Anti-terrorism and restrictions of freedom
August 5th 2007 07:06
In the context of anti-terrorism measures, I suspect most people would agree that erosion of rights and freedoms is per se undesirable -- it's just that they disagree whether such sacrifices are justified.
But for some reason, it's rare squarely to ask, "Why do you think they're justified/unjustified?".
Here's a listing of possible answers from the liberties side of the fence.
1. Skepticism towards importance of terrorism.
Which might take the form of doubts about how realistic a danger terrorism is, or (see 5 below) doubts about its comparative importance.
2. Skepticism towards efficacy of anti-terrorism measures.
Does preventing people from saying "bomb" in airports really accomplish anything? Does repression breed more discontent (just as prisons might breed more crime, or harsh Israeli measures more suicide bombers)? And could it be the case (as John Stuart Mill might idealistically have thought) that a free society is the best defence against terrorism in the long run?
3. Skepticism towards necessity for increased executive powers.
Were existing policing powers sufficient? Were all avenues explored? Was there no alternative than to restrict liberties (see 5 below)?
Are we on a slippery slope towards further executive power?
4. Concerns about abuse of power.
Guantanamo Bay, Mohamed Haneef, extraordinary rendition, intrusions into privacy, fairness towards Muslim people, attacks on protesters, hassling 14-year-old girls over their MySpace sites, cracking down on un-American dorm-room posters...
On the one hand, there's been a dimunition of rights and liberties that protect citizens from government. On the other hand, there's been a reduction in the openness and accountability of government.
There are related concerns about the separation between executive, legislature, judiciary, the constitutionality of anti-terrorism legislation (see below on Jihad Jack), and the open-endedness of the "war on terror" -- will lost liberties ever be restored? (Historical precedence might be argued either way -- on the one hand, Lincoln and Churchill; on the other hand, Augustus and Hitler.)
Worries about these issues seem to vary in proportion to one's faith in the benevolence and wisdom of government. Some people take the attitude, "Abuses of power could never happen in this country", or "I've got nothing to hide, and therefore nothing to worry about." Other people point to failures of the system -- imprisonment of innocents, police incompetence, etc.
5. A commitment to the value of freedom.
Freedom is sometimes thought to be intrinsically important (desirable in itself) as well as instrumentally important (productive of further goods, and part of the checks and balances of functioning democracy).
How to rate it in comparison to other values? -- At the most extreme, a person might prefer to die on their feet than live on their knees. And there seem to be times when a society is willing to accept injury and loss of life in return for an increase in standard of living -- for instance, countless lives would be saved if the speed limit for all cars (except emergency vehicles) were reduced to 20km/h.
But even if you value life and safety over freedom, you might prefer that freedom be surrendered as a last resort, and not as a first.
Or, to combine this idea with concerns about unchecked executive power, it has sometimes been claimed that part of the point of warring on terror is to protect freedoms, and that therefore it's contradictory to ourselves dissolve them.
6. Concerns about the morality of measures.
-- Depending on which moral system you're using, a particular measure or a particular restriction of freedom might be judged unjustified (nothing is justified in the abstract; everything is justified or unjustified relative to a set of normative claims).
-- Depending on how you justify governmental power, a particular action might be judged valid or invalid. For instance, it might fly in the face of voter opinion. And there are also a variety of stances one can take on which political systems have legitimacy -- perhaps no type of government is justified beyond a nightwatchman state.
-- If one takes a maximizing-happiness approach to justification, it's not necessarily clear which way the question of restriction of freedom resolves.
-- Without going into the matter, "classic utilitarianism is actually a complex combination of many distinct claims... these claims are logically independent, so a moral theorist could consistently accept some of them without accepting others" (Walter Sinnott-Armstrong, "Consequentialism"). And even if you're clear about your utilitarian framework, there are inevitably problems in how to perform a calculation.
7. A belief, for all of the above issues, that the onus of proof is the government's, and/or that there's a high standard to be met.
For instance, Noam Chomsky takes the view that any exercise of power by one person over another stands in need of warrant -- power must always justify itself.
Some further thoughts and questions for judgment
-- One might or might not think this problematic, but there is a likelihood that powers enlarged for the sake of combatting terrorism will be / have been exercised outside the anti-terrorist sphere.
-- How much security is worth how much liberty? Even if you're prepared to give up a small amount of liberty for a large increase in security, what about the converse -- would you sacrifice a large amount of freedom for a small increase in security? And where is the line drawn?
-- Are there levels of unfreedom that you wouldn't stomach, even if it meant a risk-free environment?
-- Are there limits to how much you're prepared to spend on counter-terrorism and to direct away from health, education, economy, etc? And how do you decide the amount?
-- For both sides of the debate, it should be said that the efficacy of an action is a difficult thing to gauge (as are the deterrent and preventative effects of punishment -- for how can you count the crimes that would have been committed, but haven't been?).
-- It should also be noted that efficacy can't be judged from the armchair, without empirical testing. Even much-derided measures like bag searches might have statistical data behind them, or the measure might have some hidden rationale, might serve some purpose that's not on the face of it obvious.
-- "We know these things look dodgy -- but we have a hidden rationale and hidden justification. Just trust us." -- When is secrecy a problem? You might accept a certain amount of secrecy as necessary for security. But, again, how much?
-- In the citizen's state of ignorance, there's a judgment call as to how present dangers are (and even if one had access to whatever the government knows, there would still be a judgment call).
-- There is also a judgment call in balancing hypothetical terrorist dangers (and hypothetical efficacy of measures) against actual damage -- present and past -- caused by loss of freedom (and hypothetical further damage).
-- If one person says "Liberty isn't that important" and another person says "Liberty is extremely important", is discussion impossible? Are there two incommensurable hierarchies of value?
On 18 August 2006, the conviction of Joseph "Jihad Jack" Thomas under anti-terrorism laws was overturned in the Victorian Court of Appeal. On 28 August 2006, a Federal Magistrate made control orders against Thomas, imposing certain restrictions including a curfew. The constitutionality of these control orders (for instance, whether they were a judicial exercise of non-judicial power) was challenged in the High Court; and on 2 August 2007 the court decided, by a 5-2 majority, that the relevant legislation was valid (Thomas v Mowbray [2007] HCA 33).
