Exploring the myths behind anti-terrorism laws
Exploring the myths behind anti-terrorism laws
The following is an address delivered to a public forum entitled 'Manufacturing Fear: Who's Afraid in the 'War on Terror'' convened at the University of Technology Sydney on 13 November 2004 by the Social Inquiry Program UTS and the Civil Rights Network. It is an expanded version of a presentation on the ABC Radio National Perspective program on 10 November 2004, entitled 'Behind the new Anti-terror laws'.
Behind the new anti-terrorism laws
In discussing the 'war on terror', it is necessary to tackle three myths. The first is that it is about protecting ordinary people from terrorism. A careful review shows that this is no more credible than the claim that the invasion of Iraq was about eradicating 'weapons of mass destruction'.
It is now widely acknowledged that all the fabrications used to justify the invasion - including Saddam Hussein's supposed links to terrorism - have collapsed. Moreover, whether or not the Bush administration knew in advance of plans for some kind of terrorist atrocity on September 11, 2001 -- and that question still has to be answered -- the outrages in New York and Washington provided the opportunity for the implementation of plans prepared much earlier -- during the 1990s -- for the conquest of Afghanistan and Iraq .
The Middle East and Central Asia, as is well known, contain the largest proven concentrations of oil and natural gas reserves in the world. The US-led interventions in the region, and the establishment of US military bases throughout Central Asia have added weight to the evidence that Washington's underlying ambition is to secure hegemony over this entire vital expanse.
There is equal reason to doubt the domestic side of the war. Since the September 11, 2001 attacks, the Howard government has eroded long-standing legal and democratic rights in the name of combatting terrorism. As pointed out by a parliamentary library report, any conceivable terrorist activity, such as murder, bombing, hijacking, kidnapping and arson, was already a serious crime under existing law. ASIO also had a vast array of powers to tap phones, instal listening devices in offices and homes, intercept telecommunications, open people's mail, monitor on-line discussion, break into computer files and databases, seize computers and use tracking personal devices. The ASIO Director-General or his delegated officers could already issue emergency search and entry warrants, allowing officers wide scope to conduct operations against political activists and organisations, as well as to infiltrate them.
Yet, in the name of the war on terror, the Howard government has introduced previously unthinkable measures. Terrorism has been defined so widely that it covers traditional forms of political action and protest, including strikes, pickets and street demonstrations. It has become a crime punishable by life imprisonment, and the federal government can swiftly ban political parties that supposedly assist it, and then jail their alleged supporters and 'associates'.
Targeted individuals can be monitored night and day, have their homes and computers secretly searched, and be hauled in for interrogation without any opportunity to notify their families or the media. ASIO and Federal Police officers can now raid anyone's home or office, and forcibly take them away, strip-search them and hold them incommunicado. Initial detention can last for up to seven days, including three eight-hour blocks of questioning over three days, but the Attorney-General can approve further seven-day periods.
Detainees did not need to be suspected of a terrorist offence, or any other criminal offence. The Attorney-General can certify that their interrogation would 'substantially assist the collection of intelligence that is important in relation to a terrorism offence,' even if no act of terrorism has occurred. This power can potentially be used to detain journalists and political activists, as well as the children, relatives or acquaintances of supposed terrorism suspects. Even university lecturers and teachers could be rounded up.
Those detained have no right to know why they are being taken off for interrogation.
If they resist, violence can be used against them. Section 34JB of the ASIO Act permits police officers to use 'such force as is necessary and reasonable' in breaking into premises and taking people into custody. Under the section, police may cause death or 'grievous bodily harm' if they believe it necessary to protect themselves or others from death or injury. If anyone refuses to answer any question or produce any material that ASIO alleges they possess, they face five years jail. In a significant departure from established law, the Act effectively reverses the burden of proof, overturning a basic protection against police frame-up. If ASIO alleges a person has information or material, the onus is on the individual to prove otherwise. If detainees know the name of a lawyer, they can contact them for legal advice, but only if the prescribed detention authority, acting on ASIO's advice, does not object to the lawyer. Even if ASIO accepts a detainee's choice of lawyer, questioning can commence without the lawyer being present. In any case, the lawyer cannot object or intervene during questioning--if they do, they can be ejected for 'unduly disrupting' the questioning.
Concerns about the underlying thrust of the new legislation were heightened by amendments adopted in December 2003, which effectively gag all public protest against, or even reporting of, ASIO's use of its new powers. It became a crime, punishable by up to five years jail, to publicly mention any operation involving ASIO's power to detain and interrogate people. This legislation represents a grave erosion of political and press freedom. Even if ASIO itself breaks the law, for example by detaining someone for more than seven days without obtaining a new warrant, any journalist who reports the case could be imprisoned.
