Counter-Terrorism and the Post-Democratic State (Monash Studies in Global Movements)

Counter-Terrorism and the Post-Democratic State

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MONASH STUDIES IN GLOBAL MOVEMENTS Series Editor: John Nieuwenhuysen, Director, Monash Institute for the Study of Global Movements, Australia This series will be an important forum for the publication of new research on global movements sponsored by Monash University. It will present a multidisciplinary perspective on global movements of people, resources and ideas in their diverse economic, social, political and cultural dimensions. The series will make a valuable contribution to our understanding of some of the most important trends and challenges arising in an increasingly globalised world. Titles in the series include: Privatization and Market Development Global Movements in Public Policy Ideas Edited by Graeme Hodge Globalisation of Accounting Standards Edited by Jayne M. Godfrey and Keryn Chalmers Counter-Terrorism and the Post-Democratic State Edited by Jenny Hocking and Colleen Lewis

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Counter-Terrorism and the Post-Democratic State

Edited by

Jenny Hocking Professor and Director of Research, School of Humanities, Communications and Social Sciences, Monash University, Australia and

Colleen Lewis Associate Professor and Head, School of Humanities, Communications and Social Sciences, Monash University, Australia

MONASH STUDIES IN GLOBAL MOVEMENTS

Edward Elgar Cheltenham, UK • Northampton, MA, USA

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© The Editors and the Contributors Severally 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, either electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited Glensanda House Montpellier Parade Cheltenham Glos GL50 1UA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Counter-terrorism and the post-democratic state / edited by Jenny Hocking and Colleen Lewis. p. cm.— (Monash studies in global movements series) Includes bibliographical references and index. 1. Terrorism. 2. Terrorism—Prevention. 3. Democracy. I. Hocking, Jenny. II. Lewis, Colleen. HV6431.C6913 2007 363.325'17—dc22 2007017061

ISBN 978 1 84542 917 1 Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

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To my parents Barbara Hocking and Dr Frederick Hocking JH To Alexandra, Mia and Tiana CL

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Contents ix xv xvii

List of contributors List of acronyms Acknowledgements 1. Global terrorism Mo Mowlam 2. Democracy at the crossroads? Counter-terrorism and the state Tariq Ali 3. Terrorism and war Giovanni Kessler 4. Democracy and torture: when the people decide Thomas Mertens and Morag Goodwin 5. Military justice: David Hicks and Guantanamo Bay Lex Lasry, QC 6. The long road to Guantanamo Bay Stephen Kenny 7. The prohibition of torture: absolute means absolute Nigel S. Rodley 8. Constructing non-citizens: the living law of anti-terrorism in Canada Reem Bahdi 9. Everyone and the citizen: the devaluation of principles and protection Guy S. Goodwin-Gill 10. Dangerous evasions: enforcing limits on government action in the ‘war on terror’ Devika Hovell 11. Counter-terrorism and the rise of ‘security policing’ Jenny Hocking and Colleen Lewis 12. ‘Devils and dust’: extending the ‘uncivil politics of law and order’ to the ‘war on terror’ David Brown and Janice Gray

1 6 20 28 48 57 65

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116 138

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13. Command and control: how the media and military are reshaping televised coverage of war Tony Maniaty 14. Embedded journalism: at home and abroad Martin Woollacott 15. Empire and democracy John Keane Index

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Contributors Tariq Ali Tariq Ali is a novelist, historian, political campaigner, filmmaker and scriptwriter. He was heavily involved in the anti-war movement in Europe during the late 1960s and is today still very active in the Stop the War campaign. Ali is a longstanding editor of New Left Review and has written more than a dozen books on history and politics as well as a number of novels. Ali has made numerous television and radio appearances particularly since 11 September 2001 and regularly writes for the Independent and the London Review of Books amongst many other publications. Tariq Ali is currently the Editorial Director at Verso and lives in London. Assistant Professor Reem Bahdi University of Windsor Reem Bahdi is an Assistant Professor with the Faculty of Law at the University of Windsor. She is also co-Director of the Project on Judicial Independence and Human Dignity, a 5 year judicial education programme currently being implemented with Birzeit University in Palestine. Her research focuses on national security and tort law. She has appeared as a media commentator and served as an expert before national and international bodies including the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Professor David Brown Faculty of Law, University of New South Wales Professor David Brown teaches criminal law at the University of New South Wales, Sydney, Australia. He has been active in criminal justice movements, issues and debates for over three decades. He is widely published and has co-authored or co-edited The Prison Struggle (1982); The Judgments of Lionel Murphy (1986); Death in the Hands of the State (1988); Criminal Laws (1990); (1996); (2001); (2006); Rethinking Law and Order (1998); Prisoners as Citizens (2002); and The New Punitiveness (2005).

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Dr Morag Goodwin Maastricht University, The Netherlands Morag Goodwin is Lecturer in International Law at Maastricht University, The Netherlands. She is currently preparing for the publication of her doctoral manuscript on legitimacy and participation in international law in relation to the Romani claim to non-territorial nation status. Dr Guy S. Goodwin-Gill All Souls College, Oxford Guy S. Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford, and Professor of International Refugee Law in the University. He has researched and written extensively on international law, international humanitarian law, and human rights, with particular emphasis on the rights of migrants, refugees, child soldiers, free and fair elections, democracy, terrorism, and State responsibility. He is also a Barrister and practices from Blackstone Chambers, London. Janice Gray Faculty of Law, University of New South Wales Janice Gray is a Senior Lecturer in the School of Law, Faculty of Law, at the University of New South Wales. She has published both nationally and internationally in the fields of Property, Equity, Native Title and Water Law. Her (co-authored) book Property Law in New South Wales was published by Butterworths in 2003 with a second edition in May, 2007. Professor Jenny Hocking School of Humanities, Communications and Social Sciences, Monash University Jenny Hocking is Director of Research in the School of Humanities, Communications & Social Sciences at Monash University. She is the author of a political biography of the former High Court Justice Lionel Murphy, Lionel Murphy: a Political Biography (1997, 2000), and of the Australian communist, political activist and writer Frank Hardy, Frank Hardy: Politics Literature Life (2005) short-listed in the NSW History Awards 2006. Jenny has also written extensively on counter-terrorism and democracy, most recently in Terror Laws: ASIO, Counter-terrorism and the Threat to Democracy (2004). She has made submissions to several parliamentary inquiries into these developments and is a frequent commentator in Australian and international media on these issues. Jenny has been an Australian Research Council QEII Research Fellow 1999–2005 and a Harold White Fellow with the National Library of Australia. Jenny Hocking is now working on a biography of the former Labor Prime Minister,

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Gough Whitlam, supported by an ARC Linkage Grant, to be published by Melbourne University Press. Devika Hovell DPhil Candidate, University of Oxford Devika Hovell is a DPhil Candidate at the University of Oxford, formerly Director of the International Law Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales. Research for the International Law Project, including the chapter contributed to this book, was generously funded by the Australian Research Council. Professor John Keane University of Westminster Born in Australia and educated at the Universities of Adelaide, Toronto and Cambridge, John Keane is Professor of Politics at the University of Westminster and at the Wissenschaftszentrum Berlin (WZB). In 1989 he founded the Centre for the Study of Democracy. Among his many books are The Media and Democracy (1991), which has been translated into more than twenty-five languages and Civil Society: Berlin Perspectives (2006). John’s current research interests include the future of global governance; fear, violence and democracy; citizenship and civil society in Europe; the history of secularism; public life and freedom of communication; eighteenth-century republicanism; the post-communist regimes of central and eastern Europe; and the philosophy and politics of Islam. A member of the American-based Institutions of Democracy Commission, he is currently writing a full-scale history of democracy – the first for over a century. Stephen Kenny Stephen has practised as a Barrister and Solicitor in Australia for over 25 years. He currently practices as a commercial litigator in a private law firm, Camatta Lempens Pty Ltd in Adelaide South Australia. Stephen has always maintained a strong interest in civil libertarian matters and is the past Chairperson of the South Australian Council for Civil Liberties. In the 1990s Stephen acted for the Ngarrindjerri People during the Hindmarsh Island Bridge Affair. In January 2002 Stephen offered his services to the Adelaide family of David Hicks. On instructions from the family, Stephen commenced legal proceedings in the United States for a Writ of Habeas Corpus against President Bush and the US Military who were detaining David Hicks. That case, Rasul v Bush, resulted in the United States Supreme Court ruling that Guantanamo Bay was within the jurisdiction of the US Courts. This has led to over 70 detainees taking action against their detention in US Federal Courts. David Hicks is now represented by US lawyers but Stephen continues to advise his family in Australia.

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Giovanni Kessler Giovanni Kessler has been Public Prosecutor at the criminal courts of Trento and Bolzano, and prosecutor at the Anti-mafia Department in Sicily. From 1996 to 2001, he was judicial expert in European Commission evaluation missions in Estonia, Hungary and The Czech Republic. Giovanni was a Member of the Italian Chamber of Deputies, elected in Trento in June 2001, representing the Ulivo centre-left coalition; Member of the Standing Committee on Justice, and Member of the Italian delegation to the Parliamentary Assembly of the OSCE. In 2003 and 2004, he was elected Vice President of the Assembly. He has participated in the International Election Monitoring missions in Kosovo, Georgia and Moldova. Giovanni has been the OSCE Special Coordinator for the parliamentary elections in Armenia and the presidential elections in Azerbaijan and Deputy Head of OSCE Election Monitoring Mission to the 2004 US presidential elections. Lex Lasry, QC Lex Lasry was admitted to practice in 1973 and went to the Victorian Bar the same year. He has had a primarily criminal practice and in 1990 was appointed Queen’s Counsel in Victoria in 1990 (and the following year in New South Wales and Western Australia). In 2002, he defended the first case of espionage in Australia (R v Lappas), and in the same year, was asked to assist (pro bono) an Australian citizen charged with drug importing in Singapore and subsequently in a similar case in Vietnam. In August 2004, he was appointed the Law Council of Australia’s observer at the Guantanamo Bay Military Commission trial of David Hicks. His subsequent report concluded that the military commission proceedings are flawed, making a fair trial virtually impossible. Associate Professor Colleen Lewis School of Humanities, Communications and Social Sciences, Monash University Colleen Lewis is the Head of the School of Humanities, Communications and Social Sciences at Monash University. Her major research interests include police–government relations, anti-corruption models and public sector and political accountability. She is the author of Complaints Against Police: the Politics of Reform (Hawkins Press, 1999) and co-editor and contributor to the books, It’s Time Again: Whitlam and Modern Labor (circa books, 2003 with Jenny Hocking), Civilian Oversight of Police: Governance, Democracy and Human Rights (Hart Publishing, 2000 with Andrew Goldsmith), Unpeeling Tradition: Contemporary Policing (Macmillan Education, 1994 with Keith Bryett) and Corporate Management in Australian Government (Macmillan, 1989 with Glyn Davis and Patrick Weller).

