During the federal election last year, John Howard categorically assured Australians that SIEV-X sank in Indonesian waters and proceeded to score heavily against Kim Beazley for daring to suggest that the death by drowning of 353 people could have something to do with us.

His priority, Howard said, was to bring to justice the evil people-smugglers who preyed on the desperate for profit.

Lo and behold, we end this year with the extraordinary claim by the government that it can’t extradite the people smuggler who forced people to board the unseaworthy, chronically overloaded SIEV-X with the help of Indonesian officers bearing guns because we don’t know where it sank!

You’ve got to hand it to a government which now wants an early election to give itself powers to detain and interrogate Australians not suspected of any crime for up to seven days – it sure knows how to have its cake and eat it.

You see, if SIEV-X sank in Indonesian waters, Abu Quassey could be tried for manslaughter in Indonesia. If it sank in international waters – as confirmed by every bit of evidence dragged out of the intelligence bodies and the immigration department, and the evidence of the local Indonesian Harbor master – Australia can extradite Abu Quassey when he gets out of an Indonesian jail on January 1.

If it sank in Indonesian waters, the Indonesians could try him for murder.

Alas, the government SAYS its legal advice is that it can’t be proved either way, and asks us to believe that means he can’t be charged by either country. Not the country SIEV-X sailed from, or the country it intended to sail to, it expects us to believe. The legal advice (naturally the Australian people aren’t allowed to see it) comes more than a year after the tragedy, and, coincidentally, just before Abu Quassey goes free.

The government has said over and over that since SIEV-X the Indonesian government has fully co-operated in bringing people-smugglers to justice. It was to have passed people-smuggling laws this year, in which case we could have extradited Abu Quassey on his release regardless of where SIEV-X sank. Lo and behold the Indonesians haven’t got around to it, and Australia doesn’t seem to care about their tardiness.

The AFP commissioner Mick Keelty has used every Sir Humphrey trick in the book to delay telling the truth about SIEV-X. Way back in July he said he couldn’t give evidence to the Senate inquiry because he could very well extradite Abu Quassey for murder, and that Australia could well have jurisdiction because the boat was headed here.

Months on, oh dear, the legal advice ruled out doing anything, and even that bit of information had to be dragged out of him during questioning by Senator John Faulkner last month. Keelty made headlines when he said we could try Abu Quassey for murder, yet made no public announcement when he decided to drop it.

He’s then claimed public interest immunity from answering questions about whether the AFP was involved in putting tracking devices on the boats. All boats, that is, except SIEV-X, where he says the AFP did no such thing. He studiously avoided saying whether the Indonesian police the AFP paid to “disrupt” boats did.

Maybe it’s not in the interests of the Indonesian or the Australian governments to bring to justice the man responsible for our region’s worst maritime incident.

Looking back on a long year, its amazing to think that SIEV-X wouldn’t have got a guernsey as news if a pesky ex-diplomat called Tony Kevin hadn’t taken an interest. Before he started asking questions, the government was sitting pretty. Howard’s statement – backed by the defence force – that it sank in Indonesian waters, and the Australian navy’s statements that it knew nothing of SIEV-X until after it sank saw to that.

Both statements were untrue. Since then, Defence minister Robert Hill has banned key defence personnel from giving evidence and Mick Keelty has delayed testifying pending the extradition of Abu Quassey, then taken every question he could answer on notice. Getting information has been worse than pulling hen’s teeth.

I don’t known about you, but I don’t trust John Howard and his spooks to respect my rights and my freedoms.

For the latest twists in the SIEV-X cover-up, go to http://sievx.com. Here’s a piece I asked Tony Kevin to write for Webdiary on crunch time for SIEV-X. If Abu Quassey walks free on January 1, Australians lose their chance to find out what really happened. You’d have to say that on its performance this year, that’s exactly the result the government wants.

***

It is crunch time on SIEV-X

by Tony Kevin

Oh no, not SIEV-X again nagging at our under-exercised consciences in the Christmas holiday season? I’m afraid so: Webdiary readers, please read this and act if you can!

Abu Quassey, the self-confessed organiser of the SIEV-X voyage that on 19 October 2001 sank, drowning 353 mostly Iraqi and Afghan asylum-seekers on route from Indonesia to Australia, including 146 women and 142 children, will thanks to Australian Government deliberate inaction walk free on 1 January 2003, at the end of a short Indonesian jail term for minor passport offences.

He will disappear and not be seen again. Yet he must carry in his head much of the truth about the grubby Australian – Indonesian police undercover “sting” industry, otherwise known as the AFP’s People Smuggling Disruption Program, that led to these deaths.

If we want to “get the bastards who did this”, we only have a very few days left to help build a sense of public outrage that will upset the carefully contrived Australian Government plan to have Quassey released on schedule.

Or do we as a nation think that 353 deaths don’t matter? If that is what Australians think after Bali and with a “war on terror” – ie a non-UN sanctioned allied invasion of Iraq – staring us in the face, then God help us all. Terror does not discriminate between “good” and “bad” Australians. What goes around will come around.

Yet here is the upside. If Australia, even now, does the right thing on SIEV-X – if we show that we are not afraid to confront possibly ugly truths about ourselves in establishing full accountability for the SIEV-X atrocity – then the world, including the Muslim world, will again respect Australia for its honesty and courage, and will respond accordingly. The Abrahamic religions – Christianity, Judaism and Islam – share a passion for truth, justice and accountability. All three believe in the indivisibility of justice, and in one law for all under God.

So this issue is of vital national security importance as well as being about doing the right thing by our neighbours and our own values of equal justice for all.

Here is a basic guide to the main elements of where SIEV-X is now and why it is crunch time now.

I say this because strategies on both sides are now in place, and the outcome is finely poised. David is filling his sling to go up against Goliath. It could go either way. This is a historic contest for Australias soul.

Over the top? No, because something horribly evil was done to the 353 people who drowned on SIEV-X. It is in our power now to expose the truth of this, or to shrug and turn aside from it “because they were only Muslim asylum-seekers”.

Whatever we do is going to affect Australian politics. Establishing the truth of what happened on SIEV-X could halt the seemingly inexorable trend towards an increasingly authoritarian, xenophobic and uncompassionate national security state in Australia. It could shock us into seeing the ugly direction in which John Howard is trying to take this country.

Questions:

We know that all asylum-seeker boats leaving Indonesia in 2001 were leaky and overcrowded and that many sank: might SIEV-X’s sinking have simply been the largest-ever tragic accident of this kind? Might it simply have been the result of a greedy people smuggler overloading his boat to maximise his profits ? Was Abu Quassey acting alone?

Answers:

No, no and no.

SIEV-X’s overload factor was four times the design load and double that of any previous overcrowded boat of this size that reached Australian island destinations. It was a “coffin ship”, loaded to capsize in the first stretch of choppy water it reached.

Abu Quassey was not a “real” people smuggler. He was a “sting” operator who worked in collusion with Indonesian police disruption teams to set up phoney voyages sabotaged to fail through engine breakdown or sinking. The purpose was to deter people-smuggling ( while making some money from asylum-seekers on the way). Quassey was initially a people-smuggler’s driver. He was recruited by Indonesian police disruption agents and set up in business in late 2000 . He became rich very quickly. One or two early voyages were successful, to establish his reputation as a people smuggler. Many later attempted voyages failed. He was never harassed by police though his passport status was known to be vulnerable. Someone was protecting him.

It is known that Quassey offered free places on SIEV-X to people on his business records who had lost their money on his previous Sting voyages that were set up to fail while still close to Indonesia. The significance of this is that he was so anxious to quickly load up this boat that he was giving places in it away – hardly the act of an over-greedy people smuggler. Quassey was supported by some Middle Eastern accomplices and by large numbers of supporting Indonesian police who facilitated an overnight bus journey of 420 people in a convoy of five buses, from Cisarua (Bogor) across Western Java and by ferry across the Sunda Strait at Merak, to a police-run hotel near Bandar Lampung, Sumatra where the passengers hid out for the day. Police loaded the people onto SIEV-X by launch-loads, using armed force. Quassey had a latest model police radio-telephone and a gun. He helped the forced loading. He beat some passengers when they tried to get off. He lied to passengers that they would be joining another larger boat for the trip to Christmas Island; they never did. One particular group of passengers (Mendean Christians) were warned by a co-religionist accomplice of Quassey to get off the boat as soon as they safely could: they did so, at the Karakatu (Krakatoa) islands near Bandar Lampung. They warned the others as they were disembarking.

Indonesian police tracked the boat, possibly using a tracking device concealed on the boat and previously supplied to them by AFP (see below) .A police (or military) patrol boat went out to inspect the wreckage in the early evening a few hours after the sinking. It made no attempt to rescue survivors. Some strong swimmers were seen to have swum to the boat. They have not been seen since. Police gave the coordinates to Indonesian fishing boats who went out to rescue 44 remaining survivors the next day. The rescue location coordinates are on official Indonesian harbormaster records.

No police have been arrested. There has been no enquiry. Quassey refused to tell SBS media who his Indonesian police or military accomplices were but he was visibly frightened by the question.

There is no doubt Quassey was the organiser, that it was a planned sabotage operation, and that police worked with Quassey on it. Even on 24 October 2001, five days after the sinking, The Australian’s well-informed Jakarta correspondent Don Greenlees reported (in “Overload kills on voyage of doom”):

Survivors interviewed yesterday said they had told Australian officials of the identity of the main people-smuggler behind the operation — a man identifying himself as an Egyptian citizen named Abu Quessai. He is believed to be associated with one of the biggest people-smuggling rings in Indonesia, operating out of Jakarta.

But signals from Indonesian police yesterday suggested there was unlikely to be any action taken against the smugglers over what would be a major case of manslaughter. Indonesian police spokesman Brigadier Saleh Saaf said the information received by police was that the boat had not sunk but had run out of fuel. Despite the harrowing stories of survivors, Brigadier Saaf denied anyone had drowned.

Question:

OK, let’s accept that Indonesian police were involved with Quassey in this huge crime – but can you prove an Australian causal connection ?

Answer:

There is enough multi-source “smoking gun” indicative evidence to make this a hypothesis likely. It certainly merits a full-powers independent judicial investigation where questions cannot be evaded. There is a case to be answered, and this is the view of a Senate majority of all Opposition parties and independents (Senate motion passed on 10 December)

The evidence falls into three subsets:

1. Motive

SIEV-X’s sinking was enormously convenient in terms of timing, scale of death and deterrent shock value to the Howard Government. It came at a time of pressure. An election was imminent. Howard had to show that his aggressive border protection strategies were working. The Pacific Solution was legally shaky and being ridiculed. HMAS Adelaide’s interception of SIEV-4 (the “kids overboard” SIEV) had failed in sending the boat back.

We know that Howard was briefed on 8 October that an overhang of 2500 suspected unauthorised arrivals were waiting in Indonesia to come to Australia and that this had to be prevented “at all costs”.

Four days later the order went out from Jane Halton’s boat people task force in the Prime Minister’s Department to the AFP to “examine scope for beefing up the people smuggling disruption program”.

SIEV-X sank a week later. Asylum-seeker voyages dried up within a couple of weeks. Howard won the election on tough – and successful – border protection policies. Yet the election was close.

Another humiliating border protection failure might have cost Howard the election. Imagine if 397 SIEV-X passengers had been rescued by the Australian Navy and had to be dealt with by Australian authorities. The mockery from the Labor Party could have cost Howard the election.

2. Means

The AFP’s People Smuggling Disruption Program was an effective, initially clandestine instrument, in place in Indonesia since at least September 2000. Now that its cover has been blown, we are assured there was nothing sinister about it. If so, why were its details so carefully concealed for so long? It operated under a Protocol (still not public, but probably quite general and bland in its wording) signed at that time that hung off an existing Australian – Indonesian police cooperation agreement against organised crime.

This is one reason why it has been important for the Australian Government to talk up since 1999 the idea that people smuggling is a dimension of organised transnational crime, to provide the cover for such agreements with countries where ferrying people across porous borders is seen as a kind service to people in distress rather than a crime. Australia set out to criminalise “people-smuggling” as right down there with drug-running, sexslave trafficking, and gun-running. It has been quite successful in this, especially since the tragedy of SIEV-X.

The reality before 2000 was that people smuggling was small-scale water-taxi work, combining the boats and crews of out-of-work Indonesian fishing boats denied access by Australia to traditional fishing grounds around Ashmore Reef and Middle Eastern entrepreneurs seeing the chance to provide a service and make a dollar.

It is not coincidental, as my former Soviet diplomatic counterparts used to say, that as AFP interest and budgets for anti-people smuggling activity in Indonesia increased, so the “organised crime” dimension of people smuggling began to grow. That is because the AFPs network of undercover informants – actually they were more than this, they were active sting operators – were getting into the industry and increasing market share through favoured Indonesian police treatment. People like Kevin Enniss, whose activities have been exposed by the Channel Nine Sunday program, became major people smugglers.

A still current AFP Association webpage survey of AFP activities in 2001 speaks unashamedly of the need for AFP “to fund ‘sting’ operations, whereby the AFP establishes small shipping companies in strategic locations known for smuggling illegal immigrants”.

The AFP has defended Enniss people smuggling as necessary cover for his information-gathering. Actually it was much more than that: He was a disruption agent who organised voyages, took money , and then disabled and sank his own boats – all as part of the plan to discredit people smuggling over a period as a dangerous and extortionate trade with which asylum seekers should not engage.

So while the Australian Embassy gave away T-shirts and leaflets warning asylum-seekers against the dangers of using people smugglers, people like Enniss – with at least some AFP knowledge and approval were touting for business so as to fleece people and prove the Embassy warnings were right.

Enniss had migration problems in Indonesia – he ran into trouble with the regular police who fingered his people smuggling activity – but the Embassy made representations on his behalf to allow him to stay. Obviously his work was seen as important. There were others like him, no doubt still are, whose cover has not been blown as Enniss cover was blown by the Sunday program.

The other dimension of the AFP People Smuggling Disruption Program that underpinned the whole murky operation was the set of five Indonesian Police Special Intelligence Units ( INP SIU) . Under the auspices of the Protocol, the AFP in 2000 funded 20 POLDA officers, who were selected by AFP and tasked to set up five INP SIU. These 20 men were trained intensively by AFP officers in anti-people smuggling operations. They comprised four officers each from the POLDA jurisdictions of Bali, NTT (West Timor), NTB (Flores-Lombok area), Metro Jaya, (Jakarta) and Jawa Barat ( West Java) .

Their training took place in Bali in October 2000 and included investigation techniques, surveillance, information management and financial acquittal procedures. They received funds from the AFP. They were tasked to set up POLDA teams for the ongoing gathering of information, arrests and prosecutions of Indonesian-based people smugglers and their networks.

The Protocol allowed for the AFP and POLDA to exchange advice regarding target selection, technical and management support of operations, informant management, information facilitation and assistance in financial reporting.

Remember, people smuggling was not and is not illegal in Indonesia. The AFP basically had set up what were in effect their own teams of mercenaries – a police force within the INP that did what the Australian trainers and paymasters in general terms wanted done.

But the AFP in the end created a monster. AFP Commissioner Keelty admitted reluctantly on 11 July that AFP paid INP to disrupt people smuggling (not, he stressed, on a specific fee-for-service basis) but he also admitted that AFP had no idea how their INP SIU operatives went about their tasks. He said that if POLDA units had sabotaged engines as a way of disrupting people smuggling, AFP would not approve but would not know about it either.

This revealing exchange sparked off by Senator Cook demonstrates the philosophy of deniability that lies at the heart of the whole disruption operation in Indonesia: Keep in regular contact with your INP SIU buddies, hint at them what you want done, give them any equipment they need, but don’t be around when it happens and make sure you only know as much about it as you want to know and when you want to know it : Remember Keelty’s phrase: “target selection, technical and management support of operations, informant management, information facilitation”.

Its easy to model SIEV-X in this frame. Suppose the word went out from Canberra around 8-12 October for the AFP liaison officers to tell their INP SIU buddies – we want a big operation, serious deterrence. INP SIU has Quassey in place. They – not the AFP – tell him to get a large passenger load together quickly. INP SIU or somebody like Enniss gets a boat for Quassey – it moves westwards around the coast from Cilicap, thereby usefully generating a lot of incorrect intelligence reports to send to Australia about possible earlier Quassey boat departures.

