Conor Gearty’s Liberty and Security provides a detailed critique of the damage done to human rights by the ‘war on terror’, but remains trapped within liberal assumptions, argues Lindy Syson

It is impossible to listen to the news reports about Syria over the last few months without being aware of the startling hypocrisy of the Western powers and the United Nations, where the rhetoric of humanitarian aid hides the underlying brutality of imperial powers jockeying for their own strategic interests.

Conor Gearty is a human-rights lawyer and professor of human rights and his book Liberty and Security expertly details the way in which countries that enshrine liberty and democracy in their constitutions and legal systems at the same time enact repressive legislation. Not only has the rhetoric of human rights been used to underpin anti-terrorist legislation, but in 2006, the United Nations Global Counter-Terrorist Strategy explicitly linked a commitment against terrorism with human rights, announcing that: ‘… human rights and counter-terrorism are mutually re-enforcing and need not conflict’ (p.67). Gearty’s book exposes this nonsense and shows how counterterrorism has become the new dogma of global governance.

He is particularly critical of the UN Security Council and its counter-terrorism drive which involves the use of sanctions and blacklists. By 2005, the Security Council had a list of individuals and organisations, for example, the Taliban regime in Afghanistan, as well as the measures to force countries to take action against those on that list. He gives case studies of individuals and groups finding themselves on the blacklist without any evidence being made available as to why. Another of Gearty’s many examples is of how Article 51 of the UN Charter allows states to invoke the UN Charter to justify entry into countries to fight forces it deems to be a threat. The consequence of all this is that countries with appalling human rights records get away with repressive measures within their countries as they can claim to be fighting their own war on terror. So, for example, the Kenyan government invoked its right to self-defence under section 51 of the UN Charter to explain its move into Somalia to fight Islamist forces in parts of that country, clearly the context for the recent attacks.

Gearty outlines examples of the erosion of human rights starting from the attack on the twin towers in 2001, which gave the Bush administration the excuse to wage a ‘War on Terror’, one that has been continued by the Obama regime. Bush implemented an array of extra-legal activities. For example, a secretive executive order authorized the National Security Agency to intercept telephone calls and emails, involving suspected foreign terrorists but that would be used for all US citizens. In this way, the ‘enemy within’ was as much under surveillance as any supposed ‘foreign’ threat.

Another example is the use of material witness warrants, where the authorities can ‘hold’, rather than arrest, individuals suspected of terrorism. There was little public criticism of these measures, according to Gearty, because of the secrecy and stealth involved, but also because of the dominant view that these laws were for national security purposes and would be used against ‘foreign’ terrorists. Yet, as Gearty points out, the measures have always been used disproportionately against the Muslim community. Public opinion began to turn, however, after the enactment of the Patriot Act when Americans began to realise the extent of the erosion of the civil liberties of all citizens, and the way in which legislation has been used to stifle internal dissent. Despite that, as recently as 2011, Obama signed into law the National Defence Authorization Act (2012) which permits indefinite detention for anyone shown to have ‘substantially supported’ the Taliban, Al-Qaida or ‘associated forces’ (p.103). It is the vagueness of the wording of the legislation that has led human-rights lawyers and journalists to begin to mount challenges in the Courts.

In the UK, Blair used 9/11 to argue that this was an attack on people everywhere and so a response had to be taken at a national level. The passing of the 2001 Anti-terrorism, Crime and Security Bill allowed indefinite detention without charge by the Home Secretary of persons suspected of being international terrorists. The 2001 Act was replaced in 2005 by control orders. Individuals subject to control orders could be re-located to unfamiliar cities, electronically tagged and subject to sixteen-hour curfews and this was before any criminal charges were brought against them.

These are just a few of the many examples that Gearty sets out in detail and it is part of the strength of this book. However, the purpose of the book is to locate the undermining of human rights in a wider political perspective. This is where I take issue with Gearty’s approach.

The book’s final chapter is called ‘Returning to Universals’. This involves a ‘battle of ideas’ (p.29) where the concepts of liberty and security are to be re-claimed and re-defined so that in his vision of the future, human rights are fundamental and work for everyone; for the ‘common good’. The basis for reclaiming these terms is a return to what Gearty sees as universal, moral concepts. He says: ‘the book … takes the moral desirability of universality for granted’ (p.3).