Justice Michael Kirby, in a dissenting judgment, wrote:
But for some reason, it's rare squarely to ask, "Why do you think they're justified/unjustified?".
***
Here's a listing of possible answers from the liberties side of the fence.
1. Skepticism towards importance of terrorism.
Which might take the form of doubts about how realistic a danger terrorism is, or (see 5 below) doubts about its comparative importance.
2. Skepticism towards efficacy of anti-terrorism measures.
Does preventing people from saying "bomb" in airports really accomplish anything? Does repression breed more discontent (just as prisons might breed more crime, or harsh Israeli measures more suicide bombers)? And could it be the case (as John Stuart Mill might idealistically have thought) that a free society is the best defence against terrorism in the long run?
3. Skepticism towards necessity for increased executive powers.
Were existing policing powers sufficient? Were all avenues explored? Was there no alternative than to restrict liberties (see 5 below)?
Are we on a slippery slope towards further executive power?
4. Concerns about abuse of power.
The movie 'Unconstitutional' reports that the Patriot Act gives the power to enter a person's home without a warrant and confiscate property without notice
On the one hand, there's been a dimunition of rights and liberties that protect citizens from government. On the other hand, there's been a reduction in the openness and accountability of government.
If you post this sinister image on your MySpace site, you too could win an interrogation with the secret service
Worries about these issues seem to vary in proportion to one's faith in the benevolence and wisdom of government. Some people take the attitude, "Abuses of power could never happen in this country", or "I've got nothing to hide, and therefore nothing to worry about." Other people point to failures of the system -- imprisonment of innocents, police incompetence, etc.
5. A commitment to the value of freedom.
Freedom is sometimes thought to be intrinsically important (desirable in itself) as well as instrumentally important (productive of further goods, and part of the checks and balances of functioning democracy).
How to rate it in comparison to other values? -- At the most extreme, a person might prefer to die on their feet than live on their knees. And there seem to be times when a society is willing to accept injury and loss of life in return for an increase in standard of living -- for instance, countless lives would be saved if the speed limit for all cars (except emergency vehicles) were reduced to 20km/h.
But even if you value life and safety over freedom, you might prefer that freedom be surrendered as a last resort, and not as a first.
Or, to combine this idea with concerns about unchecked executive power, it has sometimes been claimed that part of the point of warring on terror is to protect freedoms, and that therefore it's contradictory to ourselves dissolve them.
6. Concerns about the morality of measures.
-- Depending on which moral system you're using, a particular measure or a particular restriction of freedom might be judged unjustified (nothing is justified in the abstract; everything is justified or unjustified relative to a set of normative claims).
-- Depending on how you justify governmental power, a particular action might be judged valid or invalid. For instance, it might fly in the face of voter opinion. And there are also a variety of stances one can take on which political systems have legitimacy -- perhaps no type of government is justified beyond a nightwatchman state.
-- If one takes a maximizing-happiness approach to justification, it's not necessarily clear which way the question of restriction of freedom resolves.
-- Without going into the matter, "classic utilitarianism is actually a complex combination of many distinct claims... these claims are logically independent, so a moral theorist could consistently accept some of them without accepting others" (Walter Sinnott-Armstrong, "Consequentialism"). And even if you're clear about your utilitarian framework, there are inevitably problems in how to perform a calculation.
7. A belief, for all of the above issues, that the onus of proof is the government's, and/or that there's a high standard to be met.
For instance, Noam Chomsky takes the view that any exercise of power by one person over another stands in need of warrant -- power must always justify itself.
***
Some further thoughts and questions for judgment
-- One might or might not think this problematic, but there is a likelihood that powers enlarged for the sake of combatting terrorism will be / have been exercised outside the anti-terrorist sphere.
-- How much security is worth how much liberty? Even if you're prepared to give up a small amount of liberty for a large increase in security, what about the converse -- would you sacrifice a large amount of freedom for a small increase in security? And where is the line drawn?
-- Are there levels of unfreedom that you wouldn't stomach, even if it meant a risk-free environment?
-- Are there limits to how much you're prepared to spend on counter-terrorism and to direct away from health, education, economy, etc? And how do you decide the amount?
-- For both sides of the debate, it should be said that the efficacy of an action is a difficult thing to gauge (as are the deterrent and preventative effects of punishment -- for how can you count the crimes that would have been committed, but haven't been?).
-- It should also be noted that efficacy can't be judged from the armchair, without empirical testing. Even much-derided measures like bag searches might have statistical data behind them, or the measure might have some hidden rationale, might serve some purpose that's not on the face of it obvious.
-- "We know these things look dodgy -- but we have a hidden rationale and hidden justification. Just trust us." -- When is secrecy a problem? You might accept a certain amount of secrecy as necessary for security. But, again, how much?
-- In the citizen's state of ignorance, there's a judgment call as to how present dangers are (and even if one had access to whatever the government knows, there would still be a judgment call).
-- There is also a judgment call in balancing hypothetical terrorist dangers (and hypothetical efficacy of measures) against actual damage -- present and past -- caused by loss of freedom (and hypothetical further damage).
-- If one person says "Liberty isn't that important" and another person says "Liberty is extremely important", is discussion impossible? Are there two incommensurable hierarchies of value?
***
Justice Michael Kirby, in a dissenting judgment, wrote:
| [383] General conclusions: For the reasons I have expressed, Div 104 of the Code was made without any applicable federal legislative power. It is therefore invalid as lacking a valid constitutional source. Should this conclusion be wrong, the Division invalidly purports to vest non-judicial power in federal courts. And if this conclusion is wrong, the Division is invalid because any judicial power that it does vest in federal courts is to be exercised under the Code in ways that are incompatible with the fundamental requirements applicable to such courts as independent repositories of the judicial power of the Commonwealth.
