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What is “high policing?” The term does not refer to the euphoria police may feel after an adrenalin generating challenge is met, nor does it refer to policing while high, although both might accompany the activities falling within the concept’s broad meaning. In its original meaning, it referred to the use of political intelligence to preserve the power of the ruler, in particular as this involved stealth, spying, espionage, and intrigue. Yet, like barnacles that become attached to a ship, over time the concept has evolved and layers of meaning have been added. The original ship is long gone, but parts of it endure in new forms and settings throughout society.
High policing can refer to the location of an agency such as those attached to the highest levels of governance, to an ethos involving intelligence collection and prevention of threats to what is now called national security, and to methods of information discovery and subsequent action swathed in secrecy and deception, some of which are at the edge or over the bounds of conventional morality and are supported by an end-justifies-the-means perspective (and sometimes the reverse). The latter is illustrated by a police official’s statement – “if we have the technology, why not use it?”
High policing grew out of the late seventeenth- and eighteenth-century ideas and practices associated with the appearance of the modern policed society and police state. The modern police state has high policing at its core. Yet it also is a legitimate and (sometimes illegitimate) feature of democratic societies. Elements of high policing are found in all states, and the use of intelligence (as broadly defined) to protect the organization and to further its goals (and to varying degrees the private goals of leaders) is a characteristic of all modern organizations.
The tools of high policing can thus be seen as either an overarching mushroom cloud or as a rainbow. Society must possess a police force governed by law, but the police force must not possess the society, nor be beyond the law, nor create the law. As ideal types, states vary along multidimensional continua from full-fledged, totalitarian police states that are a law unto themselves where citizens have no rights to democratic societies under the rule of law where citizens in principle have full rights. In democratic societies, the activities historically associated with high policing involve a challenge central to any hierarchical social organization: how to grant authorities the resources to effectively govern and serve the public or the organization’s interest while ensuring that the use of those resources is not abused for the private interests of those governing. In democratic societies, this requires differentiating those who wield power from the social institutions they are supposed to serve. Contemporary leaders would never say as popular myth claimed the absolutist French king Louis XIV did, “I am the state” (L’etat, c’est moi”).
This research paper considers the emergence of high policing as a developing form in Europe over recent centuries concomitant with modernization; following the work of Jean-Paul Brodeur, its key components are noted and some elaborations of these are suggested. The paper concludes with a discussion of some enduring trade-offs and tensions of high policing in a democratic society.
Emergence Of The Policed Society And The Police State
In 1970, political scientist Brian Chapman offered a succinct primer defining the characteristics of the police state over several centuries. He observes that the words police, politics, and policy share common roots in politeia, the Greek word for tribe or community. In contemporary usage, polity refers to a politically organized You +1’d this publicly. Undo unit. Such units are administered and regulated by designated government agents.
Chapman discussed but did not offer a formal definition of high policing. But from his historical examples, it involves police directly attached to the head of government with a goal of maintaining the sovereign or a single political party in power above all else. Some of the agents and the means they use may be moral and supported by laws developed through genuinely democratic procedures. However, pragmatism, rather than morality, was historically the guiding principle. For a series of reasons, deception and what, in contemporary terms, are called intelligence and counterintelligence “dirty tricks” – whether involving coercion or deception – were major tools. The ironically named high police of European empires operated in the shade (Brunet 1990) and often used shady practices, although not always for nefarious purposes. From another perspective, the tactics were anything but high. Livres
In the fifteenth century, given the intertwining of the state and the church, religious surveillance of the public was the prominent form. Indeed, it could be indistinguishable from political surveillance. It built on the watchful and potentially wrathful eye of the biblical God. This involved the search for heretics, devils, and witches, as well as the more routine policing of religious consciousness, ritual, and religiously based rules such as those involving adultery and wedlock. Religious officials kept records involving births, marriages, baptisms, and deaths.
However, as individuals gained new rights and the demand for religious orthodoxy weakened, religious surveillance gradually declined. The state took over keeping traditional records on the population (such as birth and death), additional data was recorded, and identity documents and dossiers became more prominent.
In the sixteenth and seventeenth centuries, with the appearance and growth of the embryonic nation-state, which had new needs as well as a heightened capacity to gather and use information, political surveillance gained in prominence. New concerns over political loyalty appeared, along with more strident demands by the public for democratic citizenship rights. The search for political dissidents gained in prominence relative to the search for religious dissidents. Not surprisingly, monarchs sought more sophisticated means of ruling – including dealing with threats to their regimes, at first from their aristocratic peers and later from the public. A silent (and sometimes not so silent) Praetorian Guard developed to protect the sovereign.