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Tony Maniaty Tony Maniaty is a Sydney-based broadcast journalist, author, media lecturer and consultant specialising in strategic news management. In a career spanning three decades, he reported from East Timor, served as European Correspondent for Australia’s SBS Television, and in 1996 was appointed Executive Producer of the ABC’s The 7.30 Report. In 2006, he obtained a Masters Degree at Macquarie University with a research thesis on television and warfare, and lectured at the University of Sydney in postgraduate media studies. In 2007 he conducted a global risk reporting course at the Danish School of Journalism in Arhus. His latest essay, ‘The Lens in the Serpent’s Mouth’, appeared in Terrorism, Media, Society (Colegium Civitas, Warsaw, 2007). Professor Thomas Mertens Radboud University Nijmegen, The Netherlands Thomas Mertens is professor for legal philosophy at the faculty of law and at the faculty of philosophy at the Radboud University Nijmegen, The Netherlands. He publishes regularly on a variety of subjects related to Kant, Radbruch, Arendt and Rawls. At present, he is working on a monograph on Law and Philosophy in Nazi Germany. Dr Marjorie ‘Mo’ Mowlam (1949–2005) Dr Mo Mowlam was a Labour Member of Parliament in the United Kingdom (1987–2001) and Secretary of State for Northern Ireland (1991–1999). During her time as Secretary of State for Northern Ireland, Dr Mowlam oversaw the signing of the historic Good Friday Peace Agreement in 1998 that lead to the establishment of the power-sharing Northern Ireland Assembly. During this period she defied her advisers and faced strong political condemnation for visiting loyalist inmates in the Maze Prison. Her experiences in parliament and as Secretary of State for Northern Ireland gave Dr Mowlam a remarkable insight into terrorism and counterterrorism and she continued to write and speak about these matters after her retirement from politics in 2001 due to ill health. Mo Mowlam died in 2005 following treatment for a brain tumor. Professor Sir Nigel S. Rodley KBE, PhD Chair, Human Rights Centre University of Essex Between his first teaching post at Dalhousie University (1965–68) and his current position, he taught part time at several institutions before and while engaged in full-time work as the founding head of Amnesty International’s legal office (1973–90). He has been UN Special Rapporteur on Torture

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(1993–2001) and is a Member of the (UN) Human Rights Committee (since 2001). He is a Commissioner of the International Commission of Jurists. Martin Woollacott Commentator on international affairs for the Guardian (UK) As a correspondent for the Guardian in South East Asia, South Asia, and the Middle East, Martin Woollacott covered the final years of the Vietnam War, the Bangladesh war, the Indian Emergency, and the Iranian Revolution, among other stories. On returning to Britain, he became the paper’s foreign editor and then, in the nineties, its main commentator on international affairs. Retired from full-time Guardian employment in 2004, Martin continues to contribute to the paper. He has also been working on a study of how foreign reporters on major running stories arrive at a shared view of the meaning of the events they are following, a theme he pursued during a recent fellowship at La Trobe University in Melbourne, Australia.

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Acronyms AAT ABC AFP ASIO BBC CAT

Administrative Appeals Tribunal (AUS) Australian Broadcasting Corporation (AUS) Australian Federal Police (AUS) Australian Security Intelligence Organisation (AUS) British Broadcasting Corporation (UK) Convention Against Torture and other Inhuman and Degrading Treatment or Punishment CBC Canadian Broadcasting Corporation CBS Columbia Broadcasting Service (US) CIA Central Intelligence Agency (US) CNN Cable News Network (US) CSIS Canadian Security Intelligence Service DoD Department of Defense (US) EU European Union GTMO Guantanamo Bay HREOC Human Rights and Equal Opportunity Commission (AUS) ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the former Yugoslavia IRA Irish Republican Army IRF Immediate Reaction Force IRO International Refugee Organisation JFK John F. Kennedy MCI Military Commission Instruction NATO North Atlantic Treaty Organisation NCIS Naval Criminal Investigative Service (US) NZBC New Zealand Broadcasting Commission (NZ) OLC Department of Justice’s Office of Legal Counsel (US) OSCE Organisation for Security and Cooperation in Europe PATRIOT Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (Patriot Act 2001) (US) RAI Radiotelevisione Italiana (IT) xv

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RCMP UCMJ UK UN UNHCR US USA USG USSR WMD

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Royal Canadian Mounted Police (Canada) Uniform Code of Military Justice (US) United Kingdom United Nations United Nations High Commissioner for Refugees United States (of America) United States of America United States Government Union of Soviet Socialist Republics Weapons of Mass Destruction

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Acknowledgements Since the 11 September 2001 terrorist attacks in the United States of America, democratic nations around the world have faced a significant challenge – to respond to global terrorism within the confines of the rule of law and with regard to international human rights principles. In September 2005 we convened an international conference at Monash University’s Prato Centre to assess the extent to which that challenge had been met. The international forum brought together a number of highly distinguished lawyers, academics, public commentators, journalists and policy makers to critically analyse issues which affect the health of a democracy. For two days we discussed whether, in the current security environment, the democratic state has been severely compromised and whether we are witnessing the development of a post-democratic era. This edited collection builds on the presentations given at the forum and reflects the passionate, engaging and significant nature of those contributions. Tariq Ali’s Key Note address and Professor John Keane’s closing address are based on transcripts from their actual presentations. As editors, we greatly appreciate the professionalism and good humour of those who presented at the conference and contributed to this book. Working with them has been a pleasure. We are also indebted to several areas within Monash University for their considerable support and for their trust in our ability to take an idea and turn it into both an international forum and an edited collection. The Monash Institute for the Study of Global Movements awarded us a competitive grant in order to proceed with the planning and organising of the international forum. The Faculty of Arts and the School of Humanities, Communications and Social Sciences contributed additional funding and the Monash University European Steering Committee provided a safety net by underwriting the international forum. The Director of Monash University’s Prato Centre, Dr Annamaria Pagliaro and Associate Director Dr Cecilia Hewlitt gave invaluable support in the lead up to and throughout the conference. We are very grateful to them for the many things they did to contribute to the success of the forum. The then Senior Deputy Vice Chancellor of Monash University, Professor Stephen Parker opened the conference and gave a special tribute to Dr Marjorie ‘Mo’ Mowlam who sadly passed away a few weeks before she was xvii

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to give her Key Note address. In his tribute Professor Parker made note of Dr Mowlam’s significant contribution to public life. We are very grateful to Dr Mowlam’s husband Jon Norton for allowing us to reproduce her address in this collection. Our task as forum convenors was made possible by the wonderful Sara Cousins. Sara constantly exhibited assiduous professionalism. From Melbourne, Australia she organised an international forum which involved bringing people from around the world together for two days in Prato, Italy. To say that she organised a highly successful conference does not begin to convey the depth or breadth of what Sara accomplished. We relied on her exceptional project management expertise and finely honed people skills in so many ways. Thank you Sara, we appreciate enormously all you have done. Our thanks also to Emma Rutherford-Lemon, Dr Natasha Campo and Toija Cinque for their work on the edited collection. It has been a pleasure to work with Catherine Elgar and the rest of Edward Elgar’s highly professional team on this book. Jenny Hocking Colleen Lewis May 2007

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1.

Global terrorism Mo Mowlam

Since 11 September 2001 (9/11) we have been told that we live in a world of global terrorism; that wherever we are and whatever we are doing we are under threat, this supported by, of course, 9/11 and subsequent bombings in Bali, Madrid and most recently London. We need more Draconian laws which eat away at our civil liberties to protect ourselves. We need greater and greater security measures that make our lives more difficult and inconvenient. (On that note have you ever understood why we are allowed to carry onto a plane a glass bottle of booze that can be smashed open to make a pretty dangerous weapon, but that we can’t have a metal teaspoon? It would appear that the threat from terrorism diminishes if profits from duty free are at stake and increases with the life threatening qualities of the teaspoon.) President George W. Bush declares that there is a war against terrorism and that we must rid the world of these evil ones. Let us try then to look at this issue in context to see really what the scale of the threat is, and also to look more closely at the nature of it. If we go back to that day in October 1984 when the Irish Republican Army (IRA) succeeded in blowing up part of the Grand Hotel in Brighton, a direct attempt by a terrorist group was made to kill the British Prime Minister, Margaret Thatcher, and as many of her Cabinet colleagues as possible. The bomb went off, there were fatalities and injuries, but Mrs Thatcher survived. This was part of an ongoing IRA campaign to unite Ireland. On the day of the bombing they issued this statement, ‘Today we were unlucky, but remember, we only have to be lucky once; you will have to be lucky always’. At that same time the west was still threatened by a Communist Soviet Union armed to the teeth with nuclear weapons. A nuclear war was a possibility in a way that it is not today, in that the two superpowers, the United States of America (USA) and the Union of Soviet Socialist Republics (USSR) had the capability to destroy the world in the process of destroying each other. So we must ask the question: is the world a more dangerous place, in terms of man’s potential violence to each other now than in 1984? 1