[384] Upon the fundamental requirements so stated, the Australian Constitution and the international law of human rights speak, in my view, with a consistent, clear voice and in identical terms. Courts must be independent and impartial. They must treat with essential equality all parties who come before them. This Div 104 fails to do. The failure does not appear as a rare exception, capable of being judicially confined to very special and particular circumstances. It is stated as a systemic norm to be applied universally, whatever the facts of the given case. On these three bases, therefore, Div 104 is invalid when measured against the requirements of the Constitution. This Court should so declare. [385] Constitutional values: In the past, lawyers and citizens in Australia have looked back with appreciation and gratitude to this Court's enlightened majority decision in the Communist Party Case. Truly, it was a judicial outcome worthy of a "free and confident society" which does not bow the head at every law that diminishes liberty beyond the constitutional design. [386] I did not expect that, during my service, I would see the Communist Party Case sidelined, minimised, doubted and even criticised and denigrated in this Court. Given the reasoning expressed by the majority in these proceedings, it appears likely that, had the Dissolution Act of 1950 been challenged today, its constitutional validity would have been upheld. This is further evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing. [387] Whereas, until now, Australians, including in this Court, have generally accepted the foresight, prudence and wisdom of this Court, and of Dixon J in particular, in the Communist Party Case (and in other constitutional decisions of the same era), they will look back with regret and embarrassment at this decision when similar qualities of constitutional wisdom were demanded but were not forthcoming. [388] In the face of contemporary dangers from terrorism, it is essential that this Court should insist on the steady observance of settled constitutional principles. It should demand adherence to the established rules governing the validity of federal laws and the deployment of federal courts in applying such laws. It should reject legal and constitutional exceptionalism. Unless this Court does so, it abdicates the vital role assigned to it by the Constitution and expected of it by the people. That truly would deliver to terrorists successes that their own acts could never secure in Australia. [389] The wellspring of constitional wisdom lies in legal principle. Its source is found in the lessons of constitutional history. When these elements are forgotten or neglected by a court such as this, under the passing pressures of a given time, the result is serious error. The consequences for the constitutional design, as for individual liberty, can be grave. It must then be left to a future time to return to that wisdom and to rediscover its source when the mistakes of the present eventually send this Court back to the wise perceptions of the past. |
***
Most Australian newspaper editorials I've encountered tend to make a judgment in favour of sacrificing liberties (even if the media in general has civil libertarian sympathies).
Here's an example (Sunday Mail, Adelaide, 15/7/07, page 37):
Here's an example (Sunday Mail, Adelaide, 15/7/07, page 37):
| Sacrifice for safety’s sake
THE great statesman Thomas Jefferson (1743-1826) said he would rather be exposed to the inconveniences of too much liberty than the restraints of too little. Australians opposed to anti-terrorism laws for the impact they might have on personal freedoms also have an ally in John Adams (1735-1826). This founding father of a free America argued liberty could only be preserved if a government’s lust for arbitrary powers was nipped in the bud. Wise words, the finest of sentiments. But it is tempting to speculate they might have modified their views if they had lived in this modern world of Islamic fanaticism in which aircraft have been flown into buildings and mass transport systems have been bombed. They were, after all, leaders of governments. And governments are charged with keeping safe the people within their areas of responsibility. When it is not possible to maintain security without compromising some of the constitutional freedoms we take for granted, would not even a Jefferson and an Adams put the lives of their law-abiding citizens ahead of the rights of those plotting against them? No one pretends it is a simple argument. But it is an argument that has to be faced as the war on terror continues long after the Twin Towers in New York were felled, long after Australians died in Bali and long after the bombings in London’s Underground. The anti-terrorism laws under which Dr Mohamed Haneef was held without charge from July 2 until yesterday, when he faced court, are distasteful. That does not mean, however, that they are wrong. Terrorism thrives on weakness. Osama bin Laden and even the lesser lights of the global web of terror have an acute understanding of the opportunities presented by the freedoms that prevail in the Western liberal democracies. Those laws which protect our rights, which we hold dear, are capable of shielding their operatives. For the governments of countries at risk of terrorism -- and that means almost all -- there are difficult choices. Making life harder for terror networks usually means the making of restrictive laws, mostly unpopular in legal circles but less so among what might be called the everyday population. In a sense, however, it is a case of damned if you do and damned if you do not. Politicians are pilloried for imposing restrictions but would be pilloried even more for failing to stop a terrorist attack for want of new laws that may have unearthed a perpetrator. In the context of a world at war against an evil army, in which the soldiers wear no uniforms, inflict misery on civilian populations and show no mercy even for women and children, we believe it is necessary to err in favour of security. The key to the merit of these constitutional changes, of course, is in the detail. The new laws must actually make us safer, not just make us feel safer. They must not have the effect of disadvantaging ethnic or religious minorities. And they will ultimately fail if the police or security services making use of them are not scrupulously supervised and held to account. We believe some sacrifices are necessary and, in this case, tolerable. We also look forward to an age when the old and much-loved legal order can be fully restored. |
***
Click here for more information about the movie "Unconstitutional".
| 82 |
| Vote |
Add To: 
Subscribe to this blog
Comment by Louie
Climate Forum
Climate Red
randomthoughts
Phil's Wellness Tips
This scares me.
Comment by Damo
For the Sake of Argument
My Apologetics
Looks as you have put a good deal of thought into this subject. Which is a refreshing change from the chorus of others.
Too often I read a lot chest beating to justify tougher laws with very few people question its logic.
I think the most apt quote I have heard about terrorism is that: "Terrorism is what a nation does to itself."
Tough talk from a tough protector is the oldest form of gaining support. Bullies do it, Tirrants do it and even unpopular presidents do it.
It might be a cynical of me to suggest that out current batch of leaders are running a protection racket but sometimes even cynics have their place.
Comment by Miswanderlust
Killer Beats
Ramble On
Hipnotherapy
Thank you so much for this thought provoking post. I agree with Damo. "terroism is what a nation does to itself." As I get older I become more and more cynical. maybe part of it is my Libertarian views or maybe it is working in the trenches of social activism.
Thanks again.
Mis
Comment by Adrian
Philosophy Blog
Incidentally, I do have a rights-and-freedom bias. It's probably partly a result of who I associate with, etc. But I should mention that this post, like the post I wrote a while back on spanking, is not supposed to be an argument for one side or the other, but rather a making explicit of what the claims are (and I don't necessarily believe all of the positions I've described).
I think Louie's comments on what could motivate an abuse of power are a good reminder. And I found Damo's comment on protection rackets quite striking -- though I don't know if I entirely agree. I mean, I wouldn't want to claim that governments are intentionally creating a problem so that people will turn to them for help, though it might be true that, consciously or unconsciously, they're exaggerating a problem.