In effect, these measures outlaw political campaigns against arbitrary or illegal detentions. If someone sees a person being hauled away by ASIO or federal police for questioning, they cannot disclose that fact to anyone--not even a family member, friend, civil liberties group, Member of Parliament or political party. It is now possible for ASIO to cloak virtually all its operations in secrecy, simply by obtaining a questioning warrant from the Attorney-General. For that reason alone, the latest legislation increases the danger that ASIO's detention powers will be abused.
ASIO has a long record in this regard. Since the Chifley Labor government established the intelligence service in 1949, it has been used by successive governments, Labor and conservative alike, to monitor, disrupt and harass a wide range of political opponents, including Labor Party members, trade unionists, anti-war activists, students and socialists. The High Court has, in effect, refused to call into question ASIO's assessment of what constitutes a threat to security. In 1982, the court rejected an attempt by the Church of Scientology to challenge ASIO's assessment that the church presented a possible threat to security.
The underlying purpose of these ever-escalating powers is to utilise the 'war on terror' to introduce repressive measures to deal with deepening social and political discontent in the coming period. The treatment of David Hicks and Mamdouh Habib is a warning of the type of measures that are now regarded as acceptable by the political establishment. The Howard government has willingly allowed the Bush administration to incarcerate the two Australian citizens at Guantanamo Bay, Cuba for more than three years as alleged 'enemy combatants' in flagrant violation of the Geneva Conventions on wartime detention. This is despite the growing evidence that both men were subjected to the same methods of torture that were used by the American military at Baghdad's notorious Abu Ghraib prison. If there is a real danger of terrorist attacks in Australia, the Howard government is to blame. By participating in the criminal war on Iraq, unconditionally aligning itself with the Bush administration's global militarism and mounting neo-colonial interventions of its own in East Timor and the Solomon Islands, the government has fuelled resentments and hostilities that will undoubtedly provide terrorist outfits with new recruits.
ASIO director Dennis Richardson last month finally admitted that the invasion of Iraq might have increased the terrorist threat, both in Australia and internationally. Foreign Minister Alexander Downer immediately denied Richardson's suggestion, restating the government's line that Islamic fundamentalists were simply ideologically opposed to 'democracy'. His comments reveal the government's extreme sensitivity to any observation, no matter how guarded, that points to the obvious connections between the occupation of Iraq and the danger of terrorism.
In reality, neither in Iraq nor domestically do the actions of Washington and its allies have anything to do with democracy. Iraq remains militarily occupied, under US control, with a puppet government sanctioning bloodbaths like the one currently underway in Fallujah.
At home, the three participants in the invasion--the governments of the US, Britain and Australia--have each introduced the types of measures usually associated with military or fascist dictatorships: detention without trial, secret hearings and vast powers of surveillance.
Public opinion and ever-escalating measures
The second myth is that the extraordinary powers given to the security and intelligence agencies simply arise from a popular sentiment in favour of these measures. Current events provide a test case. Since the October 9 federal elections, Attorney-General Philip Ruddock has wasted little time in unveiling a new escalation of the Howard government's war on democratic rights.
Speaking on national television on October 24, barely two weeks after the government's victory, Ruddock declared that three national security bills would be ushered through national parliament during November, on the pretext of combatting terrorism.
Not one mention was made of these bills during the entire election campaign. In fact, Ruddock, who featured heavily in the 2001 election, was hardly seen or heard during this year's campaign. This indicates the government's nervousness about growing public scepticism and hostility toward the scare campaigns on refugees and terrorism that he has spearheaded over the past three years.
In the months before the elections were called, Ruddock tried to use the Madrid train bombings in March, followed by a string of dubious 'terrorism' prosecutions, to whip up fresh fears and anxieties. While he succeeded in obtaining the Labor Party's backing for a barrage of 'anti-terrorism' legislation prior to the election, the government's hopes of stampeding public opinion with startling reports of 'terror cells' in major cities largely fell flat.
Only two months ago, Ruddock specifically thanked Labor for backing the passage of the third of three Anti-Terrorism Bills, which made it a serious offence to even 'associate' with any person or organisation accused of involvement with terrorism. With the election out of the way, Ruddock is again counting on Labor's assistance to further boost the powers of the security and intelligence agencies.
Ruddock said he might even revisit a law allowing children as young as 12 to be secretly detained, strip-searched and interrogated. In mid-2003, the government agreed to set a minimum age limit of 16 for detainees. This was after 18 months of intense opposition by civil libertarians, lawyers and ordinary people to draft legislation that would give ASIO and the AFP the power to detain and question people without charge or trial. Labor then agreed to help push the controversial detention bill through the Senate.