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To listen to such leaders as the United States’ (US) George Bush and the United Kingdom’s (UK) Tony Blair one would assume that the threat from Al Qaeda is equal to that of the spread of Communism. The British Government, for example, has brought more restrictive legislation against terrorism than it ever felt necessary when the IRA was regularly bombing both Britain and Northern Ireland. Remember that to date there has been only one Al Qaeda terrorist attack in Britain in comparison to many over many years with the IRA but still the rhetoric gushes forth from the British Government. In terms of the psychology of the situation I think it is easy to see why 9/11 made such an impact in the United States. Despite the extreme violence and destruction of the twentieth century domestically the great citadel of the US had gone unscathed. True, servicemen have been killed and injured, but those living at home in the United States were safe. I remember having some American friends come for lunch with their children a couple of years ago when I was living in Hackney in the East End of London. This area had been extensively bombed during the Second World War and part of the terrace of houses behind our house had been bombed. The site is now occupied by a new block of flats. I told this to the children of my friends, and they looked up at me with a look of shock and horror. They found it almost impossible to believe that in the capital city of a country like Britain you could be so close to an act of such violence. I do not believe that European children would find it so difficult. September 11 demonstrated to the Americans that we are all vulnerable to political violence. Unfortunately though it did not teach them the probability of that vulnerability. And it is that probability that we should think about when we are assessing our response to terrorist attacks. Is it really necessary to take our shoes off and put them through a scanner every time we take a flight just because some chap tried to blow up a plane with a shoe bomb? Surely our response is disproportionate? The inconvenience caused far outweighs the protection we are getting. We should recognise that if terrorists really want to cause mayhem and disruption they can; we cannot protect all the targets. The London underground was extensively hit this year; it will not be fully possible to prevent a future attack on the same target unless we severely disrupt public transport. Remember that other great scourge of the world: illicit drugs. With all the efforts the governments of the world make to rid us of this trade, the second largest in the world, criminal gangs still manage to transship and distribute drugs regularly to a street corner near you. There is more than enough money in illicit drugs to make criminals run the risks; they understand the probabilities. In the same way, if the pay-off is worth it to the terrorist, he or she will be prepared to run the risks to achieve their objective.

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The British Prime Minister very famously said, when he was an Opposition spokesman, that a Labour Government, if elected, would be ‘Tough on crime, and tough on the causes of crime’. If we amend this to, ‘there is a need for western governments to be tough on terrorism, but they must also be tough on its causes’, we can see that to date we have overdone the first, because we have not wanted to look too closely at the causes of terrorism. Terrorism is not new, and it has had a history of success. Neither the state of Israel nor the Republic of Ireland would exist today if it had not. Ironically both these countries are today close to the US. It could also be argued that the US itself was born of terrorism, people rising up violently against the established order. Terrorism is politics by violent means, and for that reason it does not always mean it is wrong. Despite us all agreeing it is immoral to kill, most countries in their history have participated in wars for reasons they believed transcended the inevitable loss of life. In the mind of a terrorist, killing people is no different to an established and legitimate soldier killing people. Ends may be different but means are much the same. We ignore this at our peril when trying to deal with the problem of terrorism. Calling terrorists ‘evil’ as George W. Bush does helps no one. To see the conflict in such morally absolutist terms is very dangerous. And here we come to the danger that lies at the core of this subject and the causes of modern terrorism: the arrival of religion and moral certainties in a central place in global politics. In America, President Bush has an Emergency Plan for AIDS Relief which is US$15 billion of funds over five years to combat globally the spread of HIV/AIDS. Very good you say, but the problem is that because of the President’s religious beliefs, his ‘faith-based’ approach, the funds can only be used by those who believe that abstinence is the only way to reduce the incidence of AIDS, and they must also not work with prostitutes and drug-users. This morally absolutist approach is leading to countries which had previously seen the incidence of AIDS reducing now seeing it increasing again. One may not agree with sexual promiscuity but one has to deal with the world as it is, not as one would wish it to be. A child whose parents died of AIDS would I am sure have preferred them to have used a condom and still be alive rather than to be living in an orphanage. President Bush is increasingly showing the dangers of moral absolutism. But it is not just in the west that we are seeing the rise of moral absolutism. Most famously we are seeing more and more Muslims taking a more hard line in their religion. The election this year in Iran of the more religiously hard-line candidate is evidence of a popular move away from a more relativist approach to politics, to greater moral and religious certainty. And it is always at times when greater certainty is sought that we have trouble.

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The moral certainties of Communism during the twentieth century led to more human suffering and death than had ever been seen before. And I am afraid that I am seeing a return to such certainties in both the Muslim world and the west. President Bush spends a lot of time talking about the importance of democracy and freedom. And indeed it is the corner-stone of western beliefs that democracy is a good thing. It is often said that democracies don’t go to war against each other. And what is the basic tenet of democracy? Namely that the loser accepts defeat in a fair election, and that the winners will subject themselves to another election in the future where they themselves will accept defeat if the other side gets more votes. It is in essence as simple as that. You accept that the other guys also have a point of view which differs from yours, but if the majority prefer it you will live with that, and will not take up violent means to promote your cause. Underlying this of course is a certain moral relativism. You may believe you are right, but you accept that no one has a monopoly of rightness, and your rightness does not justify violence to get your way. Democracy and moral absolutism are not compatible, and to believe that they are, is merely hiding one’s head in the sand. Islam is essentially a religion which is governed by the rules laid down in the Koran. The Koran is an expression of Allah’s will and therefore it cannot be contradicted. The only room for manoeuvre is through interpretation of the word, but the word itself cannot be changed. This in its purest form is a doctrine of moral absolutism and must therefore by definition be difficult to reconcile with western ideas of democracy. Unfortunately what we are now seeing is a conflict in these two ways of approaching the world with both sides taking an increasingly more militant approach. Muslim terrorists decide to blow up the twin towers in New York because they represent the immorality of western capitalist society, where money not moral values determines worth; the Americans decide to try and impose democracy on the Middle East by invading Afghanistan and Iraq. The understanding between the different cultures begins to fade fast on both sides. Global terrorism is neither good nor evil; we should not view it in these moralistic terms. There are all sorts of moral stances that could be adopted when we view the actions of a suicide bomber. He or she has committed suicide and probably murder, but to the person committing the act they probably see it as serving a higher moral purpose, the liberation of their people, of driving out the infidel. A bit like George Bush calling the terrorists the evil ones. What I am afraid we have to do is to take a much more pragmatic approach. Accept that western liberalism is not easily compatible with Islam and try to create conditions where both world-views can rub

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along together. This will not be perfect, it will not be neat, but it is better than stirring up violent conflict because of an idea. Democracy is an idea, so are religions. Too many people have died for ideas in the past, and so we should realise the dangers of imposing ideas on those who do not agree. It is great to have a society where the diversity of thought is encouraged, for through that lies freedom and progress, but we must also encourage the notion that because we hold a particular set of ideas as correct, we may not necessarily be right. The Middle East used to be an area of the world where religious diversity flourished and indeed where three of the world’s greatest religions were born: Judaism, Christianity and Islam. Unfortunately today in places such as Mecca where Mohammed founded Islam in the middle of the cultural diversity of that old trading town, non-Muslims are not even allowed to go there. Such extremism is dangerous, we do not want to encourage it, and therefore breed more terrorists in the future.

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2.

Democracy at the crossroads? Counter-terrorism and the state Tariq Ali

It is important when we are discussing democracy and terrorism – which is the theme of this conference – to start not so much with the events of September 11, 2001, but to start with the events that took place in the 1980s. These were extremely important events in the sense that a hitherto small group of openly self-acknowledged right-wing thinkers and economists who had been treated as sort of loony fringe people by the mainstream for a long time, suddenly acquired a tremendous importance with the advent to power of Ronald Reagan in the United States and Margaret Thatcher in Britain. Who would have known at that time that the processes begun by Reagan and Thatcher with the help of neo-liberal economists, of whom Friedrich von Hayek was the most distinguished, were going to lead to what the apologists of globalisation had termed ‘the great transformation’? Daniel Yergin, who wrote The Commanding Heights, referred to this latest phase of capitalism, the expansion of capitalism (also euphemistically described as globalisation), as ‘the great transformation’.1 And indeed one has to acknowledge that on some levels it has been the defining feature of the world since the 1980s and the 1990s, especially after the collapse of the Soviet Union and the entire Eastern European bloc and the triumph of capitalism in China. In a curious way one could say that the big transformation which we have seen on a global scale has taken place in China; this is today the world’s most dynamic capitalist economy. Anyone who has read anything about Shanghai would see the developments taking place in this city as just incredible – it is probably the most advanced city in many ways today of the capitalist world, in terms of architecture, in terms of growth. Now, from this position of seeing the massive transformation which this epoch of capitalist expansionism has brought, the question arises of whether capitalism needs democracy. It is a question which is now increasingly beginning to be discussed seriously by a whole group of political theorists in the United States and elsewhere. Sheldon Wolin, one of the great political historians of the United States, has already begun to write about this new 6

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phase and its impact on democracy. It has been assumed that democracy and capitalism are intertwined and work together very well, but this is not historically accurate. In fact, the birth of democracy required a massive struggle with the elites that controlled and owned both landed estates and increasingly the rising capitalism of Europe. If we accept, for the sake of argument, that capitalism, born in Europe in the seventeenth century, developed and grew up in the eighteenth century and then using Europe as its launching pad conquered the world, which gave you the large European colonial empires of the nineteenth and twentieth centuries, then capitalism developed over a period of 400 years without any democracy at all. In fact democracy proper only came at the end of the First World War when women were granted the vote. Prior to that it was a very truncated democracy because when women are not allowed the vote, how can you say a country is democratic – when only males are allowed to participate in the vote and for a long, long time there were many property qualifications as well? So you had a situation where democracy proper came after the First World War and in every single case democracy had to be fought for and won. Including democratic rights, including the rights to form trade unions, including the rights for people working in the public sector – the police for instance – the right to have a police trade union was a bitterly contested struggle in many countries and in Britain it was taken away. So all these struggles produced democracy and the state caved in to these struggles at critical moments. And the critical moment was not so much the First World War, the critical moment for capital which compelled it to concede a great deal of reforms over the next twenty years, was the victory of the Russian Revolution in 1917. This was the decisive event which helped to push through reforms in all the major capitalist countries. One of my favourite footnotes here is that interestingly enough, the draft constitution which first gave women the right to vote was a draft constitution prepared in Afghanistan in 1917–18 under the reign of King Amanullah – a radical anti-imperialist monarch whose wife Queen Soraya was a feminist – and they pushed through a constitution which gave women the right to vote. If they had been allowed to implement that constitution, women in Afghanistan would have had the right to vote before they did so in Europe and the United States of America. But that was not to be because the British organised tribal unrest to get rid of this King who was threatening their hegemony in north-western India. So they got rid of him and with that went all dreams for a constitution, for any democratic dispensation. But that would have been one of the ironies, if they had got the right to vote in Afghanistan before we had it in Europe – it would have been very interesting. This was not a country ever occupied by an imperial power – the Russians, the Russian Empire and the British Empire eyed Afghanistan but no one

