Chapter 4. Protecting Constitutionalism in Treacherous Times: Why ‘Rights’ Don’t Matter

The twenty-first century begins obsessed with matters of security and the supposed need to ‘trade-off’ security and liberty. So pervasive is this obsession that a recent Hollywood movie, known more for its state-of-the-art special effects and tortured plot lines than for its thought-provoking quality begins, dramatically, with the reading of an Emergency Proclamation.

The setting is Bermuda, a British overseas possession, in the eighteenth century. Its opening scene portrays a mass hanging, conducted with military efficiency. The victims are an array of hapless souls including men and women of all ages and a pre‑pubescent boy. The first words spoken in Pirates of the Caribbean: At World’s End are delivered in the crisply upper-class accent of a British officer:

The words are punctuated with dramatic pauses at all the right places. On each utterance of the word ‘suspended’, the camera focuses beneath the gallows as the trap is released. Shackled feet appear, swinging, as each suspension of constitutional propriety is announced. Bodies pile high on crude carts, hauled off as the officer’s last words are delivered. In Hollywood convention, his impeccable English accent marks him as a scoundrel, an evil-doer, of the worst sort.

One presumes that a United States (US) viewing audience is expected to derive a moral lesson of sorts from this. The King evokes, dimly perhaps, collective memory of the overseas monarch whose ‘oppressions’ provoked the American Revolution. The actions of the authorities are marked as utterly ‘un-American’. Viewers are invited to identify with pirates, presented here as sympathetic and well-meaning sorts who struggle against unchecked power, undemocratic and unconstitutional assertions of authority, and the evils of Empire. The clipped British accent, the mechanical efficiency of the gallows permit no other association. Middle America, raised for half a century now on Disney-land rides such as that which inspired the ‘Pirates of the Caribbean’ series, consigns ‘piracy’ to a romantically amusing past. We are invited to focus on the excesses of duly constituted authority, personified in Lord Cutler Beckett and his officers. The bodies of the downtrodden accumulate too hastily to permit alternative interpretation. The camera lingers on a small boy, too short to reach the noose. His beefy executioners helpfully resolve the dilemma by hoisting him onto a barrel, fortuitously raising him to just the right height to reach his noose.

This set-up clearly marks the movie’s antagonist as evil. Disappointingly, the fuller implications of this startling starting sequence are left unexplored. Nonetheless, it is hard to miss the resonances. President Bush, like the fictional British imperial authority of another time and place, has decreed that the common good requires long established constitutional principles to be set aside. Habeas corpus, the right to counsel, the right to a jury trial, and freedom of association are all threatened, qualified, constrained, or impeded during the ‘War on Terror’ just as in Disney’s fictional past.

As in Lord Cutler Beckett’s administration, the measures are temporary, limited to the duration of a ‘war’ on terror. Like the past empire of US fiction, contemporary America has created zones in which authority operates without constraint of law. Contemporary America, like the fictional eighteenth-century colonial administration vilified in the Disney Corporation’s movies, draws no distinction, in pursuit of enemies, between children and adults.^[1]

One should not make too much of popular culture, of course. Nonetheless, it is telling that a rather blunt critique of the ‘War on Terror’ has gained sufficient foothold to frame even an action movie. It is the brutality of the ‘War on Pirates’ and an authoritarian state administration’s derogation of long-established ‘rights’ that serves to delineate ‘good’ from ‘bad’, ‘hero’ from ‘villain’, the virtuous from the ‘evil-doer’ for movie-viewers. Who, we wonder, can protect us from modern-day Lord Cutler Becketts?

Even highly manipulated, powerful, visual images such as those in Pirates of the Caribbean: At World’s End, lack persuasive power, however, for those who take the threat of terrorism seriously. The killing of children at the gallows, like the killing of children by bomb, bullet, or bayonet, evokes one response if we presume the action to have been taken by a capricious, avaricious, and evil empire; quite another if common decency and, perhaps, civilisation itself, is viewed as utterly vulnerable to the threat represented by the particular children and those behind them. Though World’s End does not pause to consider the violations of human dignity, property, livelihood, and life perpetrated by pirates, anyone seeking to ‘read’ the movie against contemporary circumstances cannot fail to register, powerfully, the real pain inflicted by terrorists. Images of airliners being flown into office towers, nightclub bombings in Bali, and attacks on railways, buses or subways in Spain, Mumbai, or London are seared into twenty-first-century Western consciousness. The fear that dirty nuclear devices, chemical or biological weapons might be unleashed on major cities in order to wreak damage and death on an unprecedented scale cannot be ignored. Such things will happen.

Confronted with the spectre of real terror, death, and destruction, and of real enemies quite unlike the playful pirates of fiction, most contemporaries are willing to trade a little freedom for a little security. In the world of realpolitik, terrorist threats must be taken seriously. Niceties such as the right to counsel, habeas corpus, privacy, or trial by jury, acquire an abstract character. Nice if you can have them, these lawyers’ obsessions seem less important than life, property, or democracy: second order priorities, or luxuries perhaps.

But, is it lawyers’ obsessions that are at issue?

So conceiving things seriously misconstrues the matter. The linguistic usages of lawyers have taken over much public discourse during the past half-century. Curiously, this has narrowed the range of consideration on immensely important public matters and blunted critique of even draconian laws. In most liberal democracies, discussions of the virtues of this or that ‘anti-terrorism’ law have been cast in terms familiar to legalistic-minded civil libertarians. The analysis of anti-terrorism law has most often been championed by professionals whose detailed knowledge and focused critiques, as often as not, serve to confound. By focusing too much on particulars, larger shifts in the way power operates under the guise of the ‘War on Terror’ are obscured.

In this brief commentary, I hope to avoid confusing the trees for the wood, by taking the discussion of contemporary anti-terrorism law^[2] to a level somewhat above the forest canopy, to a point from whence the full contours of the forest can be perceived, its breadth, depth, and height discerned. I hope to draw upon the perspective so attained in order to reveal a surprising truth. The violation of ‘rights’, at least as we now understand that notion, forms a surprisingly small portion of what is wrong with ‘anti-terrorism’ legislation in major Western countries. Consequently, the presence or absence of constitutionally entrenched ‘rights’ protections (‘charters’, ‘bills’, or ‘human rights’ legislation) determines only a small degree of the variance of outcomes when draconian state powers are subjected to judicial review. In substantiating this second point, it is necessary to attain a bird’s-eye view of anti‑terrorist law, but also to engage in some realism about constitutionally entrenched rights. One final point bears emphasis, though it cannot be developed in this essay: only the tiniest sliver of state action is ever subjected to judicial review. This gives any discussion of what happens in the courts a somewhat abstract, other-worldly character, grotesquely distanced from the quotidian routine in which subjects encounter state authority.