Today’s world is preoccupied with terrorism. How we in democracies respond is critical to the maintenance of our own values and to the ideals of liberty. There is a danger that Islam, which is essentially a peaceful religion, will be blamed for the actions of terrorists and that we will be increasingly divided by religion and race.
We need to understand that terrorism is as old as the human race.
The Crusaders from Britain who fought against Islam in the Middle Ages; the Spanish Inquisition; the IRA and the Protestant militias in Ireland all practised terrorism; all were Fundamentalist in their beliefs; the Chechnians wanting independence, are terrorists. People in some parts of the Philippines who want independence, were once called Communists, then Freedom Fighters are now called terrorists. The Basques in Spain; the Belgians in the Congo; the Portuguese and Spaniards in Central and South America; the Red Army and the Red Brigades in Germany and Italy in the late seventies and early eighties were all terrorists.
These groups were mostly fundamental in their attitudes. They all practised terrorism.
Many in today’s world say Islamic Fundamentalists have no cause and no purpose but hatred and destruction of the West. In a major speech to his own Labour Party last year, Prime Minister Tony Blair made that point but on the very next page he said that peace between Israel and Palestine would do more to end terrorism than all the bullets in the world. Both statements cannot be true. The second is true.
Many believe the war in Iraq has provided a new motivation for terrorists, to end the occupation of an Islamic country by an infidel army.
To understand that there are different causes of terrorism is not to condone but is essential if we wish to overcome and end terrorism.
Because civilisation as we know it was so nearly destroyed during the Second World War, in its aftermath, leaders of all major states believed they must strive and work to achieve a better world.
The Universal Declaration of Human Rights was agreed in 1948. In the years since, protocols and conventions established under it were designed to build a law-based world. The International Criminal Court finally came into force on 1 July 2002. This was a further major step in that direction.
It is more than unfortunate that our response to terrorism has reversed much of that progress and leaders in too many countries do not seem to understand that that is happening.
I want to look briefly at the response of Britain, of the United States and of Australia.
In Britain, the government had attempted to put asylum seekers permanently in jail if they were not successful in their claims and if they could not be returned to their country of origin. The Law Lords made it plain that jail of more than a few weeks was inappropriate under British law. Unless the detainees had to be charged and tried. A compromise was reached which involved judicial and parliamentary oversight.
Since the London bombings the United Kingdom has sharpened some aspects of its laws against terrorism, especially laws in relation to aliens. It seems to have done this however, with greater discussion and openness than we have had in Australia.
In the United States, long before war was declared on Iraq, members of the Administration, especially from the Justice Department, the Pentagon, the State Department and the White House, began an involved paper trail which sought to define how far interrogators could go in 'intrusive questioning'. Their purpose was to avoid charges of torture under United States or International Law, or to avoid being in breach of the Geneva Conventions.
The US Administration published these papers. They are put together in a large document called the Torture Papers by the New York University Center for Law and Security, published by Cambridge Press. These papers were before Iraq, designed to define the treatment that could be metered out to prisoners taken from Afghanistan. The papers were intended to place such prisoners beyond the reach of any law and to provide immunity for the jailers.
President Bush came out of it with credit. He signed a short note which said 'any interrogation must be humane' - he did not elaborate. Colin Powell argued that to torture prisoners would place American servicemen at risk and, on that practical rather than on an ethical ground, he argued against the practices.
A State Department lawyer, William Taft argued fervently against torture. Assistant Attorney General Jay Bybee argued that if you caused major organ failure or death, it would be torture but short of that, it almost certainly wasn’t. Former Assistant Attorney-General Bybee is now a judge.
Attorney-General Gonzales in his confirmation hearings before the United States Senate, claimed that he was opposed to torture, but he signed a piece of paper, which appears in the Torture Papers, which many would construe as endorsing torture. The Justice Department has most to be ashamed of in its perversion of both domestic and international law in relation to torture.