Each of the three bills that Ruddock intends to re-introduce has far-reaching implications. One, the National Security Information (Criminal Proceedings) Bill, will permit trials on terrorism, espionage, treason and 'other security-related' charges to be held in complete or partial secrecy. Closed court sessions will be able to hear charges, censor evidence, allow government witnesses to testify in disguise via video and, in some circumstances, exclude defendants and their lawyers from trial proceedings.
To activate the process, the Attorney-General--at present, Ruddock--simply has to issue a certificate stating that evidence given in the trial is likely to 'prejudice national security'. If the judge agrees, in an initial closed hearing, he or she can order that all or part of the trial be held in camera. Evidence can be withheld from a jury, or presented to it in a filtered form, violating the right to a jury trial. Lawyers who refuse or fail to obtain an Attorney-General's Department security clearance can be barred, possibly leaving the accused unrepresented.
These provisions clear the way for secret trials on any charges that the government and judges allege might affect national security. They overturn centuries-old principles, derived from the struggle against the Catholic Inquisition and feudal-based absolutist monarchies, of open trials by jury, subject to public and media scrutiny.
The right to a public hearing of any criminal charge is regarded as so fundamental that it is enshrined in international law, by Article 10 of the Universal Declaration of Human Rights. Article 14 of the International Covenant on Civil and Political Rights insists on the right to be present and have legal representation during any trial. Even under the Australian Constitution, which has no bill of rights, the right to a trial by jury for federal indictable offences is preserved by section 80.
Another measure, the Surveillance Devices Bill, will permit the AFP and other federal agencies to use a wide range of phone-tapping, bugging, computer hacking, tracking and optical devices to monitor and gather information. Police will have to obtain warrants from a judge or tribunal member for some devices, but senior police can issue emergency authorisations in 'urgent' circumstances, including 'serious risk to property'. No warrants will be needed for other devices, notably remote tracking equipment, and telescopes, cameras and other optical technology.
These laws will throw a blanket of secrecy over all police surveillance operations, not just those relating to terrorism. They will outlaw the unauthorised release of any information about surveillance activities, as well as any information gathered in the course of such operations. Breaches will be punishable by up to 10 years jail. Police authorities, however, will be able to publicise any information they receive if they regard it as necessary to reduce the risk of violence or property damage.
Thus, anyone placed under surveillance will be barred from publicly exposing or protesting against the spying operation, while police can selectively leak material to the media, claiming to be protecting the public from harm. Similar provisions will be inserted into state laws.
This legislation underscores the bipartisan agreement between Labor and the government. The surveillance bill began as an initiative of a prime ministerial summit with the state premiers--all now from the Labor Party--in April 2002, and was drafted with the participation of the state attorneys-general.
Ruddock's third proposed law, the Telecommunications (Interception) Amendment (Stored Communications) Bill, will likewise extend the power of the police and other law enforcement agencies to intercept email, SMS messaging and telephone voicemail. Easily obtainable search warrants, rather than more restricted telecommunications intercept warrants, will be available for investigations of a wide range of offences.
In line with the federal government's measures, the state Labor governments in New South Wales and Victoria have announced their own vast extensions of police powers. NSW police will be given unprecedented powers to search homes and offices without informing the occupants for six months, as well as extended powers to bug suspects continuously for up to three months.
Covert search warrants will permit police to enter premises, seize property, copy documents, operate computers and other electronic equipment, and conduct forensic tests. Premier Bob Carr said a judge could issue such a warrant on 'a reasonable suspicion that a relevant offence has been or is likely to be committed, a search would substantially assist in preventing or responding to it and it is necessary for the search to be conducted without the occupier's knowledge'. A judge could also extend the six-month period in which the occupant need not be notified.
Under listening device warrants, police will have the power to secretly monitor conversations in any place for up to 90 days, extending the current limit of 21 days.
In another initiative, prisoners accused of involvement with terrorism, or classified by prison authorities as a 'special risk to national security', will be housed in 'super max' isolation cells, modelled on French and Israeli facilities. Carr's cabinet has approved regulations to introduce a new prisoner classification, 'AA terrorist inmates', that will see them treated more harshly than any other inmates. Their contact visits will be restricted and their mail closely screened. This means that 'security' prisoners can be cut off from their families, supporters and the media.
Earlier this year, the Carr government placed a university student, Izhar ul-Haque, in a maximum-security isolation cell for 42 days after he was charged with training with a Pakistani organisation, Lashkar e Toiba, which was proscribed, some time after ul-Haque's association with it, as a terrorist group under federal law. The young man was finally released on bail when a Supreme Court judge ruled that he posed no risk to the community.
Addressing state parliament on October 21, Carr claimed that the proposed new secret entry and search powers, which are copied from US jurisdictions, would cover cases such as that of Willy Brigitte, a French citizen who was deported from Australia earlier this year after being accused of having connections to Lashkar e Toiba.