Wider domestic political surveillance is a natural corollary of the centralization of power and the increased heterogeneity, scale, and mobility associated with the emerging modern society. Concerns over possible links between internal and external security become more evident.
Over the next several centuries, we see a gradual move to a broadly “policed” society in which agents of the state, industry, and commerce come to exercise control over ever-wider social and geographical areas. This was done in a world rapidly becoming more economically and socially interdependent and in which societal scale and complexity markedly increased. The tactics of high policing served to usher in the seemingly evermore powerful, centrally administered state. Modern, presumably rational, even supposedly scientific, ideas were applied to the administration of an emerging “policed society.” In building on the work of Bentham, Marx, Nietzsche, and Weber, many later scholars have elaborated on these developments (e.g., Silver 1969, Shils 1975; Foucault 1977; Nisbet 1977, and Cohen 1985). A brief history of high policing forms will be considered next.
In prerevolutionary France, Cardinal Riche-lieu (1585–1642) created an explicitly political police unit with a very broad mandate to find conspiracies among elites. This helped consolidate royal power and squashed opponents. Steeped in secrecy and the mystique that can be associated with it, they sought to create the impression that they were omniscient (which they weren’t) and omnipotent (which they pretty much were).
The “high police” (high because they were the direct agents of the sovereign and also gave special attention to threats posed by rival aristocrats) were among the first modern intelligence agencies. They looked to the future and to the larger picture. This contrasted with the more visible “low police” who came to regulate everyday affairs such as those involving markets, street crime, and sanitation.
Chapman locates the first modern police state in the highly militarized society of Prussia under Frederick William (1688–1740) and Frederick II (1744–1797) and in Austria under Emperor Joseph II (1741–1790). Joseph Fouche (1759–1820), Napoleon’s ruthless, innovative, and intelligence-driven minister of police, made extensive use of high policing tactics, building on the early French efforts of Cardinal Richelieu. He reorganized and centralized the French police and made extensive use of criminals as informants. His police kept order but also operated as a domestic intelligence service spying on citizens to keep the emperor informed. His legacy has endured both internally and internationally. The French political intelligence system is one of the world’s most developed and extensive.
The omnipresent police system that Emperor Joseph created watched government officials to be sure they carried out the reforms he sought and enforced the state’s expanding rules. His police magistrates had a responsibility to report on, and regulate, a wide range of public behavior. But he also created a less (or non-bureaucratic) secret police group that made extensive use of informants and investigated potentially, or actually subversive groups (defined as being in opposition to the emperor). These police reported directly to the leader.
While hardly beacons of freedom or the city on the hill, the eighteenth-century societies of “enlightened absolutism” were not the draconian, tyrannous places described by Aristotle nor those of twentieth-century fascist and communist societies. Drawing on Plato’s idea of benevolent despotism that filtered through to Hobbes and Rousseau, leaders believed that a strong state was needed to protect the emperor and the public (their interests were assumed to be synonymous). In complicated matters of governing, leaders were presumed to know what was best. It was not so much that the ideas they applied were new but that the capability of acting on them had improved and the perceived need to do so in the face of a growing urban society and more internationalized world was felt to be great. Intermittent reliance on the military for policing was no longer sufficient.
A more penetrating and comprehensive societal regulation from a central government source was necessary relative to the more decentralized, episodic, laissez-faire control regimes of the feudal period. As Max Weber noted, the state developed a self-perpetuating, hierarchal bureaucracy to administer an ever expanding set of minutely defined rules. These were applied to the economy, public welfare, and morals and were dependent on the systematic collection and management of information about the populace.
In the seventeenth and eighteenth centuries, threats to those in power were most likely to come from other elites – sometimes presumed to have ties to foreign countries. There was less concern with political surveillance of the unruly and sometimes riotous masses. However, after the French Revolution and with the coming of the nineteenth-century industrialization and increased resources for challengers (including modern means of communication and new political rights), the high police mandate broadened to greater concern with average citizens and threats from other countries.
Over the last several centuries, police intelligence agencies became much more systematic, organized, and specialized. Their resources vastly expanded and continued to expand, their tools became evermore sophisticated (from agents in balloons to satellites), and new goals and forms of organization appeared. An expanded census, improved record keeping, police registers and dossiers, identity documents (including those based on crude biometrics such as the shape of the head), and inspections offered data. Personal information came to be collected for taxation, conscription, law enforcement, and border control (both immigration and emigration) uses and also to determine citizenship and eligibility for democratic participation and to improve social planning and public health. And as a corollary, the line blurred between direct political surveillance and a more modern and in some ways more benign or at least neutral governance or administration, even while containing the seeds of twentieth-century totalitarianism and beyond.