Torture began to be outlawed as reliable evidence by British Courts in the 1500s. For a long while now domestic jurisdictions and international law have outlawed torture absolutely. We cannot take one step along that path. To take one leads to many. To its credit, the Supreme Court of the State of Israel in 1999 made a judgement that torture was outside the law in all circumstances. On practical grounds it is recognised as the most unreliable means of extracting evidence, but on moral and ethical grounds it betrays the core belief of our existence. By acceptance of torture too many have stepped into a darker past.
General Taguba’s report, and the Red Cross report on Guantanemo Bay, both use careful language, as one would expect. But it was clear that abuse was pervasive and substantial. Long before Abu Ghraib, it was possible to see how every violation of decent behaviour, later revealed at Abu Ghraib, had its origins in high level memorandum, passed between the highest organs of United States Administration.
There was a clear attempt to place prisoners taken by the Northern Alliance and handed over to the Americans outside the reach of any law of any human decency. They were described as 'unlawful combatants'. The Taliban were described as a 'failed state' which Colin Powell pointed out was wrong because the United States had always held all states and in particular, Afghanistan to their international obligations.
Torture has been further reinforced as a technique by the expanded Rendition programmes, which most recently brought American authorities into sharp conflict with the Italian government.
A Canadian citizen had earlier been taken to Egypt and was only released 12 months later, after the most vigorous Canadian protests. There is no point in the Rendition Programme unless it is to place prisoners in a jurisdiction where they can be tortured.
One of the Australians at Guantanamo Bay reportedly spent six months in Egypt on his way to Guantanamo. He has since been released without charge. The Australian Government claimed that it had approached the Egyptian authorities who had no record of him entering or leaving the country. Egyptian immigration authorities would not be lined up to record people who were taken off an American executive jet to an Egyptian jail under the Rendition programme.
The United States’ response has also involved the establishment of special Military Tribunals. There is a body of opinion, which has condemned those Tribunals as lacking basic justice. These include Lord Goldsmith, First Law Officer of Britain, who said that they would not provide justice required for a British citizen. As a consequence the United Kingdom persuaded the United States to return British citizens held in Guantanamo Bay to Britain. One of the Federal Courts in the United States has ruled Military Tribunals unconstitutional on the grounds that prisoners were not told the evidence against them and on the grounds that the tribunals accepted evidence taken under torture.
Major Robert Preston and Captain John Carr, both within the United States system and both Prosecutors, condemned the process as not providing a reasonable basis for a just trial. Captain Paul Willey, head of Australia’s Military Bar and Navy Reservist has also been heavily critical of the process. The President of the Law Council of Australia has described the attitude of the Australian Government as an outrage. Geoffrey Robertson, QC has joined in the criticism. He suggested that an Australian should be required to sit as Judge with the Military Tribunal. There are two problems with that suggestion. The United States would not accept it and secondly, no reputable Australian judge would take part in the proceedings of those Military Tribunals. Prof Tim McCormack, Australian Red Cross Professor of Humanitarian Law at Melbourne University and one of the drafters of the Statues of the International Criminal Court, and adviser to the War Crimes Tribunal at the Hague has said that at the very least Hicks deserves the same standard of justice that is being provided for former President Milosevic of Yugoslavia.
The weight of opinion and the weight of evidence is overwhelming. The rules for the conduct of the Tribunals, their lack of independence, the lack of a judicial appeal, deserve condemnation from all of us.
The United States has a Bill of Rights and so their legal system has come into play.
The courts have ruled that people in Guantanamo Bay must have their day in court. Unfortunately it has not yet taken the step of confirming that the Tribunals are unconstitutional.
Australia has supported the military tribunals. The Government has said that Hicks will get justice, but the majority of opinion is against the Government which unlike the British Government has abandoned its own citizen. We have, by implication, supported the Rendition Programme and therefore have not opposed torture.
The ASIO legislation of 2002 underlines Australia’s official indifference to 'due process' and to what until recently would have been regarded as universally accepted Rule of Law.