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could actually occupy it. The current occupation of Afghanistan is the first foreign occupation of that country in its history. The British fought wars, colonial wars, but they were actually defeated. But, end of footnote. So coming back to the question, then, of why capitalism needs to implement democracy at all. If you look at far-eastern capitalism – the Chinese now feel no need whatsoever for democracy. Can one say the Chinese capital is not functioning well? No, it is functioning very well. Lee Kwan Yu, in Singapore, was a great member of the Second International and a great friend of social democratic leaders in Europe. Soon after the collapse of Communism he had a trip to all the newly independent countries in central Asia – Uzbekistan, Kazakhstan – and advised the leaders. He said, have capitalism by all means but do not go in for any of this blubber about democracy because you do not need it. And they did not need it! They followed Lee Kwan Yu’s advice, and of course Singapore is run with an iron grip, a very successful capitalist state. So the notion which somehow seems to have got embedded in the academy and other places as well, that what brings democracy is capitalism, is completely false historically – capitalism does not need democracy to function. So the whole phase from 1917 to 1989 was with the assistance of the enemy – which presented as a social economic threat rather than a political one, and an ideological threat for a long time. Once that had disappeared it was obvious that while the particular ideology of democracy which we can call ‘democratism’ was going to be used, actual functioning democracy itself would become much, much weaker, because there was no need for it. The true test of the hegemony in a society is not when the people who insist on something from a particular point of view get their way, but when they convince their opponents that this is the only way. From that point of view we can say that the success of neo-liberal hegemony has been truly astounding. It is not just Thatcher and Reagan who pushed this through who believed it, or Conservative or Republican parties, or Berlusconi in Italy or Asnar in Spain – it was not just parties of the right who pushed this through but the entire sway of centre-left parties plus the advanced western world also accepted it. Once they had accepted it, democracy itself was put under tremendous strain, because if you have parties of the centre-right and centre-left arguing exactly the same thing then the question arises in the minds of the population, especially the new generations growing up within this sphere, as to why bother to vote. I mean, the old anarchist slogan – ‘If voting changed anything they’d abolish it’ – becomes quite popular with the young generation. And so we see this virtually in every advanced country. It is most developed, of course, in the United States where you have virtually nothing now that divides the Democrats and the Republicans except who

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can raise more money to contest elections – the Republicans so far have managed to raise a hell of a lot more and the Democrats not so much. Secondly, added to this process is an institutionalisation of neo-liberalism which I think is going to make attempts to roll it back when that phase arrives, and arrive it will sooner or later, difficult. Difficult because of the abdication of the state from key areas. What is the neo-liberal order? To put it in a nutshell it is the total rejection of the state as an institution which can service the needs of the people and provide public and social services to the population regardless of wealth, class, creed. Once the state begins to abandon that, these tasks are handed over to private corporations. Sheldon Wolin in the United States has been arguing now for some time that Boeing – this giant corporation which produces airplanes which many of us fly around in – it is fine, he says, producing airplanes and bribing politicians in different parts of the world to make sure they buy your airplane, that is part and parcel of the system. But, he says, what right has it got to be given the franchise to fund public welfare programmes in the United States? That is the big change which is coming and that is the change which you begin to see already being followed in Britain. And where the Anglo-Saxons go, there the rest of Europe gets to, sooner or later. The big debate now taking place in Germany is not about policies necessarily but about power. What has been discussed after the German election, which stunned the British and the Americans because the German electorate refused to vote in Angela Merkel; they did not vote the way they should have voted, which is a problem! But it has been sorted out with a Grand Coalition being discussed in Germany between the Social Democrats and the Christian Democrats. The big fight now is not about what policies to pursue, the big fight now is about who will be Chancellor, because neither of them wants to be Chancellor under the other. But what is happening in Germany is symbolic of the rest of Europe too. Take this country, Italy, there is no basic divide on economics between the centre-left and the centreright. What divides them is the war on Iraq – that is the only serious point of division in Italian politics today. So if Berlusconi was to pull out all the Italian troops from Iraq, which he could by this December if he is clever, what is the big division then in Italian politics? You can take this in a very extreme fashion if you study what has been happening in Britain where Blair’s ascension has effected a political and social transformation. People say why do not the Conservatives win? He has left very little space for them to win. The only way the Conservatives could win in Britain now, in my opinion, is if they station themselves marginally to the left of New Labour. Which could happen if Ken Clarke becomes leader of the Conservative Party, you would then see a political party formally

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of the right, stationing itself to the left of the so-called centre-left party and beginning to win votes back again because people will then say there is some difference and some alternative. The same is true in Australia; Prime Minister John Howard is a more nasty specimen but by and large the Australian Labor Party has not flinched from its stance in defending the social and economic order in that country and every single Australian State today has a Labor premier. So in effect you have a de facto coalition, but no one talks about it. Has any of these Labor premiers in Australia challenged Howard on anything substantial? No. They could do it, if they were so inclined, but they are not so inclined. Now, when you have a situation where the two major political formations reflecting the politics of the twentieth century still function in that way, without any substantive difference, then you have to say that is a society which does not offer any alternatives. I do not now talk about utopias, I talk about concrete alternatives within the existing framework – a society which does not do that is a society which is going to atrophy and its institutions are going to atrophy. And if you have the large corporations now being given the right to buy failing schools, the right to fund public welfare, you develop an institutional structure which is difficult to shake unless you go very hard. And that is ultimately, I think, what will happen. The United States whose electoral system as we discovered in Bush’s first election is Byzantine, to put it mildly. But, as was said yesterday by a speaker, the British electoral system has now reached the point where you have Tony Blair elected with a majority of sixty with only one-fifth of the electorate voting for him. What this indicates is a massive crisis of representation and when you have a crisis of representation on this scale then you have problems, whether you realise it or not you have big, big problems. Britain with a majority of sixty New Labour – no European government has been elected with such a low vote. Even in Germany where the electorate was divided, if not the parties, the voting was 77 per cent in the last elections in Germany. These indicate that actual mass democracy, with mass political parties representing different currents in society, is on the way out. Sometimes when you listen to the big billionaires talking, both in Europe and in the United States even more, they drool at the opportunities which the Chinese capitalists have. See, they have no problems at all – they can just do what they want, they just need to talk to a government and the path is cleared – why can’t we have that? And of course we cannot have it because it is difficult to push that through given the level of public opinion, given the level of consciousness, given the level of criticism which still exists though increasingly the spaces for these are being narrowed. That brings me to the third point, which is that given that this has happened on the political scene you have a similar process – much, much sharper

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and more telescoped – taking place within the print and broadcast media. Because if you are scaling down on real political debates and discussions because they do not represent any of the big currents in society, then the same space which used to exist in the media begins to be narrowed down, both because of what is happening politically and also because of what is happening economically. People say that this neo-liberalism promotes diversity and gives everyone the right to – to what – to go shopping? Yes, that is true, that is absolutely true, but I would not necessarily describe that as diversity, more the increasing concentration of ownership of the means of information. What exposes this ‘diversity’ is the following small timely fact, which is that Rupert Murdoch’s print media has 247 editors all over the globe – 247 editors work for Rupert Murdoch. Each and every one of them supported the war in Iraq. Purely accidental? Or does it have something to do with ownership and who the owner and proprietor is? And that of course creates a situation where Murdoch has his mimics. In Latin America it is Gustavo Cisneros – the Cuban exile – the billionaire who owns a large part of the private television stations and newspapers in parts of Latin America. The Europeans have of course the great Prime Minister of Italy, which is like having Rupert Murdoch in power in large parts of the world. He owns the bulk of the private media television stations in this country; actually his company owns some and as Prime Minister of Italy he also controls the state television networks. So of the Radiotelevisione Italiana (RAI) channels, RAI-1, RAI-2 are controlled by him, RAI-3 is still allowed some space for the Opposition party. It has reached its most crystallised form where the big media magnate can also become Prime Minister. So possibly Italy offers an image of the future. Heaven help us. These are the trends which are existing in these societies today and it is these trends which are creating increasingly, in large parts of the world, despair and apathy. And if you add to them now the second leg of neo-liberal globalisation, which is war – to carry out your aims by other means – then you see the thing in process. Incidentally, von Hayek was a great believer in non-intervention economically, that the state should not intervene. He was a great believer in military intervention to create a non-interventionist society. He was attacking Mrs Thatcher for not bombing Buenos Aires during the Falklands War. He was a great believer in military interventions and of course, the neo-cons around Bush reflect that very strongly. So that brings us to the question of the narrowing of democracy, the increasing curtailment of civil liberties, wars which are fought and accepted, a media dominated by corporate billionaires whose editors more or less carry out that will. It is not that there is nothing left – the point I am making is that the space for what is left is becoming narrow. You read today in Manifesto the report of the two big independent dailies in France – Le

