The national security trajectory that began with the terror attacks of September 11th 2001 is now in decline as a creeping economic malaise takes hold in the Western Worldâ€™s mind and its spirit.
Just listening to Radio National will prove the point. Every commentator, economist and soothsayer seems to be advocating the substitution of easy credit â€˜capitalism-as-we-know-itâ€™ with a national type of Tasmanian permaculture-led autarky. No wonder the Greens party is garnering the kind of double digit figures in the polls Brendan Nelson dreamed of!
For the time being, the centre of debate has shifted to the Left â€“ that is the case for the environment, the economy, and, most disturbingly, national security.
National security has broad bipartisan support in Australia but at the margins a coterie of â€˜human rightsâ€™ lawyers is scratching at the foundations of our counter terrorism arrangements.
In the UK, this hand-wringing has perilously gone mainstream as witnessed by the defeat of Gordon Brownâ€™s one page counter-terrorism bill to extend police powers to detain terrorism suspects to 42 days by the British Parliament.
A few weeks ago, the House of Lords defeated the will of the Commons by the largest majority since the hereditary peers were shuffled off in 1999. The Commons only passed the bill with a majority of nine. With impeccable logic, the Home Secretary, Jacqui Smith, said the Brown Government was on standby for a vote in the event of the next serious terrorist incident.
It has come to this: until some more innocent commuters are killed by terrorists on British soil will the British get the kind of target police powers it needs to protect its citizens from mass murderers.
Australiaâ€™s counter terrorism laws are built on the principle of â€˜more abundant cautionâ€™ towards public safety. It is the principle around climate change policies too â€“ â€˜letâ€™s not wait to find out if the skeptics are wrongâ€™ is the whole rationale for an ETS and other measures. The rationale is also being applied to Ruddâ€™s response to the current financial crisis which is described as the equivalent of a rolling national security incident.
â€˜Human rightsâ€™ lawyers, however, are not cast in the same light as climate change skeptics or radical laissez-faire economists.
This â€˜counter-counter-terrorismâ€™ sentiment is one that neither Rudd nor Turnbull can afford to court. Counter-counter-terrorism is based on the premise that laws that suspend normal criminal investigations are an affront to the â€˜innocent before proven guiltyâ€™ jurisprudence and a threat to all liberties; that anti terror measures exacerbate national security problems by creating victims and greater resentment; and that terrorism is really no different from another serious criminal act and certainly not acts of war.
Take this quote [pdf] from Dr Ben Saul, Director of the Sydney Centre for International Law on the UK situation.
Even after 9/11, despite the rapid proliferation of special anti-terrorism laws, the practical application of those laws remains underwhelming. In six years from 2001 to 2007, of 1228 arrests under in terrorism investigations, 669 were released without charge â€“ or over 57%. Only 21% were charged with any terrorism offence and another 7% were handed over to immigration authorities. The 41 convictions under the Terrorism Act 2000 (UK) represent about 3.5% of all suspects arrested as part of terrorism investigations.
These figures suggest that we are largely succeeding in sweeping up and casting suspicion upon a great many people from whom we have nothing to fear. We are creating new crimes where previously there were none. In the process, we risk radicalising those who are genuinely dangerous â€“ not deterring them â€“ and probably generating new threats to our society. We confirm to terrorists what they already thought was wrong with us; and we lose something of ourselves â€“ our values and our culture of legality â€“ along the way.
Mon Dieu! This is not an undergraduate debate about drug law reform yet moral relativism towards terrorism, the â€˜we are creating new crimesâ€™ logic is pathetic as much as it is dangerous. By the way, the figures seem to commend the UK laws as reasonably effective in balancing â€˜preventativeâ€™ investigations with convictions.
In this regard, Ruddâ€™s first mistake was not to back down on Labor’s commitment to hold an inquiry into the Haneef controversy. Although it has appointed John Clarke QC and provided him without any coercive powers, the Government has granted an inquiry an opportunity to sully the reputations of the Australian Federal Police, Immigration officials and a former Cabinet Minister, Kevin Andrews MP.
These lawyers were going to vote for you anyway, Kevin07! As an Italian writer from the Renaissance advised: A prince never lacks legitimate reasons to break his promise.
John Clarke has already interviewed the Member for Menzies and former Immigration Minister, Kevin Andrews. Andrews did not have to attend. When the inquiry was announced, the press gallery expected Andrews to stay right away from what most saw as a politically motivated fishing expedition.
Andrews defiantly attended and defended his actions. He probably surprised the press gallery again as he informs Clarke that did not think that Haneef was planning a terrorist attack. He didn’t need to reach such a view to make the decision he did. The Minister has the statutory power to automatically cancel visas under the character and security assessment provisions. Andrews cancelled the visa under the character test which is an administrative, not a criminal test, based on material provided by departmental officials.
Legal supporters of Haneef have consistently misrepresented the authority under which Andrews cancelled Haneefâ€™s visa as part of the anti-terror laws. In fact, on 22 September, the Minister for Immigration, Chris Evans, supported an extraordinary public forum to continue those members of the legal fraternity to attack on counter terrorism laws as well as indulge in partisan politics.
My favourite part of the forum is not the above mentioned extract from Dr Saulâ€™s paper. It is the former Chief Justice of the High Court, Sir Gerard Brennan, sending a veiled threat to John Clarkeâ€™s standing in the legal fraternity:
Many anti-terrorism laws deny natural justice to a person who is detained and preclude that person from obtaining effective access either to legal advice or to a court having power to review the detention. When statute exempts a repository of power from the obligation to observe natural justice, an exercise of the power is attended with the risk of injustice â€“ injustice which is not curable by subsequent judicial intervention and which may not even be revealed if the repository of the power does not have to disclose the material on which he or she acted. It was John Locke who pithily observed: â€œWhere-ever law ends, tyranny begins.
Experience has shown that the due exercise of any form of executive power demands transparency of operation and accountability, both legally and politically. It is not a sufficient safeguard â€“ indeed, it is not any kind of safeguard â€“ to have assurances given by the repositories of power that their powers are properly exercised. Nor is it sufficient that judicial or quasi-judicial officers are involved in the procedure, if they do not have the benefit of evidence and informed submissions from the person against whom the powers are exercised.
As well as again confusing the operation of the counter terrorism laws with the Migration Act, Brennan more or less is demanding sweeping recommendations arising from the Haneef inquiry or risk being seen as not worthy of our esteemed company. This is how jurists bully.
Those recommendations pose a great deal of risk for both Rudd and Turnbull, especially the provisions in the Migration Act that allow the repeal of visas based on the character test. Who will blink first? Do either leaders have the spine to resist the sophistry and intense bullying of the â€˜human rightsâ€™ gang?
The risk is greater for Turnbull. Without any national security cojones whatsoever, he needs the credibility among â€˜punterlandâ€™ who do value national security and want their PM to be a prick in a crisis.
If I were Rudd I would be adopting the softest of the recommendations; if I were Turnbull I would be rejecting them all and be taking measures to rehabilitate Kevin Andrewâ€™s reputation. Turnbull needs to make an emphatic statement in favour of public safety and against counter-counter-terrorism.
After all, national and international security crises will come rushing back probably when politicians are least prepared for them.