We are the only democratic country, I am advised, to legislate for the detention of people whom the authorities do not suspect of any wrong doing or even of any wrong thought.
In Australia, any of us can be detained merely because authorities believe we might know something that we don’t even know we know. The authorities do not have to believe we are guilty of any crime, or are planning any crime, or have consorted with any suspicious persons. How could such a law be drafted by the Government and supported by the Labor opposition? You can be detained for one week but then on a new warrant, another and another and another week. Unless it is approved in the original warrant, and why would ASIO do that? - you are not allowed to contact your wife, your husband, your child, your mother, your father and of course not a lawyer.
If you don’t answer ASIO’s questions satisfactorily, you can be charged and subject to 5 years in jail. But the law is reasonable, it goes on to say that if you don’t know anything, then it's not an offence not to tell ASIO anything!!! But you have to prove you didn’t know anything and so the 'onus of proof' is reversed.
You can be asked to produce a paper and if you don’t, you also go to jail on prosecution for 5 years but the law goes on to say, being fair-minded again, if you don’t have such a paper, it’s not an offence not to produce it but you have to prove that you didn’t have it. How do you prove that you do not have something that you do not even know exists!!! Again, the 'onus of proof' is reversed.
If a journalist heard that you had been detained and sought to report it, he would go to jail for 5 years. If a detained person were released and talked to anyone about his or her experiences, subject to prosecution, five years in jail.
This seems to be a law for secret behaviour by authorities, for making somebody disappear. It is a law that one would expect in tyrannical countries and not in Australia. Do we do nothing about it because we believe it will not apply to ourselves? Do we believe it is only going to apply to people of a different religion who look a bit different?
United States authorities and others have, time and again, denigrated those in Guantanamo Bay. We have been told they are the worst of the worst, that they are terrible people, that they do not deserve the normal protection of the law.
People who make such comments clearly do not understand or believe in the Rule of Law as it has evolved through the ages. They have taken such views because they believe those in Guantanamo Bay and others are not 'people' like ourselves. In a different day and a different time, but within the memories of many, we have heard those words before.
In other words the presumption of innocence until proven guilty, the presumption that all people should have access to “due process” in a properly constituted legal system is no longer valid in Australia.
It is not reasonable just to blame the Government alone for such laws. The Labor Party approved such laws.
There was one change of particular significance so I give credit for that. The original legislation applied to people of any age, even to children, except that intrusive strip searching should not take place of a girl under 10. The Labor Party took the view that the legislation should only apply to adults. It now applies to those over 18.
As a consequence of the Government and the Opposition basically agreeing, Australian law already provides for the abolition of 'due process', of Habeas Corpus and the presumption of innocence.
All this is already law.
Australian Law or lack of it has already failed many individuals and groups. Amongst these we can include: Aboriginals; people held in the Department of Immigration detention centres; an Australian citizen deported; Australian citizens wrongly held in detention centres without medical attention; a United States citizen deported without 'due process' and an Australian citizen being tried before a Military Tribunal. By the detention of the innocent, by the questioning of people known to be innocent by the authorities, by the right confirmed by the High Court with a majority of 4 to 3, to keep a failed asylum seeker in jail for the term of his natural life, if he could not be returned to his land of origin.
Authorities in Australia already have the capacity for the exercise of extreme and arbitrary power without adequate judicial safeguards.
Much of this involves the gravest failure of administrative and ministerial responsibilities. As shown in the Palmer and Comrie Reports the Department of Immigration has been at the centre of much of it. Two Ministers have been in charge, neither Minister is responsible. As far as one can tell, nobody has been held accountable. The people involved appear not to have mattered to the Administration or to the Government.
Australia now has new proposals in front of it providing even greater power to the police and to the Government. Attention should in particular be turned to those provisions that allow for 'preventative detention' and the use of 'control orders' to arrest and to limit and monitor the activities of individuals. No cogent case has been made for the expansion of these powers, except a general one that it is necessary to fight terrorism. It would be reasonable to ask why, it would be reasonable to expect a considered answer.