However, Marxists would challenge the view that there are legal or moral universal principles. This is to see ideas as existing above and beyond the material basis of society from which they emerge. Liberal democracy is the ideology of capitalism which developed with the emergence of a market economy based on profit. Democracy, security, liberty are ideas which cannot be separated from the context in which they developed. They are associated with the individualistic characteristics of isolated individuals, a status which capitalism promotes; the theory suggests a degree of freedom and rights that is simply unavailable to the majority of the world.

Together with a return to universal concepts of liberty and security, Gearty emphasises the importance of the rule of law. In his view, laws are necessary to prevent threats to security but they must be ‘fair’ (another universal). To ensure fairness, Gearty suggests a system with: ‘… access to independent lawyers; a presumption of innocence; careful rules of evidence to prevent abuse; open justice; an independent system of sentencing, and much more besides. This is a system of protection for the state which advances its goal through the protection of every individual citizen’ (p.115). However, legal rights cannot be abstracted from the capitalist system in which they develop; inequality is enshrined in the legal system. Neither is the state a neutral or ‘honest broker’ which can be used to reflect competing interests in a pluralist society.

For Gearty, the economic, political and social structures of society are downplayed in favour of a vision of democracy where individuals’ right to vote in an open democracy can ‘tame’ the worst excesses of the system and work to ensure legal rights for the common good. The way to ensure this is to maintain an open, healthy, representative democracy. Ironically, representative democracy pre-supposes an educated, engaged, electorate and Gearty’s focus on this comes at a time when support for the parliamentary process amongst the electorate is at its lowest ebb for decades. It is not that a Marxist approach posits a simple reform versus revolutionary distinction. Reforms that materially benefit working people are important and must be fought for. Equally we should oppose those which are harmful, such as the Bedroom Tax, which is pushing thousands of people into debt. However, given that capitalism is a crisis-prone system, any reforms granted can be dismantled in the future.

Also, reforms can point to the limits of capital, showing it unable fully to deliver workers’ demands, for example in welfare and education services. Furthermore, it is in the struggle for reforms that people’s ideas are more likely to become open to change and to challenge the workings of capitalism. This focus on struggle is what is missing in Gearty’s return to universals. The strength and anger in the huge demonstrations of the anti-war movement against invasions by the US and its allies succeeded in constraining the recent warmongering against the Syrian regime. This sense of agency, of movements of people fighting back against an exploitative system in all its forms – legal, political and social – is missing from the book, in favour of a focus on representative democracy.

In Gearty’s view it is as if the world of representative democracy exists outside of capitalist social relations. Or at least, Gearty insists on a separation of the political and the economic sphere. Reflected in this are the separation of powers, parliament, the executive, the judiciary, which act as the classic ‘checks and balances’ of liberal democracy. His answer to increasingly repressive legislation is to hold democratic society to account; to use representative democracy to intervene and re-balance a system that has got out of kilter and tipped in favour of the powerful. For Gearty, ‘human rights keep democracy honest’ (p.116). But democracy and honesty do not co-exist in an imperialist world, where the powers that be have scant regard for human rights.

Gearty’s book exposes the ways in which governments use repressive laws under the guise of liberty and security. However, the universal, trans-historical principles of liberty and security that form the central core of the book arise from the same free individualistic society that capitalism promotes. It is not that Gearty does not see this central tension between capitalism and democracy. He explains: ‘the primacy of capitalism since 1989 has caused further tensions, with the unequal accumulation of wealth celebrated by this mode of economic activity sitting oddly with the proclaimed egalitarianism of the form of government – representative democracy – supposedly best suited to it’ (p.55).

Yet his reformist politics do not allow him to escape this contradiction. Capitalism is a ruthlessly totalizing system where people’s legal and political rights are in marked contrast to their exploitation, which is hidden to them.  The imperatives of capital: the drive to constant accumulation, constant expansion, the need for greater resources and world markets, will always undermine moves towards legal fairness and equality.