The West Java and Jakarta SIU teams organise a smooth road transit for Quassey’s bus convoy to Bandar Lampung, provide day accommodation in their hotel, and prepare the boat. They provide the armed muscle to load the frightened unwilling passengers aboard. They activate the tracking device previously given them by AFP and they thereby track the boat. After it sinks, they go out and do a visual check. They organise the fishing boat rescue the next day. Finally probably not before 20 or 21 October – or even later – they tell AFP what was done.

We don’t know, because the AFP has refused to reveal any of its intelligence on SIEV-X. There were at least six reports, and the information that might exist about SIEV-X in the PM & C PST and DIMIA intelligence reports lies under acres of black blot-out ink. Ony an independent judicial enquiry could establish what lies beneath the blackouts. Meanwhile the AFP has achieved maximum deniability, and the job is done.

If you think this far-fetched, consider two more points.

In September 2001, the Indonesian Government cancelled the Protocol. Keelty has not clearly explained why, but he vaguely agreed it might have something to do with envy from other POLDA units that were not sharing in the benefits provided by the AFP to their SIU friends. Or just maybe, the Indonesian Goverment was becoming concerned about the way the program was corrupting some members of their police force and turning them into Australian mercenaries. In any case, Keelty said, the AFP did not let the cancellation of the Protocol faze them: they just went on with their established working connections informally. So those arrangements were informally still operative when SIEV-X sank but not under Protocol cover. Such cover was restored in early 2002 under new intergovernmental umbrella agreements in which something similar to the original Protocol has no doubt been discreetly reinstated.

Secondly, read the intelligence reports that went to Howard and Ruddock on 23 October from the People Smuggling Taskforce in PM&C and from DIMIA. Read the amazing numerical detail : how many passengers, nationalities genders and ages, how many were previously in touch with IOM and UNHCR etc. Even the exact dimensions of the boat, 19.5 by 4 metres. These guys were betrayed by their own passion for reporting detailed facts. The material that came down to Canberra on 23 October could not possibly have come from talking to survivors. It came from the organisers of the voyage. To me that is very persuasive evidence that SIU were working with Quessay; that he was their boy

Then there’s the manifest systemic concealment and obfuscation of facts in response to Senators’ questions. You’d have to read Committee Hansards or even better see videoed proceedings to get a full sense of this. I won’t go into details here. But senior witnesses with lots to hide were very good at dragging things out and offering selective well-timed leaks of carefully packaged information, until a cynical press got totally browned-off and bored. It largely worked. In the end hardly anyone was following the evidence outside the Committee, except the batteries of officials monitoring proceedings from the Defence war room hidden away next door.

Governments don’t go to such lengths to hide and spin-doctor information from Senators unless they are anxious to hide something pretty important and pretty disreputable.

Question:

What is the current situation – why is it crunch time?

Answer:

The Senate inquiry Report has been out seven weeks but the issue won’t die. The Australian Defence Force has been at least temporarily absolved but there is intense investigative focus from Senator Faulkner on the AFP’s disruption program. Our SIEV-X movement has put the need to stop Quessay’s upcoming release at the heart of our campaign, and there is now a fascinating and creative dynamic between our activity and opposition parties activity in the Senate. The two motions passed this week are landmarks for judicial accountability.

Senators Collins and Bartlett brought the Quassey extradition issue to a head this week. They called for explanations as to why the government was not pressing the extradition for homicide option, as Keelty had indicated in July was in progress. Suspicion of homicide, unlike people smuggling, is extraditable in both countries now.

The Government’s answers on 11 December (Senator Campbell in the Senate) and 12 December ( Senator Ellison in written reply to good questions from Senator Bartlett) were stunning in their cynicism and indifference to mass deaths by drowning.

Here are Ellisons key points: (Hansard page 7285-6)

Abu Quassey .. is due for release on 1 January 2003.

The Australian Government is working with other Governments in the region to seek to apprehend Abu Quassey in relation to his alleged involvement in people smuggling activities and bring

him to Australia to face the charges. As people smuggling is not currently an offence in Indonesia, the dual criminality required for Australia to request his extradition from Indonesia does not currently exist. Australian authorities are continuing to work towards criminalisation of people smuggling in the region and Indonesian authorities have indicated that legislation would be introduced into the Indonesian Parliament this year criminalising people smuggling.

In relation to a potential murder charge in either the Australian or Indonesian jurisdiction, the AFP has not been able to establish the location where SIEV X sank, therefore, it is not possible to establish the relevant jurisdiction for any prosecution relating to the deaths on board. Four first instance arrest warrants have been sworn in Australia in respect to Quassey for alleged offences relating to organising Suspected Illegal Entry Vessels (SIEVs). The first three warrants for his arrest were sworn on 3 June 2002 and span alleged offences that occurred between February 2000 and August 2001. The latest warrant for his arrest is in relation to his alleged involvement in organising SIEV X in which 353 people died when it sank in October 2001.

The issue of the fourth warrant in Brisbane on Friday last week follows the compilation of a brief of evidence which was submitted to the Commonwealth Director of Public Prosecution. This brief of evidence in relation to SIEV X includes evidence from interviews with survivors of SIEV X in Australia. The strength of the evidence supporting any warrant is a matter for the courts to determine. It is not appropriate for the brief of evidence to be scrutinised by Parliament prior to any legal proceedings and any public discussion could prejudice the investigation. Once an existing warrant is acted upon, the matter becomes sub judice.

The swearing of first instance warrants means an Interpol alert can be issued and it will ensure that the Australian Government can seek to extradite Abu Quassey should circumstances allow. Australia respects that Indonesia, as a sovereign state, must make its own decision whether or not to investigate any particular matter.

 

Like Pontius Pilate, the Australian Government now washes its hands of the murder issue because of a claimed inability to establish the jurisdiction in which SIEV-X sank ( ie either in Indonesian territorial waters or in international waters). If in the latter, Australia could seek extradition on grounds that the deaths took place on the high seas on route to an Australian destination, Christmas Island.

This is self-serving nonsense. Quassey cannot be allowed to fall between the cracks into a legal limbo when 353 deaths are at issue. The issue is too important and there must be a way to deal with this. Are any lawyers reading this?

In fact there is very strong multi-sourced information that the boat sank 50-65 miles south of Indonesia, well out into international waters. That evidence includes:

* Jakarta Harbormaster’s official report of survivor rescue coordinates reported by rescue boats which are 51.5 miles south of Java

* two authoritative intelligence reports of the afternoon of 23 October 2001 in PST and DIMIA putting the sinking in international waters (PST) and 60 nautical miles south of Indonesia ( DIMIA)

* various media reports of 24-25 October 2001 (eg.The Australian op.cit,. by Greenlee: “About 80km from land at 2pm on Friday, the fishing vessel began to take heavy water, listed violently to the side, capsized and sank within an hour.”

The Indonesian Government will hopefully reject the trap the Australian Government is setting for it. If the Indonesians now say publicly that on the basis of public information they are satisfied that the boat sank in international waters and that they would facilitate an Australian homicide-based extradition request, this would put the Quidditch ball back in the Australian court. Let us hope that Indonesia comes to this morally correct as well as self-interested conclusion – why should they be left to carry the can for any capital crimes committed under Australias disruption program ?

This is the strategy our SIEV-X movement will drive over the next 17 days. We want to expose our government’s cynical irresponsibility in a matter of 353 deaths. Judge Ellison’s statement for yourself. We need public support -lots of it.

This is a momentous day for our nation. Here are two transcripts which set the basis of debate over the next three months before Howard forces a terrible choice on Simon Crean.

First, the government message from The House of Representatives which allows John Howard to call a double dissolution election if the Senate rejects the ASIO bill on February 4.

Then the most important speech Crean has made in his life – the speech accepting John Howard’s challenge to fight an election on the balance of power and rights between the citizen and the State during the war on terror.

***

HOUSE MESSAGE – LAYING ASIDE BILL

Friday, 13 December 2002

This is an important bill. It has become the test of commitment to the security of the nation. The fact is that the government has proven its commitment to making this nation more secure.

We introduced this Bill and we have continued to press for its passage despite continued resistance and obstruction by the Opposition. We have come a long way and made significant compromises to secure the passage of this Bill.

At the end of the day the Opposition have made none. The Government will do what is necessary to protect the community from terrorism and the Opposition will not.

The Opposition will try and pretend to the community that a Bill robbed of its workability and impact by its own amendments will still deliver to them the protection they need. The Government will not.

That is why, regrettably we find ourselves in this position.

And that is why we are insisting on disagreeing with the Senate’s amendments.

***

SIMON CREAN

PARLIAMENTARY DEBATE ON ASIO BILL

FRIDAY 13 DECEMBER 2002 11.45AM-12.00 NOON

This Bill can be passed today if one person gives the go-ahead. We know, Mr Speaker, that there are people on that side of the Parliament that support the Bill that’s before us now. And how do we know? Because they’ve voted for it in two committees that this Parliament has exhaustively considered.

Now, I’m actually delighted to see the Prime Minister in here for the debate. For the first time, Prime Minister, you are in this House to debate this Bill. You’re always quick to run to the media, but you won’t come and debate it in here. Show the courage that you like people to think you’ve got and debate it in here … And I don’t just invite him to participate in the debate, I challenge him to support the Bill. I challenge him to support the Bill.

The reason I do that is because the Bill before this Parliament gives to ASIO the toughest powers it’s ever had in its history. Why would you pass that up, Prime Minister? If you’re out there saying that you’re concerned about the security of this nation, why not pass this Bill? Here. Now. Today. And if you said, if you said that you were prepared to pass this Bill, this could be law at lunchtime – and you know it. Don’t go out there with the crocodile tears saying that you’re concerned about the security of this nation, when you had the opportunity, you had the opportunity alone, to determine it.

You know, it’s a reminder of a famous statement that was made in our party once: Whose party is it, Prime Minister? Yours or theirs? Yours or theirs? Because there are people over there that know that this Bill is the right way forward.

The other reason that I challenge you today, Prime Minister, is this – the nation deserves it. The nation does deserve the security over Christmas time. They deserve it for the next three years that this Bill will provide, and they deserve it because we are in a different situation. We are under a new threat. And we, as a nation, have to rise to that threat.

And don’t go out there and start questioning the credentials of the Labor Party, because this Party has always stood for the national interest. This nation, this Party has always fought for the freedoms and liberties, and it was John Curtin, it was John Curtin of whom it was said: This country was left a free people and a free nation. It was the Labor Party that established ASIO, always with the safeguards. And that’s what the Bill before the Parliament does again today. And that’s why it should be supported.

Now, I heard the Prime Minister out there today claiming that the Labor Party is divided on that, and using the fact, using the fact, Mr Speaker, that our numbers are down. You know why our numbers are down? Because there are people here with family responsibilities that were told that this Parliament would not be sitting, told that they wouldn’t be sitting. But I say this, in case there’s any doubt – and I’m glad the Prime Minister has moved forward and I hope he’s going to engage the debate for the first time today, because he hasn’t had the courage to come into this Parliament and deal with it before.

But I just say to you, Prime Minister, in terms of the Bill that’s before the Parliament, it has been before the Parliamentary Labor Party on three occasions in full Caucus. It has been to the Shadow Cabinet at least as many times, and it has been through the Caucus Committee. And every time it was supported unanimously. And if there is any doubt about it, I say to the Members in this Parliament – this Party is united in the position of support for this Bill.

The other grubby little tactic that you have been out today with, is trying to assert that there is inconsistency between our position on this and that in relation to New South Wales. Let me just make this important distinction. The Bill in New South Wales, the legislation in New South Wales is police powers to arrest and search suspects. This Bill is about detention and intelligence-gathering powers by ASIO for non-suspects. There is no comparison at all, and you know it.

Now, Prime Minister, what you are doing to this nation, by going out with your rhetoric, is playing on their fears. They don’t want their fears played upon – they want a solution. And the Bill before the Parliament today provides that solution – a solution that says that, given the changed circumstances, we need to provide increased powers for ASIO.

And the truth of it is, the legislation before the Parliament provides the toughest powers that ASIO has ever had – unprecedented powers for ASIO, and powers that no other western democracy gives to its intelligence-gathering organisations. So let us hear none of this argument that this hasn’t given increased powers or tough powers to ASIO.

But the truth of it is – and the public knows it – if you are going to give ASIO additional powers, what goes with it is safeguards. And that is what the Bill provides, and that is why you should support it. I can’t understand your logic, Prime Minister, when you go out there and argue that this nation needs to be secure over the Christmas time. This Bill gives the security, and you won’t pass it.

And I challenge you again. I challenge the Prime Minister again, Mr Speaker, to put aside what he thinks is the personal political opportunity to try and deal with this Bill in the public, and deal with it in the national interest. Deal with it through the Parliament, deal with it through the debate, deal with in the same way that members of your party have dealt with it – through committee, through investigation, through analysis.

The same basis upon which they looked at your Bill in its first instance and said it was flawed.

The same way in which the Member for Fadden on your own side of Parliament (David Jull, head of the joint house ASIO committee) said it was a threat to the democratic values in this society. The same way as people from your party in the Senate will not support the sorts of things that you are trying to still insist upon in terms of your original Bill.

Oh, he’s not here, the Member for Fadden. Now is that an indication, another indication that there’s a division on your side? Where is he? We’ve got the disunity on their side. Oh, I see, here he is. Come on in, Member for Fadden, because you at least have had the decency, you at least have had the decency and honesty to expose what your Prime Minister is on about.

And there are people, there are people on your side of the Parliament, Prime Minister, that know that this Bill is in the best interests of the nation. And that’s what the Prime Minister of this nation has got to do in these times of threat, in these times of challenge for the nation, in these times in which we do need leadership, leadership that provides a solution – not leadership that simply plays to the fear of Australians.

Now, I understand the concern that Australians are going through. I understand it, and we all understand it on this side of the Parliament – particularly post-Bali – and that’s why we have said from the beginning we are prepared to ensure that this Parliament provides the avenue for the toughest powers that ASIO needs to apprehend, to gather intelligence, and to stamp out terrorism. We have always said we’re prepared to throw the book at the terrorists, because that’s who we’ve got to concentrate upon.

But I’ll tell you what. In the process of it, we’ve got to ensure the safeguards for our citizens are also contained. And that’s why we’re arguing about the principles, the principles that are contained and still remain – only three of them. One that goes to the question of the age. The other that goes to the question of access to legal representation. And the other, of course, that goes to the question of, well the issue of detention. Now the reason I hesitated with that, Prime Minister, is because when the Attorney-General, when the Attorney-General was negotiating this with our side, he simply said he wanted investigative powers for ASIO, not the detention capacity. That’s what he said – inquiry, inquiry powers, that’s what he wanted. Now, we have given that, we have given that in this Bill.

We have said that we are prepared to give up to 20 hours of questioning for non-suspects – non-suspects, Prime Minister, because that’s what this legislation covers. It doesn’t cover the suspects, it’s the non-suspects. And we’re prepared to give up to 20 hours by which the intelligence-gatherers can question and determine the next course of action. We think that is entirely appropriate, particularly given the criminal code, the Crimes Act, only allows up to 12 in other circumstances. This is an extension of it. And so these are the three issues about which we do disagree with you.

But when you think about it, why isn’t this a significant advance for you? I think it is because of two things. One, the Labor Party has proposed it. And secondly, you want to play on the fear of Australians, not give them the solutions. And we have seen it so many times. We have seen it so many times in which you try and drive the wedge with these issues rather than come up with a practical solution.

Now, I want to know, Prime Minister, why you are not prepared to grasp this opportunity? Why you are not prepared to give the opportunity to the Australian people to experience security in the coming months and years? Security that gives to ASIO additional powers – unprecedented powers – powers that have never been experienced either by it or any other organisation similar to it in other countries. The powers that are proposed in this Bill don’t exist by the FBI in the United States. They don’t exist with the intelligence-gathering agency in the UK. And we are offering them here today, now.

And you have one last opportunity. You know, Prime Minister. You nod your head, you nod your head and you know I’m right. You know that there is the opportunity. Well, the Prime Minister knows that there is the opportunity to put in place this legislation today. As I said at the outset, this legislation can be operable by lunchtime if the Prime Minister does what his backbench wants him to do – does what his backbench wants him to do, and passes this legislation.

You know what he is coming here today and supporting? I expect he’ll be supporting – and that is the laying aside of this legislation. Why? Why, if for one moment you were expressing concern for the Australian nation about its security, would you lay aside the opportunity, now, to get unanimous support in this Parliament for increased powers for our intelligence-gatherers? Increased powers with the safeguard.

