Justice often neglected in an age of terror

Ronald Dworkin, Professor of law, New York University, Project Syndicate

Today's terrorist threats are unprecedented, so we perhaps cannot be as scrupulous in our concern for the rights of suspected terrorists as we are for the rights of other, less dangerous suspects. As U.S. Supreme Court Justice Jackson (who once served in the Nuremberg Trials) put it: We cannot allow the Constitution and our shared sense of decency to become a suicide pact.

Two conclusions that might follow from such an argument must be noted. We might think, first, that the requirements of fairness are fully satisfied, in the case of suspected terrorists, by laxer standards of criminal justice that increase the risk of convicting someone who is innocent. Or we might think that even though laxer standards may be unfair, we are compelled to adopt them to protect ourselves from disaster.

If we accept the first conclusion, setting lower standards of protection for anyone suspected of terrorism may seem justifiable because we see no reason to mitigate the heightened risk faced by innocent suspects through the adoption of substitute protections. If we accept only the second conclusion, conceding that we are treating some people unfairly, we should insist that governments show that such treatment is necessary, not for some broad category of persons, but, insofar as is practicable, for individual suspects.

Much of the rhetoric employed to defend the anti-terrorist measures that many Western countries have embraced since the attacks on New York and Washington seem aimed at justifying lower standards for all suspected terrorists. Fairness to criminal suspects, it is said, requires only that we strike an appropriate trade-off between two values -- freedom and security -- each of which can sometimes be served only at the expense of the other. Because terrorism is so horrific, we are supposedly justified in striking the balance differently. So subjecting terrorist suspects to a higher risk of unjust conviction is not deemed unfair.

The actions of some governments since Sept. 11 appear to assume that conclusion. They presuppose that the dangers of international terrorism permit a degraded standard of protection for anyone who might be thought connected to terrorism.

But metaphors about "trade-off" and "balance" mislead by indicating that "we" are really free to decide what mixture of security and personal freedom we want. Were that really our choice, it would be easy to make. After all, no government action will affect more than a tiny number of its citizens: Almost none of us will be indefinitely detained for minor violations or offenses, have our houses searched without our knowledge, or find ourselves facing a military tribunal.

The issues we actually face are different, so metaphors about balance disguise this. Our task is not to decide where our interest lies "on balance", but to determine what justice itself requires, even at the expense of our interests. We cannot answer that question by comparing the costs and benefits incurred by any person or group.

Nor can we answer it by composing a sliding scale that shows how the individual rights of accused criminals are diminished in proportion to the danger posed by the crime of which they are accused. True, rights we traditionally recognize do impair our security to some degree. After all, our societies might all be "safer" if police were allowed to lock up people they thought likely to commit crimes in the future.

But the criminal justice systems in democracies did not arise through calculations about how much risk we are willing to run in order to give any particular class of accused criminals a certain degree of protection against unjust conviction. We do not give accused murderers, say, less protection than accused car thieves.

Whenever we deny one class of suspects rights that we treat as essential for others, we act unfairly, particularly when that class is politically vulnerable (as aliens are), or is identifiable by racial, religious, or ethnic distinction. It makes no sense to say that people accused of more serious crimes are entitled to less protection. If they are innocent, the injustice of conviction is at least as great as the injustice in convicting some innocent person of a less serious crime.

So we must reject the balancing argument as confused and false. If we believe that in today's circumstances we must subject some people to special risks of injustice, then we must admit that what we are doing is unjust.

Al-Qaeda killed, by latest reckoning, approximately 3,000 people on Sept. 11. If they or some other terrorist organization gains access to nuclear, chemical, or biological weapons, then the threat would be truly grave. It would justify unusual and unfair measures if governments thought that some unfair actions would substantially reduce the risk of catastrophe. Even then, it would be imperative to permit only the smallest curtailment of traditional rights necessary, and to attempt to mitigate the unfairness so far as safety allows.

America is failing that test in several respects. Its policies define too broadly those who may be treated unfairly. For example, a Muslim visitor to America was arrested on Sept. 15 and jailed under harsh conditions for eight weeks. Apparently, he was arrested because his wife wore an Arab headdress, because he and his wife spoke a foreign language -- French -- and because they carried box-cutters, which both used in their jobs.

Moreover, America's new anti-terrorist measures provide that the determination that some special danger requires bypassing traditional rights, and running a higher risk of injustice, is to be made by the executive alone -- by the President, by the attorney general, or by some other official subject to the President. It would be fairer to require an independent judicial check; that, say, no suspect be detained for extended periods without trial unless the government has convinced a judge -- in a closed, secure hearing if necessary -- that security would be jeopardized by releasing him.

America's government has gone too far in displacing constitutional and legal rights. If more horrific terrorist attacks occur, other governments may be tempted down this dangerous path. Of course, people are frightened about suicidal terrorists. But these "enemies" hope to use terror to destroy values that they hate and which we cherish. We must do everything we can to protect those values even as we fight terrorism.