Benjamin Franklin famously warned that "they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." But over the last decade, Americans — and others all over the world — have been willing to trade many of their freedoms for the promise of security. John Kampfner's new book, examines the roots of this trend, and considers what citizens can do to counter it. In the exchange below, Kampfner talks to Jameel Jaffer, the director of the ACLU National Security Project. With the author's permission, some of the questions have been edited for clarity.
JJ: Your book notes the willingness of people all over the world to sacrifice civil liberties for the promise — and often the false promise — of security. Why do you think people are willing to make that trade?
JK: People make the trade not just for the prospect of security, but for material benefits too. This has been the pact since the advent of globalization and of a unipolar world following the collapse of communism in 1989. Rather than reinforcing a desire for greater liberty and democracy, the comforts enjoyed by an increasing number of people around the world have increased a yearning for security — for cocooning, for keeping what one has acquired. Public freedoms are the ones most easily given away — free expression, free association and the freedom to take an active role in the public/political realm. What matters more to people are their private freedoms — that is the freedom to lead one's life unimpeded. This could be freedom of travel, lifestyle and sexual choices, and most cherished of all, the freedom to make and spend money.
JJ: But surely there are limits to the public freedoms that people are willing to surrender in return for private freedoms, material comfort and even physical security. Your book examines the experience of, among other countries, China and Russia. Those are countries in which individual rights are very limited and the asserted needs of the state are routinely invoked to justify new restrictions on individual freedom. What can Americans learn from the experiences of people who live under totalitarian or authoritarian regimes?
JK: One of the less palatable conclusions I draw is that we are closer than we would like to admit. The peoples in semi-authoritarian states and those in established democracies appear to converge in their prioritization of freedoms (as I pointed out in the answer above). Many Russians I came to know during the late 1980s quickly associated the political plurality of the Yeltsin era with chaos. A similar mindset applied to many Chinese after Tiananmen Square. Both the Chinese Communist party and the Kremlin of Vladimir Putin made a different offer to their peoples — you keep out of trouble, and we will give you specific and circumscribed freedoms, along with strong economic growth. Compared to the lot of previous generations this appeared a good deal. And yet, in the West, how many people really want more? What proportion of the population of the United States, or the U.K. for that matter, comprises "trouble makers" — people who would be prepared to sacrifice their well-being for making a difference in the public realm?
JJ: When you say that "we are closer than we would like to admit," do you mean that there's a real danger that countries like the United States will degenerate into authoritarianism or totalitarianism?
JK: I resisted the temptation to compare countries, to give them scorecards for the state of their public freedoms. Of course, neither the United States nor Western European countries are likely to turn into authoritarian states (let alone totalitarian ones). One of the paradoxes of the post-1989 world is that while the number of democracies has increased (according to data from organizations such as Freedom House), the quality of these democracies has markedly deteriorated. This can be gauged variously, from a reduction in civil liberties, to an erosion of the independence of the judiciary, to the waning scope of investigative journalism, to a decline in electoral turnout. Indeed, I can think of no major Western democracy whose credentials have emerged unscathed in recent years. And the more flawed those democracies, the more peoples in different societies lose faith in democracy as their political destination of choice.
JJ: You also examine the experience of democracies like Britain and India. In what ways has the reaction of the United States to the threat of terrorism differed from that of Britain and India? Do you think the United States has been more or less successful than those countries have been at responding to the threat of terrorism in a way that is both effective and consistent with democratic values?
JK: The United States, unlike the U.K., had precious little experience of terrorism prior to the events of 9/11. The extent of the trauma suffered by the American people is often underestimated by foreigners. That trauma led to a collective wish for the authorities to do whatever it took to provide greater safety. A security clampdown was understandable in the circumstances. More curious was the self-censorship that took place. The writer Michael Kinsley described it as listening to his "inner Ashcroft." Four years later, Britain's response to the [2005] bombings on the London subway and buses, was similarly irate. Tony Blair declared "the rules of the game have changed." In India, after the Mumbai attacks of November 2008, a large demonstration called for the state to get a grip on the terrorist threat. One can see therefore the common threads. Where the United States, in my view, emerges more creditably, is the existence of its written constitution. Even after eight years of a Bush clampdown, the in-built checks and balances ensured the exercise of arbitrary power had its limits.