That is the sort of decision that real leaders of this nation have to take, and you have squibbed it. And you have gone out there, you have gone out there and tried to ramp up the rhetoric in relation to it. Well, Prime Minister, people will analyse this legislation, and they will say of you: What sort of a Prime Minister is he, that has the opportunity to get bipartisan support and unanimity in this Parliament to increase the powers of ASIO, and he doesn’t exercise it? That is what they will be asking. The opportunity is there, Prime Minister. Even if you still think the Bill doesn’t go far enough, why not grab it now? Why not revisit it in the next Parliament? You can’t bring this Bill back until we come back in February. So why not take the best on offer now, and seek to build on it later?

If you believe that there is insufficiency on it, then test it against the way in which it operates. And I might say, we had the Attorney-General saying to us on previous occasions: this Bill is unworkable and unconstitutional. And he was blown out of the water on the unconstitutionality of it, blown out of the water by Gavin Griffiths QC in a legal opinion that I tabled last night. And I am delighted to see that the Government no longer argues the point about constitutionality. It has accepted that dimension of our amendment, as it has accepted the sunset clause.

What I am saying to you, Prime Minister, is accept the other three dimensions of this Bill. Give the nation what it deserves. Give it the security it deserves over the Christmas break. Give it the solution, not the fear.

What Australians want from their Prime Minister is someone who does stand up in the national interest, someone who does represent them, and someone that is prepared to secure their future.

They will be facing a difficult time, because you have contributed to that fear today. What I am saying to you: put your prejudices aside, put the politics aside, give a solution, pass the Bill.

If we do go to an ASIO election, Howard will have to beat not only Labor, the centre-left and the far-left, but also the far-right he scored post-Tampa. Unlike the Tampa election, One Nation, the National Civic Council and the like strongly oppose Howard’s extreme extension of state power over Australian citizens. Hold on to your hats – this debate will be amazing!

At 4.479pm yesterday the Senate passed its amended ASIO bill by 45 to 12. Only the Democrats, the Greens and One Nation opposed it, but the government voted yes so it could return to the House of Representatives and John Howard could decide how he wanted to play the game for Christmas.

Since then, it’s been up and back, but Hansard is not yet available on this phase. In this entry I publish the final speeches by the key protagonists in the Senate before the Parliament went wild, so you’re clear on the history and detail of the issues in debate, and what politicians argued before craziness took over.

The speeches make it clear that if we do go to an ASIO election, Howard will have to beat not only Labor, the centre-left and the far-left, but also the far-right he won over post Tampa. Unlike the Tampa election, One Nation, the National Civic Council and the like strongly oppose Howard’s extreme extension of state power over Australian citizens. Hold on to your hats – this debate will be amazing!

Senate Hansard, Thursday, 12 December 2002

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION LEGISLATION AMENDMENT (TERRORISM) BILL 2002

THE ALP

Senator John Faulkner, ALP Senate leader

Getting to this point on this bill has been a long and difficult process. The government introduced the ASIO bill into the House of Representatives on 21 March this year. But the bill the government introduced in March is very different to the bill we now have before us.

The ASIO bill as introduced on 21 March 2002 would have allowed adults and children to be detained, strip searched and held by ASIO for rolling two-day periods that could be extended in-definitely, even after questioning had concluded.

While detained, Australians could be denied access to people outside of ASIO and could not inform family members, their employer or even a lawyer of their detention. The proposed section 34F(8) of the bill stated:

A person who has been taken into custody, or detained, under this Division is not permitted to contact, and may be prevented from contacting, anyone at any time while in custody or detention.

Under the original bill, a 10-year-old child could have been held in detention by ASIO and strip searched.

There is no way that this bill could have been accepted by the opposition.

There is no way that this bill could have been accepted by the legal profession.

There is no way that this bill could have been accepted by ordinary Australians.

The opposition used the processes of parliament to ensure that the bill was thoroughly examined and to provide an opportunity for the many organisations and individuals with an interest in this bill to have their say. The original bill was referred to the Parliamentary Joint Committee (PJC) on ASIO, ASIS and DSD. It was also referred to the Senate Legal and Constitutional References Committee. The PJC on intelligence services undertook a detailed examination of the bill, including public hearings, and they produced a bipartisan advisory report which was heavily critical of the government’s bill. The report stated:

The bill in its original form would undermine key legal rights and erode the civil liberties that make Australia a leading democracy.

The parliamentary joint committee made 15 substantive recommendations that were intended to go some way towards making the bill more acceptable. At that time, the Senate Legal and Constitutional Legislation Committee did not conduct a detailed inquiry into the bill, but it reserved its right to do so if the government did not accept all of the PJCs recommendations.

The government’s amendments to the bill did not adequately address the concerns of the two committees. The amendments fell well short of what the joint committee considered the minimum necessary for the bill to be acceptable. In effect, the government only fully accepted 10 of the PJCs 15 recommendations.

Even more importantly, the government still proposes that people who are not suspected of any offence may be detained in secret for up to seven days.

In contrast, under the Crimes Act, murder suspects can only be detained by police for a maximum of 12 hours. They must then be charged or released.

In fact, the government is making the absurd proposal that a terrorist suspect can only be detained and questioned for 12 hours but a non-suspect who may have information about a terrorist activity can be detained and questioned for seven days.

In light of the completely inadequate response from the government to the PJCs recommendations – and I stress that they were bipartisan findings of the Parliamentary Joint Committee on ASIO, ASIS and DSD – the opposition successfully moved at the second reading stage in the Senate that the bill be referred to the Senate Legal and Constitutional References Committee. The committee’s main task was to examine alternative ways of enhancing the capacity of our law enforcement agencies to counter terrorism without compromising civil liberties.

The Senate committee undertook a detailed examination of the bill in a very short time frame. In the view of the opposition, the committee members should be commended for the excellent report that they produced.

Again, it was a report with a high degree of bipartisanship on the essential elements of principle that are contained in the bill. The committee recommended a viable, alternative model for strengthening counterterrorism powers, one which the committee believes provides:

… a basis for improving and progressing the legislation, while keeping its provisions within acceptable bounds and respecting the rights and freedoms that are fundamental to the Australian community.

All the parliamentary committee considerations led to a substantially revised model for strengthening the intelligence gathering powers of the Commonwealth with regard to fighting terrorism.

At the same time that these committee considerations were under way, the opposition continued to discuss with the government the provisions of this bill with a view to resolving our differences and, if possible, reaching agreement on changes to the bill. I have to say that, while I appreciate the governments readiness to engage in these discussions, it has been ambivalent in its approach.

At times the government seemed to genuinely want an accommodation; at other times it seemed to me that it preferred differentiation.

At times it appeared to have been seized as to the urgency of the bill; at other times it seemed to have been perfectly happy to leave this bill on the back-burner.

The end result of this necessarily lengthy process of consideration and consultation is the bill that we now have before us. It is a bill which significantly enhances ASIO’s intelligence gathering capacity in relation to terrorism offences and it provides strong protections for those who are subjected to questioning.

There are those who argue that we should not be increasing ASIO’s powers at all. Let me be clear about this: the Labor Party does not agree with those arguments.

There is no question that we are facing an enhanced threat of terrorism in the wake of September 11 and the Bali bombings. We must respond to that threat. As legislators, we owe it to the Australian public to ensure that our security and intelligence agencies have all the necessary powers to detect and prevent terrorist attacks.

ASIO is our front line against terrorism. At the moment ASIO can ask questions but it cannot demand answers, and that is quite clearly a problem and it needs to be fixed. Why should we permit a compulsory questioning regime for royal commissions, the Independent Commission Against Corruption and other state crime commissions, and agencies such as the Australian Securities and Investments Commission, but not for ASIO? Why should we treat corporate crime as more important than terrorism? Quite clearly we should not do that, and that is why the opposition has looked to these models in trying to determine what a reasonable, compulsory questioning regime might look like.

The government has proposed a detention regime, and a very harsh detention regime at that – up to seven days and with the detainee potentially being incommunicado for the first two days without access to a lawyer. Why should a person who is not suspected of any offence, but who is simply thought to be able to assist with information relevant to the investigation of a terrorism offence, be treated worse than a murder suspect?

In other words, why should a nonsuspect be treated worse than a suspect? The opposition remains very firmly of the view that such an approach cannot be justified.

What are the new powers that we are giving ASIO in the bill now before the Senate? What are the new protections that we are providing to those who might be subjected to this new regime? Through amendment, the Senate has largely put in place the alternative model that was envisaged by the Senate committee.

It has a significant number of features and safeguards: compulsory questioning by ASIO officers before a prescribed authority; custody directly linked to the questioning and no detention for other purposes; access to legal representation of choice; protection for children under the age of 18; a detailed statement of questioning procedures; and the maintenance of comprehensive and proper parliamentary scrutiny of the system and of the outcomes of the system.

Each time the government has come up with a problem or a sticking point. The opposition has been assiduous in considering the issues and developing solutions consistent with the principled position it has taken on the bill. I can even say that the opposition has bent over backwards to find solutions to the workability problems raised – and raised at short notice – by the government.

As an example, the government’s constitutional issues concerning chapter III limitations on using serving federal judges were raised as a stumbling block to the workability of the questioning regime. The opposition proposed an alternative pool of judicial experience to address this issue, and then the government came up with further problems with this solution. The government says there are not enough retired judges. Senator Ellison bandied around the figure of 22. On the basis of our own inquiries to state and territory governments, we are confident that the pool of retired judges is in excess of 150.

Nevertheless, the opposition have again addressed the governments concerns and provided an appropriate and workable alternative. We urge the government to accept it. In other words, the opposition has laid our bona fides on the table and we have done that right here in the chamber during the committee debate.

We are intent on providing workable and appropriate tools for gathering intelligence on terrorism and we have bent over backwards during the Senate’s consideration of this bill to ensure that the government’s concerns – those stumbling blocks – are overcome.

We are providing powerful new tools for ASIO in their fight against terrorism. We say and strongly believe that the protections are appropriate, that the protections are adequate and that the protections are balanced.

The government will no doubt argue that the enhanced powers do not go far enough and that the protections go too far. I am sure that is what the government will say. We simply do not agree. The government might be disappointed that it has not got everything it wanted in the committee debate. We are very pleased, and I think the Australian community as a whole should be very relieved, that that is the case.

The government now has a choice: it can vote for the bill as amended or it can reject it. The government can accept the new powers that the Senate is offering for ASIO, along with the protections that the Senate is insisting upon.

Alternatively, it can reject those powers, and I suppose it always has the opportunity of using this bill politically. At the end of the day, the issue here is whether the government and this parliament act in the national interest – and for the government the issue is not only whether it acts in the national interest but whether it acts in its own perceived political interest.

I say that the solution that is being determined by the Senate is a balanced and principled outcome. I believe that the powers in this bill are tough and un-precedented. I also say that they are necessary. But when you have tough and unprecedented but necessary powers, you also need adequate safeguards and protections.

I believe that the bill, the third reading of which is now to be voted upon in the Senate, delivers both those objectives. The opposition will be supporting the amended bill and I urge the Senate to do the same.

***

THE DEMOCRATS

Senator Brian Greig

In this third reading debate on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, I begin by emphasising that we Democrats abhor and oppose terrorism as much as any other Australians. Like other Australians, we are angered, saddened and shocked by terrorist attacks such as the ones we saw on September 11 and more recently with the Bali bombings. We recognise that the threat of terrorism poses new and, I dare say, complex challenges for governments around the world.

But there is no obvious way in which to address that threat effectively. As many have observed, terrorism is a threat not just to the lives of innocent civilians but also, at times, to democracy and freedom. The Democrat response to terrorism is to ensure that we seek to protect lives as well as democracy and freedom.

On 17 September last year Prime Minister John Howard said:

Wouldn’t it be a terrible, tragic, obscene irony if, in responding … to these terrible, terrorist attacks, we forsook the very things that we believed had been assaulted …

He was referring to the events of September 11. Unfortunately, in making that statement, the Prime Minister prophesised the ultimate flaws in what has become his government’s response to terrorism. We Democrats have been dismayed to see the terrible, tragic and obscene irony of that response over the past 14 months manifested principally in the suite of anti-terrorism bills we dealt with earlier this year.

The government has consistently made the case that effectively responding to terrorism requires a departure from fundamental human rights and freedoms. Since September 11, we have repeatedly heard the mantra from many politicians around the globe that the world has changed. This mantra has been relied upon to challenge the foundational tenets of our political and legal system.

The thinking seems to be that the world has changed and therefore the way we deal with the world must change too. The presumption of innocence, the right to a lawyer, the right to remain silent and the right not to be detained arbitrarily have all been threatened.

This is wrong and it is dangerous, and in many ways it plays into the hands of the very people seeking to destabilise our accepted way of life and general stability and security. If the aim of terrorists is to cause fear and uncertainty then we must not let their presence and activities induce a climate of fear and uncertainty in our own day-to-day lives, causing us to abandon the very legal protections that we acknowledge as being important to the essence of freedom and democracy.

I take the opportunity to record the Democrats’ great disappointment that this bill is even being considered at a time when there is a complete absence of an Australian bill of rights or at least a charter of rights. This legislation clearly illustrates that the rights and liberties of Australians are not inalienable but may be overridden by clear legislative intent.

Australia is now one of the only remaining common law countries which lacks a bill of rights, and there is no reason which justifies Australians being exposed to potential derogations of their fundamental human rights and freedoms when the citizens of other common law countries are not.

Two months ago today, Australia was confronted with the tragedy and sorrow of the Bali bombings, in which so many innocent lives were lost. In the wake of that incident, it became clear that Australia needed to examine and assess its intelligence capabilities in order to effectively combat terrorism in our own immediate region – although, of course, this bill was introduced prior to 12 October.

The Democrats are acutely aware of the need to ensure that Australia’s intelligence agencies operate effectively in order to protect the safety and welfare of the Australian community. As legislators, we have a responsibility to act in the best interests of those whom we represent. Often this involves a delicate balancing between competing interests.

I am sure MPs would acknowledge that we have all received countless emails and letters from people expressing their very serious concerns regarding this legislation and the severe effect that it will have on the rights and civil liberties of all Australians.

I say all Australians because the legislation does apply to all Australians, not just those suspected of involvement in terrorist activities. The scope of this bill is perhaps its most disturbing flaw. I believe the government has failed to demonstrate why it is necessary for Australians to be seized, dragged away and questioned by ASIO, when citizens of other nations are not subject to such draconian powers under comparable legislation.

It seems to me that the tragedy of Bali has united all Australians in our resolve to fight terrorism and prevent further attacks, particularly in our own region. I do not believe that either the government or the opposition, despite being asked on numerous occasions, has provided any compelling arguments or reasons as to why such power is necessary in Australia when it has not been considered necessary in comparable jurisdictions such as the United States and the UK.

Of course, we must consider appropriate arrangements for the detention of terrorist suspects and for the questioning of those involved in terrorist activities. However, the government has yet to make out its case for extending such arrangements to all Australian citizens.

I believe that an honest assessment of this legislation should lead to the conclusion that it is not ordinary, everyday Australians who are at issue here. There is no evidence to suggest that Australian citizens would be unwilling to assist ASIO or any intelligence or law enforcement agencies in the gathering of information relating to terrorism. The fact that the government finds it necessary to detain us incommunicado and threaten us with imprisonment if we do not answer questions is very worrying.

My understanding of the Australian people leads me to believe that such powers are entirely unnecessary and unjustified and, indeed, offensive to many within the Australian community.

Of course, there are a number of other concerns associated with this legislation, despite the significant improvements that I will acknowledge have been made over the past few days. These include the fact that the right to silence is removed; there is only a limited use immunity in relation to information provided by the person; foreign nationals detained under the act will be prevented from contacting their embassy during detention; and police powers are vested in an intelligence agency, raising serious questions about accountability implications.

Where does that leave us? At the end of 2 days of debate and discussion in the chamber we have a bill that, I would argue, effectively changes ASIO from an intelligence service into an investigative police power and in some way sees ASIO become a secret police without the accountability or experience of, arguably, the Australian Federal Police or the newly formed Australian Crime Commission.

The constitutionality of the legislation is suspect and potentially breaches the separation of powers. The introduction of this legislation takes place, as I said, in an environment in which there is no bill of rights.

The legislation applies to all Australians, regardless of whether they are suspected of terrorism, and in this respect is more far-reaching than legislation that has been enacted or proposed in either the UK or the USA.

