The Right to Not Be Blown Up vs Fundamental Freedoms

The debate on security, which has been dramatically posed since September 11, 2001, and which has remained unsolved since, is still engaging the public mind. Recently David Cole, Professor of Constitutional Law at Georgetown University, denounced how invasive the norms against domestic supporters of terrorist organizations have become.

The issue highlighted by Cole confirms a worrisome picture for those who care about the defense of civil liberties. We all remember the debate on body scanners. Given how invasive these are, its introduction raised several criticisms, especially from civil rights organizations and public authorities for the defense of personal privacy. But the Italian Foreign Minister, Franco Frattini, was adamant that this was "a sacrifice worth making", because "the right to not be blown up is the precondition of all freedoms».

This statement (mirrored by similar ones made by other EU politicians) implies the primacy of the juridical good named "security" over any other good. This means that security come before and above all other rights and freedoms. Even if these are fundamental rights, they become weak and recessive, in the name of collective security, no matter what the subjective position may be.

Frattini's statement brings us to the question: what kind of freedom can one enjoy, if he/she is dead? None, is the answer, thus one should even give up privacy, because remaining alive is paramount. This echoes a worrying trend in advanced democracies. In fact, by accepting the fact that postmodern societies require protection, even at the cost of suppressing fundamental freedoms, post-9/11 governments seem to have given up on the careful balancing between security and freedom, and have tipped the scale toward the former. Instead of seeking a reasonable balance between the collective need for security and the fundamental right to individual freedom, they are endangering crucial legal achievements in human civilization.

Recent laws passed on international terrorism reveal the tendency of public powers to have the needs of security prevail over the requirements of liberty. And this authoritarian tendency has not been decisively checked by courts, e.g. the ample deference show by the Supreme Court with respect to executive power (the Bush administration).

This tendency has actually found fertile ground among those legal theorists holding the minority position that justifies torture (the so-called Dershowitz theory). But also the mainstream of legal doctrine has justified practices taht are morally highly debatable, such as prolonged interrogations and water-boarding, which have been effectively legalized thanks to a restrictive interpretation of what constitutes torture.

Summing up, the hierarchy of values in the name of security that has emerged in the decade after 9/11 seems to have introduced elements of authoritarian democracy that are incompatible with the model of liberal democracy based on pluralism of values and strong guarantees in terms of rights and liberties