The Work of Jean-Paul Brodeur
In a classic article, with the memories of the 1960s and the early 1970s protests and police actions in the USA and Canada still vivid, along with the Watergate scandal, Canadian criminologist-philosopher Jean-Paul Brodeur (1983) expanded on the concept of high policing. He continued to work on the topic (as both a scholar and government advisor) over the remaining decades of his all too short life (Manning 2012). This work helped open up an interdisciplinary and international field (culminating in his monumental book The Police Web 2011).
Brodeur saw high policing as consisting of political surveillance and low policing as law enforcement (holding apart the overlaps between the two). In 1983, he identified four features of the former:
- It was absorbent in the sense of casting a wide net (what it absorbed was information).
- It conflated legislative, judiciary, and executive or administrative powers.
- The preservation of the existing political regime was its primary goal.
- A major tool was the use of informants from throughout the society. In 2011, he noted five additional characteristics implicit in the above:
- The state as intended victim
- The utilization of criminals
This comprehensive list can be expanded to note that such policing is not only absorbent like a sponge soaking up all information it encounters but is also laser-like in its ability to focus. These attributes may be combined as the agent moves from a general search (often using automated data) to a focus on specific profiles suggesting subjects and suspects of interest. The reliance on the new surveillance (e.g., computer surveillance, matching and profiling, satellites, drones, video cams, DNA, and other biometric measures) is central here. The ratio of human intelligence (humint) to signals intelligence (sigint) has shifted markedly toward the latter in recent decades.
Extralegality can be expanded to include gray policing and intelligence (Hoogenboom 2010) which blur the borders between the public and the private and takes creative advantage of value conflicts and the ambiguity of laws and policies, sometimes avoiding restrictions by delegating activities to organizations or countries not bound by restrictions and by working in areas that are not (yet) regulated but should be, given the standards of the society.
A significant change involves the emergent, complex, breaking, reconfiguration, and hybridization of a variety of high policing borders. Some of the traditional distinctions between “us” and “them” and inside and outside of a society change with globalization under the sway of new threats, technologies, and economic arrangements.
Organizations that were previously more distinct show increased commonalities – whether in the means used, intelligence-based and risk assessment goals, and in the shifting of personnel among federal and local police, police, among military, and national security agencies, between national and international agencies, and between government agencies and the private sector. There are new fusion centers where different agencies work together and an increase in task forces for specific investigations. There is some merging or convergence of military, national security, domestic police, and private sector security into a new multifaceted professional field (Bigo 2006). In the struggle with stateless terrorism and global crime, high policing mixes with traditional law enforcement as well as the military.
There are also increased overlaps between groups engaged in drug dealing and other crimes, violent political groups, and failed states. To varying degrees, national security agencies in democratic societies also covertly work with such groups. The secrecy and the multiplicity of agencies sometimes mean they work at cross-purposes.
There is increased cooperation between state and private sector actors and significant growth of national and international private sector agencies. Private police groups in pursing the goals of their corporate sponsors, or being delegated piece work by government agencies, are increasingly proactive rather than reactive and are far less accountable even than the public sector in its use of secret tactics. Lubbers (2012), for example, has documented many cases of private sector intelligence and provocation activities against protest groups.
For North America, empirical documentation on efforts to harm movements is widely available (e.g., Donner 1990, Cunningham 2004, Greenberg 2011). Such efforts were intensified and took new forms after 9/11 and with the worldwide anti-globalization protests (O’Harrow 2005, Chesterman 2011; Starr et al. 2011 and Earl 2011).
Beyond trying to hurt opponents, significant resources go into covertly helping allies such as by providing funds and propaganda. The Iran-Contra affair is an example. In a domestic context, Marx (1979) identifies a number of actions including giving allies intelligence, building leaders, creating a positive image of a movement, aiding recruitment, and providing money and supplies. In the United States during the 1960s, the CIA provided funds to the National Student Association, a group seen to be supportive of its goals, while the FBI and local police through programs such as Cointel sought to damage other student groups that were protesting. Similar actions on the part of the Royal Canadian Mounted Police under its Disruptive Tactics program were seen in Canada.
