intended ‘by at least one of its participants’ to disrupt ‘commerce or the transportation systems of the State of Oregon’. During the Republican National Convention of September 2004, the New York police department arrested 1800 anti-war protesters on various charges, most of which were later thrown out of court. Justifying these arrests, the mayor, Michael Bloomberg, said: ‘Some people think that we shouldn’t allow people to express themselves. That’s exactly what the terrorists did, if you think about it, on 9/11. Now this is not the same kind of terrorism, but there’s no question that these anarchists are afraid to let peoplespeak out.’ Because war mobilises all spheres of society, defenders of the social order claim that any disruption to that order – from, say, striking labour unions – is as threatening to the war effort as opposition to the war itself. It was on these grounds that in 1950 the Supreme Court upheld the federal government’s denial of labour protection to Communist-led unions. These union leaders, the court argued, might use their positions of power ‘at a time of external or internal crisis’ to call ‘political strikes’ and disrupt the channels of commerce. In January 2003, the office of Tom DeLay, then the House majority leader, sent out a fundraising letter to supporters of the National Right to Work Foundation, a business group seeking to rid America of unions. Claiming that the labour movement ‘presents a clear-andpresent-danger to the security of the United States at home and the safety of our Armed Forces overseas’, the letter denounced ‘Big Labour Bosses . . . willing to harm freedomloving workers, the war effort andthe economy to acquire more power!’ Republicans in Congress also worked closely with Bush to deny union rights and whistle-blower protection to 170,000 employees in the Department of Homeland Security. Even though many of them are clerical workers, and even though employees in the Defense Department are not denied these rights, the administration claimed that eliminating them would make the department as ‘agile and aggressive as the terrorists themselves’. After Congress passed the anti-union bill in November 2002, a White House official declared it to be a model for all federal employees. The government shares these weapons with private employers, who are often better positioned to use and abuse them. Because they aren’t subject to the constraints of the First Amendment, they are generally free to use their powers of hiring and firing, promotion and demotion, to silence dissent. During the McCarthy years, for example, the government imprisoned fewer than two hundred men and women for political reasons. But anywhere between 20 and 40 per cent of the workforce was monitored for signs of ideological nonconformity, which included support for civil rights and labour unions. The effects of this outsourcing of repression are particularly visible in the media. As Eric Boehlert shows in Lapdogs, his scathing and exhaustively researched critique of contemporary journalism, the US media practises a form of censorship that must be the envy of tyrants everywhere. Without the government lifting a finger, informal pres

sure and newsroom careerism is enough to make reporters toe the line. The former CBS news anchor Dan Rather claimsthat conservatives are ‘all over your telephones, all over your email’. As a result, ‘you say to yourself: “You know, I think we’re right on this story. I think we’ve got it in the right context, I think we’ve got it in the right perspective, but we better pick another day.”’ Those at the bottom get the message fast. The television reporter Sam Donaldson, who covered the White House during the Reagan years, tells Boehlert:

Today, not all the bosses support their reporters. So if you’re a reporter at the White House and you’re thinking about further successes in the business and you’re nervous about your boss getting a call, maybe you pull your punches because of the career track.

Journalists afraid for their careers aren’t likely to question their government in time of war. And they haven’t. ABC’s Ted Koppel, reputed to be one of the most aggressive interviewers in the business, admits that ‘we were too timid before the war’ in Iraq. The PBS anchor Jim Lehrer says: ‘It would have been difficult to have had debates [about occupying Iraq] . . . you’d have had to have gone against the grain.’ The few journalistswho bucked the trend were swiftly punished. After criticising the media for its coverage of the war, Ashleigh Banfield was ‘taken to the woodshed’ by her bosses, according to a Newsday report, and her career at NBC was finished. A Wall Street Journal reporter sent a personal email describing the terrible situation in Iraq: her editors pulled her out of the country and off the story. The notionof a balance between freedom and security mistakenly assumes that its benefits and burdens will be distributed equally among all members of society. Cole and Dempsey point out that some members of society, often the most marginalised and despised – gays and leftists during the Cold War, Arabs and Muslims (and gays and leftists to a lesser degree) today – are always forced to give up their freedoms so that the rest can enjoy their security. Indeed, it is precisely because these groups are powerless, and not because they are dangerous, that the powerful can require them to bear the cost. (Two per cent of American men aged between 18 and 21 are arrested for drunk driving, yet the Supreme Court has ruled that that does not justify denying men of that age the right to buy alcohol. Many fewer than 2 per cent of Arabs and Muslims in the United States are engaged in terrorist activity but the US government has denied these groups far more fundamental rights.) What the metaphor of balance between freedom and security conceals is the fundamental imbalance of power between groups in society; unequal costs are paid in return for unequal gains. In No Equal Justice (1999), David Cole turned a commonplace – that white and/or wealthy Americans get better treatment from the cops and courts than black and/ or poor citizens – into a startling theorisation of the dual justice system that prevails in America.Granting maximal rights to all citizens would have a high cost in terms

