On 22 July 2005, Brazilian electrician Jean Charles de Menezes had seven bullets pumped into his brain by a plain-clothes police officer at Stockwell Underground station. De Menezes was an innocent man, travelling to work, who was killed suddenly and brutally, in public, by the representatives of a democratic state.
This kind of policing disaster raises important questions of principle. It is deeply shocking when incidents of this sort take place in the mundane and familiar surroundings of a London tube train, and we need to get our thinking straight about the implications of what happened.
There are broadly two views of how the police should respond to the terrorist threat. To put things in a fairly crude way, the division between the two corresponds to a familiar division between different ways of thinking about freedom and security.
The first kind of view is self-avowedly hard-headed and prides itself on being realist. On this view, the chief responsibility of the police is to safeguard the bodily security of citizens. If this can only be done through increasing police powers (whether by extending the entitlement to detention without charge, or relaxing the rules on the use of firearms) then so be it.
Even if some members of the public – like De Menezes – are put at risk by more aggressive forms of policing, this is a price worth paying as long as the long-run aggregate level of personal security is increased. On this hard, realist view, the occasional terrible accident, such as the De Menezes killing, is a price worth paying if it reduces the threat from terrorists.
The second sort of view takes a less consequentialist position, and denies that the police should be there to protect our security by any means necessary. Instead, this view sees the police as being under very particular kinds of constraints when they operate in democratic countries such as ours. On this view, rights trump considerations of aggregate security, and we should not (for example) extend detention without trial, or relax restrictions on the police use of firearms, even if the result of this is that more people will be killed by terrorists.
Holders of this second view are condemned by the ‘hard-headed realists’ for being impractical idealists who simply refuse to confront the terrible reality of the threat posed by terrorism to our way of life.
There is a particular kind of error lurking in the hard-headed realist position, insofar as it suggests that all that we should care about are consequences, and that almost any course of action that makes us safer is thereby justifiable. What this sort of view misses is that we care about how outcomes are brought about and by whom as much as we care about end results. There is an enormous difference between falling victim to a terrorist attack and being killed by the agents of the state in which one lives.
Life in open democratic societies is risky, and among those risks is that of being attacked by those who want to cause damage and suffering to such societies. Insofar as we care about preserving an open and free way of life, the risks of terrorism (although reducible) are surely ineradicable; but they are something that are imposed, unjustly, on us by others.
What is so terrible about the De Menezes case is that his death was not caused by some alien, external threat. It was carried out by an agency of the state; something done "in our name", through our institutions. The mistake made by extreme versions of the ‘hard-headed realist’ view of policing is to think it appropriate to care only about numbers of deaths or injuries. It loses sight of the difference between what is done to us and what we ourselves collectively decide to do.
A surprising proponent of the ‘realist’ view is London’s mayor, Ken Livingstone. Following the conviction of the Metropolitan Police for breaching health and safety laws in the De Menezes case, Livingstone said the court's verdict was "disastrous" for anti-terrorist police. Livingstone’s claims are worth investigating, not least in how (perhaps surprisingly) he seems to avow a rather crude version of the ‘realist’ view.
As he put it: “If an armed police officer believes they are in pursuit of a terrorist who might be a suicide bomber and they start making these sort of calculations based on, ‘How's this going to be seen... am I going to be hauled off to court?... At the end of the day, mistakes are always going to happen in wars or situations like this. The best you can do is to try and make the potential risks the minimum possible.”
This perplexing judgement has a number of problems. Firstly, it’s very odd to suggest that we would not want police officers to ask themselves "How’s this going to be seen?", or to worry about their legal position, when they’re thinking of shooting someone who might be a suicide bomber. If someone might be a suicide bomber, then presumably they also might not be.
Shots should be fired by those who act in our name only gravely, as a final resort, and with awareness of the seriousness of what is being done. To suggest otherwise is highly troubling.
Yet, secondly, Livingstone’s rather less than cautious approach is amplified by his choice of metaphor – “mistakes,” he tells us, “are always going to happen in wars or situations like these.”
But precisely what is at stake is whether the situation we find ourselves in, with regard to the terrorist threat, does put us in something analogous to a war situation, where it is worth sacrificing some of the central features of our way of life for the preservation of our society in the long term. One does not downplay the significance and awfulness of terrorist attacks to deny that our situation is analogous to a war situation. And, if we’re not at war, one should not be so ready to cast aside the rights and protections of a democratic society.
Lastly, Livingstone’s final claim seems to encapsulate the errors of a crudely consequentialist approach to the ethics and politics of anti-terrorist policing. It is simply not true to say that “the best you can do is to try and make the potential risks the minimum possible”, both because some risks can only be reduced at the price of an unacceptable erosion of rights and liberties, and because it is a distorting over-simplification to weigh the risks that we face from others (e.g. the terrorists) and the risks we impose upon ourselves (e.g. through the way in which our police forces operate) as if they were all of the same kind.
What we do to ourselves, and what is done in our name, has a moral significance that goes well beyond that which is merely done to us, and Livingstone’s remarks miss this crucial difference.