JJ: I wonder if these "in-built checks and balances" actually worked the way they were meant to work. It's true that the U.S. Supreme Court drew some important lines — ruling, for example, that the first iteration of the military commissions was unlawful, and that prisoners held at Guantánamo have the right to file habeas corpus petitions in federal court. But outside the very narrow context of detention and prosecution at Guantánamo Bay, the courts have been very deferential to the executive on issues relating to national security. And Congress was complicit in many of the human rights abuses of the last decade — endorsing the military commissions, for example, and endorsing — and even expanding! — the warrantless wiretapping program. It's not just that Congress didn't stop the abuses; it participated in them. If it's true that the system is working better in the U.S. than it is elsewhere, things elsewhere must be pretty bad.
But let me ask you about the transition from the Bush administration to the Obama administration. As you know, the Obama administration has endorsed many of the Bush administration's national security policies — a surprising number of them, in my view — but it has reversed or changed some of policies as well. It has disavowed torture, for example, and released — in response to ACLU litigation — the Bush administration's "torture memos." It has also promised to close the prison at Guantánamo Bay. Do you see these changes as cosmetic, fundamental or something in between?
JK: It is too early to make a definitive judgment call on Barack Obama. Just by not being George Bush and his neo-Conservatives, the new administration was bound to strike a different chord. Some of the measures of the Bush era have been reversed. Others, like the closing of Guantánamo, have proven to be more intractable than Obama predicted. As with other liberal administrations, he is trying to make a difference without also alienating conservative voters. The problem with this approach, if taken too far, is that you end up trimming so much you make little difference in the end. That is his challenge. Civil liberties groups should cut him a little slack, but not too much. They must maintain the pressure for a radical, but sensible, rebalancing of liberty and security.
JJ: To me, it seems that many of the principled and intelligent decisions that the Obama administration made early on are now being reconsidered for purely political reasons. In fact, as we're having this conversation, the Obama administration is reportedly reconsidering one of its signature national security decisions: the decision to try the 9/11 defendants in civilian courts rather than military commissions. If the reports are true, it's a truly remarkable thing. And if the Obama administration reverses course on this issue, it will be difficult to see much light at all between the national security policies of the second-term Bush administration and those of the first-term Obama administration.
But one point you make in your book is that the federal government isn't the only actor that matters on issues relating to civil liberties and human rights. And you argue that civil liberties advocates often make the mistake of focusing too intensely on the shortcomings of federal government, when the atmosphere of fear that allows and encourages the curtailment of rights is often cultivated at a local level. How would you recommend that civil liberties advocates counter this atmosphere of fear?
JK: This is a fascinating area to explore. Often the most pernicious and draconian pressures are the ones applied locally and more informally. In the United States this problem seems particularly prevalent — the doctor or teacher ostracized for expressing views that are seen as not representing "mainstream" opinion. In many ways, the U.S. experience has over the years been the reverse of other countries, with the federal authorities looked upon as the guarantor of liberties that would be more easily sacrificed by powerful forces in communities and corporations. In order to counter this phenomenon, civil liberties groups must continue to find partners to work with at the most grassroots levels.
JJ: In your concluding chapter, you wonder whether "perhaps people require less freedom than they would like to believe;" and whether perhaps people are satisfied if the government "keeps them safe, and allows them to lead their personal lives as they wish." Is that your ultimate assessment — that in the end we don't care as much about liberty as we say that we do?
A: That is my assessment of the current situation, but I hope it is an aberration. Yet, I must admit, the events of the past year or so have not filled me with optimism. I was one of many hoping that the collapse of the financial system might lead to a groundswell of pressure for a deeper reassessment of political, economic and social priorities. If so much of public life had been subjugated to the altar of consumerism, perhaps something was going to change when the bottom fell out of the market? Alas, the feeling now is that, as and when the major economies emerge from recession, it will be largely a return to business as usual.
JJ: Well I hope you're wrong about that, even if I fear that you're not.
You end the book by pointing out that it was "we the people," the common citizens, who "allowed democracy to mutate into something it should never have become." As a writer, you have at your disposal a uniquely effective means of affecting change, but what action can ordinary people take to defend their liberties, and their democratic society, against a government that says it wants only to protect them?
JK: Complacency is the greatest enemy. In my chapter on Singapore, the city-state that provides the model in my analysis of the trade-off, I use the phrase: "consumerism is the ultimate anaesthetic for the brain." The internet has been, on one level, a great leveller, a means of empowering individuals. Yet much of that empowerment remains atomized — people commenting and agitating in blissful isolation. What is needed is a quest by individuals to see their role as citizens, as participants in the public realm, as having an effect on the quality of their communities. Sadly, over the last 20 years, democracy has mutated into a single purpose — a vehicle for delivering material consumption.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.