The Principle of Security

by Robert J. Romano

Originally published on March 27th, 2003

Updated on July 26th, 2004

Last week, I continued discussion of national priorities by demonstrating the serial ordering of our natural rights, in which life overrides equal liberty, and equal liberty overrides property and the pursuit of happiness.  A conception of our natural rights arose from an understanding of self-evident truth, and of justice and natural law.  The realization of our rights in the Declaration of Independence sparked the American Revolution, and in order for freedom and independence to be secured, the war had to be won, Great Britain had to be defeated as a colonial power, and security had to be established.  Afterward, the Constitutional Convention produced the Federal Constitution, the supreme law of the land, which established our republican form of government, federalism, limited government, and the rule of law, and these were put in place for the purposes explicated in the Preamble.  In addition, three institutions emerge to protect the three natural rights.  These institutions are similarly prioritized in the following lexical order: security, politics, and capital economy.  As a result of this ordering, the government would focus much of its finite resources to establishing, maintaining, and expanding the institution of security to reflect the present realities, dangers, and the capabilities and objectives of today's enemies.  One implication of this weighting of institutional priorities is that as one progresses through each of the priorities, the people and the States exert more and more control over the other priorities because of federalism and our equal liberty.  Therefore, the Federal Government focuses more of its powers on the institution of security (in addition to its other legal obligations) than on controlling politics, and even less on controlling the economy.  Giving absolute weight to the priority of security, in this respect, thus provides for the appropriate protection of the other two institutions.  Each of these institutions is governed by the law, and our constitutional principles.  

        This week, I shall discuss the principle of security and attempt to keep it in conformity with the other priorities which rest above it.  Also, it should be noted that this is a major revision of a prior piece that I did in response to Rawls' theory of justice, "Social Contract Theory, Rawls' Theory of Justice, and the Additional Principle of Security." The revision has to do with changing the obligation of disclosure of the nature of a threat from proof beyond a reasonable doubt to proof based on a preponderance of the evidence.  The reason for this change is that as a standard of proof, proof beyond a reasonable doubt is far too demanding with respect to a danger to peace and security, and would not be available until after an attack has taken place.  To make that the standard would hopelessly leave fighting wars to the courtroom.  Whereas, utilizing proof based on a preponderance of the evidence offers the government the ability to publicly disclose a threat warning when it appears that an attack, or the existence of another type of danger to all society, is more probable than not.  This revision shall be worked into the original formulation of the principle, and some terms shall be made more explicit so as to rule out any possibility of unscrupulous use of the principle itself.  Also, it is with this revision that I hope this moral principle may become more practically applicable.  To read how the original principle was formulated, and also to read my critique of Rawls, please click on the above link, though due to its past nature, it should be noted that the critique itself can also stand some revision to reflect my present findings.  Rather than reprinting and revising the entire critique, though, this piece shall focus solely on further formulating the principle of security.

        Under this principle, the truth should be known to all except when it A) poses a threat to the peace and security of society and to the lives and liberties of the people, in which case the governing body (i.e. the state) identifies and documents all information so as to make it reasonably available to certain positions and offices open to all, and made publicly available when the certainty of the threat is fully realized and proven based on a preponderance of the evidence, or B) infringes upon individual liberties as articulated in the Federal Constitution.  In other words, the truth should be known to our civil government when there is a substantial danger to society and to the lives of the citizens in order to best protect the citizenry, and the truth should be hidden from all when it violates personal liberties, in particular, one’s reasonable expectation of the freedom of privacy from intrusive means and measures that would bring about harmful consequences.

        Condition A, or the overall peace and security of society, overrides condition B, or the reasonable expectation of privacy from intrusive measures.  Thus, it is more just to live in a society where the government can be reasonably expected to deal with threats posed to all than in one where the rights of privacy are applied under all circumstances.  Peace and security takes priority over privacy, and it is also the burden of a civil government to make information of threats to society publicly available at the appropriate time when they are fully understood and known to be evident so as to best provide for the appropriate measures of protection. Thus, the state is afforded the necessary space of time and granted the means to accurately identify and fully document those threats, conceive of a policy whereby those threats are to be removed, and to present its findings to the public when the policy is to be enacted.

