Swaying in the Balance: Civil Liberties, National Security, and Justice in Times of Emergency
Abstract
Like many, Michael Ignatieff recognizes that balancing civil liberties and national security in times of emergency seems to require us to infringe upon the liberties of some in order to preserve the liberties of others. In these cases, he argues we ought only to infringe upon civil liberties in light of adversarial review, placing strict limitations on our actions, using sunset clauses, and fully accepting that our actions will sometimes result in immoral behavior. He claims that this approach to balancing civil liberties and national security in times of emergency is superior to those offered by staunch pragmatists and strict libertarians because it encompasses the benefits and avoids the pitfalls of both. I find, however, Ignatieff’s approach to be problematic because it fails to take seriously important substantive measures for achieving justice in times of emergency. I conclude that Ignatieff’s procedural measures coupled with the substantive measures of truthfulness, faithfulness, and solidarity result in a superior policy for balancing civil liberties and national security in times of emergency because they ensure the cases of those accused of wrongdoing meet the pedigree tests for procedural and substantive justice, even in times of emergency.