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Monde and Libération – are both now being bought and Rothschild has bought Libération and Le Monde likewise. In Britain the Guardian is the only newspaper which is owned by a trust, all the other newspapers now are owned privately. So this is not unrelated to the neo-liberal world in which we live which creates what I have described as a mediatic political bubble. So if you live in that bubble all is well, and outside there is a real world which you try and dominate and control as long as you can, but when the controls fail then you have problems. And that brings me to one of the themes of this conference, which is terrorism. Now what I want to say about this is as follows: what has happened since 9/11 is that every single act of violence is described as terrorism. But terrorism is something very specific. Historically it has existed for a long time – you have acts of terror carried out in the nineteenth and the twentieth centuries – but these were acts of terror which were carried out largely by small tiny groups who saw in terror itself a way of trying to influence the state, their opponents, whoever. You had the entire phase of anarchism when they tried to kill the Tsar of Russia, tried to kill heads of state – quite common in Europe during the nineteenth and early twentieth centuries. You had a small wave of terrorism in the ’60s – you had the Red Brigades in Italy, the Baader–Meinhof Group in Germany and the Red Army Faction in Japan. It is interesting that these terror, small terror networks, probably heavily infiltrated in the case of the Baader–Meinhof and the Red Brigade, these three groups all arose in countries which in the inter-war years had been fascist states in one form or the other. This is something one cannot totally isolate from what happened in these countries. I remember personally arguing very strongly with Ulrike Meinhof in Berlin in 1968 when she said, ‘This is what we have to do’ and I said it is completely crazy because, you know, you go and throw a bomb – ‘We don’t want to kill people, we just want to throw it’ – you can’t behave like that! Because you totally isolate and cut yourselves off from ordinary people who you have to win over and it is a lengthy bloody process but without it there is no future. And she turned on me and she said, ‘You don’t know who these people are we are attacking – our fathers and mothers who served the Third Reich faithfully and now butter would not melt in their mouths the way they dress and talk, “oh it had nothing to do with us”, you don’t know them’. I said look, I accept all that. That is perfectly understandable, your anger against that generation – all I am questioning is your tactics in dealing with it. You cannot deal with it in that particular way. It is a debate we have had in Europe in the 1960s and 1970s and of course it led to total disasters. Complete and utter disasters in all these three countries – it served no purpose at all. Then we had in Britain a long and sustained period of terror, launched by the IRA to force the British to pull

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the troops out of Northern Ireland. This was probably the most successful campaign in terms of what they managed to achieve. But here you reach another point – the aim of the IRA was very clear, the aim they said was to force the British to withdraw, to make some statement on Ireland. In order to achieve that they went for it and they had targets in Britain – Downing Street, John Major – people sitting in Downing Street suddenly finding a missile flying through the window. They tried to blow up the whole British Cabinet, then finally hit where it hurt – blowing up buildings in the City of London. And what happened? How did the British deal with it? Within three months of these events secret negotiations and secret channels had been opened to discussions with Sinn Fein, which a year later led to the ceasefire which has held, by and large. John Major, it has to be said, this Conservative Prime Minister under big pressure from his own right wing and the Loyalists in Parliament, did manage to push this through and then Blair took over when he came in. This is one thing that has happened which is positive and the reason it is positive is because you have seen how to deal with it. If you deal with terror by state terror, because that is something that is never discussed in polite society, state terror – wars, bombing cities, killing civilians, torturing prisons, invading and occupying countries – then the cycle you want to stop is something which basically, you encouraged. And many of us said this at the time after 9/11, there are two ways of dealing with it. Al Qaeda, Osama bin Laden’s group, which is a small group, maximum numbers even by the American and European intelligence agencies – they disagree on the figure but the largest size is 3000 – the notion that 3000 people represent a serious threat to the social and economic order of the west is just a joke, it is not convincing. The IRA were a much bigger threat, a much, much bigger threat than these people are. They have incredible nuisance value and they kill, that is true, but a real threat? No. Then why do they do it? Is it the case – and here we enter into dangerous territory – is it the case that there is a big civilisational gap? Well, where was the civilisational gap when most of these people were allies of the United States? They worked with them quite happily and the bulk of the leadership of Al Qaeda are people who worked with the United States in Afghanistan, fighting against the Russians, when the media in the west, including the British media, referred to them as ‘freedom fighters’. Osama bin Laden’s first inauguration of his activity was to blow up a co-educational school in Afghanistan and execute the teachers because they were teaching boys and girls together. This episode was reported in The Times as an action carried out by Afghan ‘freedom fighters’. So they were used during the Cold War, they fought with the United States. They were used again in the war in the Falklands; when a whole

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number of them were brought into Bosnia and trained and fought with the Bosnians against the Serbs; and many of the groups in Britain who are currently being made illegal are groups whose help the British Government sought. You can look at photographs of Ronald Reagan and Margaret Thatcher in the White House and Downing Street with many of these guys who are now on wanted lists. Ronald Reagan actually introduced these jokers to a press conference in the United States saying: ‘They are the equivalent of our founding fathers’. Well how come three of the founding fathers are now on the ‘most wanted’ list with the Central Intelligence Agency and Federal Bureau of Investigation? So that is why I question all talk of civilisational conflict, I don’t accept that. I think it’s wrong and it creates a massive problem for the giant Muslim communities who now live in every single European country and they live in North America and they live in Australia. It creates big problems because it demonises a whole people, and that leads to further problems. There is a very interesting study carried out in the University of Chicago by Professor Robert Pape, ‘The suicide terrorism project’, which he has been working on now for twenty years.2 After fifteen years of studying every single suicide terrorist attack, Pape comes to the conclusion that people use religion, different sorts of people including Muslims use religion, but that the aims and the purposes of these attacks are secular, they are to do with concrete things. In many cases, he says, they are to do with what the suicide terrorists regard as the occupation of their land by someone else. In other words, even for these attacks there is a political explanation, and to deny that political explanation means to encourage these attacks. In the case of the people who bombed the twin towers and the Pentagon – how many people read what these guys say? Unfortunately I have to read this stuff because I talk about it, and they say that for them the occupation of Saudi Arabia by the United States after the first Gulf war was the decisive factor. That is what bin Laden has said many times, not once. So you have fact one. The July 7 events in London, here you have in a nutshell everything I have been talking about. The bombs occur, they hit London, fifty civilians are killed, over a hundred injured. Horrific senseless carnage carried out by four kids, young people, three of them born and bred in Yorkshire, one of them of African origin. They carry this out and for virtually two whole weeks the media-political bubble closes ranks. To say that there is a reason for this is not to accept the consequences – to explain the cause is not to accept the consequences or justify them in any way. But for a while even to say what the cause was, was unacceptable behaviour. And if you deny that, then what you come up with is the civilisational explanation: they are crazy because they are Muslim, that is how they behave, they do not like our way of life. And that is not the case. We now know that, both from the

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video which was broadcast by one of the suicide terrorists and from the statements given by the suspect that was captured in Italy. Repubblica, the liberal Italian newspaper, published what he said in the interrogation by the Italian secret police, and he said; ‘In order to psych ourselves up for what we were going to do, the pain which was working us up was Iraq, we watched every day documentary footage from Iraq and Fallujah, and civilian deaths and civilian casualties, and then we went and did it’. Now of course it does not justify it in any way, but to say that Blair’s intervention in Iraq was not responsible is to try and cover things up. It took the Liberal leader three weeks – he has opposed the war – to say possibly Iraq had a link. Then the Guardian did an opinion poll, 66 per cent of those questioned said, it is the links with Iraq. The British Broadcasting Corporation (BBC) desperately went around the streets of London trying to find people who would say it was not Iraq, and failed. The usual stand-by test for the BBC is to hop into a black taxi in London and talk to the taxi driver; it is usually a fail-safe mechanism to get a reactionary view. Not in this case. They did it twice on radio programmes: ‘Well why do you think we were bombed?’ – ‘It is Iraq, is it not?’. So, despite strict control of the media they could not totally enforce it because the links were clear. And if it was not Iraq, what the hell was it? Why was not Beirut or Berlin being hit? Why have they targeted Madrid and London? Incidentally, in Britain the way in which the British Government treated the BBC after the Hutton Report was just totally outrageous. When they sacked the Chairman of the Board of Governors, Gavyn Davis (a close chum of Gordon Brown, then Chancellor of the Exchequer), sacked Greg Dyke, an old crony of Blair’s who had given a lot of money for the Labour campaign. If these guys were not considered safe enough who the hell are you going to get? And these guys were not considered safe enough, as you have seen. In my short polemical book on Blair, I outline what happened with the BBC and the exchange of letters, angry letters, between Greg Dyke and Tony Blair.3 The Prime Minister at the height of the war, actually writing to the Director-General of the BBC saying: ‘you are not being supportive’, and the Director-General of the BBC saying: ‘you have your job to do and I have mine. And we cannot rely on Downing Street because I can give you a list of the number of times we have been fed deliberate misinformation by your press officers’. This erupted then, and in the classic British way of doing things they brought in a bent judge – Hutton, securityvetted judge; after the old Diplock courts, he defended the British army – totally safe judge. Greg Dyke says in his memoirs that one of the members of Blair’s circle, Philip Gould, an advertising public-relations-type pawn, calmed down some members of the House of Lords who said: ‘what if the Hutton thing gets

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out of control, what if the inquiry gets out of control?’. Philip Gould said to them; ‘Do not worry, the judge is totally safe’. As indeed he was. In the face of the most amazing evidence he prevented Blair from being questioned by the BBC lawyers, really went for Greg Dyke and found the BBC guilty. Of course Blair personally promised Dyke and Gavyn Davis that no heads would roll, then went for the kill. His chief press officer cruised around Whitehall, attacking the BBC and demanding apologies, and these guys then lost their jobs. For the first time in BBC history you had journalists on the street weeping because they felt that their Director-General had defended them – weeping at not wanting Greg Dyke to go. Very few other people I can think of in Fleet Street, were they to be sacked, would you find people weeping on the street. There would usually be indifference. Then you have a completely new school of embedded journalist thought, represented by the Financial Times (FT) journalists. John Lloyd, editor of FT Magazine – which is a weekly bugle call to march behind Bush and Blair – as the political editor, saying what we need in these times is supportive consensual journalists. Actually writing, I have got the quotes in their papers, that is what we need and attacking the BBC, which had lost its two heads under massive attack from the government. So in this world a question then is posed: what the hell are we going to do about it? And I think there has to be a fight to preserve spaces for dissenting views and dissenting voices. If the politicians and the mainstream political parties do not do it, it has to be done within other spheres. Universities too are under heavy pressure, certainly in Britain, where management techniques have driven many academics virtually insane because they do not find time to teach. All these constant management-driven assessment things, which have very little to do with education. In the United States, with the total corporate control of the media and the networks trying not to be outflanked by Fox TV, you also have some of the more advanced counter-information techniques which have opened up. It has not happened to that extent in Europe; Italy is slightly different because you have radical papers which offer a different view each morning, but in many other parts it is becoming a big problem. In the United States now you have a network of radio stations, you have massive internet sales. American friends tell me that after September 11 the first thing they would do when they woke up, would be to go to the net, switch to the Guardian or Independent websites and surf for independent-minded public opinion. I hear the Guardian website hits in the United States went up by about two million after September 11 because people were so desperate. But in the United States also you now have a show on an alternative radio network, Democracy Now, run by Amy Goodman, which has a daily listenership