        The reasonable expectation of privacy would not, for instance, apply if the truth posed a "clear and present danger" to society, or a stated threat which would bring about certain evils that the government has the right to prevent. The threat would need to be identified, documented, and removed for the safety of all, and in the spirit of protecting individual lives and liberties.  After all, the greatest responsibility of the state is to provide for the people’s safety. This is the safety described in John Jay’s The Federalist No. 3 as it respects "security for the preservation of peace and tranquility, as well against dangers of foreign arms and influence, as from dangers of the like kind arising from domestic causes." The causes of these threats will determine the policies applied to them in each case, or those actions which will remove the threat. These can be applied to in the cases of a just war and also of the lawful arrest of offenders guilty of crimes against the state.  In these cases, the state should have reasonable access to the truth, or relevant evidence, in order to develop a just case against the delinquent.  This would not change the fact that in prosecuting a criminal case, proof beyond a reasonable doubt is necessary to convict.  A necessary distinction, though, must be made between removing dangers to society and prosecuting criminal cases in the courtroom.  Proof beyond a reasonable doubt is too demanding a standard to warrant action on the part of the government when concerning a threat to the peace and security of society since such evidence will not be available until after an attack has taken place, and as such, proof based on a preponderance of the evidence is more reasonable in such a circumstance to warrant action.  Also, a threat need not be imminent in order to warrant action, rather, it is sufficient that it pose a clear and present danger, which would allow for dangers to society to be eliminated while they are still in an operational phase.  All actions taken by the government must be implemented in accordance with the laws of the land, and as such, would be subject to judicial review.

        In corrective justice, the proper balance can be determined between competing claims with the burden of proof lying with the state in all cases.  Also, with concern to the basic structure of society (i.e. justice), the principle of security would require that the truth be told to the state in matters of investigation.  However, this does not remove the adversarial nature of the common law tradition, rather it affirms what the state is responsible for with respect to criminal cases, and in removing dangers to all, in accordance with the law.

        In an abstract situation of choice, such as takes place in social contract theory, this would be agreed upon almost at the outset between contracting parties, since without particular knowledge of one’s position in society the truth may be told without any concern to particular threats to society or the infringement on the individual’s reasonable expectation of privacy from intrusive means.  In other words, an oath of sorts would be necessary between the contracting parties to tell the truth.  This would be a primary requirement for the two to enter into any arrangement that can be commonly or generally identified, defined, and applied.  It is for this reason that truth is the first of all priorities, and the principle applies in all of the subsequent priorities.  Through the sequence of events arising in history, this principle is identified with the increasing amount of information that becomes available to the public for instance when making constitutional arrangements, adopting legislation, and finally in applying the law consistently.

        Therefore, the truth would be necessary for the contracting parties to make accurate determinations about the basic structure of society in a situation of choice of the principles.  It would further become an issue when the Constitution becomes concerned with the practical framework for society, as accurate determinations about the size and scope of society would be necessary. And with an increasing amount of knowledge becoming available, the legislation and adoption of laws would require that each representative to truthfully uphold his or her duty in accordance with the Constitution. And finally in the application of laws, and the truth needs to be known to all except when it poses a threat to peace and security or infringes upon individual liberties.

        The state is the protective association that ensures the safety of society.  To tie the state’s hands in all cases for the sake of privacy, however, is a limited argument which does not respect safety and security.  It’s not fair.  It would be as if the state would have to always tell the truth under all circumstances without the minimum (or any) protection of security.  For instance, would it be incumbent on an undercover police officer to reveal him or herself to the public (s)he is supposed to be monitoring? If the state is to protect and ensure security, then threats must be identified and accurately chronicled, and the officer would not be required to blow his or her cover by virtue of the protection of the privacy of the public, though his or her privacy would be respected in enforcing the law due to the need for cover in conducting the investigation.  Without the benefit of the minimum protections offered by security, any protective association would never achieve the status of a dominant protective association (See: Anarchy, State, and Utopia by Robert Nozick), let alone become a state.  What makes it dominant is its expanded capacity to deliver the protection of security, which means that in a state it is reasonable to accept that the truth should be known to all, except when it poses a threat to security or violates individual liberties (ex. SSN, credit card numbers, and other sensitive information), as it is also the job of the Federal Government to protect our lives and liberties over any exercise of political or economic advantage.

        Because all lives would be protected equally under this principle, and because the principle also respects the establishment of individual liberties, especially privacy, it is limited such that once the principle is satisfied, it provides for the protection of our other natural rights, equal liberty and property and the pursuit of happiness.  As such, security namely protects life, and tends not to eliminate consideration of politics which protects equal liberty, nor consideration of capital economy which protects property and the pursuit of happiness.  As one progresses through each of these institutional priorities, the state exercises less and less control.  Thus, the most control would be exercised by the state over security, and less control would be exercised over politics, and even less over the economy.  This is an implication of the serial ordering of our natural rights, and of the institutional priorities which protect them under law.  Security under law requires that no actions taken to remove dangers to society may be contrary to the supreme law of the land.