NSW Council for Civil Liberties president Cameron Murphy rejected this argument as 'plainly rubbish'. He told journalists that ASIO and the Howard government had had ample power to detain, interrogate and charge Brigitte, but chose instead to deport him on visa irregularities. Murphy said NSW already had 'the toughest anti-terror laws in the world ... There's no evidence these additional powers will assist in finding and prosecuting terrorists'.
In Victoria, Premier Steve Bracks used the pretext of cracking down on a spate of gangland murders to introduce the Major Crimes (Investigative Powers) Bill, which will provide state police with powers like those given to the AFP and ASIO last year to secretly detain and interrogate people without trial.
Anyone could be brought before a government-appointed Chief Examiner--a US-style special prosecutor with the powers of a state Supreme Court judge. If they refuse to appear, answer questions or produce documents, they could be charged with contempt and jailed for up to five years at a time. Police Minister Andre Haermeyer said uncooperative witnesses could, in effect, be jailed indefinitely for contempt until they agreed to talk.
Not only would suspects and witnesses lose their right to remain silent, they could not decline to answer questions on the grounds of self-incrimination, thus eliminating traditional safeguards against police-state methods of coercion and torture.
Interviewees would have the right to legal representation, but the Chief Examiner, like ASIO, could prevent particular lawyers from appearing. As with ASIO's detention regime, interrogations would be conducted in secret, with detainees and journalists facing 12 months jail if they report, or even publicly disclose, the hearings.
A second bill would give police the power to seize the assets of suspects, even before they were charged, let alone convicted, of any offence. Those subjected to asset confiscation would have to prove that their assets were not illegally obtained, reversing the onus of proof in criminal cases.
While Bracks presented the measures as necessary to fight organised crime, they can be used against anyone suspected of knowledge of any 'major crime'--defined only as a serious offence punishable by more than 10 years in prison, involving two or more people and substantial planning. This category could cover a range of politically-motivated activities, including alleged riots, arson and break-ins at official buildings
The parliamentary opposition
That brings me to the third myth - that Labor and the minor parties in the Senate, through various Senate committees and votes, have provided some democratic parliamentary check on the worst excesses of the police-state methods adopted. Every single measure passed by the government over the past three years has been backed by the Labor Party.
In fact, successive Labor leaders - Kim Beazley, Simon Crean and Mark Latham - have sought to outdo the government in prosecuting the war on terror. Thus, for example, Labor proposed a Bush administration-style Department of Homeland Security to concentrate the repressive powers of the various police, security and intelligence agencies in one headquarters. And as already mentioned, in June 2003, despite more than 600 hostile public submissions and 18 months of committee hearings, Labor joined hands with the government in the Senate to pass the ASIO detention bill.
What of the role of the minor parties? In the final debate on the ASIO detention bill, the Greens and Democrats opposed the legislation but helped legitimise its introduction by embracing the 'war on terror' and proposing limited, essentially cosmetic, changes to the Bill.
After joining with the government to pass the Bill, Labor's Senate leader John Faulkner hailed the outcome as 'a triumph of the Senate and joint parliamentary committee process'. Faulkner then thanked the Democrats and Greens for their 'respected and appreciated' contributions to the process, saying they made 'a dramatic difference to this bill'.
Greens leader Bob Brown and Democrats spokesman Brian Greig thanked Faulkner for his praise and echoed his words. Brown said: 'I think it is a very black day for human rights and civil rights in this nation of ours. Nevertheless, we are part of a democracy. The vigour with which the crossbench have defended very important components of that eroding democracy is a compliment to the role the Senate plays in that democracy.'
But neither the government nor Labor had any popular mandate to violate fundamental democratic rights. On the contrary, the majority of Senators were elected to oppose the Howard government. Instead, they legitimised the police state measures.
Now that the government has obtained a majority in the Senate, these protestations are even more pitiful and politically bankrupt. Surely it is time for all those looking for a way to fight the bipartisan program of war, social reversal and the tearing up of basic democratic rights to break free of illusions in the official parliamentary framework. A different road must be taken - that of pursuing the independent interests of working people.
The very concept of democratic rights must be extended beyond formal equality before the law, which masks ever-greater social and economic inequality. Access to courts and the right to vote every three years mean little when a financial plutocracy prevails over every aspect of daily life, dictating who will work, and under what conditions, as well as who will have access to basic social facilities, such as education, health care, child care and aged care.
With the myth of equal rights before the law, the legal system legitimises and enforces this domination, ultimately with the force of the police, the security agencies and the military. Genuine democracy requires real control by ordinary people over economic decision-making and the circumstances of their daily lives. Decisions affecting production, salaries, safety and working conditions must be subject to the democratic voice of the workforce.
Ultimately, true democracy can be achieved only through the political mobilisation of an informed and articulate working population in the struggle for a truly egalitarian and socialist society.