Brodeur emphasizes secrecy and deceit as means of piercing informational borders. Given the importance of finding information that is itself often secret, the turn to stealth is to be expected. Creating the myth of an omnipresent and omnipotent surveillance can itself be a form of control. But secrecy and deception may also be used on behalf of coercion and violence because rulers wish to hide their responsibility for the actions taken and to avoid reciprocal actions by opponents. Subterfuge may mask the identity of those sponsoring and carrying out violence. New forms based on secret intelligence collection such as armed drones and cyber-attacks became prominent in the twenty-first century.
Whether it is called the policing of politics, political intelligence, or regime (or societal) protection, high policing with respect to both its goals and its means is a pillar of social control in modern society – nationally and, even more so, internationally (although not the only pillar). It involves organizations, an ethos, and a set of activities that are most commonly associated with, and developed by, national security (as broadly defined) agencies but in fact goes beyond this wide domain to many social control settings in which organizations protect their flanks, try to anticipate or orchestrate events, and attend to actions, persons, and contexts seen as threats.
Security and intelligence agencies engage in wide sweeping information gathering activities for strategic planning and for preventive and preemptive purposes. Depending on the kind of society, this may be to protect the public interest by protecting the state’s interest (including but going far beyond protection of the sovereign), to protect the sovereign or the ruling party alone, or even to only serve the interests of the police agency.
High police remind us that the police are above all political actors. Two meanings of this can be noted. The low police on the street were concerned with protecting individual victims and with order maintenance. High police, in contrast, were concerned with protecting a corporate entity – the political regime. A major question is whether in protecting the sovereign, police are also protecting the broader (civil) society. In a democratic setting when police protect the leader, they ideally are also protecting the society’s democratic constitution and institutions. In an authoritarian or totalitarian setting, high police act as a private police ensuring the power of the rulers (whether a king or political party) apart from the broader society. That does not preclude disingenuous legitimating claims about acting on behalf of the people.
Policing that puts knowledge at its core often has a macro and longer-time frame focus. In addition to specific groups, persons, and behavior, sources of possible insecurity are sought far beyond the traditional cabal. The CIA, for example, has a Center on Climate Change and National Security.
A country’s economic well-being and the economic activities of rival countries are also presumed to relate to national security. National intelligence agencies routinely gather open source economic information on their rivals and are sometimes suspected of industrial espionage in order to help their domestic economy. France’s DST (Direction de la Surveillance du Territoire) through its unit for the Security and Protection of National Assets was well known for the attention it devoted to supporting French economy and technology in an array of fields.
Given the number of variables associated with high policing, there is no single theme that characterizes all activities and agencies. Tasks such as intelligence collection, analysis, and operations may be internally divided or allocated among different agencies. Organizations may be centralized or decentralized. The work may involve a single or (most often) multiple agencies, have responsibility for foreign and/or domestic matters (as with Britain’s MI6 and MI5), be national or local (as with the FBI and urban police), be distinct or attached to other branches of government, and if the latter be part of the military, state, or justice departments, emphasize technical (as in the USA) or human (as in France) information collection sources. But however the activity is organized; accountability themes are an enduring concern in democratic societies.
While some activity is overt and involves open source information (see the CIA’s World Factbook on its webpage www.cia.gov), agencies and agents whose identity, location, and activities are clearly known much remain secretive and hidden. These activities are buffeted to varying degrees from the conventional accountability of government and direction and control by legislatures, the judiciary, and even the executive. High police may be a law unto themselves, partly because some activities are not controlled by law (being neither required nor prohibited by a legislature but tolerated if done discretely). There will likely be different degrees of control, oversight, and review at different stages for domestic and international actions and for citizens and noncitizens.
A vital question is what the limits should be in an age of globalization where traditional borders are weakened – even as new borders appear and weapons of unimaginable horror are present and formal war has not been declared. Should (or can) there be common standards of law and ethics for these methods across national borders? Should noncitizens within a country have the same rights and protections as citizens? Should citizens have any special protections from their own government if they are in another country and behave as enemies of their government? The United Nations Universal Declaration of Human Rights suggests that basic rights must transcend national borders or citizenship status. But can standards be enforced internationally when mechanisms for compliance are weak or absent, when adversaries do not honor these standards, and when another standard argues for respecting differences among local cultures that give less emphasis to human rights in the western tradition?