There's all sorts of advantages to having an enemy to fight, and the thought goes back at least to Thucydides that a country without war just gets softer.
Regarding terrorism being "what a nation does to itself", I think there's various meanings that could be read into this. In Philosophy in the time of terror, Jacques Derrida, applying some sort of psychoanalytic theory to talk about September 11, speaks of a "terrifying autoimmunitary logic" -- whereby a system fights itself, inoculates itself against itself.
An anti-freedom extract from "Every right to be obsessed by Islamic terrorism" by Gerard Henderson, executive director of the Sydney Institute, 3 July 2007:
The mindset of today's civil liberties lobby in Western democracies is not dissimilar to that of the pacifists of recent memory. They do not want to believe that terrorists really are a threat, just as the pacifists did not want to believe that some totalitarian regimes were hell-bent on aggression. Some Westerners do not want to acknowledge that belief motivates individuals to kill in the name of a secular or religious ideology.
In Warrant for Terror (Hoover Studies, 2006), Shmuel Bar examines the fatwa issued by Sunni Muslim leaders with the call to wage jihad against the West. He says Islamism is not a "consequence of political and socioeconomic factors alone" and points to "the centrality of the religious culture that allows it to flourish". The civil liberties lobby does not want to concede that Islamists are waging a religious war against the West.
Comment by postmoderncritic
Postmodern Critic
Daily Inspirations
Relativity Watch
Padsoc
I'll respond by way of promoting a trailer for the upcoming movie 'Rendition' starring Jake Gyllenhaal, Reese Witherspoon and Meryl Streep - www.renditionmovie.com
Comment by Adrian
Philosophy Blog
To tell you the truth, the movie looks a little preachy to me, heavy-handed...
Comment by postmoderncritic
Postmodern Critic
Daily Inspirations
Relativity Watch
Padsoc
Comment by Nonymous
Philosophy Blog
National security is being used as an excuse to abandon the presumption of innocence.
Age, 25/8/07, Insight, page 9
by Anne Gooley of Maurice Blackburn Cashman lawyers
IF YOU have been following the coverage of the detention of Indian doctor Mohamed Haneef and feeling a sense of deja vu, you are not alone.
Many aspects of Haneef’s case bear strong similarities with those of my clients, deported United States peace activist Scott Parkin (pictured) and Iraqi refugees Mohammed Sagar and Mohammad Faisal.
The cases also pmvide similar illustrations of the Australian Government’s willingness to undermine civil rights in the name of national security and to use the migration system with political intent.
Sagar, Faisal and Parkin were all given adverse security assessments by ASIO, leading to the deportation of Parkin from Australia in 2005, and the extended forced detention on the island of Nauru of Mohammed Sagar and Mohammad Faisal from 2001.
Like Haneef, all of these men were subjected to periods of detention without charge through use of the Migration Act by authorities. In Haneef’s case, this was for nearly a month, in the case of Faisal and Sagar it was nearly five years on the island of Nauru. While Haneef was eventually charged (only for charges to be dmpped), Parkin, Sagar and Faisal have never been charged with an offence by authorities.
All these cases have been characterised by the leaking of selective or even false information to news outlets, and a subsequent "trial by media". In Parkin ’s case it was reported that he was planning to teach people violent protest techniques, something Parkin and his supporters deny and which was later dismissed by the Inspector-General of Intelligence Services, Ian Carnell, as not a "reliable guide" to Parkin's negative security assessment. Similarly, Haneef and his lawyer have been forced to defend and discredit successive reports based on flimsy evidence.
Immigration Minister Kevin Andrews has said the doctor ’s visa was cancelled because he failed the Migration Act’s character test.
"The cancellation of the visa was on character grounds and what the legislation provides is that there is a reasonable suspicion this man has had associations with people engaged in criminal conduct," Andrews said.
The clear implication is guilt by association, regardless of a person’s knowledge of another’s activities or any intended or actual threat to the public.
Legal counsel for ASIO have also said in court that the adverse security assessments of Parkin, Faisal and Sagar may have been made because of who they associated with, even if they were not aware of the implications of these associations at the time.
The idea that someone is innocent until proven guilty and has the right to know what they are accused of underpins our justice system. However, it seems in cases of alleged threats to national security concerning foreign nationals this basic principle does not apply.
Thankfully, both Sagar and Faisal have been released from detention on Nauru.
Sagar has now been resettled in a Scandinavian country. After arriving in Australia for medical treatment, five years after his first refugee application, Faisal was reassessed by ASIO and this time it decided he was not a threat to our national security.
Along with Parkin, their case to discover why they were considered threats to Australia by ASIO in the first place continues.
Like Haneef, Faisal, Sagar and Parkin are all alleging they have done nothing that would warrant their being subjected to the draconian consequences of such assessments.
ASIO has so far refused to produce even a list of documents for the court case in relation to my clients’ detention. Like the assumption of innocence, it is a fundamental principal of the rule of law that people are entitled to face their accusers and defend themselves. You can’t do that if you don’t know what you are alleged to have done.
The Haneef case shows the important role that the courts play in ensuring that people’s rights are protected. In the case I’m running, ASIO’s view is that this should not occur. However, it is in the interests of foreign nationals and all Australians that the principles of justice prevail for my clients and Haneef alike.
Comment by Nonymous
Philosophy Blog
Fear the creeping powers of the state
by Clive Hamilton
FRANZ KAFKA WROTE in The Problem of Our Laws that "it is an extremely painful thing to be ruled by laws one does not know". Kafka's story told of an imaginary kingdom ruled by secretive nobles who kept knowledge of the law to themselves.
But I cannot help thinking that Australians are increasingly ruled by laws we do not know or understand. I am thinking particularly of the new anti-terrorism laws passed by federal and state parliaments. Who of us feels confident that we understand the anti-terrorism laws and how they might affect us? I certainly don't understand them and I follow these things quite closely.
I sometimes think that there are things I might do, such as having an outspoken opinion on terrorism or the security services, that could see police with guns come crashing through my door. I could go to the statute books and read the laws but I don't think that would be much help because so much in them is undefined and left to the police and security services to interpret as they will, or in response to government direction.
