Liberty, whose liberty ? The Hague Programme and the conception of freedom

I want to analyse the notion of freedom under the framework of the Hague programme for strengthening freedom, security and justice in the European Union.

Introduction : Security is Justice, is Freedom

The text of the Hague Programme is a thirty three page document comprising of an introduction and general orientations (p2 to 6) and specific orientations (p 7 to 33). The latter is divided into three parts that cover the following aspects: strengthening freedom (p 7 to 17), strengthening security (p18 to 26) and strengthening justice (p 27 to 32); there is an additional page on external relations.

There is an equilibrium that is set in train in the latter part through the use of the term «strengthening» in each of its three sections. The section on «Freedom», if we are to go by its greater length and place (first of the three), nevertheless seems to be given the most importance, and serves to content and reassure us that the overall programme succeeds in strengthening the three most important values of democracy - freedom, security, and justice. A closer look at the programme, however, disturbs the reader, as if something between the text and the equilibrium between the titles does not quite add up. The unease appears to come from the fact that the second section on security has infiltrated and contaminated the other two on freedom and justice. If I were to jump immediately to the conclusion of my argument, I would suggest say that we need to adapt the titles to their actual content by renaming the three parts: 1 strengthening security, 2 strengthening security, 3 strengthening security.

To support my argument I will firstly discuss some excerpts from the Hague programme concerning strengthening freedom, then in I will return to the relations between the concepts of liberty and security at the heart of our democracies. Lastly, I will argue for the need to have a serious political discussion about the relation between freedom, security, justice and danger, instead of this redefinition of freedom as a form of surveillance and control in the name of protection and personal safety.

Part one : The Hague programme : strengthening freedom

Freedom is understood in the Hague programme under the notions of fundamental rights and freedom of movement and residence of citizens of the Union in «their» area. So, Freedom is mainly reduced to an equal treatment between citizens of national states abroad as long as they are within the European Union area. Freedom is mainly, in this text, freedom of movement inside an area [1].

But what is perhaps more interesting is that after the point 1.1 on citizenship of the Union, all the other alineas of this first part concerning freedom are about limits, interdictions, policing at a distance, controlling by remote control and even detaining and punishing others at a distance. The proper notion of an active defense of freedom is distorted into a war for a kind of freedom - war against threat and fear where freedom is seen as a right to be protected by the state(s) and not a capacity to act. This rendering of freedom may contradict freedom. Each form of freedom is then defined by its limits and its antagonism with other freedoms and freedom of others. Liberty as a unified and generic concept has no place.

This strengthening of surveillance under the name of freedom is the general understanding of the points concerning asylum, migration and border policy (1.2), of applications for asylum outside of the EU (1.3), of integration of third country nationals inside (1.5), of tackling the problem of return and justification of detention of foreigners in the name of the protection of our freedom (1.6 and 1.7). It is the reason why our freedom depends on the severity of other states, especially, but not only, neighbouring states whose populations wish to leave their own country. Our freedom supposes more controls at the borders and more suspicion against tourism of the poor. Tourism as the freedom to move is for the rich but the poor are by definition a threat against the order as they are supposed to want to stay in a host state in order to profit from social benefits. Moreover, they are also a threat against legality because they are suspected of trying to stay fraudulently. So it is by a very specific logic, which is not incoherent at all but which is highly perverse, that all the measures of coercion against others are in the first section of the second part entitled «strengthening freedom».

In the Hague programme the strengthening of freedom results in the sending back, either on a voluntary or compulsory basis, undocumented migrants (1.7.1). Its stance of intransigence and firmness against others, such as the will to control and close off the Mediterranean sea area by police and military means has created despair and death of these others without, ultimately, creating any effective «wall» or «fortress».

Freedom, in the Hague programme, is seen as the creation of a «safe area without intruders». Freedom is a tool for maximising security. Re-conceptualised in that way, the programme’s notion of «strengthening freedom» is the result of a kind of «homeland security» strategy which wants first to build an electronic wall at the borders, in line with an hegemonic discourse of «not welcoming the foreigner». The hope is to deter those that are not rich enough to consume. A second objective of strengthening freedom is to police the economically disadvantaged with the help of their governments. Their freedom is not important.

The notion of freedom is reconfigured to develop control and surveillance of people at the external borders and through visas in their own country (not as a security measure but, remember, as a «freedom» measure 1.7.1 and 1.7.3) , and to develop biometrics and information systems (1.7.2) by «establishing a continuum of security measures that effectively links visa application procedures and entry and exit at external border crossings», by developing and linking the different data bases of police activities, of customs, of border guards, of immigration services, of intelligence services through transversal identifiers which can connect them ( biometrics or traditional names and addresses) and even open the possibility for intelligence services to use them for data mining and elaboration of profiles for future dangerous criminals.