In democratic societies, there is an ebb and flow of efforts to rein in or unleash high police activities (and even to acknowledge them), depending on the gravity of perceived threats, crisis, and scandals. Some data gathering techniques are simply too new to have been given much legislative control such as drone and satellite surveillance. The laws that do regulate can be vague and provide for maximum discretion and for states of exception. Plausible deniability may also be offered by the delegation of prohibited or controversial tactics to private contractors or to countries with fewer inhibitions (a practice known as a “functional equivalent”).
Even when the laws and regulations are adequate, the scale of intelligence gathering, the shrouds of secrecy protecting the behavior, and the “national security justification” work against implementing the kind of accountability found with other government agencies. In the United States, for example, in 2011, there were 16 agencies concerned with national security with a budget of over 75 million dollars, 200,000 employees, and extensive private contracting. The activities of these secret agencies (including specialists in misinformation) are classified and often exist within an insulated culture of incipient crisis distrustful of outsiders. Secrecy feeds on itself, whether out of caution or self-protection, and there is a point at which it becomes highly dysfunctional and makes democratic dialogue impossible.
Such factors make it difficult for citizens and researchers to know what is going on, let alone most specialists. In 2012 in the United States, an estimated 4.2 million persons had access to classified documents. But information access was highly compartmentalized and limited to the narrow task at hand. Given such factors relatively little is known about the agencies, often even by government oversight committees, let alone by citizens and researchers.
Claims about high policing must be carefully assessed given the deception and secrecy surrounding the topic and the vested interests of the parties involved (police do not wish to reveal operational tactics or behavior that might create bad public relations or harm a prosecution and opponents often have an interest in painting agents in a negative light). Yet information is sometimes available as a result of government hearings and court records, first person accounts from agents who publicly disavow their actions, leaks, Freedom of Information Act requests, archives, police training materials, and investigative journalists.
Ideal types call attention to broad differences yet obscure crosscutting dimensions that may unite what seems different and separate what seems similar. As an ideal type, covert high policing organizations usefully contrast with the overt low policing organizations largely involved with the immediate policing of everyday life such as traffic control, property crimes, or domestic disputes. In these settings, uniformed personnel have a narrow focus on local incidents that occurred, or are occurring, and that involve order maintenance or law enforcement. Law plays a more significant role in their activities, and their actions are distinct from (but not independent of) those of the judiciary.
For some purposes, broad contrasts between high and low police organizations are helpful, but the variables built into the ideal type can also be unpacked and seen as dichotomous or continuous factors. The latter take account of degrees (just how secret is the organization, to what extent is it controlled by law and policy?). Apart from any particular organization, high policing can be defined as an ethos and a set of activities found to varying degrees in any control organization – national or local, police or nonpolice, and public or private.
The elements of high policing can be used to analyze social control settings. Viewing high policing in terms of its component parts provides a systematic way to identify variation and to think about explanations and consequences of the different ways of doing policing. This approach emphasizes policing as a process or function rather than as an organizational structure. It also calls attention to cultural themes which may be widely shared in a society such as systems thinking and an interest in dealing with root causes, rather than only with consequences and in technical developments associated with the information age which provide new resources for analysis and planning.
Thus, many of the elements of high policing are seen in current policies such as intelligenceled (database-based) and community policing and specialized police units such as those involving intelligence, undercover, internal affairs, and planning. Detectives, and even uniformed police, make use of traditional (informers) advanced tools of surveillance (thermal imaging). The reverse is also the case – high policing units are involved in activities associated with law enforcement – reacting to events rather than only trying to prevent them locating suspects. Over centuries, the mission of high policing, at least in democratic societies as an aspect of modernization, has in principle broadened beyond protecting those in power to ensuring the security of civil society and protecting citizen’s rights. As noted, this is part of modernization. Secret police may occasionally even help create a democratic state in opposition to the wishes of a country’s leaders, as to some degree was the case of Poland’s velvet transition in 1989 (Los and Zybertowicz 2000). There can also be significant formal limits in the discretion lower level operational units have in doing intelligence investigations (Lowe 2011).
Some Ethical And Practical Issues
Those using the less morally elevated tactics of high policing offer many justifications. Police cannot be everywhere, and the frequent resort to secrecy and deception on the part of their adversaries creates informational borders. Self-defense – whether by states or individuals – is in general morally and legally defensible. A US judge said, “the Constitution is not a suicide pact.” Yet fighting fire with fire may burn and even destroy the fighters.