The case of Dr Mohamed Haneef has left many of us feeling disconcerted and worried that the rule of law is under threat. As far as we can tell, he did nothing more than give an old SIM card to a relative. He may very well not have known or suspected that the relative knew someone who subsequently committed an act of terrorism. The public has been shown no evidence he has broken any law, despite the Government's attempts to blacken his name with highly selective quotations from some emails, ones that on the face of it lend themselves to perfectly innocent explanations.
The secrecy that has enshrouded the claims against Haneef and the way in which the case against him was deliberately distorted by the Government and the police in the media, must make us wonder whether we could also at some point find ourselves locked up for no good reason and without the usual protections.
Anyone who is politically active in Australia, especially if they are critical of the Federal Government, must live with low-level anxiety about what might happen to them or their families if some unknown threshold is crossed. It is not just the politically active: just to know someone who might be active could land you in hot water.
Here are some of those indistinct thresholds that come to mind.
What might happen to me if I send an email to a supporter of the Tamil Tigers? Is that an illegal organisation? Are those who spoke out against the treatment of Haneef now under surveillance? What would happen if I wanted to find out what al-Qaeda really stands for? If I go searching on the internet, will an alarm bell ring in a high-tech basement somewhere? Should we hesitate before we use the word "bomb" when speaking to someone on the telephone? What could happen to my son if he joined a demonstration and some agitators at the front jostled police? Is he going to be dragged out and assaulted by men who refuse to identify themselves -- something that has happened in the past year? Recently, a former ASIO agent asked me to consider for publication a paper he had written that was critical of the anti-terrorism laws. My initial reaction was positive, particularly if he could shed light on how the laws were being misused. But then I found myself hoping that there would be nothing new or controversial in the paper because I would almost certainly have the police and security services barging into my offices, in the same way that they spent days camped in the offices of the Melbourne publisher Black Inc as it prepared to publish Andrew Wilkie's book Axis of Deceit.
Tabloid commentators and shock jocks will declare that if you haven't done anything wrong, there is nothing to worry about. But the point is that we don't know whether many things we might do are illegal or might make us subject to suspicion. The laws are not transparent and are no longer in alignment with our natural sense of what is right and wrong.
The laws remind us of Walter Benjamin's distinction between "the foreseeable punishment that accompanies the disobedience of the law, and the harsh, unpredictable and generally violent retribution that comes about for transgressing secret or unwritten rules that are unknown to us". Benjamin, a Jew persecuted by the Nazis, knew what it was like to live in trepidation of an uncertain fate.
None of us has to study the Crimes Act to know that killing someone is wrong and punishable but in today's environment conscience can no longer be our guide. The sort of unpredictable retribution Benjamin spoke of certainly seems to have been the fate of Haneef.
More so than ever before in Australia, the police are empowered, if not in law then by implicit political fiat, to interrogate, intimidate and even assault people innocent of any crime but suspected of associating with the wrong people. They can admonish and warn off citizens, threatening them with unstated but implicitly dire consequences should they, for example, attend a protest during APEC or a demonstration against the US President, George Bush.
When this happens we are deprived of our rights. In an observation that now has a resonance in our country, the American academic Guillermina Sen wrote: "Citizen encounters with the police open up a territory of unpredictability that blurs the distinction between written and secret laws, normalcy and exception. They are ultimately regulated by unwritten norms that those in charge of policing administer through their discretionary power." In a recent Quarterly Essay, David Marr tells the disturbing story of the treatment of a number of young men in Sydney who were arrested for events that occurred at the G20 demonstration in Melbourne last year. Squads of heavily armed police, some from counter-terrorism units, arrived at dawn, in one case kicking the door down.
Houses were turned upside down. One of the young men told how he had previously been snatched off the streets of Melbourne by eight men who did not identify themselves. He claims he was punched and kicked and subsequently charged as one of those who occupied an office building during the G20 demonstration.
The police warned the demonstrators to stay away from protests and not to go anywhere near APEC. Each of these young people "middle-class boys" -- as one observer called them -- was severely shaken up. If the intention was to frighten them out of their political engagement, it was very effective.
Although breaking into offices and throwing things at the police are clearly illegal, anyone contemplating going to a protest nowadays must be worried that simply being there may have serious consequences.
They know they will be photographed by security agents and they may well have a police file kept on them merely for exercising their democratic rights. We are in danger of returning to the dark days of the 1950s and 60s when ASIO, armed with excessive powers, carried out surveillance of anyone regarded as vaguely left-wing, including peace groups, anti-war activists and women's groups.
The security organisations were largely unaccountable, at least to anybody that might take a critical view of their activities and attempt to rein them in. We have subsequently learned that ASIO had a paranoid culture that made it jump at shadows.
Most operatives, including the leadership, had crude political views and their reports on the activities of individuals and groups judged a threat were often laughable, in retrospect at least.
These are the lessons of history, yet who today could have confidence that the current Federal Government and its agencies will implement the anti-terror laws fairly and with due attention to questions of natural justice? For some time I took comfort from the fact that the Commissioner of the Australian Federal Police, Mick Keelty, appeared to be his own man, one committed to the fair and proper application of the laws. But, after the Haneef case, it seems to me that the federal police's reputation for independence and competence has collapsed and the force has become, in some respects, a political arm of the Government. I no longer have confidence in Keelty's independence and that makes me very apprehensive. Parliamentary scrutiny of the security services has gone from minimal to zero, with the Government's majority in the Senate and the browbeating of any potential Coalition dissenters.
If the Government, the Parliament and the leadership of the security services are all unable or unwilling to exercise discipline over the implementation of the laws and the courts take an increasingly restricted view of their role, what protections remain for Australian citizens? There is no doubt that we face a real danger of terrorist violence in Australia and heightened security measures are essential to deal with this situation. But the power and discretion that the anti-terrorism laws give to the Government, the police and the security services have created a climate of fear -- and not just among people who might be worried about whether their actions are lawful. I am more afraid of being innocently caught up in the new security laws than I am of being harmed by terrorist bombs.