The influence of a neo conservative agenda, that reframes liberty by distorting the concept in the name of the defense of an «essentialised» us under threat by unknown others, is unfortunately obvious [2], but it is not the result of September 11. It has its own roots in Europe with the Palma document of 1988, which set up this agenda long before the US, and with Schengen, Trevi, the ad hoc immigration group, and the Berna and Vienna clubs. The agenda was reinforced after the anti globalisation protest of Genoa and September 11 2001 with Seville and Thessaloniki(2002) [3]

This European agenda is a lighter handed version of the US homeland security strategy with more considerations concerning the dignity of the «others», their humane conditions and with less antagonism. The martial path is not so direct. It is not a «Venusian» route or a «peaceful and weak way « as Kagan has tried to coin it out, but an «Hermes» or a «communication, control and surveillance» path, a kind of soft hegemony where the authorities of the others have to be convinced to participate [4]. It is one of the most interesting aspect of the philosophy of the Hague programme concerning freedom that it is not a copy of the neo-conservative US vision; it is this original model that the US neo-conservative agenda copies now in the second mandate of Bush which appears to place much emphasis on freedom, and fighting for freedom, than on security. In both of these approaches we have such a reversal of what freedom is; the paradox in the Hague programme text is the obligation to protect the fundamental rights of individuals from a proper search to strengthen freedom!

How was it possible to develop a concept of freedom that has become more dangerous for fundamental rights of individuals than even traditional security measures? When, How and Why has the move of (un)freedom, where detention, punishment and death are the logical outcome of this version of freedom, taken place?

I will not develop in such a short intervention this research about the transformation of the notion of freedom and its relation to security, danger and justice. I just want to emphasise that just as security has to be understood as a process of securitisation/insecuritisation/ desecuritisation, so has freedom to be understood as a process of freedomisation/unfreedomisation and defreedomisation. And these two processes are intertwined.

They vary depending on the social construction of their positive or negative connotations and on their relations to violence and materiality. They vary depending on what it is one has in mind when speaking of securitising the national state, the individual, humanity and environment, or guarantying rights, giving hospitality without counterpart, accepting a social net for everyone. They vary also depending of what one has in mind when speaking of freedom.

Is it freedom from threat by a group which feels in danger? Is it individual freedom? Is it liberty (and not freedom) as the essence of humanity which is curved and reversed by the will-to-serve as la Boetie has analysed? Is freedom a relational concept which can be moved and transformed by its interaction with security, danger and justice? The questions are still unanswered and perhaps they have to be left unanswered, and we have to live with this uncertainty about the limits of our freedom and against the illiberal dream to secure absolutely an area of freedom.

Second part : The relations between freedom, security, justice and danger : From the scales to the rulerfor a critic of the Hague programme

A) Coming back to the basics: the transformation of the meanings of freedom and security in liberal democracies and the move towards illiberal thoughts and practices

Freedom , security and the relation between the two concepts can be analysed along different lines of thought. At least 67 ways to conceptualise the relations exist. So, the idea of a straightforward balance between liberty and security is distorted by the fact that some conceptualisations don’t recognise the autonomy of the two scales, that others place from the very beginning a different weight on each scale by framing a principle and an exception. If a metaphor has to be chosen it is one of a ruler with six sections.

1) Freedom is the only principle with no limits (the anarchist approach).

2) Freedom may be considered as the principle, and security as the exception. In that sense security is a way to regulate interaction between freedoms and the risk of anarchy. Security is limited and is considered as the limit between freedoms in interactions (the libertarian view).

3) Security could be analysed as the freedom of the individual under the name of safety. A hierarchy exists which is less an opposition than what Louis Dumont calls the englobement of the opposite. Freedom encompasses security ( the constitutionalist view).

4) Security may be considered as the first freedom as it is linked with survival and death. No freedom is possible if you are dead or at risk of being killed. It may be the survival of the collectivity or of individual survival. A double hierarchy is created, first between security as the most important freedom, second between individual and state. The survival of the state as a collectivity may imply the death of the individual. The security of a large group may imply the death of some others and even part of an «us». Freedoms exist only after security is ensured, but they are the central values of life. Freedom exists under necessity. Security is linked with capacity of coercion to stop or to contain the individual freedom of violence. Security encompasses freedom at the beginning, but not after (the exceptionalist view).

5) Security is considered as a collective common good and as the first freedom because life exists only if survival exists. Security is a right and a freedom because it is the way to prevent danger and violence. Freedoms as practices are residual. They are the exception, even if freedom as discourse is emphasised. Security at risk is obliged to re-enact the moment of origin and to suspend freedoms momentarily. Then security becomes the principle, and freedom the exception. Security needs to be unlimited to avoid danger and even fears to be at risk and so is independent of the probability that the danger occurs. Security is «our» security and could imply an unfreedomisation of others, the suspension of their rights, but always in the name of more freedom (the permanent emergency view).