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and viewership of about two and a half million people, which is not much given the population of the States but it is still a hell of a lot. So people are searching for these alternatives, and if things carry on with the BBC now imposing strong self-censorship as it is in many of its programmes, things will have to be done there, though it is more difficult because there are more regulatory laws preventing setting up independent radio networks. And from what I hear whenever I visit Australia, the Australian Broadcasting Corporation (ABC) is going in the same direction – under very heavy pressure from the Howard Government – journalists under attack, producers under pressure. So it is not a process linked to any one country, it is a fairly general process. So one has to create a space. The last point I wanted to make is on this question – which has been discussed before and which we will return to many times – of the big war which has been waged on civil liberties in the name of combating terror. The things which have been pushed through now by the British and American Governments are just morally, politically, judicially unacceptable. What has been done in Guantanamo, what has been done in Belmarsh prison – people being held indefinitely without trial – just unacceptable. Apart from the fact that it will not work in helping to deal with these crises, which of course are political problems – Palestine, Iraq, Afghanistan – these are political issues that have to be dealt with politically. Until you solve them you will not stop kids taking the law into their own hands and going and throwing bombs and killing themselves too, which becomes very difficult to stop. These are not kids who are carrying out these acts, who are cowards in that sense – they are prepared to sacrifice their own lives, which also makes it very difficult to grab them. I mean, in London we had a public execution at Stockwell station, when a Brazilian electrician was killed for no rhyme or reason and every single thing the police said about that killing, within the first twenty-four hours, turned out to be a total lie. A total and complete lie. In fact, I will say that on the killing of the Brazilian, the right-wing press was more critical than the liberal press. If you compared the editorials in the Guardian and the Independent – much, much worse – they’ve almost followed the supportive journalism advocated by the Financial Times. Whereas the Daily Telegraph and Daily Mail editorials were far more questioning of what the police had done. What they are proposing now is the right of the government to determine what constitutes a glorification of terrorism, to strip people of their nationality, to arrest people. And where will this all end? So you fight in the name of the democracy which you are truncating at home, you say you are for human rights which you are cutting down drastically each day. So this whole thing is bound to implode sooner or later and in completely

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unpleasant ways. We do need massive campaigns to defend civil liberties and civil society against the attacks now being made by the government, whether or not the media backs these is irrelevant – it has got to be done. There are brave people doing them, Helena Kennedy, a Labour peer in the House of Lords, has written a book called Just Law which outlines the big attacks on the judicial system.4 Blair says it’s a brand-new game, the rules of the game have changed – since when has the law been a game? Why is it dealt with in that way, that we can change laws at will? These laws in many cases have emerged after centuries of struggles, including the right to juries, which is also under attack. So it would be curious if a so-called threat, I say so-called because I do not see it as a real political threat to the established order or even as a social and economic threat, it is not a threat in the way Communism was, and militarily it is not even as effective a threat as the IRA were in Britain or the Basques were in Spain. So the fact that it has been blown up indicates that it has been blown up for other purposes – to establish an iron hegemony, to prevent discussion or criticism of the policies that are taking place, to frighten the populations of Europe and North America and Australia and New Zealand into accepting that everything that governments do is in your interests, it is absolutely justified. If we allow this to happen, we, and the generations to come, will be the losers. The young generation is already aware of this, which is why they switch off from politics. A speech-writer wrote into one of Blair’s speeches; ‘we are a young country’. Well, this may or may not be true, but for the last two successive general elections people between the ages of eighteen and twenty-five did not bother to vote. That is how the young regard the shape of society today and these laws, and they are not going to be frightened by this invocation constantly of a never-ending terror. If you see the terror these terrorists and suicide terrorists impose and compare it to what state terror costs – just weigh it up, just make the comparison – numbers of people killed, numbers of people tortured. We now have debates on torture where Australian academics write in American defence magazines justifying torture – interesting – but torture is against international laws at the present time, and in order to disregard the Geneva Convention all you need to do is to say the people you are fighting are not a legal enemy. So this is the world we are living in and the problems do not simply stem from terrorism, that is a complete farce and a joke. The problems stem from the overall social and economic order which governments have been imposing, and the way they are attacking terror is part and parcel of that. And that, I think, is something which over the years we will have to concentrate on.

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NOTES 1. Yergin, D. and Stanislaw, J. (1998), The Commanding Heights: The Battle between Government and the Marketplace that is Remaking the Modern World, New York: Simon & Schuster. 2. Pape, R. (2005), Dying to Win: The Strategic Logic of Suicide Terrorism, Carlton: Scribe Publications. 3. Ali, T. (2005), Rough Music: Blair/Bombs/Baghdad/London/Terror, London: Verso Books. 4. Kennedy, H. (2004), Just Law: The Changing Face of Justice – And Why it Matters to Us All, London: Chatto & Windus.

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3.

Terrorism and war Giovanni Kessler

The ‘war on terror’ was solemnly proclaimed by President Bush – while never having been formally declared – in the aftermath of the 11 September 2001 attacks on the World Trade Center. Since then, it has become the response of western political leaders to a public stunned by the attacks and subsequent mass killings perpetrated in their city centres and popular holiday destinations. ‘Global war on terror’ has become the watchword used by the media to mobilise public opinion and demonstrate its desire to react. It has also become the United States (US) Administration’s foreign policy paradigm, giving unity and coherence to otherwise disparate and morally contradictory policies. The strategy of a ‘global war on terror’ has brought the US back to global involvement on a Cold War scale and with the Cold War’s moral fervour. The word ‘war’ has been taken quite literally by the US Administration, with the military invasion of Afghanistan and then Iraq being the most visible acts in this so-called war. Five years after the proclamation of the ‘global war on terror’, the terrorists are still striking with alarming frequency and ease in our cities: Madrid, London, Sharm el Sheikh and Bali are among the more recent and appalling examples. Public opinion in western countries is growing increasingly alarmed and uncertain, and disquieting questions are being asked. If this is a war, why have we not been as successful as leading western powers were over the same period of time in wars waged in the past? It took five years to win the First World War (1914–18), and four years after the Japanese attack on Pearl Harbor (7 December 1941) the Japanese Empire was in tatters. Why is it, then, that despite all the energies and resources being deployed in this war, worldwide terrorism does not seem to be any less powerful than it was five years ago – both in terms of its capacity to attract combatants and its destructive capability? Why is it that major western cities are now obliged to stage exercises to address threats they never envisaged having to face? The answer to these questions is not complicated: the war on terrorism is not a war. Even though what is happening is the most serious and threatening phenomenon we have had to deal with in the past 30 years, it 20

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is terrorism. Terrorism is not an enemy in the conventional war sense. It is not a visible and tangible entity, militarily organised and equipped. Thus, terrorism cannot be tackled or defeated by war. Terrorism is a technique, a tactic and, as retired US Army General, William Odom, explained, ‘It’s about as sensible to say we declare war on night attacks and expect we’re going to win that war. We’re not going to win the war on terrorism. And it does whip up fear’.1 Today, even the US Administration appears to have realised its mistake. Over the past two years, top US officials, including former Secretary of Defense Donald Rumsfeld, have avoided using the expression ‘war on terror’ in favour of the softer ‘global struggle against extremism’. At the National Press Club on 25 July 2005, General Richard B. Myers, Chairman of the Joint Chiefs of Staff, declared that the threat should be defined as ‘violent extremism’, with the recognition that ‘terror is the method they use’.2 This change, as stated by the US National Security Adviser Stephen Hadley, is also part of the Administration’s attempt to show that military action ‘is only one piece of the war on terrorism’;3 it is a re-branding operation, demonstrating the weakness and the error of the concept of war and the inability to solve the problem of terrorism with military force. This is not only a linguistic and terminological problem about defining a concept. The deliberate use of the word ‘war’ has significant political implications, allowing as it does for wrong decisions to be made. The use of the word ‘war’ involves particular threats and we would do well to be aware of the possible consequences. Firstly, the expression ‘war on terror’ has been responsible for the predominant, if not exclusive, use of military means in solving the problem of terrorism. As General Myers has recognised, ‘If you call it a war, then you think of people in uniform as being the solution’.4 The first point of the White House document entitled Fighting a Global War on Terror, which sets out the Administration’s strategy for dealing with terrorism, states that ‘America must fight the enemy abroad, so we do not have to face them here at home’.5 Consequently, the concept ‘war on terror’ fostered the illusion that the threat could be identified within a clearly defined territory. It wrongly promoted the existence of a single high command against which attacks could be targeted so as to decapitate the terror organisation once and for all. Based on such a premise, the war on terror very soon turned into two traditional wars, the military invasion of Afghanistan and then Iraq. From a technical and military perspective, these wars could not be considered a success, the world is certainly not safer, and the threat of terrorism has not been reduced.