Simmel observed that in conflict settings, adversaries come to resemble each other. The secrecy, discretion, and minimal accountability often found with the policing of politics can result in abuses by the state that are difficult to document. The uneasy alliances between intelligence agents and criminals may result in criminals who are even less subject to restraints coming to control the agents. Such associations and the use of tactics perceived as dirty may taint the agents. As the history of the British police suggests, police are moral actors and their behavior has symbolic meaning.
What happens to this elevated image of police (and of government more generally) when they resort to the dirty tactics of deceiving, lying, spying, infiltrating, and relying on informers and criminals? Is the state then indistinguishable from its genuine enemies who may use the same tactics indiscriminately?
Using citizens who are not criminals as informers (apart from alliances with criminals) greatly extends the eyes and ears of police and avoids some problems. From one standpoint, this is even democratic and honors the British tradition that police are simply citizens with no powers beyond those of other citizens. The fact that the first modern British police were unarmed reflects this community orientation in which police were dependent on the good will of those they served. Citizens would obey the law out of respect for it, not fear, coercion, or deception. Citizens were seen to have a responsibility to contribute to the policing of their communities. This “low” police force was self-consciously created in opposition to the high police of the European continent who served the sovereign not the people. Yet in widely cultivating informers among citizens (as was done in the former East German Republic where over 2 % of the public were registered informers and many more unofficially participated), privacy, trust, and community are difficult to sustain.
High police efforts emphasize prevention. This impetus has been increased by the astoundingly destructive potential of modern weapons, whether nuclear, chemical, and biological or cyber-attacks, in an evermore interdependent world. Prevention can be approached from a standpoint of big picture hard or soft engineering efforts to avoid problems (e.g., improved infrastructure protection as with enhanced security of bridges or computer networks or institution building in an effort to win hearts and minds), through deterrence via means of identification and severe sanctions, or through direct interventions to thwart planned attacks.
The latter efforts often draw upon undercover means as when agents substitute fake for real dynamite or gather evidence to prove charges of conspiracy. Such efforts may also backfire as agents lose control of events. There is also a trade-off here since in preventing an unwanted event agents risk giving away their sources of information and other tactics. There is often a conflict between those involved in intelligence collection who wish to protect their sources and those involved in operations. There also is the hoarding and failure to share information among rival intelligence agencies as was the case with the FBI and the CIA in the 9/11 case (9/11 Commission 2004).
Information collection can feed upon itself generating the need for evermore information and to wait to use it until the last moment. The idea of risk management on a broad scale requires large amounts of data across many cases (Ericson and Haggerty 1997) and lends itself to profiles and statistical judgments, rather than emphasizing the unique individual. The latter is a condition of due process which assumes that there will be some grounds for suspicion before a citizen is subject to state intervention.
The advantages of prevention are obvious. Yet resources should not go into preventing things that would be unlikely to occur or things which are a result of agent provocation. The line between speech and action is easily blurred; speech is of course a kind of action, but it does not offer the kind of definitive evidence of intent, nor the harm, that results from actually carrying out a destructive act. Yet to wait until after the fact can mean failing to protect the society. But under conditions of law, the need to prevent may conflict with the need to have adequate evidence to proceed and that may require waiting and involvement with suspects. Prevention and facilitation may conflict.
Yet assuming that the internal and external threats that high police tactics are directed against are genuine and not orchestrated by police themselves through dissimulated media campaigns and agent provocateurs or based on vindictive or erroneous informers, some distinctions can be noted. The legality and desirability of both means and ends and the procedures followed need to be considered. Using the tactics to protect a legitimate democratic government is very different from using them to overthrow such a government or to protect the private interests of those with power (as was the case in much of nineteenth-century Europe and with former president Nixon and Watergate).
Attention as well needs to be given to the relationship between dissent and crime. A robust democratic society encourages questioning and guarantees citizens the right to protest. At the same time, pressures to criminalize dissent are always present, and some laws, such as those involving conspiracy and sedition, lend themselves to elastic interpretations.
When the goal is legitimate, questions still need to be asked about the availability of other more desirable means and the consequences of not acting, the creation of a precedent, the ability to control events, the impact on agents and third parties, and the symbolic message of using a tactic. Using tactics that are legally sanctioned through a democratic process and subject to independent review and challenge (whether by a judge, an oversight committee, an inspector general, or supervisors) brings a degree of accountability and is distinct from their use in an unregulated fashion – whether by agents of the state or opponents. Oversight by the mass media and interest groups also has an important role here.
Yet even when legal and procedurally wise, the decision for a democratic state to sanction use of the tactics must be done reluctantly given the risks and an understanding of how easily secret power can be abused. There are no easy answers to what Klockars (1980) called, after the film of the same name, the “Dirty Harry” problem regarding means and ends. Awareness and caution are continually required.
