The danger of indiscriminate policies
It is a practical inevitability that in direct response to a terrorist attack, governments will offer new policy proposals, such as the registration and monitoring of places of worship,1 the creation of deportation powers2 and even the stripping of citizenship, or greater stop and search, identification, and detention powers. Our natural responses to such initiatives tend to vary from relief, satisfaction, concern, and outright alarm.
Those of us who are concerned with all the new powers that have been introduced over the years tend to focus on the issue of discrimination. In an open society we always fear that the arm of the law will swipe harder at those who look and sound like those who perpetrated terrorist attacks, i.e. 'those who fit the profile'. So we debate with government officials, generate protests, speak with the media; and we warn everyone that these laws will be used against some unfairly. We use the word 'profiling' with the expectation that it will generate shudders in the spines of our audiences.
We protest too little. Profiling may be overtly racist (e.g. 'search database for all ethnic names'), but in quieter moments, it is subtly so (e.g. 'why is this foreigner studying engineering?'). Indeed, Europe lives in the shadow of its history, and in turn developed legal ideals like the European Convention on Human Rights. And so Europe's governments are not overly fond of proposing policies that are overtly discriminatory. This is why the UK government lost its ability to detain foreign nationals, this is why there is so much attention to stop and search powers.
Our arguments must not stop there with cries of ‘discrimination’. Worryingly, governments are instead proposing 'indiscriminate' policies. In response to the High Court finding the detention of foreign nationals to be discriminatory, the UK government introduced powers equivalent to house arrest, but applied the powers equally to British citizens and foreign nationals. Interestingly, the government was warned about the prior power of a 'three-wall detention' as being discriminatory, and was called on by the Privy Counsellors to introduce 'new legislation should apply equally to all nationalities including British citizens'. At the time the government answered:
"The Government believes it is defensible to distinguish between foreign nationals and our own citizens and reflects their different rights and responsibilities. Immigration powers and the possibility of deportation could not apply to British citizens. While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to the support from all parts of the public that is so essential to countering the terrorist threat."3
When the power to detain foreign nationals was struck down the next year, Lord Justice Bingham explained:
"Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another."
So two months later the government proposed house arrest for all. The High Court never explicitly said that detention without trial was illegal, merely that it was discriminatory. The UK government managed to do an end-run around the constitution and the European Convention on Human Rights by removing the discriminatory aspect of the practice.
That is the logic of indiscriminate policy: for fear of discrimination, we must take away police powers that were previously applied to the few and instead extend them to the many. The UK government defends the increase in Asian stop-and-searches by saying that the police are increasingly using stop and search powers across the board. The logic is perverse, but it is logical.
We must also remember that once these indiscriminate laws are implemented in practice, they are likely to be applied to discriminate. This is the separation between the ideal and the practice. The ideal of non-discrimination leads to policies that indiscriminate, but then are applied in discriminatory fashion. Databases are generated containing information on everyone for fear of discrimination, and this data is then used for profiling purposes, as proposed by the EU and countless other governments.
At some point, as we have already seen in some countries, ethnic minority groups have expressed concerns regarding increased data collection practices, and surveillance methods such as ID cards because they may fuel further erroneous arrests, stops and searches, and discriminatory practices. When we do begin to notice these massive data-grabs and increased indiscriminate surveillance, I hope that claims of 'discrimination' will not be the only weapon in our arsenals. That is, we must not only argue that the practices are problematic because they'll be used against ethnic minorities. We must argue that we do not want such laws because we do not want to live in a world where the lives of the innocent are constantly under the ever-watching eye, and scrutiny, of the State.
It's not just that we shouldn't treat an ethnic community as though they are all terrorists; it's that we should not treat everyone as a suspect. As we continue to build additional checkpoints into European societies, we can not risk forgetting that lesson. Just because a bad policy is no longer discriminatory, this does not make it good.
- 1. e.g. Spain Weighs Muslim Rights and Concerns About Safety, Dale Fuchs, The New York Times, May 23, 2004.
- 2. "10 face deportation after raids on Islamist extremists", John Steele and Andrew Sparrow, the Daily Telegraph, August 12, 2005.
- 3. The Home Office, "COUNTER-TERRORISM POWERS: Reconciling Security and Liberty in an Open Society: A Discussion Paper", February 2004.