There is no right to silence and no privilege against self-incrimination. A detainee would bear the burden of demonstrating that they did not have the information ASIO is seeking, thereby effectively reversing the presumption of innocence until proven guilty. The government has failed, I believe, to demonstrate why the legislation is required and has failed to show where existing criminal laws and policing powers are inadequate to deal with terrorism and suspected terrorists.

Most of all, I think it is worth noting yet again and I do not think we can say this often enough – that the full effect of this legislation, if it were to become law, would be to enable non-suspects to be immediately detained just because they might have information relating to terrorism. I have to pose the question: What is the point of that?

I would like to quote Professor George Williams, whose contribution to this debate was significant. He said:

Despite the many amendments that have been made to the bill, it remains rotten at its core.

On that basis, and in defence of what we believe are appropriate civil liberties and freedoms and the protections for those, we Democrats will oppose this legislation.

***

THE GREENS

Senator Kerry Nettle

I take this opportunity to speak to the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, which is an extraordinary and, as others have said, an unprece-dented piece of legislation for this parliament to be discussing. The Australian Greens do not believe that this piece of legislation has the balance right between the security concerns of this country and the individual freedoms of Australians.

It is a piece of legislation that goes far beyond similar legislation in comparable countries. It is a piece of legislation in which there remains a fundamental flaw – that being the ability to detain people not even suspected of being involved in criminal activities.

If this piece of legislation were designed to deal with people who were about to commit a terrorist offence then the argument could be put that it would be very close to what was appropriate. The Greens say that it would not be so appropriate as our current criminal justice system in that it goes beyond that by extending the period of time under which people can be detained and questioned. It places further restrictions on the ability of people detained under this legislation to have access to a lawyer, and it extends the power of ASIO, which has previously been just an intelligence gathering organisation.

This piece of legislation is not just for dealing with people who are about to commit a terrorist act; it is also designed to entrap citizens who are ordinarily going about their business and who are not suspected of being involved in any criminal or terrorist activity.

In that light we can clearly see how unprecedented and extraordinary this piece of legislation is and how it goes far beyond the basic tenets of our legal system. As we have said before, the Magna Carta itself says that people should not be detained unless they have come before a court and are found on reasonable grounds by that court to be guilty or suspected of being involved in a criminal activity.

This piece of legislation goes far beyond that and in doing so represents an abrogation of our civil and political rights. The amendments that have been made fiddle around the edges of what is a fundamentally flawed piece of legislation. They improve significantly the ambit claim that was originally put forward by this government in the post 11 September climate. This piece of legislation, in its entirety, really draws on the atmosphere of fear and suspicion that has been created in the post 11 September climate. It tries to use that atmosphere of fear to push throughthis undermining of our civil liberties.

The Australian Greens oppose this piece of legislation because, even after the amendments put forward by the opposition, it allows for innocent people to be taken off the street without warning, to be interrogated in secret and to be jailed for five years if they refuse to answer questions.

These measures establish a very serious precedent in Australian law, one that goes well beyond any comparable country’s response to the worldwide terrorist threat. The powers that ASIO and the AFP already have clearly are sufficient to allow them to do their jobs properly and these laws as such are an unnecessary and dangerous attack on Australias civil rights.

The government and the Australian Labor Party have failed to make the case for extending these powers to capture non-suspects. Even in the course of two full legislative committee inquiries they have failed to make that case. Throughout those inquiries we heard from numerous prominent legal professionals and organisations about the ways in which our current criminal justice system allows us to deal with the current terrorist environment.

The implications in this legislation are wide reaching for all citizens: for journalists, for political activists, for politicians and for members of the community who are under suspicion for a variety of reasons. These implications are extremely serious. This power to arbitrarily detain is a blunt weapon in the fight against terrorism and it is not in keeping with a country that values its civil and political rights.

The amended bill allows for people not suspected of being involved in a terrorist act or in a terrorist group to be detained without warning for questioning and detention. The proposals put forward by the Australian Labor Party allow for that questioning and detention regime to continue well beyond one day of detention and indeed without a time limit for that detention and questioning regime.

This amended bill allows, where there is any refusal to answer a question, for a punishment of five years imprisonment.

This bill is unprecedented and unnecessary and demonstrates a fundamental abrogation of our civil and political rights in this country. As such the Australian Greens will not be supporting this bill.

***

ONE NATION

Senator Len Harris

I would like to commence my contribution to this third reading debate by clearly indicating that One Nation will not be supporting the legislation, even in its amended form. I clearly indicate to the chamber and to the people of Australia that, had it not been for a combination of the opposition and the cross-benchers, this bill would be considerably worse in its impact on the rights of innocent Australians.

In contributing to this debate, I would like to quote from a letter from the Law Institute of Victoria. In a letter to me on 1 August, they wrote:

The Law Institute of Victoria urges you to vote against this bill in its present form. It is the institutes opinion that the government has not demonstrated that existing powers held by the Australian Security Intelligence Organisation – that is, ASIO – are inadequate to meet any potential security threat. This stance is put forward in particular by the Institute’s Young Lawyers Section Law Reform Committee.

In the alternative, we urge you to insist on the implementation of the recommendations of the Joint Standing Committee on ASIO, ASIS and DSD report and of the Senates Legal and Constitutional Committee report tabled on the fifth of June.

If we then go further to the submission by the Law Council of Australia, again to the Senate Legal and Constitutional Legislation Committee, we move to the concerns relating to the unconstitutionality of the bill:

The Law Council of Australia respectfully adopts the following warning given by Justice Kirby on 11 October 2001against potential excess in the adoption of an anti-terrorism lawa (It is referring to the rejection by the Australian people of a proposal, by way of referendum on 22 September 1951, to add a new section – that is, section 51 – to the Constitution to legislate with respect to communists and communism.)

It goes on to quote:

Given the chance to vote on the proposal to change the Constitution, the people of Australia, fifty years ago refused. When the issues were explained, they rejected the enlargement of federal power. History accepts the wisdom of our response in Australia and the error of the over-reaction of the United States. Keeping proportion. Adhering to the ways of democracies. Upholding constitutionalism and the rule of law. Defending, even under assault, the legal rights of the suspects. These are the way to maintain the love and confidence of the people over the long haul.

We should never forget these lessons … Every erosion of liberty must be thoroughly justified. Sometimes it is wise to pause. Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.

If we look at the report of the Senate Legal and Constitutional Legislation Committee entitled Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002, we see that two issues of constitutionality were raised, and I will speak briefly about the first one, the constitutionality of the executive authorising the detention of a person who is not a suspect. The committee says:

In their correspondence to the Committee, Professor Williams and Dr Carne contended that the High Court’s comments in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 raised doubts about the administrative power to detain Australian citizens not involved in or suspected of a criminal offence, save in a relatively limited set of identified and exceptional circumstances.

So we have these eminent professors raising the probability of constitutional challenges where the government implements the ability to take into detention a person who is not suspected of an offence.

If we look at the progression of the bill, we see that, when the bill entered this chamber, it would have – for the first time I believe – eroded the civil and constitutional rights of the Australian people in a way that no other legislation that I have seen has.

The opposition moved a sunset clause to the legislation, which was passed, so at least we have at this point in time the confidence to know that this legislation will cease to have effect at the time of its sunset.

There are definition changes to the act of terrorism. The government itself brought in an amendment to ensure that a search of a person, whether a strip search or frisk, would be carried out by a person of the same sex.

The governments amendments relating to former judges were defeated and the alternative opposition proposal was put forward. We have seen quite a considerable number of amendments moved to the legislation but the legislation itself, even in its amended form, carries great concern for the innocent Australian citizen.

I have no reservations, and neither does One Nation, about the powers in this bill being used against a person who intends to carry out or who has carried out a terrorist activity against Australia and its citizens whether that be here in Australia or anywhere in the world.

This debate is not about stopping the government using its powers to protect Australians. The debate is about protecting the rights of the innocent Australian. It is no reflection on this government. The concern that One Nation has is not for our present political system or the form of political process that we have in Australia today.

Had it not been for the sunset clause, this legislation would have stood until repealed and that would have presented Australians with the greatest danger. Had this sunset clause not been in place, this legislation could have been used in subsequent years by a person or persons not having the greatest intent for the benefit for the Australian people. It could have been used politically against political opponents within Australia. I clarify those words by saying that there is no inference whatsoever that any present political party in Australia would want to do that. In passing legislation in this chamber, if that legislation does not have a sunset clause we have to take that into consideration.

As I have previously quoted from one of our eminent High Court judges, there are times when we need to pause and think through the ultimate process that this legislation could be used for.

At all times in this chamber we are, I believe, so involved with the legislation that we are working on at the time that there is insufficient ability to go back and look at the impacts of the legislation that we have passed. We could use the example of the deregulation of the dairy industry. Has this chamber reassessed the impact on the dairy industry – whether it has been positive or negative? No, it has not; it has not had time to do that.

In conclusion, One Nation places on the record that it is not our intent in any way in opposing this legislation to assist any person that has any intention now, had in the past, or will have in the future to carry out an action that is detrimental to the Commonwealth of Australia or the Australian people. Our concern in opposing the legislation is based on the impacts on Australia’s innocent citizens.

***

THE COALITION

Minister for Justice Senator Chris Ellison

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is a very important bill for Australia and one which is essential for ASIO if it is to look after the security of this country. The bill is aimed at intelligence gathering and is essential for an agency such as ASIO in dealing with any threat of terrorism.

The government’s position on this bill has always been emphatically clear. I reject totally any statement by the opposition that we have in some way been ambivalent. The statements by the Prime Minister and the Attorney-General have made it very clear that we need this legislation to give our intelligence agencies vital tools to deter and prevent terrorism. This is a bill that we need to look after Australia’s interests. We have not wavered from this position, and we do not intend to do so now.

Unlike the opposition, which has ducked and weaved the difficult questions on this bill, we are serious about protecting the Australian community. The opposition has itself been divided on this bill, whereas the government have demonstrated time and time again our commitment to community safety.

We have been emphatic that the ability to question and detain, in strictly limited circumstances, for the purposes of intelligence gathering to prevent and deter terrorist activity is fundamental to this bill. That is something we have stuck to throughout the whole course of this bill and the inquiries and debate on it.

Let us make no mistake: this bill is designed to enhance the capacity of authorities to combat terrorism and to prevent and deter terrorist activities. It is designed to enable the collection of information about potential terrorist attacks so we can better prevent them before people are hurt or killed.

There is no greater human right than to be able to live one’s life without fear of attack, harm, assault or even death from a terrorist activity. In fact, the greatest breach of human rights is that which we see perpetrated by terrorist organisations in the world today. We have always said that we recognise that this bill is extraordinary – it is designed for extraordinary circumstances.

What we have here is a regime which gives our intelligence agencies the ability to gather that crucial intelligence but which maintains those safeguards that can preserve the interests of the individual.

The government have repeatedly said that we will not entertain proposals that render the bill impotent or unworkable. That is why we voted against the amendments moved by the opposition and the minor parties. We certainly cannot accept amendments that would render the bill unconstitutional either. The opposition’s amendment in relation to sitting state and territory judges would do just that.

The opposition amendments go to matters of fundamental principles that we cannot accept. We are forced, however, into aposition where we have to support the bill asamended to ensure that we can take it back to the House of Representatives and undo the damage that has been done. We do not do so lightly, because the opposition’s amendments, as I said, go to the heart of the bill and fundamentally change the nature of what the government have proposed.

The amendments proposed make the bill, at best unworkable and, at worst unconstitutional. Our advice is that there is a significant risk in appointing sitting judges as prescribed authorities and that this would be unconstitutional, regardless of whether they be state, territory or federal judges. This advice was confirmed as late as last night and conveyed to the opposition in confidential discussions. We also sought specific advice on the oppositions amendment today in relation to prescribed authorities which again confirms our position that the opposition’s amendment will render that part of the bill unconstitutional.

Under the opposition’s amendment, which was passed with the assistance of minor parties, sitting state and territory judges will be performing functions under Commonwealth legislation that would give federal executive functions to state judges. Our advice is that there would an unacceptable risk that this would be held to be incompatible with their judicial functions and hence be unconstitutional. The risk is not just an arguable one but a significant one. In the face of such a significant risk and on the basis of advice available to it, the government cannot support the amendment in this form,and I outlined that to the Senate previously.

In my earlier remarks, I mentioned that the government’s original proposal was to have AAT (Administrative Appeals Tribunal) members perform the role of prescribed authority and not judges. I would like to clarify my remarks and correct the record. The bill, as originally drafted, did not make a distinction between the role of issuing and prescribed authorities. Under that proposal, the prescribed authority could both issue warrants and preside over questioning, although they need not have done both. The original bill provided that AAT members and federal magistrates could perform this role, but the bill and the explanatory memorandum made it clear that the role of the prescribed authority was conducted as persona designata. I stress that a previous statement that also included federal judges as prescribed authorities was incorrect. Where the record has to be corrected is that we did have federal magistrates in that role. The Parliamentary Joint Committee on ASIO, ASIS and DSD expressed concerns in relation to this. The committee acknowledged that the High Court in Grollo v. Palmer had decided that the issuing of a warrant by the judiciary is permissible provided that the judiciary exercise the power in a personal capacity. The committee, however, was also concerned about the possibility that federal magistrates presiding over questioning could go further than the decision of Grollo v. Palmer would allow. Under the government’s original proposal, the person who issued the warrant need not have been the person who presided over the questioning. Federal magistrates could confine themselves to just issuing warrants. The parliamentary joint committee recommended a splitting of the roles so that judges issued warrants but AAT members presided over them. The government accepted the concerns and amended the bill in accordance with the recommendations of the parliamentary joint committee. We sought our own advice on the constitutionality of the amended provision. The result was a splitting of the prescribed authority function into issuing authority and prescribed authority. The government accepted that, by splitting the functions, the governments concerns were addressed and the constitutionality of the bill was assured. The opposition, however, has proposed amendments that contradict the parliamentary joint committees recommendations. The government’s advice on the opposition’s proposals in relation to sitting state and territory judges is that they pose an unacceptable risk and would be unconstitutional. I reiterate that, on that basis, we cannot support those amendments. If the opposition were serious about this bill, it would not be exposing its amendments to such risk of invalidity.

I will finish by saying that the government is deadly serious about ensuring that the security of this country is met and that there is community safety in relation to the current environment of threat. We believe that this bill is essential to ensuring that.

We have taken on board recommendations of the parliamentary joint committee and the Senate Legal and Constitutional References Committeerecommenda=tions which we believe to be constructive. We have not taken on board all of those. There is nothing unusual in that. We have not cherry picked the recommendations, as alleged by the opposition. We have said that we will take on board that which is reasonable, but we will not take on board that which will render this bill unworkable and will expose it to constitutional challenge.

We urge the opposition to reconsider its position, to look carefully at the amendments that were put forward and to look carefully at the reason that we have put this bill forward. This bill has been subject to a great deal of scrutiny – no fewer than three parliamentary committees have looked at this bill. That is very unusual for any piece of legislation in the federal parliament.

This is unusual legislation, and it is very serious in its objectives, in the powers that are bestowed and in the safeguards that it contains. But one thing should be made very clear: in this current threatened environment, this bill is essential to the package of measures that we need to ensure Australia’s safety.

Today obliterated the new givens in Australian politics. With one decision, Simon Crean has set the political clock back to the Tampa and decided to go to war with John Howard on Australian values

Our values: Crean -v- Howard and Carr

 

by Margo Kingston

Today obliterated the new givens in Australian politics. With one decision, Simon Crean has set the political clock back to the Tampa and decided to go to war with John Howard on Australian values.

Simon Crean is transformed from grey shadow to crazy brave warrior. John Howard set the same trap for him as he set for Beazley last year and Simon Crean said no. Kim Beazley backs him in spades.

After Tampa, Howard rushed into Parliament the most vicious, anti-democratic legislation ever brought before it. It removed any accountability for anything the government and its officials did in dealing with boat people. As an enraged Beazley pointed out, it would have allowed officials to murder boat people without redress.

Kim Beazley said no. John Howard cleaned up the bill a little, and Beazley – in fear of losing the imminent election on a wave of anti-boat people sentiment – said yes to the Pacific Solution. He became an uncomfortable me-too boy, giving Howard permission to lurch further and further out of control, culminating in the false election claims that children were thrown overboard, that SIEV-X sank in Indonesian waters, and that terrorists were on board the boats.

Labor has been running scared ever since, culminating last week in Crean’s decision to reaffirm the Pacific Solution despite the certainty that it would split the ALP.

