Ignatieff’s article is carefully written and argued with great logic and enthusiasm. He resorts to the use of frequent hyperbole and also includes a good amount of hypothetical musing about the true threat that terrorism might pose to America. His argument will be attractive to those who are convinced that global terrorism is a serious ‘extinction level” threat to American democracy. To those who fail to believe that this is the case, Ignatieff’s article will likely seem highly suspicious if not outright deceptive. The main reason for this is the fact that the article suggests there are no other alternatives available other than the radical assault on the Bill of Rights that is advocated by the ‘lesser evil” strategy. For the exceptionally skeptical reader, the article may bring to mind a question as to whether or not the threat of global terrorism has not only been wrongly estimated by those advocating the “lesser evil,” approach, but willfully misrepresented. Because doing so would provide pretext for impinging on the Constitutional rights of Americans, these skeptics might even go so far as to suggest that the present policies being enacted under the Patriotic Act, along with the ideas advocated by Ignatieff in the article, pose a far greater threat to American society than any terrorist organization on the face of the earth.

Work Cited

Ignatieff, Michael. Lesser Evils. New York Times, May 2, 2004.