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The second dangerous aspect of the ‘war on terror’ stems from its undefined character. When a state of war is declared, our constitutions permit some of our constitutional guarantees to be restricted. In the past, when some democracies have been through similar periods of emergency, constitutional rights were suspended. But in all instances these measures had a beginning and an end, were adopted with a formal declaration, and subject to clearly defined procedures. Today in many western countries, a war has been undertaken – but not declared – against an unknown and undefined enemy. This means that we find ourselves in an emergency without end, and in a permanent state of war. War generates fear; the longer the war and the more indeterminate its end, the higher the level of fear. Fear makes civil rights even more difficult to protect. In many countries the state of permanent war against terror is being used, politically rather than legally, as justification for permanently limiting citizens’ rights and structurally weakening judicial control and the powers of parliament. The most significant and obvious case of the loss of citizens’ rights is Guantanamo Bay. The war on terrorism has created its own unique by-product, the ‘enemy combatants’ – ‘terrorists’ captured ‘in action’, fighting what we refuse to recognise as a conventional war. These people, therefore, are denied the most elementary constitutional rights enjoyed by common criminals or the rights enshrined in international conventions for conventional belligerents. A further example of the weakening of rights of citizens in the name of the undeclared war on terror is the use of torture, which is tolerated – or secretly practised – by governmental authorities. The discovery of torture cases at Abu Ghraib, and the top secret, but fairly common practice of transferring prisoners to countries where torture is exercised as a means of obtaining information are but two examples. The use of torture is linked to this phenomenon of so-called ‘extraordinary rendition’ by which people who are deemed to have connections with terrorism are seized and secretly abducted abroad, in blatant violation of human rights and state sovereignty. In Italy, such a case was recently found to have been carried out two years ago by American governmental officers against an Egyptian citizen resident in Milan. Believed to be a terrorist, he was kidnapped, flown to Egypt, secretly incarcerated and subjected to questioning and torture.6 Yet, western reaction to this very serious episode has been extraordinarily muted, especially in the US. We are at war! It is against this background of frightened public opinion and broad agreement about the need to fight the war on terrorism that new legislation such as the USA Patriot Act 2001 was formed.7 The Act makes it possible to place citizens under secret and widespread surveillance, even

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without criminal acts being committed; to detain immigrants indefinitely; and to try people before secret courts. In Italy, also, there have been recent worrying signs of our loss of rights as citizens. In the wake of the London attacks in July 2005, the Italian Government laid a decree-law before Parliament containing new counter-terrorism measures. Most of the measures were neither particularly significant nor effective. There were, however, a few, such as the extension of wire-tapping powers for the intelligence services, and the lifting of judicial control over the expulsion of immigrants on the orders of the government. These measures should have been debated and thoroughly scrutinised by Parliament. The fear of an imminent attack inside Italy, however, was such that parliamentarians afraid that the public might consider them to be falling short of their duties conducted a debate that was brief, superficial, and completed within a few hours. A large part of the Opposition refrained from thoroughly probing the legislation or introducing amendments that could have enjoyed widespread support. A ‘permanent state of war’ (and a permanent state of fear) cannot be tolerated for long by democracies, which, by their nature, require scrutiny, the balancing of powers, transparency and compliance with the rules of law. If the ‘war on terror’ is the wrong answer, what are the right ones? It is only when we leave the fallacious concept of war that we are able to make the right responses in order to pre-empt and combat terror. Terrorism is a complex issue that requires a comprehensive response. It is at the same time a political and criminal phenomenon. Military action might be needed in some specific cases, but an exclusively military approach to the issue is a limited and hence mistaken solution. Attempting to redress terrorism through military combat is an inadequate response and will not solve the problem. While poverty is not a direct cause of terrorism, economic and social policy can help to mitigate exclusion and the impact of rapid socio-economic change, which we know gives rise to grievances that are often exploited by terrorists. Terrorist organisations prosper in societies where there are unresolved conflicts and few accountability mechanisms for addressing political grievances. New initiatives at mediation and peace-making for societies which are marked by conflict and division are therefore necessarily a part of a comprehensive and effective anti-terrorism strategy. Terrorism is a global threat that calls for a global response. It is fallacious to try to externalise the risk, as the US has done, by artificially creating a war front abroad. The illusion harboured by some other countries, of some kind of national immunity against terrorism, is also fraught with risk. The unilateral suspension of the Schengen Agreements,8 national initiatives to stand aside from the international front with the unexpressed

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hope of gaining some kind of benevolence or neutrality from the terrorists and the reluctance of certain countries to cooperate fully in exchanging intelligence, are all worrying signs of inept and unrealistic attempts to shift the risk outside national borders. Such narrow national mindsets are counterproductive and dangerous. There are no national solutions. There is no way to escape from terrorism without an extraordinary solidarity between countries. Unlike a ‘permanent state of war’, to successfully defeat terrorism we must treat it as a criminal act to be handled through existing systems of law enforcement and with full respect for human rights and the rule of law. There is an alternative to using military force to combat terrorism effectively, to make terrorists accountable for their actions, and make everyone safer. It can be done through the strengthening of and the extensive and systematic use of law enforcement agencies and judicial authorities to discover and apprehend those responsible. Enhancing specialised investigative police authorities under the control of the judiciary and international cooperation between these authorities has already achieved major successes with the capture of dangerous terrorists and the dismantling of whole terror networks. More clear-cut rules regarding jurisdiction, however, need to be adopted in order to ensure that terrorist crimes can be prosecuted worldwide, effectively and without loopholes. The traditional instrument of the rogatory, as a tool for obtaining evidence from abroad in criminal procedures, has proven inadequate in confronting transnational phenomena like terrorism. New instruments must be introduced such as common investigative teams that give direct and free authority to police investigations in all countries concerned, and immediate validity in every country to the evidence gathered by them. The effective operation of international judicial authorities, such as the International Criminal Court and its prosecutor, can help both to repress and prosecute acts of terrorism and to create an international climate of legality and justice, in which terrorism will find less scope to operate. But any effective action by these authorities is still hindered by the lack of a universally recognised definition of terrorism upon which they can act. Criminal law and the criminal justice system only deal with certain types of conduct, which must be clearly defined. The powers of the institutions involved and the investigative tools available to them, as well as the possibilities for international cooperation, vary according to the definition of criminal activities. Furthermore, all the political and cultural efforts deployed to combat terrorism are weakened by a lack of agreement as to what type of conduct must be banned, highlighting the importance of the appropriate use of words. The international community should seek agreement with greater determination along the lines of the proposal

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previously formulated at the United Nations (and already adopted by the European Union) defining terrorism as: ‘any action intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating the population or compelling a government or an international organisation to do or abstain from doing any act’.9 In effect, this means, no cause justifies the targeting of civilians and non-combatants through intimidation and deadly acts of violence. Respect for the rule of law and human rights when combating terrorism is not just a question of fairness and tolerance: it is also a question of security. The denial of rights and failed social inclusion are some of the reasons that drive many people, even in our own societies, to become tools in the hands of the strategists of terror. Recognising everyone’s human rights and a sense of belonging to a civil community mitigates exclusion, intolerance and the frustration of our citizens and immigrants alike, thereby producing security. Ultimately, the respect for human rights is a matter of survival. The adoption of widespread measures limiting rights, the use of covert and illegal counter-terror measures suggested by the permanent state of war, would lead to us renouncing the rights which are the necessary ingredients of our industry, our welfare, and ultimately our way of life, our very existence. It would also mean commencing a so-called war with a defeat. Finally, if we manage to break out of the narrow idea of the ‘state of permanent war’, we realise that in order to combat international terrorism not less but more democracy is needed within countries at the global level. Only freedom and democracy will ultimately defeat terrorism. No other system of government can claim more legitimacy, and through no other system can political grievances be addressed more effectively. Italy in the 1970s and 1980s was the victim of bloody attacks by homegrown political terrorists. It overcame terrorism not with emergency legislation in conflict with the principles of the Constitution, but by strengthening the democratic fabric of the country and the investigative and enforcement agencies, thus isolating the terrorists and rendering them harmless. It was neither an easy nor short battle and the threat of terrorism today is certainly much more complex and even more threatening. But Italy’s example remains significant. Today we must look beyond national borders. Strengthening democracy is a global challenge, and no country can remain indifferent to the establishment of democracy in other countries. We have to defend and promote democracy in our own countries and abroad. But democracy is not a ready-made commodity that can be exported, even less can it be imposed by force, as the rationale of war suggests it might, because an imposed transplant runs the risk of rejection. What can and must be done

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instead is the provision of political and financial partnerships to support the growth of democratic movements in every country, the support of the fledgling democratic institutions in countries which are now embarking on democracy, and the fostering of education in democracies where it is still a word bereft of any real meaning. It is an essential condition of effective democracy that everything should take place absolutely transparently, in the light of day, and with the primary involvement of local communities. This challenge faces governments, international organisations and nongovernmental organisations. There are some good examples, such as the European Union and the Organisation for Security and Cooperation in Europe (OSCE). The OSCE, as an international security organisation, promotes democracy in its member countries based on the principles of equality and cooperation between member states. OSCE’s field missions in many ‘new democracies’ in Eastern Europe, the Caucasus and central Asia are the driving force behind democratic movements and provide support, including technical assistance and training, to the fledgling democratic institutions such as parliaments and judicial bodies. For the OSCE, fostering democracy is a way to enhance security. It is less visible but much more effective than a ‘state of war’. In conclusion, once we get rid of the concept of ‘war’ on terror, we will discover our societies have powerful means available in tackling and overcoming terrorism without putting democracy at risk. We have a long road ahead of us.

NOTES 1. Appearance on ‘Washington Journal’, C-Span TV, November 2002. See http://www.fair. org/index.php?page=2950. 2. National Press Club. See URL: http://www.sourcewatch.or/index.php?title=National_ Press_Club. 3. Davis, M. (2005), ‘New Name for “War on Terror”’, BBC News, available at: wysiwg://10/ http://news.bbc.co.uk/2/hi/Americas/4719169.stm. 4. Speech at the National Press Club, July 2005. 5. See http://www.robertkbrown.com/2005/07/23/america_must_fight_the_enemy_abroad_ so_we_do_not_have_to_face_them_here_at_home.html. 6. Hassan Mustafa Osama Nasr, who is also known as Abu Omar, is an Egyptian cleric who was living in asylum in Italy after his Islamic organisation was declared illegal by the Egyptian Government in the 1980s. Abu Omar was kidnapped in Milan on 17 February 2003, before being taken to the US airbase in Aviano (in Friuli-Venezia-Giulia), interrogated and flown to Egypt. ‘Italy: Documents sent to European Parliament Committee on Renditions Allege other Renditions and details of Abu Omar cover-up and the Britel Rendition’. Available at URL: http://www.statewatch.org/news/2006/nov/01italy-abu-omar-britel.htm. 7. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001, US HR 3162, S 1510, Public Law 107–56 (26 October 2001).

