From Terror and Consent: The Wars for the Twenty-first Century
pp540-1
What is at stake in these wars, at least as far as the U.S. and the U.K. are concerned, are the practices and ethos of consent. We need not be concerned that our adversaries will defeat and occupy us, interning our civilians and executing our officials. What is threatened is threatened by our own actions when we are persuaded that compromises with our constitutional traditions of consent are necessary to protect us.
That might sound as if I can be counted among those who believe that the only thing we have to fear is fear itself, the blind unreasoning panic that comes from politicians hyping the scale of the threat we face. But that is not quite what I believe. The situation that concerns me is one that comes about when our fears are justified, when it is quite rational to become convinced that only dramatic change in our constitutional ethos can provide safety because we have neglected to protect ourselves – including protecting ourselves psychologically – by denying the existence of the threat or pretending it is insubstantial and thus failing to take consensual measures before that threat manifested itself in acute catastrophes.
On this score, the Bush administration has a mixed record for it has rather consistently chosen what one might call “the path of least consent.” When it wanted to expand electronic surveillance it did so in a secret executive order; when it wished to avoid habeas corpus petitions from its detainees it put them in an offshore penal colony rather than risking judicial oversight; when it wanted to change the interrogation procedures with respect to captives, it altered the Army Field Manual rather than seeking fresh legislative authority from Congress.
The consensual practices of states like the U.S. and the UK. are time-consuming, often frustrating, and usually suffused with compromise and half-measures. That is why we rely on professional, experienced persons to undertake them; it is too difficult for amateurs to manage these practices. This is especially true in a time, like our own, when politics is so partisan, and the media so bitterly opportunistic. Yet we really have no choice in the matter: the surest way to lose our way, to take on the characteristics of a state of terror, is by failing to rely on our conventions and processes of consent when as now we are in a period of relative tranquillity. Otherwise, when catastrophe does strike we will eagerly cast aside the ways of consent because they will appear – as they in fact will be – too cumbersome and ineffectual to provide security.
Let me summarize: We need not sacrifice our constitutional freedoms to win the Wars against Terror. Indeed, the principal point of this book is to draw attention to the fact that twenty-first century terrorism poses a dangerous threat to those freedoms. Claims that the US. Constitution doesn’t apply abroad, or that habeas corpus is a quaint irrelevance, or that persons can be held incommunicado indefinitely, are ones with which I have little sympathy. But neither do I believe that there is a God-given right to not be burdened with carrying an identity card, or to not disclose to the government information we have gladly given to private corporations or that they have collected with our consent. The wars of the twentieth century have given us the conviction that the threat to our liberties would come from a totalitarian state; now we are locked into this way of thinking heedless of the fact that in the twenty-first century such threats can come from relatively small groups that are not associated with a state. Looking around for a threatening state, we end up indicting our own.
We should not abandon the constitutional restraints on the executive that distinguish states of consent. Indeed, this book is aimed at forestalling a situation in which we might be forced to declare martial law because we refused to debate openly and to act through our customary representative processes to write laws that would anticipate such a crisis. But neither do I believe that all the post-Watergate reforms in the US have the sanctity of the structures of government that are constitutional in nature.
The principal recommendation of my Plague Treatise is that we pay more attention to our vulnerabilities. We need to build up our immune systems, which include our alliances, and our laws. Right now we are focused on a particular virus – call it the Islamist flu – and we are tempted to imagine that future conflicts will be, like this one, a clash of cultures. In fact this is unlikely. We must continue our fight against the flu; where possible we need to get flu shots and treatment, like progress toward resolving the Israeli-Palestinian conflict that might lower the temperature of the patient. But in the long run, we have to prepare for sicknesses from many other quarters, including those of which we have as yet no knowledge.
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