When police states fail as in Eastern Europe in 1989, among the first demands is for the abolition of the secret police. However, while particular leaders may be punished, their organizations destroyed, and extreme tactics prohibited, secrecy and many of the information gathering tactics endure as a functional necessity, and agents pop up elsewhere. No modern state is without security agencies concerned with internal and external threats, and in a global environment with geographical mobility, the lines between these can be blurred given sleeper agents and the recruitment of citizens on religious, ethnic, or ideological grounds to violent international causes. Few societies will favor moral purity over self-protection more than once.
But how should a democratic society control high police tactics? Most states prefer to keep these means in the shadows – neither unleashing nor prohibiting them. They are seen to fit within the category of necessary evils – means which may occasionally be justified, but certainly not preferred. When present, the laws, regulations, and reviews that legitimate them are often shrouded in secrecy, leave considerable wiggle room, and change as conditions do. Thus, in the United States, many of the reforms limiting surveillance that followed the Watergate scandal and earlier abuses were undone following 9/11 with the Patriot Act and other legislation. Similar loosening occurred in Canada and in Europe.
Some domestic tactics may be banned outright, e.g., torture, lengthy detention without due process. Others such as wiretapping require a warrant, review by a secret court, or are permitted only temporarily under emergency conditions (the challenge is to permit such states of exception from becoming permanent and not to keep policy discussions about them secret as with a tendency to over-classify in the name of security). Other tactics such as undercover means in the United States are subject to internal organizational policies and reviews rather than legislation, in contrast to much of Europe (Ross 2004).
Regulating (rather than outright banning) the tactics via the law and policy may lessen problems but, ironically, can also lead to their expanded use since they are officially sanctioned. In contrast, without a formal mandate legitimating and acknowledging such tactics, agents may be unduly passive and hesitate to use them because of uncertainty about where to draw the lines and whether they will be sanctioned for going too far. Yet to formally ignore the tactics is an invitation to abuse. Careful supervision and subordination to the executive is necessary, but that power can ironically lead to the executive misusing police powers. Critics often do not realize that police committed to the rule of law may face political pressure from the executive to break the law.
What kind of regulation then is appropriate? Democratic societies walk an uneasy and ambivalent line here, particularly domestically. Regulation and transparency can bring accountability, but if too detailed and formulaic, these can become straightjackets that eliminate organizational discretion, flexibility, and innovation and stifle personal questioning, honest communication, and experimentation. On the other hand, if they are too open-ended and permissive of discretion, they invite abuse. Too much visibility regarding the limits and operations of security agencies can be a resource for those who would destroy the state.
In an important sense, a democratic police is a politically neutral police even as it may have legitimate resort to secrecy, coercion, and deception. In democratic societies, police are to behave in a universalistic fashion and strive for equal law enforcement. Should their personal attitudes depart from the demands of the role they are playing, this must not affect their behavior. They are not to act in an explicitly political fashion, such as by spying on, or disrupting groups they disagree with, or failing to enforce the law against groups they support. Nor are they to serve the partisan interests of the leader or the party in power (or the party they would like to see in power). Their purpose must not be to enforce political conformity. Police show neutrality if they simply enforce the rules in equivalent contexts regardless of the beliefs or characteristics of the persons or group involved (e.g., their race, gender, age, ability-disability status, or social class). With this ethos, police are better seen as referees or umpires than as conventional political actors pursuing self-interest. From this perspective, given freedom of the press and association and the legal toleration (indeed even protection) of dissent, it is sometimes asserted that in democracies there is no policing of politics, only of crime.
But apart from the ideal in the above paragraph, there is a second sense in which police are not neutral and all policing is political. Police are agents of a particular state and enforce the laws of that state. In that sense, any policing is “political” (in and of itself that does not imply that it is right or wrong). Police have a mandate to legally use force and to deprive citizens of their liberty. To those who disagree with those laws, police tactics – whether high or low – will not appear neutral since they are on behalf of the regime in power and the status quo. As a result, police, even in a democratic society, are likely to be much more controversial than other agencies of government. Yet the line between speech and action can be hazy, and definitions of crime can be elastic.