But this morning, after an endless night of frantic negotiations, Crean called Howard’s bluff.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 would allow detention without arrest of any Australian the government thinks might have any information about terrorism. Innocence of any crime is irrelevant. The debate this year has been about safeguards to this extraordinary new power – a power which is traditionally the hallmark of a police-state.

There have been many inquiries, and Liberals on them inquiries have sharply criticised the bill’s excesses and forced amendments, only to see the Government go even further after the Bali bombing.

Last night the Senate passed its version of the bill, adding safeguards to protect the innocent. Overnight, Howard accepted a couple of its amendments and rejected the rest. He sent it back to the Senate, which rejected it, and the House of Representatives rejected the Senate again.

Howard thus fulfilled the first half of the Constitution’s requirements to force a double dissolution election in three months. He will send the bill back in the exact form in which the Senate last rejected it and if Crean holds his nerve and rejects it again, Australia will go to a civil liberties election in the context of the war on terror.

The last time John Howard threatened a double dissolution election was on the eve of Christmas 1997, when the Senate rejected his Wik bill. There were four sticking points. That time round, the Senate called his bluff around Easter 1998, and Howard backed off on a race election only after Pauline Hanson’s One Nation Party won eleven seats at the Queensland election in June.

This time there are three sticking points:

* Howard wants children as young as 14 to be subject to the new law, Labor wants people under 18 exempted,

* Howard wants detention for up to seven days, Labor detention for up to 20 hours, and

* Howard wants no lawyer allowed to sit in on the interrogation for the first 48 hours of detention, then a lawyer chosen from a pool chosen by the government; Labor wants legal representation from the beginning of detention, chosen by the detainee.

The detail will soon get lost. At the double dissolution election Howard would run the populist themes which won him the 2002 election. He would feed people’s fear to argue that drastic curtailment of our liberties is necessary in a time of war, and feed fear of other Australians who don’t look like the majority. The assumption on which his campaign would rest is that Australians can and must trust the government to do the right thing in these dark times.

Crean, just like Beazley would have had he not succumbed to Howard on Tampa, would have a herculean task., He must convince the Australian people that our terrorist enemies will have won the war if in fighting it we lose the very freedoms we are fighting to maintain. He would argue that John Howard cannot be trusted with these powers. One of the weapons he could use – if he dared – if that the government lied to the Australian people about children overboard to win power, and would do anything to maintain it.

Crean would have to explain to the Australian people that the essence of our way of life is the rule of law – that the certainty of abuse of State power against the innocent, proved over and over again by history, is addressed by insisting that we are ruled by laws, not men. The judiciary – independent of government and owing its duties to the law and the citizen, not government – are the bulwark of the rule of law. The right to legal representation when detained by police or other instruments of state power is essential to our freedom.

These are complex arguments, easily overrun by scare campaigns, false propaganda, appeals to prejudice and the screams of shock jocks.

And Crean must, in the end, convince Australians that he can be trusted to lead the nation in this time of crisis – to fight the war on terror as hard as Howard, but to do it in a way that enhances our trust in him by fiercely protecting as far as is possible our liberties and freedoms.

The risks are so high they are almost incomprehensible. If, God forbid, terrorism strikes in our country over summer, John Howard is almost certain to claim – regardless of truth – that it’s all because he didn’t have his ASIO bill the way he wanted it. Crean’s answer will be that he could have had his bill, with proper safeguards, but chose to endanger Australian lives to win an election.

If the challenge was not great enough already, Crean carries a crippling burden inflicted by the most senior Labor Premier in Australia. Bob Carr has just rushed through draconian new police powers with no safeguards whatsoever to protect citizens against their abuse, and justified them on the basis that anything goes in the war on terror.

John Howard – who can rightly say that his bill contains some safeguards – was super-quick to taunt Crean with Carr’s betrayal of core Labor principle. “Under the Labor bill, passed in NSW, the NSW police have the power to stripsearch children between the age of 10 and 18 years without a warrant … (but) with the authority of Michael Costa, the police minister,” he said. “If the Labor Party were really serious and consistent, why didn’t it attack and disown the Carr government – that happened in NSW without a murmur.”

Carr wants to win an election in March with fear and loathing. So might Howard. Crean must fight on two fronts.

It is almost unimaginable that Simon Crean would cave in before February 4, when Parliament resumes. If he did, it would be the end of his leadership. Get set for the most important, high-stakes election in the lifetime of most Australians.

***

By the way, an election next Easter would mean that Howard, if he won, would have to put off his retirement decision for at least one more year. For the sake of the country, of course.

Hi. Tonight first takes on an ASIO election from Hamish Tweedy, Sean Richardson, Damien Lawson, Robert Nicoll and Phil Clarke.

But first, how’s this for proof of David Makinson’s recent plea to Never give up your disbelief (webdiaryDec10). He scoured the net for some hot quotes and got, well, suckered. Reader Catherine M. Harding writes:

I must agree with David Makinson that “[q]uoting historical figures can be perilous” but not because this confronts “the convictions of the righteous” – whatever that might mean.

The real peril in “trawling the internet” for quotes from the “wise and not so wise” is the distinct possibility that the quotation or the attribution or both may be completely and utterly wrong. Such is the case with David’s Julius Caesar “quote”. As far as anyone with an interest in ancient Rome can determine, Caesar NEVER said it or anything like it. It does not appear in any of the ancient sources (e.g.Plutarch, Suetonius, Cassius Dio, Cicero, Lucan, Appian, Caesar etc.) and we can’t even turn to Shakespeare’s semi-fictional treatment for assistance. (For those interested in the development of this urban legend may I refer you to an excellent discussion at one of the internet’s best ancient history sites: ancienthistory )

I don’t raise this issue with the intention of embarrassing David in particular. It’s more by way of a general warning to the amateur commentators among us who like to share our views and opinions with the world. Publication demands higher standards of us. This is particularly so when we use the statements of others to support or otherwise buttress our positions. In these circumstances it’s best to follow a few basic rules:-

1. “Wishing for a thing does not make it so” (Jean-Luc Picard ‘Star Trek: The Next Generation’)

2. If you don’t know, find out

3. Even if you think you know, double check with a reputable source

4. If you still can’t confirm it, don’t say it

5. Don’t plagiarise (Margo: Unless you’re Janet Albrechtsen or Piers Akerman: Their employer seems to love it!)

6. Don’t lie

7. Don’t deliberately misquote or quote out of context

Following these rules won’t guarantee against making future silly mistakes but at least it should assist in minimising them. As it is I don’t know whether David’s other “quotes” from Hitler, Einstein, Goering, Zinn, Roy, Twain or Crowley are correct or not. However, the fact that at least one of the “independent support[s]” for his position is so wrong undermines my ability as a reader to follow the internal logic of the piece.

This is a serious flaw because the mistake unintentionally throws David’s argument back in his own face: “Remember – disbelieve. We are being lied to”.

***

Herald state political correspondent Paola Totaro emailed the premier’s press secretary Amanda Lampe this question at 1.19pm today:

Amanda, Formal question to the Premier please:

Does the Premier support Federal Labor’s stand on the ASIO Bill? Thanks, Paola”

Surprise surprise, no answer.

I emailed Amanda at 5.37pm:

Hi Amanda. I request the Premier’s response to the following statement by Mr Howard in the federal parliament today, when criticising Mr Crean’s refusal to back down on his amendments to the ASIO bill:

“Under the Labor bill, passed in NSW, the NSW police have the power to stripsearch children between the age of 10 and 18 years without a warrant … (but) with the authority of Michael Costa, the police minister. If the Labor Party were really serious and consistent, why didn’t it attack and disown the Carr government, that happened in NSW without a murmur.”

Margo

Surprise, surprise. No answer.

***

Hamish Tweedy

If the arguments are framed as you have put them in Our values: Crean -v- Howard and Carr (webdiaryDec13) then these laws are obscene – and that’s without being aware of what other compromises Labor has already agreed to.

If Howard goes for a double dissolution on this I pray that he’s toast. Either we are on the eve of a destruction that we’re totally unaware of, or Governments (at least NSW and Federal) of this country are considerably more insidious than I had any idea of.

You’re seriously telling me that the PM of this country wants to able to jail 14-year olds for 7-days and then subject them to interrogation without legal representation for 48-hours and then be able to choose the lawyer for the defendant? All we will have succeeded in doing is making the terrorists appear as moderates. I can’t recall a more disgusting proposal.

The best I can hope for is that you’re like Bob Carr (a vicious and malicious liar).

***

Sean Richardson in Sydney

“Under the Labor bill, passed in NSW, the NSW police have the power to stripsearch children between the age of 10 and 18 years without a warrant … (but) with the authority of Michael Costa” – John Howard.

Why did Honest John say this? To point out the obscenity of the NSW bill? No, because he was asking the ALP to let him make his legislation more like Carr’s.

Two words: quo vadis?

***

Damien Lawson, Western Suburbs Legal Service Inc, Melbourne

While I agree with much of your comment on the political situation regarding terrorism, ASIO and the NSW legislation, I have to take issue with a couple of crucial points.

Most importantly, the difference between Labor and the Government is far less than seven days versus 20 hours of detention.

Labor’s proposal allows for 20 hours of questioning, but detention could be for far longer. Travel from the time someone is taken into custody, breaks in questioning, medical treatment, consultation with lawyers and others are not included within the 20 hours.

Therefore someone can be held for well over a day and as Kim Beazley pointed out in the early hours of this morning even a possible two to three days. This is also reflected in Labor’s proposed procedures list which includes sleeping facilities. Mr Beazley told Parliament today: “Frankly, Minister, the public will not understand the differences between us. They will not. We stand here for a regime that will ensure that people can be questioned for 20 hours. In the way in which that is framed, that effectively means TWO TO THREE DAYS DETENTION while that questioning is done.”

I agree that Labor and Crean are in a difficult position on this issue and are risking much in holding to what are significant amendments, but so they should be. As you know, no other western democracy has gone down this route, Labor’s position is far beyond what is seen to be acceptable in the US and UK and should not be acceptable here. Just because the government’s position is so terrible, should we praise Labor for being less terrible?

It is great that children will not be subject to the bill, but what about everyone else.

A lawyer while important is of not much assistance to someone innocent of any offence who is required to answer questions or face five years in prison. All a lawyer can really do in that situation is advise their client to talk.

The Greens, Democrats and One Nation are the only parties that have adopted the right approach on this bill and that is to not accept any abrogation of the principle of “no detention without charge”. Which is the same way as saying no one should be detained unless reasonable suspected of committing a crime.

This principle by the way is what should and does underly much of people’s concern in relation to the detention of asylum seekers.

***

Robert Nicoll

If Howard is able to win another election based on a fear campaign, I will hold the media just as liable for his victory – a responsible media should be able to provide the public with fair and balanced analysis, no matter how misleading shock jocks and tabloid headlines might be; the media should be able to shout loud enough about misleading propaganda and shame any Australians tempted by an underlying/primal bigotry. Thanks for your work this last year.

Margo: Heh Robert, the shock jocks and the tabloids are part of the media. The most powerful part.

***

Phill Clarke

I think it is almost unbelievable that the Howard government is proposing the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 at the same time as they are roundly condemned for their record on Human Rights.

Earlier this week Human Rights Watch issued their first report focussing on Australia. The prognosis was not good. The treatment of boat people and the Pacific Solution were highlighted as particularly troubling.

More information can be found here: hrwreport, hrwpress, indymedia

In an aside, I also find it difficult to believe that I saw no coverage of this report in the “mainstream” media. (Margo: What chance Crean getting his message heard?)

Webdiary’s prodigal son has returned to Webdiary as ‘Meeja Watch’ columnist. Jack Robertson begins his second tour of duty with the announcement of the winner of MW’s ‘Most memorable person of the year’ award.

Most memorable person of 2002

 

by Jack Robertson

“Yester-year upon the screen,

I saw a man who’s never been,

He’ll never be again next year,

I wish to God he wasn’t here.”

The Webdiary Meeja Watch ‘Most Memorable Person of the Year’ for 2002 is the ‘Ordinary Australian’. Particularly impressive was his natural ability to hold two deeply contradictory positions on any given issue, and strictly according to opportunistic political imperative. Highlights in 2002 which contributed to the Ordinary Australian’s overwhelming win (a victory naturally ratified via a national-wide opinion poll), included:

1. Victims of Taliban Oppression. His capacity to cheer loudly while our brave soldiers liberated the victims of extreme political and economic oppression in Afghanistan – and simultaneously cheer loudly while our brave politicians locked up the escapees of that same extreme political and economic oppression here at home.

2. A helping hand. His extraordinary ability to get stuck in and lend the less fortunate a voluntary helping hand in times of bushfire, drought, terrorist atrocity and national emergency – and his resolute unwillingness to allow desperate men, women and children huddling in small, leaky boats even to alight on our mainland shores.

3. A Love of Australian History. His capacity to bask proudly in the warm glow of historical triumphs in which he played no personal part – Gallipoli, Tobruk, Kokoda, Long Tan – and his refusal even to reflect properly upon historical failures in which he played no personal part – White Australia, the 1975 East Timor invasion, the Stolen Generations.

4. Honesty, responsibility, mutual obligation. His tough but fair insistence that a man should work for his dole, follow the rules, take personal responsibility for his situation, pull his weight and not expect a free ride – and his tough but fair acceptance that staggering share bonus options, multi-million-dollar executive payouts from collapsing companies, inflated salaries and outright corporate fraud are ‘natural’ elements of our competitive economic system and must be left for the ‘market’ to eradicate in its own good time, if ever.

5. Sound global citizenship. His shrewd ‘Everyman’ rejection of flawed, corrupt and elitist international organizations, covenants and laws on refugees, the environment, arms control and human rights – and his shrewd ‘Everyman’ championing of fine, idealistic yet commonsensical international organizations, covenants and laws on economics, trade, Robert Mugabe, Iraq and the extradition of terrorist suspects.

6. Religion, the State, and the Separation of Powers. His avowed opposition to Islamic fundamentalist encroachments into the mechanisms of overseas governments, and to political interference with their judiciary by foreign dictators – and his firm support for religious ‘conscience’ votes in Australian Parliaments, a cleric as our Head of State, and increasing political undermining of the Australian Courts.

7. Our fine soldiers. His respect and support for our soldiers’ courage, grit and professionalism – and his bored indifference to our turning of them into political pawns, and their subsequent exposure, undefended by their civilian masters, to darkening Senate committee and human rights organisation accusations.

8. Elitism. His grounded, egalitarian contempt for contemporary academic, literary, intellectual, artistic, media and political ‘progressive elites’ – and his pride in claiming Manning Clark, Patrick White, Doc Evatt, Sid Nolan, Keith Murdoch and Gough Whitlam as Great Australians of yesterday.

9. Mateship. His deep love of the principle of Australian mateship – and his growing hatred of anyone who lives within five miles of the CBD.

10. Poor fellow, my country. Above all things, his deep, instinctive, and unfailing sense of what exactly this slippery thing called ‘Ordinary Australian-ness’ actually is: ‘Me’ but not ‘you’. ‘Us’ but not ‘them’. Yesterday’s reffo – but not today’s. The Last Anzac – but not Tom Uren. Peter Allen – but not Bob Brown. John Howard the PM – but not John Howard the actor. Noel Pearson – but not Eddie Mabo. Working class kids like Bill Hayden and Mark Latham who support mandatory detention – but not working class kids like Bill Kelty and Neville Wran, who don’t. Middle class kids like Piers Akerman and Miranda Devine who think Reconciliation is just another soppy left soapbox – but not middle class kids like David Marr and Robert Manne, who don’t. Toffs like Alexander Downer who scoff at the UN as unrepresentative – but not toffs like Malcolm Fraser, who don’t.

And so the lying, anonymous, manipulative poll results just keep rolling in, and the Parliamentary division bell rings and rings, and goes on splitting the ‘elites’ and the ‘non-elites’ apart, whatever the hell ‘elite’ even means, anymore.

And the only voter in the country for whom that bell is really tolling is the only one who never even existed at all: this curiously-contrary ‘Ordinary Australian’, AKA a condescending and cynical political fiction, AKA The Man Who Wasn’t There Today, and doubtless won’t be again, tomorrow.

The Most Memorable, Forgettable, Miserable Un-Person of the Shithouse Year of 2002.