The Howard Government exercises unprecedented power in this country. It is unaffected by many of the checks and balances that have traditionally constrained executive power and has shown itself willing to use its power ruthlessly. We desperately need those checks and balances to be strengthened, otherwise the terrorists really will have won.
Clive Hamilton is the executive director of the Australia Institute. This is an edited extract of a talk delivered at the Melbourne Writers' Festival.
Comment by Nonymous
Philosophy Blog
In an article entitled "Lion in winter" by Robert McCrum, Gore Vidal opines: "I finally got around after 50 years to reading all of Aristotle. He’s very good on republics, how they always come a cropper, and why. Required reading. Republics, once lost, don’t easily come back."
Comment by postmoderncritic
Postmodern Critic
Daily Inspirations
Relativity Watch
Padsoc
Comment by Nonymous
Philosophy Blog
One can't know what to make of stories like the following -- it could all be journalistic spin. But anyway...
Sydney Morning Herald, September 9, 2007
"Jailed for jaywalking"
by Matthew Benns
Source: The Sun-Herald
A FATHER of three wept yesterday as he revealed how crossing the road ahead of an APEC motorcade led to his violent arrest in front of his young son and a traumatic 22 hours in jail.
Greg McLeay was released on bail yesterday after his wife, Sophie, and children spent a sleepless Friday night worrying about him.
"Because of APEC I was not allowed to speak to him - even the lawyer couldn't," Mrs McLeay said.
"The children are traumatised. We spent the night sleeping together on the sofa. How does walking to yum cha with your 11-year-old son end up with 22-hours in jail and no access to a lawyer?"
Footage available on ninemsn showed Mr McLeay, a 52-year-old accountant from Sydney's North Shore, speaking to police in Pitt Street before four officers pushed him to the ground.
He could be clearly heard trying to explain that he was simply attempting to protect his glasses. He has a condition called astigmatism, which means he can barely see without them.
Mr McLeay was arrested under sweeping powers given to police for the APEC period that allows officers to arrest and hold people without bail until APEC ends.
Mr McLeay said he and his son, George, cycled into the city on Friday - the APEC public holiday - and met a friend, Stephen Carter, 40, to work on his accounts at Mr McLeay's Pitt Street office.
They walked out at lunchtime to go to Chinatown for yum cha. They were crossing the street to avoid a police cordon outside the Westin hotel when a police officer started shouting at them.
"I didn't know what was going on," Mr McLeay said.
"I asked which way to go and he directed me around the block. I started to walk away and he suddenly started yelling at me. It was like a fool's comedy.
"He threatened me with arrest and demanded my ID. Then this character pushed me and told me that I had assaulted a police officer.
"I was pushed up against the wall and then I was thrown to the ground and they kept telling me to put my hands behind my back. There must have been four of them pinning me to the ground.
"I was frogmarched down to the hotel's underground car park and then they tried to put another pair of cuffs on me. I was just crossing the road. Never have I felt so mortified, embarrassed and invaded. I feel violated."
Mr McLeay, who has three children - George, Cordelia, 6, and Isadora, 3 - began to cry as he added: "The worst thing is that this happened in front of my young son. You want your children to grow up respecting the police but how can they when they see this kind of thing?"
George stayed with Mr Carter and watched the arrest.
"I was really upset when I saw them take my dad. I'm going to throw away all my police videos now and go and buy Ocean's Thirteen," he said.
Mr Carter said: "It is really outrageous. On any other day the worst thing that he could have been charged with is jaywalking."
Mr McLeay was strip-searched and spent the night in a city police cell with an ice addict before appearing by video link at Parramatta Bail Court yesterday to face charges of assault and resisting arrest.
Police prosecutor Sergeant Jason France asked that bail be refused under section 31 of the APEC Meeting (Police Powers) Act, referring to a separate assault charge Mr McLeay had outstanding [a curious detail; though I don't imagine one can rely on it for establishing anything; it's not even clear whether that other assault charge has come to trial, and one knows nothing about its alleged circumstances].
Defence solicitor Phillip Gibson argued that Mr McLeay had simply been doing a friend's accounts in the city.
Magistrate Kevin Flack took into account Mr McLeay's profession and character before granting $1000 bail on the condition that Mr McLeay not enter the APEC three-kilometre exclusion zone in the CBD until tomorrow morning.
Outside the court Mr Gibson said: "This is the case of an ordinary person going about their business with their 11-year-old son and getting caught up in the madness of APEC security.
"Yet again the presence of the police and actions of the police have escalated matters. If you give police powers like this they will be abused."
Sunday Canberra Times, 9/9/07, editorials, page 20
Prohibiting protest -- now that’s terrifying
IT IS almost reassuring to find that amid this week’s APEC summit in Sydney one of the leading stories to emerge was of the prank by the ABC’s Chaser team.
While foolhardy, and arguably dangerous, the irreverence was a reminder to all about a certain way of life that has been overshadowed in recent years by a culture of fear.
When the APEC barriers were erected, the stories of indignation, outrage and extreme silliness began to emerge. German tourists were ordered to wipe holiday snaps of security fences (pictures of which have been splashed across every newspaper and television bulletin in the country); our leaders were telling us that demonstrators were anarchists and ratbags without a cause, just spoiling for a fight and their five minutes of fame; and indeed, were the very reason we had to have such security measures.
The undertone of retribution for anyone taking to the streets in protest; the threats to students should they be caught wagging school to demonstrate; the legal battle to stop marches in particular areas of the CBD; the images of snipers on rooftops; the hum of helicopters spotlighting the city at night; and the sinister symbolism of the "great wall of Sydney" painted a picture of a nation buckling to the terrorist threat we have all been told we are defeating.
The ominous expectations for yesterday’s protests were not borne out. The number of people attending was not catastrophically high. and while there were some arrests and, sadly, a number of police injured, the overall mood was peaceful and proud.
Demonstrations in this country have been known to have their ugly turns. There will always be the few who turn up for a bit of biff and we all wish they would stay away. But how much of the ugliness is because of a tense, talked-up, nerve-stretched police presence? How much of it is because of remarks by those imposing the restrictions that demonise participants and aim to scare off or shame would-be, peaceful, demonstrators? And how much of it is spurred on by a media presence, which can often outnumber the protesters? Demonstrations in this country have also moved mountains. They have, as witnessed at the remarkable march across Sydney Harbour Bridge in 2000 for National Sorry Day, provided a powerful voice for people who demand change. Demonstrations have helped give women the right to vote, ended wars, ensured equal pay, protected children, the poor, the unfairly treated both here and internationally.