There is an enduring unease in sustaining a democratic society partly through coercion and secrecy in the face of civil liberties protections and in the absence of traditional criminal violations. While national security efforts may be legally sanctioned and ultimately draw on criminal law, prosecution plays a very minor role, and the implementation of legal oversight is a continual challenge – both because of agency resistance and resources and, not infrequently, the reluctance of regulators to probe. The unease may be dealt with by outright denial, obfuscation, illusion, and rules and policies that maximize discretion. The public is often told by agency leaders, “trust us because we carefully choose, train and supervise agents and rigorously review actions to be taken.” Less often heard is the refrain, and besides, “you don’t want to know.”
A thread running through all systems with an ethos of total control – whether totalitarianism in a state, a prison, or a demanding cult – is for the authority to deny individuals the right to control information about themselves and to restrict their liberty. At the same time, in such societies, those with power seek to maintain full control over information about themselves with few or no restrictions on what they do. The importance given to the end of staying in power and otherwise pursuing their interests overwhelms concern with the morality of the means used and full concern with the public good in which the end of official power is to serve citizens.
It has been said that a civilization’s nature can be seen in how it treats its prisoners. It might also be seen in the respect it shows for the informational borders and liberty of the person and the ability to form groups independent of the state. Central here is the kind of social structure and culture within which power is embedded.
As de Tocqueville argued (after his nineteenth-century visit to the United States), a democratic society requires that individuals be free to come together in associations apart from the domination of the state or other all-powerful organizations and that there be significant sharing of power and the acknowledgment of the legitimacy of different, often conflicting, interests. When restrictions upon liberty are appropriate, this must be under conditions of law, due process, and accountability.
In his argument, Tocqueville drew on the classic insights of Aristotle regarding how tyrannical regimes maintained their power. The latter’s characterization anticipates the modern police state (not to mention the society George Orwell and other dystopian novelists depicted). Tyrannical regimes seek to perpetuate themselves through the creation of atomistic populations, the blocking of private communication, a prohibition on the forming of private associations, the elimination of borders to visibility, and the sowing of suspicion and discord among their subjects.
Aristotle, drawing from his knowledge of the great tyrannies of the ancient world, argues that to remain in power the tyrant, “.. .must not allow common meals, clubs, education, and the like; he must be upon his guard against anything which is likely to inspire either courage or confidence among his subjects; he must prohibit literary assemblies or other meetings for discussion, and he must take every means to prevent people from knowing one another (for acquaintance begets mutual confidence). Further, he must compel all persons staying in the city to appear in public and live at his gates; then he will know what they are doing: if they are always kept under, they will learn to be humble….. A tyrant should also endeavor to know what each of his subjects says or does, and should employ spies.. .” Eavesdroppers should be sent to “any place of resort or meeting; for the fear of informers prevents people from speaking their minds, and if they do, they are more easily found out. Another art of the tyrant is to sow quarrels among the citizens; friends should be embroiled with friends, the people with the notables, and the rich with one another.”
In contrast, the democratic leader must do the opposite. The state must ensure that its rules are fairly enforced and that citizens are protected from each other and from internal and external threats (who defines these, and how, are vital questions). It must guard its own guards to be sure they act appropriately. Finally, the democratic state has an obligation to protect itself as the representative of the civil society it serves. That contrasts with using its vast resources to protect the narrow, personal interests of those who are in power at the moment. The police (and government more broadly) must belong to the society. The society must not belong to the police. Any complex democratic society must be a policed society within a framework defined by law for reasons of administration and protection.
A supportive culture, appropriate checks and balances, accountability, and visibility are central to countering the abuses that unequal power and secrecy invite. Unfortunately, no complex society can do without police secrecy – a factor that can be independent of a secret police. There is an eternal tension between protecting the public from itself (as well as from other country’s publics) and from those entrusted with doing the protecting. The “Dirty Harry problem” of means and ends and related questions of “good people and dirty work” (Hughes 1962) can never be resolved. But they can be acknowledged and must be continuously wrestled with. Within appropriate limits, legitimate authority must have the power to act coercively and deceptively. Societies are messy affairs awash in moral dilemmas, value conflicts, and trade-offs. Desirable as well as dastardly deeds can occur under cover of darkness; sunlight can illuminate as well as blind; those in positions of authority sometimes do the wrong thing in order to do the right thing. While Dr. Faustus may sometimes be granted a place at (or under) the table, he must be invited reluctantly and only with adequate oversight. It is vital to confront, rather than deny, the ironies and challenges this brings. Therein lies the central paradox of government, and indeed of any authority– so well put by James Madison in the Federalist (Paper 51), “You must first enable the government to control the governed and in the next place, oblige it to control itself.”
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