 

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Primorskaya, St. Petersburg, Russia

 

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“Citizens need to be able to look under the skirts of their government, not the other way around.” Kate Riley, Seattle Times

 

Today will wrap up a year-long debate on the ASIO bill, which gives ASIO the right to detain people without charge for interrogation even if they’re not suspected of a crime.

Debate has raged within and between the major parties on mechanisms to safeguard citizens from abuse of power – the latest is the Senate’s decision that the legislation will lapse after three years.

As I write, the Senate is still finalising the details of the new law. Professor George Williams – who’s led the legal defence of our rights throughout the year with passion, erudition and credibility – discussed what’s happened so far in smhDec4.

I’ve spent a lot of time this year on the legislative responses to the war on terror, particularly the federal anti-terrorism bill (where a Liberal backbench revolt forced significant changes to safeguard our right to protest), the ASIO bill, and most recently the NSW government’s disgraceful Terrorism (Police Powers) Bill which Bob Carr rushed through parliament this month.

I pay tribute to the six brave souls who stood up for civil liberties and safeguards on unchecked police power in the NSW Upper House and voted against the bill because it contained no safeguards. They are Helen Sham-Ho (former Liberal), Arthur Chesterfield-Evans (Democrats), Peter Wong (Unity Party), Peter Breen (Reform the Legal System Party), Richard Jones (former Democrats) and Ian Cohen and Lee Rhiannon (Greens).

Only one of the lonely six is standing for re-election this time, the Greens’ Ian Cohen. Helen Sham-Ho and Richard Jones are retiring and Peter Breen, Arthur Chesterfield-Evans and Lee Rhiannon were elected at the last election and have another term to serve. Peter Breen’s Party is standing secular Muslim Ahmed Sokarno.

So if you vote in NSW and want the people’s rights, including yours, mentioned in the NSW parliament next term, look for Ian Cohen, Ahmed Sokarno and the Democrats on the Upper House ticket. They’re all you’ve got left.

Unlike their federal counterparts in both parties, the ALP backbench nodded and buttoned their lips and the Liberal backbench nodded and buttoned their lips. Otherwise Alan Jones would have shredded them for breakfast.

How’s this for smarmy cynicism from NSW Treasurer Michael Egan during December 5’s question time:

Lee Rhiannon (Greens): I direct my question to the Treasurer, representing the Premier. Is the Treasurer aware of the comments of the Federal Attorney-General, Daryl Williams, on ABC radio yesterday? He said:“When you look at what we have in our bill and compare it to what the NSW government is proposing in its bill you’ll see that there are an enormous range of safeguards in ours that are not present in the NSW bill.”

The Federal Attorney-General was referring to the Terrorism (Police Powers) Bill. In light of this information, will the Premier hold back on promoting the New South Wales model of fighting terrorism until it has been subject to the same proper and open parliamentary inquiries that the ASIO bill has been through?

Michael Egan: The Hon. Lee Rhiannon has been in this place long enough to realise that she should not reflect on a vote of the House or on legislation passed by the House. The legislation to which she refers has been subject to debate in this House and the other place in the past week or so. It passed through this House last night, and I think it is very balanced legislation. We live in quite difficult times and we are subject to threats that we once thought would never emerge. It is very important to have in place safeguards that balance our civil liberties with our right to be protected from harm. I think the legislation that Parliament passed yesterday achieves that aim.

***

New King Carr edict: Once legislation is passed, no member of Parliament has the right to criticise it. And don’t ignore King Bob – he’s got the police in his pocket and the judiciary out of the way if police minister Michael Costa oversteps the mark.

***

Today, Brian Bahnisch, Simon Priestley, Peter Funnell, a federal public servant who must remain anonymous and Michael Strutt comment on Carr’s disgrace, then Jozef Imrich’s selection of United States commentary on what’s happening to civil liberties over there. When you read the United States pieces, remember that at least they’ve got a bill of rights, so the Courts can intervene if Bush and his apparatus go too far. There’s nothing anyone can do to curb Carr’s excesses in NSW – he’s made sure of that. For up-to-the-minute news on the collapse of our way of life via our governments, not the terrorists, go to Zem.

***

Brian Bahnisch in Queensland

My brain is not good on legal issues, but having lived in Queensland all my life except 1964-1968 I understand what it is like to live under a strong and ruthless premier, whose power is unchecked.

I had a chat with Joh one day in the courtyard of a school library we were opening. He was a nice avuncular chap in that context, but non-Queenslanders have no idea what it was like to turn on the radio and every time risk hearing the latest outrageous comment. You had to listen and weigh up each astonishing word because his word was law. Putting down street protests was a specialty.

As a state public servant, I could not go on protests, but my younger brother, as a university student, once lost half his beard, ripped out of his face just for being there.

We suspected there was a netherworld of corrupt activity. We had one honourable police commissioner, Ray Whitrod, who tried to clean it up. He failed and left because of Joh’s interference. We had one honourable politician, Joh’s deputy Bill Gunn, who initiated the Fitzgerald Inquiry when Joh was out of town. We had one senior police officer, with residual and re-found honour, who broke the police ‘wall of silence’. Later in the last days we had an honourable Governor, who refused Joh’s request for a wholesale sacking of cabinet ministers when they finally turned against him.

When the CJC (Criminal Justice Commission) was established we profited, I think, from some honourable and generally high profile chairs of the Commission. Such persons, however, did not always handle the media well and there did seem to be some problems with how the CJC was constituted.

The whole thing became hopelessly politicised during the brief reign of Rob Borbidge as Premier, when the CJC was investigating him and his Police Minister Russell Cooper for their role in the notorious Memorandum of Understanding with the Police Union before the byelection that finally unseated Goss. These two gentlemen countered by mounting an investigation into the CJC.

This was resolved in the end by the Commissioner investigating Borbidge and Cooper resigning because he couldn’t investigate while being investigated. The CJC then had its wings clipped by the establishment of a second Commission to take over some of the CJC’s powers.

This has now been sorted by two honourable men. First Peter Beattie, whatever you may think of him, understands the need for dissent and protest. He has replaced the two commissions with a new one – The Crime and Misconduct Commission. The second honourable man is Brendon Butler SC, the last chair of the CJC and chair of the new Commission.

Vivian Schenker interviewed him on the ABC RN Breakfast Program recently. You could not imagine a more calm, measured, deliberative man. He summed up the argument put to him in hearings over the prior two days, commented thoughtfully on the issues, let everyone know how the matter would be progressed and absolutely refused to be drawn on personal views or likely positions the Commission might take.

As it happens I know the guy. We see each other on little group weekend mini-retreats in the mountains or by the sea organised by a mutual friend one or two or three times a year. I used to work with his wife in the public service.

The point is, while he has had positions of responsibility in the past, he has no great profile. He comes across as a normal, honest, straight-talking, careful garden variety solicitor. But the man is not garden variety; he’s quality.

So to our New South Wales friends, I would say that your idea of an independent person to oversee the new police powers, Margo, is a good one, and probably a high profile person would be useful at first.

Ultimately, however, it will depend on the quality of the person rather than the profile. It will also depend on the quality of the legislation and the independence of the office. Bipartisanship should be built into the structure somewhere. But finally it will only work well if you have quality politicians, who don’t try to undermine, bypass or subvert it.

The quality of the act should be such that it does not need to be rescued and interpreted by a quality person. To leave the responsibility with the Police Minister is gross stupidity and a danger to democracy. It’s times like these we need a Bill of Rights written into the Constitution.

***

Simon Priestley, Sydney lawyer

I have just read the new legislation for the widening of police powers to “combat terrorism”. I am more afraid of the new laws widening police powers to “combat terrorism” than the terrorists.

I’m most afraid of how an apparently insane Premier and a Police Minister who seems to confuse himself with the Ghost Who Walks will abuse them. Both men have shown complete disregard if not dislike for honesty/accountability/the truth – anything that may make keeping in power more difficult.

Anyone who doubts they will abuse it is either a fool or in denial of the tragic turn our society is taking. We must not forget this is the Labor Premier who gave the finger to protesting unions, stripped away more workers rights than Menzies dreamed was possible, protects insurance companies and grovels to The Parrot (Sydney talkback king Alan Jones).

If we don’t protest now we may lose the right to protest ever again.

***

Peter Funnell in Farrer, ACT

You’re doing terrific work on the terrorism/law and order/civil rights/democracy issues. I hadn’t seen all the connections till I read your stuff on NSW. Bloody hell! Have they no shame or sense of ordinary decency? Do they really believe in liberal democracy?

Where is this all going I wonder? Terrorism is a criminal matter, but what powers do law enforcement agencies need to pursue and prevent major crime that they don’t have today? There has been a push for a very long time to stretch the limits when pursuing illegal drug crime, but there has been only a limited and measured increase in additional powers. No difference here that I can see and no more threatening.

Terrorism leads to a call to enhance “security”, while illegal drug crime inspires calls for greater criminal investigative powers. The bridge between the two is the need to physically secure people and places, the sense of “war”, when in fact we are talking about gathering more intelligence and giving higher priority and resources to criminal investigation.

The very best results, the only results that matter in dealing with terrorism, is through law enforcement and intelligence agencies. If they work globally or regionally, the results compound significantly. Just look at Bali and the efforts of numerous countries around the world, as they follow the money, investigate and close down the infrastructure.

This is not “war”, it’s bloody good criminal investigation. We don’t need a lot more powers given to these investigative agencies and we don’t need to forego our civil liberties. That is completely the wrong way to go with terrorism. By calling it a “war” and linking it to military capability or objectives, the situation gets seriously out of control – for everyone involved.

My memory of these things goes back to the CHOGM conference in the mid seventies and the Hilton bombing, As a young army rifle platoon commander, I was given a set of orders – rules of engagement that were about three foolscap pages long – which had no chance of being effectively communicated to my troops ( I didn’t understand them and no did my superiors). I was also given a sand bag full of ball ammunition (which I would distribute at my discretion or on order), then, along with the other platoons and companies in my battalion, set forth in our armoured personnel carriers and took up a series of observation posts along a section of the highway to the Blue Mountains.

It was a dangerous farce, that did not sit well with most of us, as I remember it. Fortunately that situation was mitigated by some very responsible and experienced military commanders who were respectful and concerned for potential use of military force on a domestic issue. Things can and do get out of control very quickly. Democracy is fragile and people use the power available to them is my experience. Today there are more than adequate call out provisions. Nothing more is required.

What disgusts me is the Federal and NSW State Government’s disgustingly similar agendas – make people very fearful for their safety and the future to elections. Trade off democracy for an another shot at power. All Carr and Howard are doing is proving the terrorists correct and diminishing our democracy. Sickening, just sickening. Each time they do this, it becomes easier to take another liberty the next time.

***

Anon

I just want to say that I like the things you write and I share your opinion on Mr Carr and Mr Howard and their quest (or obsession) for populist authoritarianism. Dreadful phrase; appalling reality.

As for their “arguments” – more accurately described as assertions of necessity for these authoritarian moves for increased ASIO and police powers, I can only recall Pitt’s comment: “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

Apologies for me remaining Anon. I would be unemployed by Friday if my employer even suspected I was reading your articles! (I work in the Commonwealth Government.)

***

Michael Strutt

Disclosure: I’m a social justice activist, former member of Justice Action and a regular reader of your column. This is an article I recently wrote for the Justice Action magazine ‘Framed’.

…

Demolishing Democracy – How Carr and bin Laden gave birth to the NSW police state

The Bali bombings could not have come at a better time for Bob Carr and his project to bring an end to Westminster democracy in NSW.

The parliament has long been under the control of the executive, thanks to the combination of strict party discipline and an ineffective opposition. Guideline sentencing, a timid Chief Justice and regular moral panics over ‘light sentences’ keeps the judiciary in line. The ‘fourth estate’ has been rendered impotent by a supine and sycophantic parliamentary press gallery and by the simple expedient of handing the police ministry over to most extreme right wing shock-jock in the state.

The prisons are packed and new ones being built as fast as possible, the Wood Commission reforms have been rolled back and the Ombudsman and Police Integrity Commission nobbled. A notorious prison officer has been put in charge of Corrective Services, in spite of adverse ICAC findings against him and an ‘old style’ NSW cop made Commissioner of Police, although the PIC had been told that he was the leader of the ‘Black Knights’ dedicated to blocking any reform of the NSW police.

The police themselves have more powers than at any time since the Rum Rebellion and a record number of citizens are now languishing in prison cells under conditions as abusive as any since the Nagle Royal Commission.

But how could you run a law and order election campaign from here? What is left to crack down on?

The answer came in a flash. The same flash that extinguished 87 Australian lives at Kuta Beach.

The police and military could be joined under a Homeland Security Ministry, based on the model established by George Bush following the September 11 attacks.

The draconian ASIO bill which had been stalled in Federal parliament for a year could be adapted for NSW police requirements and shoved through NSW parliament, granting Carr’s crackpot police minister unheard of powers and freedom from all judicial oversight or review.

But best of all, the war on terrorism gave Carr the perfect cover to terrorise dissenters. So he released his yapping attack dog.

Costa immediately swung into action, slandering a forum on civil disobedience as a plot to unleash violence against his police force. He went on to ensure that peaceful protesters against the WTO would feel the boot (and hooves) of NSW police aggression. Soon he had joined with the Federal Justice Minister in a Stalinist plot to silence independent media on the internet, with open publishing websites such as IndyMedia and Active Sydney copping particular vilification.

“I think with the current climate we are in we have all got to be nervous all of the time,” Costa told reporters. He is sure doing his bit to make sure we are.

The Premier himself was soon to join the fray, wielding the Bali bombing like a bludgeon against all who dared challenge him.

When Herald journalist Margo Kingston had the temerity to question the anti-democratic nature of the Terrorism (Police Powers) Bill 2002, Carr was quick to attack, falsely accusing her of blaming the Bali victims for their own deaths. Just to make sure everyone understood that his words had not been an accident, he repeated the lie later in an interview with 2GB’s Chris Smith.

“These nosey reporters”, simpered Smith, “they tend to ask questions”.

Even the International Commission of Jurists was not safe from the wrath of the rampant Premier.

When Supreme Court Justice Dowd told the Senate that anti-terrorism laws were exploiting a climate of hysteria to abolish fundamental rights, Carr was quick to demonstrate how hysterical he could get.

“Can’t John Dowd get it into his thick head that Bali occurred, that we have a problem here, that these threats are real?”, he fumed.

Terrorism is not new to NSW, it has been here for at least two hundred years – as many Aboriginal Australians can attest. Bob Carr’s new order just means that terrorism will now touch far more innocent people, not just those from marginalised and disempowered groups. In a sense, Carr has brought state terror to the masses.

So when Costa’s stormtroopers drag you from your bed, parliament remains silent, the media calls you ‘a suspected terrorist’ and the judiciary stands by and does nothing, just think of the Premier and reflect that not all terrorists are foreigners bearing bombs.

***

UNITED STATES COMMENTARY

Correction: I wrote recently that “(Nancy) Pilosi was the only Democrat to vote against the resolution authorising Bush to use military force in Iraq. She also voted against the Homeland Security Act.” WebdiaristMark White corrects my spelling – it’s Pelosi – and advises: “Plenty of Democrats voted against George W. Bush’s resolution (on Iraq). In fact, in the House, the vote was 296-133, with a majority of Democrats voting against the resolution. In the Senate, the vote was 77-23, with 21 Democrats voting no, joined by Independent Sen. Jim Jeffords of Vermont and Republican Sen. Linc Chafee of Rhode Island.”

***

“Homeland security” a threat to Americans’ rights

Two weeks ago THE LIGHTHOUSE reported Independent Institute research fellow Paul Craig Roberts’ prediction that the Department of Homeland Security will make its constituent bureaucracies even less accountable than they already are.

This week we report Independent Institute senior fellow Robert Higgs’ emphasis on the risk that Homeland Security will pose to Americans’ rights.

“Higgs believes that despite some intense public criticism, most people simply accept the government rationale for curtailing civil liberties until something happens to draw their attention to the limits of such policy, such as another large terrorist attack,” writes Christian Bourge, think tanks correspondent for United Press International.

“I think that will eventually cause people to question the efficacy of the measures the government has taken,’ [Higgs] said. ‘This is a situation, however, in which logic doesn’t operate and fear prevails. In the short run people always fall for this bogus promise – that the government will protect them – whether it has substance or not.”

He said that it would probably take an administration attack on a powerful person or group – something on the level of the Watergate scandal – to awaken the public to the negative impact of the policies enacted over the last year.