The legislation says that a control order may be sought if, on the balance of probabilities the order would substantially assist in preventing a terrorist act, or if the person has provided training or received training from a listed terrorist organisation and furthermore, on the balance of probabilities that the order is reasonably necessary to protect the public from a terrorist act.
The intelligence rationale for a 'control order' is not easy to grasp. If surveillance is thorough why not watch the person, collect more evidence and then charge the person with an offence?
One consequence of a 'control order' would be the immediate disappearance of all the subject’s contacts and collaborators. They would know from their point of view that something was wrong, they would fade away and disappear.
The terms of the legislation are broad. One of the grounds for a 'control order' is that a person has provided training to or has received training from a listed terrorist organisation. Does the organisation need to be listed when the training was received? Does the training have to be recent, could it have occurred 20 years ago in different times and different circumstances?
In one respect more severe problems arise in relation to detention orders. A person can be detained for a limited period if there are reasonable grounds to suspect the person will engage in a terrorist act, or has done or will do an act in preparation for, or planning of a terrorist act. Again the terms are broad.
There is no involvement of a court in achieving authority for a prevention order'. An issuing authority is appointed by the Minister. In the draft legislation an issuing of authority is defined as: the Commissioner or Deputy Commissioner of the Australian Federal Police, or a member of the Australian Federal Police above the rank of Superintendent. For continued 'preventative detention' the issuing authority is a Federal Magistrate or a Judge but acting in a personal capacity, not presiding over a court.
The same questions arise once 'preventative detention' is applied, a person’s collaborators, colleagues, will again know from their point of view that something was seriously wrong and they would fade away.
If there was valid grounds for concern, why not double surveillance, collect more information, which would enable a charge and a prosecution to be laid. The strategy of 'control orders' and 'preventative detention' may have some relevance but the case has not been made. Furthermore the lack of judicial involvement in the application for 'preventative detention' is a total derogation of justice.
There appears to be no involvement of the judiciary in application of a 'preventative detention' order and secondly, the involvement of legal officers in the case of continued 'preventative detention' is marginal, and would be totally ineffective. No legal officer would in those circumstances be prepared to second guess the policeman. In reality, 'preventative detention' and continued 'preventative detention' can be imposed solely on the involvement of ASIO and the police.
Do we really believe these powers will be effective in the fight against terrorism, or do we believe that the powers themselves are likely to lead to a sense of grievance or alienation? These are powers whose breadth and arbitrary nature, with lack of judicial oversight, should not exist in any democratic country. If one says, but they will not be abused, I do not agree. If arbitrary power exists they will be abused.
All this has happened in a country which has not experienced a significant terrorist incident for many years. What would be our Government’s reaction if this great city were tied up and disorganised by terrorist attacks similar to those which recently occurred in London?
The Government is really saying on these issues, trust us, but no part of the history of the Coalition’s invasion and occupation of Iraq gives any member of that coalition the right to say on these issues: 'Trust us'. We were told there were weapons of mass destruction. There weren’t. The British were led to believe that weapons of mass destruction could be dropped on London within 45 minutes. They could not and the authorities knew they could not.
More recently published British Cabinet Papers have made it clear that President Bush had made the decision to go to war seven or eight months before the American people were told.
During the time when Dr Hans Blix, Executive Chairman UN Monitoring, Verification & Inspection Commission (UNMOVIC) was painstakingly revealing the truth about weapons of mass destruction, or the lack of them in Iraq, the United States had no intention of allowing that process to continue, to conclude. They did not indeed want it to conclude because it would have taken away the primary cause for war - a decision which had already been made.
More particularly after the Tampa, after the Children Overboard, the experience and treatment of asylum seekers, the abandonment of Hicks, all suggest that any right to trust has been long destroyed. Would Cornelia Rau trust the Government? Would Vivian Solon trust the Government? Concerning the Tampa and Children Overboard, the Government knew they were playing to the more fearful and conservative elements in the Australian community and with great success. The Government also knows in relation to terrorism that the public is concerned, even fearful and can be made more fearful. These laws again play to conservative elements in Australian society.