6) Security is the only principle with no limits. Democracy is weakness. Order and obedience are better values than freedom (the fascist view).

Except for the two most extremes cases above, freedom and security are in relation but they don’t have the same weight and are not like two equal scales in a balance. Often they are in a hierarchical relation and not an equal one. So the metaphor of balancing liberty and security needs to be discussed in more depth.

B) «balancing liberty and security ?» : Beyond the metaphor

As we have seen security is connotated sometimes negatively, sometimes positively, against freedom. It depends on the hierarchy of values a community shares. But the situation is complicated by another factor. It is not only a relation between two concepts. Security and freedom are themselves related to danger and justice.

1) In relation to danger, security is traditionally connotated positively.

Danger is linked with the materiality of the world and the possibility that death or accident occur, voluntarily or not.

The virtuality of danger is always there as the French Gaulois know so well with the possibility that «the sky fell on their head». But the actuality of danger is dependent on the probability of this event occurring and it supposes a reflexivity of human beings concerning risk and their possibility to anticipate a certain kind of future as well as the possibility (or not) to act in the present to change it [5].

Where risk is socially constructed as the probability of an event to occur it may be seen, depending on the cultural context, as a risk of danger, as an opportunity to exercise freedom or as a fate. When related to an open and recognised form of violence, and especially when related to the will of human beings to perpetrate violence, security is considered not only as the diminution of insecurity but also as a protection against violence. Security is more than re-assurance and comforting words and a sense of safety [6]. Security is effective when the occurrence of the danger to be actual is tendentially equal to zero.

In this context it is rare that people ask about the relation between security and insecurity and discuss the possibility that more security does not diminish insecurity but on the contrary develops the virtuality of the insecurities (as the awareness to be in danger and to consider it as a danger). But security, in its relation to freedom may be considered differently in relation to danger. A society without danger (insecurity) does not exist, and some dangers are part of life. Many events, even some related to violence, may be considered as forms of opportunities and consequences of freedom of choice when choice exists to anticipate the future and modify the foreseen consequences.

The more the above is publicly acknowledged by the libertarian view, the more securitarian views refuse to discuss the complex relation of freedom and violence. Does the acknowledgment of some element of danger in life render security the contrary to insecurity? We cannot be certain. Security is more like an expanding envelope and insecurity is the environment in contact with this sphere, so the two phenomena expand at the same moment. More security may create more insecurity.

Security may be connotated negatively to freedom but also to danger. Security is not always a «good thing» to «maximise». The balance between the two concepts is then made more complex by the triptych of relations between danger, security and freedom.

In liberal democratic society, very often security is connotated positively against danger and negatively against freedom, but the discourse is changing both ways in a risk society and the weight given to the danger/security nexus may be more important than the security/freedom nexus and the vectorisation or polarisation of positive and negative are not fixed.

2) To this triptych, the concept of justice is added and it forms a fourth element of the matrix. I have no time to develop here this important point, except for a brief remark. Of what kind of justice are we speaking ? Justice seems to be, in the context of the Hague programme, not an ideal solution related to equity and egality, but to the capacity to enforce with legitimacy the use of coercion. Security and justice are strongly related; freedom is seen as an object or a goal to be preserved but not as an active principle and a mean. Justice is securitised and is no more about legitimacy. Justice is about order and not about ameliorating uncertainty and upholding democracy. Justice is seen through the eyes of the prosecutor and the judges of instruction. Justice is seen through the eyes of the police and the accusators. The place for serene justice, for dispassionate justice, has disappeared in the name of speeding up the process, of emergency, of the «rights» of victims to see punishment, and in the name of a better and more efficient collaboration between police and the instruction process So justice in that view is a way to help security by providing a quick punishment

Part three: Illiberal rhetoric: Freedom as surveillance and control in the name of protection and safety

The terms freedom and justice exist then in the Hague Programme but their meanings are reconfigured as lower values in the name of the priority of security and, ultimately, the concept of freedom is profoundly changed. Freedom denotates the practices of surveillance and control in the name of protection and safety against danger and violence. The liberal views which were located in cursors 2 and 3 are now moving to cursors 4 and 5 which are illiberal.

In these two cursors, freedom is seen through the eyes of police, intelligence services, customs and immigration agencies and all the other professional bodies of management of fear and unease. Freedom is reduced to a place to be protected and a place under threat. It is also a way to say that, if strengthening freedom is strengthening the borders against threats by others, then strengthening freedom is the task of the authorities to secure a place, to protect, monitor and supervise the people inside and the people on the move. «Strengthening» freedom is then strengthening the conduct of lives of the people. Freedom is reduced to an area and subordinated to the relation with security and danger coming from both outside and inside. Freedom is an exceptional possibility which needs to be firmly protected, and which is the privilege of the citizen of this area.