“As long as you attack people who are marginal, like immigrants, Muslims and people with unpopular political views, the government has a good chance of getting away with its suppression of liberty no matter how draconian,” said Higgs. “It is when (government) abuses its power and uses it against people who have the ability to fight back through official channels and the political process that something is likely to happen.”

See:

Report: Anti-terror Powers Curtail Rights by Christian Bourge (UPI, November 23, 2002) independent

Government Protects Us? by Robert Higgs (The Independent Review, Fall 2002) independent

***

Doublespeak and Internment: ‘Let It Not Happen Again’

by Kate Riley, Seattle Times

Clarence Moriwaki sees something all too familiar in the words used in the War on Terrorism.

“They call them detainees, instead of prisoners,” the Bainbridge Island man says of about 1,200 people rounded up after the 9/11 terrorist attacks. “It’s the same kind of Orwellian doublespeak that they used during World War II.”

Moriwaki and Mary Woodward fretted recently over coffee after showing me the island’s old Eagledale Ferry Dock site. There a small marker commemorates the 227 people of Japanese descent, most of them American citizens, who were rounded up March 30, 1942, and taken from this idyllic island to the Manzanar internment camp in the desolate Mojave Desert. These were the very first of some 120,000 Americans who would lose their freedom in unconstitutional imprisonment lasting up to three years.

“They called them evacuees,” said Woodward, whose parents published the Bainbridge Island Review, one of the few newspapers in the nation to consistently criticize the government action. “You evacuate a burning building. These people were taken prisoner.”

Moriwaki and Woodward hope the Bainbridge story might help to remind our nation’s leaders of the risks of curtailing civil liberties. Within days of passing the Homeland Security Act, Congress also approved a bill that directs the Interior Department to study whether to establish the Eagledale Ferry Dock site under the National Park Service. The Bainbridge committee has artist renderings of a larger memorial keyed around its central message, Nidoto nai yoni. “Let it not happen again.”

The bill’s sponsor, U.S. Rep. Jay Inslee, D-Bainbridge Island, acknowledges a lesson in its success. “It’s the perfect moment, because the kinds of fear and stress that gave rise to (the internments) in 1942 are the same that we’re seeing now.”

Granted, most “detainees” rounded up after 9/11 reportedly are not American citizens, as most of the World War II prisoners were. Many were illegally in this country and reportedly have been deported. I emphasize “reportedly,” because no one can be sure. The federal government has refused to give any information on these detainees and has sought to close immigration hearings and move other proceedings from the court system to military tribunals where they can keep the curtains closed.

That gives Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, fits. “Not to say that some of these people shouldn’t be kicked out of the country,” she says, “but there needs to be some sort of way for the public to know what the government is doing.” (Margo: Carr decrees that there is no requirement for public reporting of Costa’s activities or those of his police force’s activities under the new law.)

For sure, these are uncertain, scary times that require smarter ways to flush out and apprehend enemies. But what scares me as much as the threat of a terrorist attack is the threat to civil liberties, citizen privacy and public access to government.

Astonishingly, President Bush has put a convicted felon in charge of the Department of Defense’s Total Information Awareness program. Former National Security Advisor John Poindexter, who masterminded the Iran-Contra scandal and was saved from a prison sentence for his five convictions because of a technicality, proposes to combine databases to track the dealings of American residents, citizens and otherwise, with no warrants necessary.

And you thought your grocery-store savings card was innocuous, right?

How are we supposed to trust the government won’t overstep its bounds with a convicted liar in charge?

Can Congress trust Poindexter? Can Congress protect us? Can we trust Congress?

Before the Homeland Security Act vote in the House, Inslee entered into the record a statement trying to clarify that the act was not an endorsement of Poindexter’s plan. He had proposed a bipartisan colloquy, which would have carried more weight, but Republican leadership refused.

A feisty, inquisitive press is one way that citizens have been able to keep tabs on their government and hold officials accountable. The press’ watchdog role has never been more important, but its abilities are being curtailed.

Even before the 9/11 attacks, Bush was buttoning down access to government. Under the Clinton administration, the standard for responding to Freedom of Information Act (FOIA) requests was to disclose unless there was a good reason not to.

Under Attorney General John Ashcroft, the bent was shifted to require a good reason to disclose. The new Homeland Security Act limits FOIA access even further.

Dalglish is alarmed at the changes. “I’m afraid there’s going to have to be some really egregious behavior before Congress is going to catch on.”

That’s something Clarence Moriwaki, Mary Woodward and I are worried about, too.

Citizens need to be able to look under the skirts of their government, not the other way around.

***

In Terror War, 2nd Track for Suspects

Those Designated ‘Combatants’ Lose Legal Protections

by Charles Lane , Washington Post, December 1.

The Bush administration is developing a parallel legal system in which terrorism suspects – U.S. citizens and noncitizens alike – may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

The notion that the executive branch can decide by itself that an American citizen can be put in a military camp, incommunicado, is frightening. They’re entitled to hold him on the grounds that he is in fact at war with the U.S., but there has to be an opportunity for him to contest those facts…

The elements of this new system are already familiar from President Bush’s orders and his aides’ policy statements and legal briefs: indefinite military detention for those designated “enemy combatants,” liberal use of “material witness” warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately interact.

For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen’s home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.

Administration officials, noting that they have chosen to prosecute suspected Taliban member John Walker Lindh, “shoe bomber” Richard Reid and alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts, say the parallel system is meant to be used selectively, as a complement to conventional processes, not as a substitute. But, they say, the parallel system is necessary because terrorism is a form of war as well as a form of crime, and it must not only be punished after incidents occur, but also prevented and disrupted through the gathering of timely intelligence.

“I wouldn’t call it an alternative system,” said an administration official who has helped devise the legal response to the terrorist attacks of Sept. 11, 2001. “But it is different than the criminal procedure system we all know and love. It’s a separate track for people we catch in the war.”

At least one American has been shifted from the ordinary legal system

into the parallel one: alleged al Qaeda “dirty bomb” plotter Jose Padilla, who is being held at a Navy brig, without the right to communicate with a lawyer or anyone else. U.S. officials have told the courts that they can detain and interrogate him until the executive branch declares an end to the war against terrorism.

The final outlines of this parallel system will be known only after the courts, including probably the Supreme Court, have settled a variety of issues being litigated. But the prospect of such a system has triggered a fierce debate.

Civil libertarians accuse the Bush administration of an executive-branch power grab that will erode the rights and freedoms that terrorists are trying to destroy – and that were enhanced only recently in response to abuses during the civil rights era, Vietnam and Watergate.

“They are trying to embed in law a vast expansion of executive authority with no judicial oversight in the name of national security,” said Kate Martin, director of the Center for National Security Studies, a Washington-based nonprofit group that has challenged the administration approach in court.

“This is more tied to statutory legal authority than J. Edgar Hoover’s political spying, but that may make it more dangerous. You could have the law serving as a vehicle for all kinds of abuses.”

Administration officials say that they are acting under ample legal authority derived from statutes, court decisions and wartime powers that the president possesses as commander in chief under the Constitution.

“When you have a long period of time when you’re not engaged in a war, people tend to forget, or put in backs of their minds, the necessity for certain types of government action used when we are in danger, when we are facing eyeball to eyeball a serious threat,” Solicitor General Theodore B. Olson, who leads the administration’s anti-terrorism legal team in the federal courts, said in an interview.

Broadly speaking, the debate between the administration and its critics is not so much about the methods the government seeks to employ as it is about who should act as a check against potential abuses.

Executive Decisions

Civil libertarians insist that the courts should searchingly review Bush’s actions, so that he is always held accountable to an independent branch of government. Administration officials, however, imply that the main check on the president’s performance in wartime is political – that if the public perceives his approach to terrorism is excessive or ineffective, it will vote him out of office.

“At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision,” Olson said. “Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?”

Probably the most hotly disputed element of the administration’s approach is its contention that the president alone can designate individuals, including U.S. citizens, as enemy combatants, who can be detained with no access to lawyers or family members unless and until the president determines, in effect, that hostilities between the United States and that individual have ended. (Margo: Bob Carr hasn’t even taken responsibility for the awesome new police powers under his new laws – instead his out-of-control police minister Michael Costa will decide when and where to declare a state of emergency and who to target for strip search and home and vehicle invasion with no accountibility to the public or the courts.)

Padilla was held as a material witness for a month after his May 8 arrest in Chicago before he was designated an enemy combatant. He is one of two U.S. citizens being held as enemy combatants at the Navy brig in Charleston, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter who was captured by American troops in Afghanistan and sent to the U.S. prison at Guantanamo Bay, Cuba, until it was discovered that he was born in Louisiana.

Attorneys are challenging their detentions in federal court. While civil libertarians concede that the executive branch has well-established authority to name and confine members of enemy forces during wartime, they maintain that it is unconstitutional to subject U.S. citizens to indefinite confinement on little more than the president’s declaration, especially given the inherently open-ended nature of an unconventional war against terrorism.

“The notion that the executive branch can decide by itself that an American citizen can be put in a military camp, incommunicado, is frightening,” said Morton H. Halperin, director of the Washington office of the Open Society Institute. “They’re entitled to hold him on the grounds that he is in fact at war with the U.S., but there has to be an opportunity for him to contest those facts.”

However, the Bush administration, citing two World War II-era cases – the Supreme Court’s ruling upholding a military commission trial for a captured American-citizen Nazi saboteur, and a later federal appeals court decision upholding the imprisonment of an Italian American caught as a member of Italian forces in Europe – says there is ample precedent for what it is doing.

Courts traditionally understand that they must defer to the executive’s greater expertise and capability when it comes to looking at such facts and making such judgments in time of war, Bush officials said. At most, courts have only the power to review legal claims brought on behalf of detainees, such as whether there is indeed a state of conflict between the United States and the detainee.

In a recent legal brief, Olson argued that the detention of people such as Hamdi or Padilla as enemy combatants is “critical to gathering intelligence in connection with the overall war effort.”

Nor is there any requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant, Olson argues.

“There won’t be 10 rules that trigger this or 10 rules that end this,” Olson said in the interview. “There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances.”

The federal courts have yet to deliver a definitive judgment on the question. A federal district judge in Virginia, Robert G. Doumar, was sharply critical of the administration, insisting that Hamdi be permitted to consult an attorney. But he was partially overruled by the U.S. Court of Appeals for the 4th Circuit, based in Richmond.

The 4th Circuit, however, said the administration’s assertion that courts should have absolutely no role in examining the facts leading to an enemy combatant designation was “sweeping.” A decision from that court is pending as to how much of a role a court could claim, if any. The matter could well have to be settled in the Supreme Court.

Secret Surveillance

 

The administration scored a victory recently when the U.S. Foreign Intelligence Surveillance Court of Review ruled 3 to 0 that the USA Patriot Act, passed by Congress shortly after the Sept. 11 terrorist attacks, gives the Justice Department authority to break down what had come to be known as “the wall” separating criminal investigations from investigations of foreign agents.

The ruling endorsed the administration’s view that law enforcement goals should be allowed to drive Justice Department requests for special eavesdropping and search warrants that had been thought to be reserved for counterintelligence operations. But the court went further, agreeing with the administration that “the wall” itself had no real basis in pre-Patriot Act law. Instead, the court ruled, “the wall” was a product of internal Justice Department guidelines that were, in turn, based partly on erroneous interpretations of the law by some courts.

There is no clear line between intelligence and crime in any case, the court said, because any investigation of a spy ring could ultimately lead to charging U.S. citizens with crimes such as espionage.

The decision overruled an earlier one by the lower-level Foreign Intelligence Surveillance Court, in which seven judges sharply criticized past Justice Department misstatements in applications for permission to do secret surveillance.

Administration officials say that the ruling permits what is only sensible — greater sharing of information between federal prosecutors and federal counterintelligence officials.

Thanks to enforcement of “the wall” by FBI lawyers, they note, pre-Sept. 11 permission to search Moussaoui’s computer was not sought, a crucial missed opportunity to prevent the attacks.

In practical terms, the ruling means that the attorney general would still have to convince the Foreign Intelligence Surveillance Court that he has probable cause to believe that a given subject of a wiretap or search is an agent of a foreign terrorist group, a standard that is not dissimilar to the one required for warrants in ordinary criminal cases.

Yet civil libertarians say that targets of such investigations who end up being ordered out of the country or prosecuted would lose a crucial right that they would have in the ordinary criminal justice system – the right to examine the government’s evidence justifying the initial warrant.

“So the government starts off using secret surveillance information not to gather information upon which to make policy, but to imprison or deport an individual, and then it never gives the individual a fair chance to see if the surveillance was lawful,” Martin said.

Michael Moore was kind enough to publish my piece on the United States’ new national security strategy on his website, and I’ve had a steady stream of hits from the United States ever since.

Yesterday, US citizen M.K. Harrison responded to Manifesto for world dictatorship (webdiarySept22). After her piece, David Spratt suggests you check out the unsavoury history of US undersecretary of state Richard Armitage, who’s visiting Australia on Friday to straighten our backs on Iraq.

Before that, Sue Bushell discusses Moore’s book Stupid white men, relating the censorship surrounding the publication of his book to the dearth of coverage of the SIEV-X controversy. (The Senate this week passed a motion urging a judicial inquiry into SIEV-X, with another motion asking the government to extradite boast organiser Abu Quassey from Indonesia to face homocide charges on the go. For the details, go to sievx).

To end, responses to David Makinson’s year-in-review opus Never give up on your disbelief from Mike Lyvers, an American in Queensland, and Sean Hosking.

It’s the end of another big, bad year. Late Night Live finishes for the year this week, and I had a go at a year-in-review last night. In the run-down to Christmas, I’d like to publish your highlights and any 2002 quotes that have stayed in your mind. Who’s your Australian of the year? Mine is Michael Kirby.

Webdiarist Cathy Bannister didn’t need to be asked, and today her end-of-year piece, including a poem for the Bali dead.

But to begin, drought-stricken NSW had great rains yesterday, and Webdiarist Merrill Pye celebrates.

***

Merrill Pye in Pyrmont, Sydney

On the way home tonight to my inner-suburban plot (with its proudly browned-off patch of lawn under the Hill’s Hoist, well-mulched tiny herbal bed and shaded bowl of water for thirsty wildlife), hopping over the flooded gutters, wading through the sheets of water across driveways, I let my tears mingle with the drops driving under the hat brim.

A heart overflowing thankfulness at the steady, soaking downpour fought with a deep upwelling pain at seeing those gushing streams flowing across the hard concrete and asphalt down through the stormwater drain to lose themselves in the salt of the harbour.

How I would have loved to see those streams flowing down into dams and through channels to replenish the soil, bathe the yearning roots and let the green come through again.

The original title of Dorothea Mackellar’s My Country was Core of My Heart:

Core of my heart, my country!

Her pitiless blue sky,

When, sick at heart, around us,

We see the cattle die –

But then the grey clouds gather,

And we can bless again

The drumming of an army,

The steady soaking rain.

Core of my heart, my country!

Land of the rainbow gold,

For flood and fire and famine

She pays us back threefold.

Over the thirsty paddocks,

Watch, after many days,

The filmy veil of greenness

That thickens as we gaze…

The opal-hearted country,

A wilful, lavish land –

All you who have not loved her,

You will not understand –

Though Earth holds many splendours,

Wherever I may die,

I know to what brown country

My homing thoughts will fly.

***

Cathy Bannister

I wrote this poem some time ago for the parents of Bali bombing victims, but by the time I was finished it was way too late to publish. It might be worth putting in some yearly wrap?

After September 11 last year, I think the left fell into a deep depression en masse. That sort of shock takes 6 to 12 months to get over. While depression can inspire some people to greatness, the vast majority are knocked into useless turpitude, so it’s no wonder that the left has been so bloody useless this year. Thank heavens for Carmen Lawrence – let’s hope she is the catalyst for huge change.

Anyway, here’s my poem.

***

An epiphany

That sweet moment which is

Not mere realisation

Not fresh thought gelled or distilled

But a watershed,

As sudden and shocking as the earth shifting,

As waking in a room flooded

at war

or on Mars,

Might come the moment your baby’s

Head hits your perineum

And you wonder, lucid in exquisite agony, how this child will ever be born

without tearing you in two,

Or perhaps, in the confused, weary, long dark hours that first night home

alone,

With the tiny, fragile, needy parasite crying in sheer terror, craving the

womb and lonely,

And you realise you must fight the exhaustion of the previous days’ labour

that there is no choice

that you must rise

and tend her.