It may be brilliant politics but will such laws make Australia secure? By its actions, the Government has long abandoned and lost the middle ground. The Rule of Law and 'due process' has been set aside. Has the Government already created an environment in which people will accept too much if the Government says it will help in the fight against terrorism?
These new proposals should be opposed. No strong case has been made that these breaches in the Rule of Law will be effective in the fight against terrorism. The London bombings are probably used as a rationale, but apply these laws to London bombings, they could not succeed. The laws should be opposed on the basis of substance. The powers are arbitrary altering the quality of ASIO and of the police in significant ways. There are no real safe guards, there is no adequate judicial review.
The laws should be opposed because the process itself is seriously flawed. Instead of wide ranging discussion the Government has sought to nobble the field in secret and to prevent debate. The laws should be opposed because they provide arbitrary power which would be dependent on trust, a trust that has not been earnt.
Western civilisation is again betrayed by the treatment metered out to prisoners at Abu Ghraib and at Guantanamo Bay. We are told that this was the view of a few misguided, low-level troops but Donald Gregg, former National Security Advisor to the first President Bush, wrote that the memorandum, published in the Torture Papers: 'cleared the way for the horrors that had been revealed in Iraq, Afghanistan and Guantanamo that make a mockery of Administration assertions that a few misguided enlisted personnel perpetrated the vile abuse of prisoners. I can think of nothing that can more devastatingly undercut America’s standing in the world or more importantly our view of ourselves than those decisions.'
The Government and the Labor Party have both assumed that we cannot fight terrorism and adhere to the basic principles of justice and democracy. They have assumed that certain people are outside the law and do not deserve justice. They are already saying to us 'Trust us' on the issue. I suggest they have given us every reason not to trust them on these issues of peace and war and on security for our people.
From Australia, our Government has constantly said that our participation in the Coalition in Iraq has not increased the risk of terrorist attacks in Australia. But the former head of ASIO, Dennis Richardson, and the former Chief of the Defence Force Staff, General Cosgrove, have both suggested the contrary.
Professor Naomi Chazan said, in the recent Gandel Oration in Melbourne: 'There is one standard and one standard for all, and the challenge that is posed by terrorism is how to defend the rights of those that we don’t agree with?... How can we defend the rights, the basic human and civil rights, of those whose ideas we simply abhor?'
Unless we do so, the terrorists have already had a significant victory. It is not enough to say we believe in justice, in human rights for those who agree with us, for those whom we classify as honourable and law abiding citizens. It is the system, the process, the courts, it is the measurement of justice that determines the nature of our civilisation.
Churchill put it this way:
He suggested that the great privilege
...of Habeas Corpus, and of trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the State – the power of the executive to send a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers – is, in the highest degree, odious and is the foundation of all totalitarian governments...extraordinary powers assumed by the Executive with the consent of Parliament in emergencies should be yielded up, when and as, the emergency declines... This is really the test of civilisation.
Thomas Paine said:
He that would make his own liberty secure must guard even his own enemy from oppression, for if he violates this duty, he establishes a precedent that will reach to himself.
That is succinct and accurate advice. It is an expression of what has happened through the course of history. If we stand silent in the face of discrimination and in violation of the basic principles of humanity, then we betray our own principles and our way of life. We must fight extremism, fundamentalism, terrorism, whatever its origins, whatever its objectives.
Fundamentalism has, throughout history, often been represented by an extreme and arbitrary belief, often without justice and without principles which make it possible for us to lead our lives as part of a civilised community. I regret that many, who almost certainly mean well have so little faith in our freedom, in our democracy, in our laws, that they believe they must throw basic rights overboard to defend those same rights. Such views are wrong and will make it harder to overcome terrorism.
Transcript of the Stephen Murray-Smith Memorial Lecture, State Library of Victoria, 19 October 2005