Because this freedom is endangered by the actions of others, it has to be secured, even if it could imply an unfreedomisation of others through the momentary suspension of their rights. In that view, strengthening our freedom is an action to stop and limit the freedom of others. It is a way to reaffirm that «society must be defended», depicted by Foucault as the tendency of liberalism at its limits or as illiberalism [7]. Moreover, iIlliberalism begins with two confusions; the first is the idea that security is a liberty and the first liberty; the second is that the personal safety of an individual (and of all of them) is the collective security, and as such, state security.

The «nothing to hide from the police» argument often used to curtail freedom of persons and to enhance more control and surveillance is playing with the two confusions. In the name of protection and right of the person to live, it is asked to be totally transparent as if the danger to be the target of violence of bombings eliminates the danger to be the target of intrusive and coercive measures, but the two dangers coexist and even reinforce each other in a dynamic and escalation of provocation-repression cycle. Furthermore, differentiating inside a population the good guys and the bad guys supposes an ideal citizen and an ideal police force. But it is far from the social practices and real behaviour of police and intelligence services, especially when dealing with foreigners. Criminologists have shown that, even in a democracy, police and intelligence services will not always find what they are looking for, but they will find something on some one after an extensive search. So they can use it, even if it is not an important fact, to put you under pressure and to reduce your autonomy. Privacy is essential for that reason, and it could be considered as the right «not to be transparent». That is why the police cannot be judge of bad and good, legal and illegal especially within a context of proliferation of laws delimiting illegalities [8]. An «urban eye» looking at everybody and everywhere to anticipate future behaviour is definitely not an image of freedom, even if it protects from some dangers, or enables the perpetrators of violence to be found after the act.

It is worth remembering that the argument for transparency towards the police and the argument of preventive action have been used, historically, in periods of crisis and have always profoundly damaged the freedom and civil liberties of all persons living in the place of application. This includes those who call for this transparency and for greater police presence. Europe in the thirties and Latin America in the seventies have experimented with the effects of this confusion between freedom and security in the name of the right to be protected from an external or internal threat.

So, each time a government uses the argument that the real fundamental right of people is to live in a secure environment and that it is in the name of a personal safety that the government has to protect us, we know that the civil liberties and fundamental rights of the individual recognised by law and judges are in danger (because of the state activity).

The argument for «Raison d’Etat - or nowadays the shared Raison of the governments at the EU (or transatlantic) level»- is often hidden behind the semantic of national or collective security and its promoters try to confuse people by hijacking the characteristic of rights of their personal safety and to confer it to the secret services seen as the protectors (and not a danger) for the individuals. But, security (of the state) is not freedom and is definitely not a fundamental right. Only personal safety may be considered as such

Of course, the paradox is that in periods of crisis and large scale bombings, part of the population want to actively forget about the danger of Raison d’Etat and demand it as a measure against the immediate danger. After a while, if no other bombing occurr, they return to their anxiety concerning the rise of a coercive state. But, the Rule of Law has to protect us against these fluctuations linked to fear and populism.

The government does not have the right to play with the fear of the population by arguing that the feeling of insecurity of a part of the population (without effective protection) justifies the curtailment of the fundamental rights of another part of the population (or of all the population) [9]. To provide reassurance to some is not an excuse for changing the laws protecting liberty [10]. The effectiveness of the action of protection needs to be proven, to be proportionate if it curtails rights, and needs to be legitimately accepted. Derogations cannot be general and are impossible with the fundamental rights protected by the Jus Cogens [11].

This temporal balance linked to the fears of the population is also problematic when governments ask for a permanent state of emergency in the name of a permanent war on Terror, especially when this permanent state of emergency is backed by a refusal of any political consideration of grievances, and makes demands for the eradication for the enemy [12]. The cursor is always upgraded after each bombing towards more surveillance in the name of security and freedom and justice, but this process is one of a constant escalation of violence and not one of obtaining better security.

I want to conclude by a last remark. The question of the possibility of violence at a high intensity level by non-state actors is a serious one, even if not a new one. John Herz’s (1962) warning to states engaged in research of miniaturisation of atomic armaments and further research in weapons of mass destruction generally to stop such development was based on his argument that the dissemination of this technology would go beyond the scope that the states think they can control [13]. This question about danger and its occurrence seems to be used by some professionals in politics to undermine the concepts of liberty and justice and is paving the way for more realdeath and violence, in the name of a crusade for freedom, instead of making proper space for discussion inside a constitutional setting and in open forums. I hope we will now discuss openly the impact of the transformation of political violence and the impact of surveillance and control measures in a more subtle and complex framing of the issues, instead of subverting with different meanings the sense of what freedom is, and what liberty is.

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