A father might be captured the first time he lock eyes with his baby,

Or the first time he holds this delicate little person, his child, with arms

too large and clumsy,

Or maybe sometime later, when he throws his body between the baby and an

indifferent world

and breaks something.

For parents in a moment know that they are nothing, and the child is

everything,

That without a moment’s thought, your would give your own life to save your

child.

*

So for eighteen years, give or take a few, you tend, you shape, you nurture.

You raise, you punish, you support, you love,

you are punished, exasperated, bewildered and elated.

And eventually, reluctantly, you try to let go.

But, you never can. Not really. Not ever.

I can’t imagine losing a child.

Losing a child is not like losing a limb

There are no prosthetics

For that gaping wound,

where your love,

everything you have lived for,

so large a part of your soul,

has been ripped out,

They say you can learn to live again,

Gradually, moments will open,

When you can step outside into the glorious Australian Spring

And see the vivid blue through the golden wattle,

And breath the fresh air.

They say the pain dulls with time.

So, for what it’s worth, I feel for you

Who have lost children.

May you find solace and peace.

***

Sue Bushell

Regarding Tony Kevin’s piece about the reticence of the media to pick up on further SIEV-X disclosures (SIEV-X: Not the news, webdiaryDec9), I wonder how susceptible the Australian media is to a sustained public campaign demanding more information. One lone voice may not make a difference, but a flood of them might be impossible to ignore.

I have just finished reading the introduction to the UK edition of Michael Moore’s Stupid White Men. It is truly inspiring. With 50,000 copies of Moore’s book due to roll out of the warehouse on September 11, 2001, publisher ReganBooks (a division of HarperCollins) got cold feet after the terrorist attacks and refused to publish the book unless Moore agreed to rewrite at least 50 per cent of it and pay them $100,000 to reprint the books already printed.

“We can’t release the book as it is written. The political climate of this country has changed,” they told Moore, who understandably refused to make the suggested changes, including toning down his criticisms of George Bush.

Moore’s book might never have been published unless a librarian called Ann Sparanese, whom he had never met, but who happened to hear him speak about his plight one day, got on the Internet, writing a letter to her librarian friends and posting it on a progressive site devoted to librarian issues.

In response, thousands of people sent hate mail to HarperCollins, who eventually bowed to the pressure and agreed to release just the 50,000 copies in the warehouse as is, but refused to promote the book in any way. They assured him that would be the only print run.

Within hours of those 50,000 copies hitting bookstores, they sold out. By the next day Stupid White Men went to number one on the Amazon.com best-seller list. By the fifth day it was on its ninth printing. It shot to number one on the New York Times bestseller list and every other list in the country. It was months before people could be assured of going into a bookstore and buying a copy.

There has still not been a single ad for the book and Moore has appeared on only two broadcast shows – one that comes on around 1 am and the other at 7 am. But copies of that book, and a Penguin international edition, keep rolling of the presses.

Might not a campaign directed at editors of Australian newspapers achieve similar things?

Margo: My brother Hamish Alcorn recommends Turning the World into Hell?, a piece on the media by David Cromwell in Zmag. Unfortunately you need to subscribe to read it. A quote: ‘To be corrupted by totalitarianism’, George Orwell once warned, ‘one does not have to live in a totalitarian country.’ Instead, ‘the mere prevalence of certain ideas can spread a kind of poison’ that makes critical commentary on the status quo all but impossible.

***

M.K. Harrison

While I can’t find fault with anything you wrote in your article Manifesto for world dictatorship, I do want to make points that you didn’t.

Not all of us “Americans” consider ourselves supreme power of the world. In fact, many of us are quite embarrassed by what we have become and how we are presented to the world by our hideous head Dubya Bush.

You call us Americans. In that respect, I must say you are as guilty as “we” are. We are but one country in the Americas. We are US Americans. How self-serving it is to refer to ourselves as Americans while ignoring 54 other countries in the Americas, not to mention 549,028,570 people who live in the Americas and who aren’t residing in the United States.

Unlike most countries in this world: we don’t know politics, we haven’t a clue about geography, we only read headlines. This leads to a population who believes what the press says and what our leaders tell us. We hear how wonderful and generous we are to others. We just don’t hear – or perhaps listen – to the motivation behind our so-called generosity.

For years we have paid for the military of other countries, allowing those countries to (sometimes) pay for their own childcare, healthcare and elderly care. We are full of pretence that we are looking after the peoples in the countries where we have a heavy military presence.

In the meantime, we have shelters full of children, parents and grandparents who have no one to care for them. Certainly not our country! It is much easier to ignore these people under our noses – not to mention the fact that we have all of you to worry about.

We ridicule others for their lack of human rights and compassion and all the while we kill based on the color of one’s skin or sexual preference. How many countries other than the United States have a Hate Crime Bill? How many others need it? Let’s not forget how compassionate we are – after all, aren’t we the people who manufacture cattle, swine and fowl for human consumption at an alarming rate and in an inhumane fashion?

Certainly there is a method to our madness. We need oil so we have to do whatever is necessary to get it, right? I mean really…. can you honestly see citizens of the US driving electric cars – how glamorous is that? Have you ever seen a Mercedes-built Smart Car here? I don’t care if it is a MB – where is the luxury? Will my neighbors know it is a Mercedes or will they think I couldn’t afford a big car?

We need food – after all we do consume more food than any of you! We get hungry feeding the world. Oh, have you heard that we consume more food per capita than any other country? Take into consideration our high numbers of houseless and hungry people and you find a whole heap of hungry, glutenous Christians here.

What did you say? Our treatment of animals and humans? We can’t be concerned with our fellow citizens when we are trying to rule the world! We have higher incidents of animal abuse and human abuse than anywhere – yet!

We need to help you with your problems first!

Our lack of knowledge of politics and/or geography…. well, see, we live in our own little world. The Canadians are friendly folk who really cause us no problems. Those darn Mexicans can get on our nerves when they constantly try to cross the border into our country. But other than that, what do we need to know?

Australia is in the same boat – you are basically on your own. We aren’t like those unfortunates who live in countries the size of our States who have to keep up with the politics of neighboring countries just to know if they are safe or not. Besides all of them know geography because if you are in Greece and you want to drive to France – you better darn well know how to get there! And with all those Evil countries so close together and near Europe – well, you would be a fool not to know exactly where Hussein is.

Dubya Bush knows so it must be important.

Most of us know the names of all of our States! It is those pesky US territories that confuse the hell out of us. But they are out of sight and out of mind so we don’t think about them.

We don’t think too much of anyone – but you know that. I am just not sure you understand why we don’t. Our leaders (as scary as they are) are taking care of all of that. We don’t need to worry our pretty little heads about it. Yes, we will send our sons and daughters over somewhere filled with evil people and there will be some of our children who won’t make it home alive…. but, it isn’t our fault! Our leaders are just trying to keep this world peaceful by starting a war. If everyone would just behave as we do, we wouldn’t have these problems, now would we?

After everything we have done for this world now we find out we aren’t loved! That will keep us busy long enough to not look at the fact we don’t love each other or our own country.

It hurts us deeply that you don’t like us – you really don’t like us. When we put your best interest in front of ours constantly and consistently, how could you think so little of us?

Is it because we hardly know you exist until:

1) you do something that pisses us off or

2) you have something we want and is rightfully ours anyway?

Having lived outside US America (and loving every second of it) I have experienced the jealous looks, petty backstabbing, and unkind remarks just because I am from the US. I recited at record speed names of countries and their locations, I exhibited my dry wit at every given occasion, I name-dropped world leader’s names – even those who aren’t from the US. I made apologies for all of my people when in fact I can’t tolerate most of my fellow Americans………… It isn’t easy being me.

But back to you not honoring, respecting, admiring and loving us. We just don’t get why you don’t willingly let your world revolve around us – we do!

You must keep in mind: United States equals US: It’s all about us!

We aren’t forcing our policies and beliefs on you – we are sharing them – because we are right. Always have been, always will be. Just ask us.

***

David Spratt in North Fitzroy, Melbourne

Richard Armitage, US Under Secretary of State to Colin Powell, will be in Canberra this Friday, presumably to sell a war, not that it needs much selling with the present government. To get an idea of Armitage’s colourful past – Vietnam, Operation Phoenix, Indochina heroin trade, Irangate/Contras, etc, go to progressivereview.

My interest? I am an activist in the Victorian Peace Network, a broad-based coalition opposed to war on Iraq. (see vicpeace)

By the way, on first strike: Anti-Castro Cuban exiles in Miama have long used the United States as a base for planning and executing acts of terror against Cuba, including the 1976 bombing of a Cuban airliner, killing 73. Does Mr Howard support Cuba striking Florida first? Or India striking at bases in Pakistan where Kasmiri militants may be based? Or Israel striking at Iran, which supports Hezbollah? Or New Zealand striking at France to derail a subversive plot hatched in Paris to bomb a Greenpeace ship in a New Zealand port? Or Iraq to strike at Washington because it ‘becomes aware’ of a reported CIA plan to assassinate its leader? In the name of the ‘war on terror’ are we in danger of making the world even more insecure? By labelling political opponents as terrorists (as Margaret Thatcher labelled Nelson Mandela) could the ‘war on terror’ become transformed into a war of the rich and powerful against the poor but resource rich? Isn’t that precisely the sleight of hand that underlies George Bush proposed war on Iraq?

***

Mike Lyvers in Queensland

I just read David Makinson’s latest and feel compelled to make a few comments.

David wrote: “You don’t put out fires with gasoline, and you don’t stop violence with bombs.” Dumb, David. Germany and Japan have both been peaceful, nonviolent countries ever since they were bombed to smithereens in WWII.

David laments the fact that the left offers no alternative to the war on terror or the temporary detention of boatpeople, yet he fails to offer any specific suggestions himself. (I sincerely would like to here them, if he has any.) He then presents a Tolkeinesque parable of the terror situation which suggests that the problem is somehow related to the distribution of wealth.

Oh really? Does David think bin Laden spent his $600 million dollar fortune on weapons to kill the infidels as a means to distribute wealth more fairly? I can’t believe David thinks that. So what is he trying to say then?

David was quite accurate when he noted that the Sept. 11 attacks presented a problem that cannot be understood within the current left/right political framework of the west. Al Qaeda represents an ultra-right-wing philosophy with roots not in any modern conception of social struggle but in the Koran’s admonition to the faithful to wage Holy War on the infidels.

Some on the (western) right recognize this, perhaps because it is not so different from their own fundamentalist religious leanings.

The left, however, has failed to acknowledge it, instead conjuring up other motives that have nothing whatsoever to do with Al Qaeda. Thus David asserts that the statement, “They hate us because we are free” is a lie, but he fails to recognize that religious fanatics do indeed hate those who are free to disagree with them, who flaunt a lifestyle they despise and consider satanic, and who – like David – advocate DISBELIEF (which is punishable by death under Islamic law).

Those of us who are non-religious find it difficult to grasp the mindset of religious fanatics. But we should recognize what they are all about, however alien their way of thinking is to our own.

I’m no apologist for Dubya the Dunce (I voted for the other guy), and do NOT think the war on Iraq is justified unless the U.S. government has solid incriminating information showing a clear link with Al Qaeda (in which case Dubya and his fellow morons should reveal this information to us all immediately). But David’s arguments are naive at best. Both he and John Wojdylo are too fond of abstractions for my taste.

Keeping the arguments in real-world, down to earth terms would do wonders for them both. Offer real-world solutions to real-world problems. John does: attack Iraq and take out Saddam. David – any suggestions?

***

Sean Hosking

Thanks to David Makinson for one of the most honest and powerful pieces I’ve encountered in Webdiary.

In some ways the difference between the positions of David and John Wojdylo reminds me of an argument I used to have with my brother about the Indian spiritualist Krishnamurti. Krishnarmurti argued strongly against the black and white rationales and childlike ideologies around which we construct our lives, and saw politics and organised religion as nothing more than futile power games. Only through personal reflection and self knowledge could one go beyond the transitory interplay of crude emotions and flawed reasoning in order to approach something verging on the truth.

This was seen as a process rather than an end in itself, rooted in an ethic of enlightened self consciousness. At no time did one individual have the right to preach to another (apparently Krishnamurti wasn’t preaching, he was just thinking aloud).

Being a political animal I took issue with this view on a pragmatic rational level, arguing that it bordered on self-obsessive navel gazing and that it didn’t account for those times when practical reality necessitated expedient political action.

“What happens if a nuclear bomb is about to be dropped on us?” I would say. “Your passivity would condone the use of nuclear weapons.” My brother would reply that he didn’t want to die in a nuclear explosion, but that it was a stupid question. In other words, as David Makinson emphasises, he refused to engage with the contrived logic of the question.

At the time I had enormous difficulty coming to terms with his perspective. I still do. But in another sense I can see where he was coming from. He was attempting to extract himself from the narrow insular logic, crude slogans, simple solutions, and inevitable realities which he saw constituted so much of modern society. I was doing my best to wake him up to reality as I called it.

It is often the case that anybody who holds to an ideal will do so in the face of a barrage of pragmatic realists, each posing their own barbed hypothetical questions designed to expose the fundamental naivity/stupidity/hypocrisy of the position held. We live, after all, in one of the most conformist ages in history – the age of reason as we like to call it. The disaster scenarios prophesied in such reasonable arguments will range from everything from personal ostracism to nuclear obliteration. It’s no wonder that a look of mild consternation came over his face when ever my self righteous face homed into view, ready to assail him anew with a vigorous display of logical gymnastics.

This is not to say questions of this kind shouldn’t be posed, particularly in the current climate (John’s contributions on the subject have certainly got me thinking). It’s just that such questions, despite their veneer of clinical rationality, often come with their own extra-rational baggage.

In regard to the present debate all proffered scenarios – war, peace, and the innumerable options that experience tells us almost always loiter unheralded between any two given extremes – involve leaps of faith, assumptions, possible inherent contradictions and risks.

Those advocates of war with Iraq have based their arguments on a range of assumptions about Saddam’s nuclear capacity and his willingness to use it. The threat of this they are likely to have weighed up against the long term implications of a fractured and vengeful middle east.

Those against war may be making similar assumptions and leaps of faith in regard to Saddam’s capacity and/or commitment to peace.

Others may be just thinking about the oil.

Whatever the perspective, in the absence of hard evidence the values of the individual (and the assumptions through which these values are often expressed) will, to a large degree, determine the approach – and these values are as much present in the pragmatists as the idealists.

This is not withstanding the fact that in making this argument you run the risk of arriving at one of those bleary-eyed post positions where everybody’s wrong and everybodys right at the same time (cos its all relative man). In this case the protagonists may be so high on relativity that they won’t notice whether there has been a large explosion or not.

Alternatively we could play the game of good old Aussie two-up as advocated by our prospective great war time leader J Winston Howard. To be nuked or not to be nuked – that is the question. Reality, in relation to any contrived proposition, is generally a question of one or the other.

We could all – doves and hawks alike – have a big party and take bets on whether tomorrow will be the end of the world as we know it or just another tedious day listening to our deputy sheriff tell us that it will soon be the end of the world as we know it unless we go a shooting with uncle George.

On the other hand, possibility and the number of options attendant to it is theoretically infinite. David’s point about the need to remain critical, to disbelieve, is well taken. Discovering new avenues of possibility hinges on our ability to constantly question the inevitabilities that politicians regularly throw up at us – the you’re either with us or against us war cries.

To paraphrase William Pitt: Inevitability is the language of tyrants and the creed of slaves. To remain critically alert at the risk of offending the Miranda Devine’s and Bob Carr’s of the world one of the most positive things we can do. Modern civilisation, from Socrates up, is founded on it.

An ethically-oriented critical perspective poses questions, seeks deeper levels of understanding and in doing so exposes options. Realistic options, some of which would possibly not involve such things as innocent civilians being blown up.

In this sense it might not be sacrilegious to explore in depth the reasons for terrorism, including a critique of the Western world’s relationship with the Muslim world. This could form the basis for redefining the relationship between the two perspectives.

It would be a long and complex process and would definitely not lend itself to easy slogans such as the war on terrorism, good versus evil, they hate our freedoms or he tried to kill my Dad.

All in all, in the absence of incontrovertible evidence predicting our imminent destruction (in which case it will probably be all the way with George) it is our basic values in tandem with our critical faculties which will guide us.

To advocate for peace is not to deny reality, but to hold out on the idea that the simplistic either/or formulas which we are constantly offered are only a very small component of a much wider reality. So I suppose my brother was right …kind of.