of safety, he observed, while denying those rights would have a high cost in terms of freedom. So what does America do? It does both: it formally grants rights to all, but systematically denies them to blacks and the poor. White, wealthy America gets maximal freedom and maximal safety, and ‘sidesteps the difficult question of how much constitutional protection we could afford if we were willing to ensure that it was enjoyed equally by all people’. In Enemy Aliensand Terrorism and the Constitution, Cole extends this argument to noncitizens in wartime. Ever since the Alien Act of 1798, America’s first impulse when faced with a foreign threat has been to restrict the rights of immigrants. Cole argues that the appeal of such measures is similar to the appeal of the dual system of criminal justice. It is a ‘politically tempting way to mediate the tension between liberty and security. Citizens need not forgo their rights’ in order to be – or to feel – protected. Noncitizens forgo theirs, and because they ‘have no direct voice in the democratic process by which to register their objections’, few people complain. After 9/11, Cole points out, security measures that would have affected all citizens –such as Operation TIPS, in which utility employees, delivery men and other individuals were to spy on their fellow citizens, or the Pentagon’s Total Information Awareness programme, a massive surveillance project of public and private computer records – were quickly blocked, even by leading Republicans. But measures affecting noncitizens, particularly Muslims and Arabs, received overwhelming public support. Perhaps that is why, a year after 9/11, believed themselves to have sacrificed basic rights and liberties. But there is one difference between the treatment of aliens in wartime and the treatment of blacks and the poor in peacetime. As Cole argues, wartime measures inflicted on non-citizens eventually influence measures against US citizens, especially liberals or progressives, or those with the wrong skin colour. In 1942, the federal government put Japanese non-citizens and JapaneseAmericans in internment camps (on the assumption that even if they were citizens, their racial heritage made them aliens). Several years later, the FBI compiled a secret list of 12,000 citizens to be detained in the event of a national emergency – an initiative ratified in 1950 by the passage of the Internal Security Act, which remained on the books until 1971. Whether or not a similar mutation will occur in the war on terror is anyone’s guess, but the evidence so far is not encouraging. When we speak about a balance beteeen freedom and security what we really mean is a balance between power and powerlessness. It makes perfect sense for conservatives to use the metaphor, for it conceals and protects their natural constituency. The real question is: why do liberals oblige them? It was liberals who first argued that individuals should be free to say and do whatever they wish, as long as they don’t harm anyone else. Liberal democracies should use coercion only to punish acts or attempted acts of harm, including threats to the security of the nation. One cansee variants of

12 london review of books 19 october 2006

this argument in Locke’s account of religious toleration, which could be sacrificed only for ‘the safety and security of the commonwealth’; Mill’s theory of liberty, which could be limited only to avert harm; and Oliver Wendell Holmes’s defenceof freedom of speech, which could be abridged only to thwart ‘a clear and present danger’. The problem with these arguments is that it is nearly impossible to define harm – or danger, threat, menace – in a neutral way. Every definition of harm and its national security cognates rests on ideological assumptions about human nature, morality and the good life. And in this regard, liberals are as guilty as conservatives. The only difference is that they have less power to act on their convictions – and to stop their opponents from acting on theirs. In1957, while the US was conducting its purge of homosexuals, the Wolfenden Committee in the UKrecommended, amongother things, that gay sex between consenting adults in private be decriminalised. Speaking at the British Academyin March 1959, the conservative jurist Patrick Devlin bridled at the committee’s contention that there is ‘a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’ and that only concrete acts of injury or harm should be prosecuted and punished by law. Not so, Devlin said: ‘What makes a society of any sort is community of ideas, not only political ideas but also ideas about the way its members should behave and govern their lives.’ Any challenge to those ideas – no matter how private, incidental or symbolic – undermined social cohesion and posed as great a threat to the civic order as treason. In the same way that treason could lead to the overthrow of a government, homosexuality could produce a ‘loosening of moral bonds’, which ‘is often the first stage of disintegration’. Thus, ‘the suppression of vice is as much the law’s business as the suppression of subversive activities.’ The liberal philosopher H.L.A. Hart’s response was fast, and furious. ‘It is grotesque,’ he declared, ‘to think of the homosexual behaviour of two adults in private as in any way like treason or sedition.’ Not just grotesque but obtuse: Devlin mistakenly assumed ‘that deviation from a general moral code is bound to affect that code, and to lead not merely to its modification but to its destruction.’ If one man’s private acts did alter a society’s beliefs – a big if, Hart insisted – such a shift would constitute not a collapse but a transformation of social morality. The proper political analogue to gay sex, then, was not treason but ‘a peaceful change’ in a form of government. Critics tend to think that Hart got the better of Devlin. But I wonder. Hart, after all, never defined harm with any precision or persuasiveness, and it’s not clear that he could have. So what was to stop Devlin from claiming that homosexuality was as harmful as treason – or, as his American counterparts claimed, that homosexuality wastreason? Very little, it seems, either politically or philosophically. For when harm comes in shades of grey, someone, somewhere, will inevitably see it in lavender and pink – or some other disfavoured colour of the rainbow. ∆