But that power to voice a collective opinion is being eroded. The ruling by the Federal Court this week that federal departments were wrong to have refused leave to employees wanting to take part in a national day of protest over WorkChoices legislation in 2005 is another reminder of the attempts to thwart public protest.
As those who experienced the restrictions in Sydney this week looked on with anger and bewilderment at the altered cityscape, the rest of the world saw a nation that but for the Chaser incident was an intimidated, sombre shadow of itself.
This one is probably just a little bit exaggerated... But it's an indication, anyway, of: (1) the sorts of police measures used; and (2) the fear, the "climate of fear", that, rationally or irrationally, some people experience.
Sunday Telegraph, 9/9/07, letters, page 78
The 'big brother’ file on me
THE other day, as a matter of curiosity, I decided to use my digital camera to take some pictures of our fortress city.
It was fun, until two heavily armed policemen stopped me abruptly and asked "What are you doing?" I told them the obvious -- and then began the interrogation, a search of my personal belongings, and the most humiliating and frightening experience of my life.
My crime was that I had made myself a terrorist suspect for (unintentionally) taking pictures of a manhole. Once I became a TS, I had lost all citizens’ rights.
I had to delete all the other pictures, and if I refused I could have had my camera confiscated, be handcuffed and put in a police wagon and maybe end up in Guantanamo Bay without being charged for doing anything wrong.
I was finally released after their database revealed I was a volunteer at the 2000 Olympic Games. Apparently big brother has a file on every citizen’s private life. That is unbelievable, if not unlawful! Today, I got into trouble for unintentionally taking pictures of a manhole and I was lucky not to end up in jail. Tomorrow, someone could get into trouble and not be so lucky for taking pictures of a bolt on the Harbour Bridge or a tile on the Opera House.
-- COLIN LEUNG, Newington
Comment by al loomis
1. anyone who wants more power, shouldn't have any.
2. any nation in fear of terrorism should get their soldiers off other people's land.
3. a nation that is not a democracy, shouldn't export it.
shortly after the twin towers came down, millions of ghosts broke out laughing to hear it "was not the result of american foreign policy." mike gravel's 'initiative for democracy' is the path toward civiliation for america. too bad not many want to walk it.
Comment by AmyHuang
Sydney Table
Project Job Search
Travel Debate
Travel String
Love Adventures
This whole 'anti-terrorism' and 'security measures' crap is just going a bit too far, without any proven results that any of this works.
Comment by Nonymous
Philosophy Blog
Dear Amy, thanks for the comment. It's never to late to join the discussion. Personally, I think there's a good chance people are going to be reading this page years from now.
I don't know whether the police abused or didn't abuse their powers during APEC. Certainly the potential was there. There are anecdotes (for instance, the ones printed above) that certainly sound rather dodgy, but who knows how the media distorts things.
Will write more about the Chaser guys another time...
Comment by Nonymous
Philosophy Blog
Abuse of powers
FEDERAL police are angry that The Chasers risked being shot at by security forces, or they may be angry that The Chasers showed up the big gaps in the security system.
From the receiving end of the baton, there are also many reasons for us to be angry about disproportionate police over-reaction. The present Federal Government treat the police force as their private army to shelter them against the truth and accountability.
Over Easter 2003 the best of Australian citizens met at Baxter immigration prison to support the asylum seekers incarcerated there and to protest their cruel treatment by the Federal Government.
In a frightening overreaction the government sent in hundreds of hyped-up police officers with horses, helicopter and Star Force back-up. The police did not negotiate and harassed those who camped by buzzing the tents through the night with helicopter and searchlight.
We will accept some constraints when needed for our protection but when a government conscripts its defence force to persecute minorities, and the police force to silence dissent, it is well on the way to fascism.
Allan Nield
Whyalla Norrie
Comment by Nonymous
Philosophy Blog
by Mike Carlton
TOUGH new uniform laws to regulate humour and satire will be top of the agenda when state and territory attorneys-general meet their federal counterpart, Philip Ruddock, at a summit in Darwin next week.
The crisis talks follow the disastrous security breach at the APEC forum of world leaders in Sydney early this month, when Australia was internationally humiliated by comedians from ABC TV’s The Chaser team masquerading as a motorcade of Canadians.
Ministers had initially been disposed to ignore that atrocity. But recent shock revelations by the wit and philosopher Gerard Henderson that The Chaser stuntmen had gatecrashed a private dinner held by his Sydney Institute knitting circle have prompted renewed calls for a crackdown.
"The advice I have from officers of my department is that I, as Attorney-General, enjoy a joke as much as anyone," Mr Ruddock said.
"But on the range of evidence made available to me I have formed the view that, notwithstanding inter alia the public~s right to access suitable items of allegedly humorous or satirical burlesque, there is nonetheless the need to proactively codify the parameters of comedic activity within a legislated state and federal framework structurally appropriate in respect of, and responsive to, changing community standards in this era of global terrorism." Speaking at a Rotary Club sausage sizzle in his Brisbane electorate yesterday, the Opposition Leader, Kevin Rudd, agreed there was a need to regulate humourists.
"Will I set up an independent expert commission to enquire into what is funny and what is not?" Mr Rudd said.
"Yes I will. Its recommendations will be on my desk no later than 2012."
Comment by laver
It's hard for me to clearly state what I'm thinking here. On the one hand, I am aggravated by laws that prevent the police from doing their job. For example, cases that are thrown out because the officer didn't have a reasonable cause for arrest (even if his suspicion was correct, ie suspect found with weapons, drugs, whatever). On the other hand, we all know that power will corrupt the best of people, as the example of the father who was arrested in front of his son shows.
I guess it comes down to this: we don't live in a perfect world and therefore have no way to apply some "perfect" system. If we could say that we could absolutely trust the governing powers not to abuse their authority, then I would say give them authority to do whatever they need to protect me. BUT if the government were a corrupt, vile regime then I would want to give them as short a leash as possible. I know the examples are extremes, work with me here.
The world we live in is of course neither of the two. Not everyone in the government is trustworthy, nor is everyone constantly grasping for power. Any system is bound to restrain the one too much or give the other too much power. Incidents will crop up either way, of cases where this person was abused or that criminal was allowed to walk. I suppose what I am trying to say is, things will go wrong no matter what. In those cases, punish the offenders, and review the system. Just bear in mind that just because something goes wrong doesn't mean that the system is bad.... just that people are.
Comment by Nonymous
Philosophy Blog
Just a minor comment to add to this part of your post:
One thing to bear in mind is that dictatorships can be a excellent form of government -- dictators can be good leaders. But an obvious problem with them is the lack of safeguards. A current dictator might be benign, but what of future dictators. Kirby J once put it this way: he was talking about different cultures' attitudes to privacy, and mentioned that the French are very protective, partly because they experienced change of government in World War II, and "they know what damage can be done by information in a little manilla folder".
So, I guess that when a person is weighing up in their mind how short a leash to keep a government on, one should bear in mind this future aspect, and the possibility of exploitation, in addition to estimating the likelihood of anyone currently in power abusing that power.
Age, 6/10/07, Insight, Page 9
A delicate balance of freedom in society
by John B Fairfax
There is a growing trend in government towards secrecy that the media must guard against.
A NEWSPAPER -- a good newspaper -- is an institution in a community. A newspaper is vital in any community to preserve a lifeline between individuals and those who govern. It is important for people to understand what is happening in their community.
Freedom is not a licence; it is a right, but with responsibilities. Free speech is a right, but it is my view that, as publishers, we have a greater responsibility to take care in the exercise of our rights than a single individual does -- and that this is incumbent on us as publishers because of the megaphone we hold.
We in the media live in fascinating times and, frankly, I don't believe any of us fully understands where it is all leading. A few years ago the pundits were saying that the internet was going to replace the need for the daily newspaper. Quite clearly this has not occurred and while we should never be complacent, it is difficult to see that this new, sophisticated and modern form of communication and technology will do anything other than complement the written word as we know it.
It is gratifying therefore to witness the recent growth in paid circulation...
Over the past year, there have been two developments that cause me to pause. The first involves the freedom-of-information laws. The second involves the ability of journalists to protect the identity of sources -- often whistleblowers -- who go to the newspapers because higher authorities are suppressing information about how their agencies are functioning.
Our freedom-of-information laws were enacted in 1982, and their stated purpose was aimed at extending "as far as possible, the Australian community's right of access to information in the possession of the Commonwealth". Last year, a very important case was decided in the High Court -- and I believe this decision has tipped the scales towards secrecy in government.
Ultimately, when a minister issues a conclusive certificate that a document should not be made public, that decision is effectively beyond appeal. This troubles me. It makes a Government decision unreviewable, and places the executive beyond accountability of the courts on a fundamental issue.
The second issue that concerned me was the case of two journalists from the Herald Sun in Melbourne. On February 20, 2004, they published a story, based on a leaked report from the government proposing to cut $500 million in pensions to war veterans. It was a good story. It was true. The Federal Government was furious, and initiated legal proceedings to force the journalists to reveal their source. During the course of the proceedings, the leaker was found by other means and was convicted. But this did not deter the Government from prosecuting the journalists for refusing to name their source. They were convicted of contempt of court and fined $7000. In other words, they were convicted for doing their job and abiding by the ethical standards of their profession.
I believe journalists do have a privilege to protect their sources, and that this should be recognised in the law. I do not believe this privilege should be absolute.
But we should never be prevented from having access to information that makes leaders accountable and our nation a better place. The law should recognise that journalists have a need to protect their sources -- that there should be a presumption that such a privilege is valid, but can be reduced or removed under compelling circumstances. The kind of balancing I am talking about will involve the enactment of so-called "shield laws" at the state and federal levels. To the credit of the Attorney-General, such a federal law has been enacted, but it is not as strong as it should be.
I am worried that over the past few years there has been an accelerating slide to secrecy in government and a weakening of the principles necessary to ensure a vigorous free press.
I want to be clear: we do have a free press. We do need to be vigilant about a creeping secrecy in Government.
John B. Fairfax is a director of Fairfax Media. This is an edited extract of a speech to Marcus Oldham College, Geelong, delivered yesterday in Melbourne.
Comment by Nonymous
Philosophy Blog
Sunday Tasmanian, 28/10/07, letters, page 18
Users made to pay for democracy
Last week I was witness to the blatant curtailing of fundamental democratic rights as a small and peaceful community protest was targeted by Hobart police.
In a ridiculous display of authority police recorded the names and addresses of all 10 participants and then, to make things all the more absurd, the name and address of the WIN television cameraman.
We were told any gatherings of more than three people for protest purposes were illegal unless a police permit was first obtained. It did not matter that the protest was very small, completely peaceful, kept to the footpath and left room for passers-by.
Apparently these permits are not difficult to get and the police are happy to play chaperone but the officer in charge would not tell us if we would then be charged a fee for police time.
The fact that spontaneous protest is illegal tramples on the civil rights of all members of the community.
Tasmania should not be a user pays democracy.
-- Jessica Wright, South Hobart
Comment by Anonymous
Caging people only leads to discontent and more people fighting control over their own lives.
Comment by Nonymous
Philosophy Blog
Comment by Nonymous
Philosophy Blog
Towards a police state
The Government is moving to make permanent the extraordinary powers granted after the Cronulla riots, writes David Marr.
It's a hell of a time to hand out fresh powers to police, but the State Government was hard at it this week. In the shadow of the Haneef debacle, with the ul-Haque case in ruins and the upper reaches of the Victorian police force racked by scandal, the lemma Government is giving NSW police what police always want: more power, more room to move.
The Cronulla legislation, due to die in mid-December is to become a permanent part of the law. Police are to be given new powers to place us under surveillance -- with or without a warrant. The Government plans to extend the reach of its already powerful post-September 11 Terrorism (Police Powers) Act.
The usual suspects are complaining to no avail. The advice of the NSW Law Society is being comprehensively ignored. As far as the Government is concerned the Council for Civil Liberties might as well save its breath.
The Attorney-General, John Hatzistergos, is determined to push these measures t