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8. The ‘Schengen Agreements’ is a system of two international treaties that were initially signed by five member states of the European Union (EU) (Belgium, France, Germany, Luxembourg and the Netherlands) in 1985 in Schengen (Luxembourg). Their objective is to abolish the checks on persons crossing the internal borders between the EU member states. 9. From the UN report entitled A More Secure World: Our Shared Responsibility: Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, available online at: http://www.un.org/secureworld/report.pdf.

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4.

Democracy and torture: when the people decide Thomas Mertens and Morag Goodwin1

INTRODUCTION: WHAT IS DEMOCRACY? A ticking-bomb scenario, favoured by philosophy professors the world over, typically runs like this: an act of terrorism is threatening an entire population; the single person or persons who can provide the information to prevent the immediate danger have been identified and captured; no other methods of collecting the relevant information are available so that torture interrogation is the last available option to avert the known danger; torture of the terrorists will be efficient. Let us now ask whether torture is permitted in such a situation? Whom are we going to ask? Which person or group of persons would have the moral and political authority in the present world to decide on this? There seems to be only one such candidate: the people!2 The will of the people should decide where, when and to what extent the coercive powers of the state may be applied. That is the democratic lesson learned from, among others, Rousseau: the general will of the people is sovereign. Since his days, democracy has become the catchword of the world. ‘We are the people’ was the revolutionary slogan with which the East German people demanded the fall of the Berlin Wall; ‘to make the world safe by means of democracy’ was one of the legitimising claims of the present war in Iraq; the recent Orange revolution in Ukraine was hailed as a victory for democracy. No one else but the people should decide on difficult public issues such as the imposition of the death penalty, the limits of the right to life as in euthanasia or abortion, or the application of torture. It seems obvious what the ‘people’ would decide in the imagined situation: ‘torture the bastards and save our lives’.3 Security is, after all, the primary reason why ‘we’ – in the equally imagined state of nature – have consented to the establishment of a society and its governing body. By trying to kill large parts of our population, these terrorists have placed themselves outside civil society, even beyond the bounds of humanity as a whole. Consequently we, 28

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the people, find ourselves in a state of war with them – a war inaugurated by them. They cannot claim any rights from us, as rights only exist for those who accept the bounds of the political community.4 The story could stop here if things were not a little more complicated, and they are on several fronts. First, as regards the ticking-bomb scenario, it will be argued that it is unlikely that all the conditions mentioned could ever be met in real life, as empirical situations are always a matter of interpretation and concepts such as ‘last resort’ tend to have a metaphysical flavour.5 Furthermore, by definition this scenario depicts an urgent situation in which immediate action is required. This situation leaves little time for deliberation,6 let alone consultation with the ‘people’. It would thus be necessary for the people to give some prior form of consent. Situations like this then are to be anticipated and to be regulated by a legislative act, which – if approved – would describe in general terms the conditions under which torture could be applied, would authorise its application by certain officials and indicate some process of judicial review ex post. But then another set of problems arises. While the people in a deliberative process discuss the legitimacy of torture in extreme situations, they discuss these questions in a more detached, reasoned way in connection with other legislation and with the constitution. Rousseau and other proponents of democracy would argue that such reasoning is to the benefit of the ‘people’, as they should not take important decisions on the basis of immediate needs, strong impulses or compelling emotions. Only decisions like which song should win the Eurovision song contest or which person should leave the Big Brother house can be taken by simple majorities. The general will should not be identified by the immediate (majoritarian) will of the public. They should act, that is, take decisions, after well-informed discussions, after seriously weighing the pros and cons. Democratic authors have devised mechanisms to ensure that the outcome of the decision process by the people aims at the common good of the people. Rousseau suggested the outlawing of factions in order to let the general will prevail. Others have devised other mechanisms to prevent the tyranny of an immediate majority, such as bicameralism, enhanced majority requirements in special cases, systems of checks and balances and judicial review.7 If the people were to decide on torture, they would have to ask whether it would fit within the way they have constituted themselves as ‘we, the people’. They would then certainly acknowledge that granting specific state officials a licence to torture would sit uneasily with one of the major checks on majoritarian decision, unmentioned so far, namely a bill of constitutional rights. Democratic states not only adhere to majority rule, but also to the rule of law. This rule of law includes basic rights which remove certain individual liberties from majority regulation altogether, and one of these rights is the right to be free from torture. The people will thus

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have to decide on how much value they accord to this right in particular, and to what extent they allow this right to set the will and possibly the wellbeing of the majority aside. The issue of torture can thus be interpreted as a clash between a majoritarian and a constitutional rights-based conception of democracy. As these two conceptions of democracy are well-known, they will only be sketched briefly here. As regards basic rights, the majoritarian understanding holds that it is primarily the people who decide on their reach, as the people are the final arbiter of what the government is allowed to do. The constitutional reading however sees basic rights as mechanisms by which vital interests of individuals and minorities are protected against the ill-will of simple majorities and it allocates the decision on how to interpret these rights primarily – though not finally – to the judicial branch. If it is true that basic rights form part of the constitution, the question of whether legislative acts are consistent with the higher-order constitutional norms must be answered by the judiciary. This was Marshall’s reasoning behind the famous Madison v Marbury decision in 1803, and it has been followed in many democracies when accepting and institutionalising constitutional review. Obviously, the inclusion of basic rights in the constitution is a decision taken by ‘the people’ too, and the ultimate decision on the reach of these rights remains with the people, seen in their constituent power. The two conceptions of democracy can also be labelled, with Ignatieff, as formal and substantive, the former stressing popular sovereignty and collective interests, the latter stressing rights and individual dignity.8 The arguments in favour of the former, majoritarian understanding are straightforward: if a collective body of citizens has to be governed by laws, it has to be governed by their collective will, with laws being seen as the result of their collective action. This Dworkin calls a ‘statistical’ understanding of collective action, where the law is seen not as resulting from an action of the people as a community, but as an aggregation of the preferences of each individual member of the people as a pure counting of their votes. Ever since the emergence of democracy in Ancient Greece, philosophers have forcefully argued against such an understanding of the legislative process. Plato, the most important ancient opposing voice, argued that such a process would be hijacked by rhetorical power and its outcome would either be tyranny or anarchy. In our times, Rawls has argued that a majoritarian decisionmaking process does not guarantee the justice of its outcome, unless some important side-constraints are added such as the rationality and equality of the members of the people and their being well-informed.9 Basic rights must therefore not be seen as standing in juxtaposition to majoritarian democracy since they embody these essential side-constraints on the basis of which the democratic process is more likely to result in the best and

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most just outcome. One of the central side-constraints is the freedom and equality of all. According to this view, democracy is not defined by the fact that its decisions are taken by the majority of the people, but by the fact that its political institutions ‘treat all members of the community with equal concern and respect’.10

THE LEGAL CONTEXT Placing the ticking-bomb scenario into this context, the outcome is less evident. Before the people would be able to take a reasoned decision, they would have to take the domestic legal context into consideration, as well as their obligations under international law. In order to assess the values embedded therein, they would also have to find out what moral values are involved. At present, most democratic legal systems have incorporated the prohibition on torture, resulting from and in connection with the right to life and the right to physical integrity. The outlawing of torture within the realm of criminal law is often said to be the result of a historical development that started with the Enlightenment’s emphasis on individual rights, and in which Beccaria then led the campaign for a civilised penal system, without any place for torture as an inappropriate method to discover truth. In the meantime, historical research has, however, made it clear that the decline of torture was also triggered by less high-minded motives, such as changes to the law of evidence and that, with regard to torture, substantial differences always existed between civil and common law systems.11 Nonetheless, Ignatieff has suggested that the very identity of liberal democracy is tied up with the prohibition of torture, as ‘an intrinsic feature of the story of European liberty itself’.12 The stress on the prohibition of torture as a fundamental of a civilised legal system became urgent in the wake of the horrors of the Second World War. The countries of Europe committed themselves to a regime founded upon their experience of the barbarities of fascism and national socialism. A history of the negotiations leading up to the European Convention on Human Rights cites one delegate as urging the drafting Assembly to ‘declare that this prohibition [on torture] must be absolute and that torture cannot be permitted for any purpose whatsoever, neither by extracting evidence for saving life nor even for the safety of the State’.13 This resulted in Article 3 of this Convention providing that ‘no one shall be subjected to torture or to inhuman or degrading treatment’. It was not just the Europeans, however, who felt so strongly that there could be no circumstances in the post-World War world in which the infliction of such severe suffering

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could be countenanced. The Universal Declaration of Human Rights, one of the most authoritative texts of the 20th century, although not legally binding as lawyers insistently stress, urges the abolition of torture as well. This prohibition was integrated into Article 7 of the 1966 Civil Covenant, however, with the addition that no derogation of this prohibition was allowed on the ground of public emergency. The categorical character of the international prohibition of torture and all forms of inhuman and degrading treatment became a peremptory norm of international law with the uncompromising terms of the 1984 UN Convention Against Torture (CAT).14 The lack of derogation is all the more striking as Article 1 of this Convention provides a very comprehensive definition of torture, namely ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. This definition contains three constitutive elements for acts to count as torture: they must cause severe physical or mental suffering, be inflicted for a purpose, and by an official.15 Moreover, the case-law suggests that courts have been willing to follow these rules and to enforce their standards.16 The Filártiga ruling of the United States Federal Court of Appeals established civil liability for torture on the basis that the torturer was ‘an enemy of all mankind’.17 In the more recent Furundzija case, the International Criminal Tribunal for the former Yugoslavia ruled that ‘the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency’ and that ‘no legal loopholes have been left’ by the international community.18 The deliberations of the UK House of Lords in the 1999 Pinochet extradition case showed the highest court of a country traditionally jealous of the sovereignty of parliament and a long-term political ally of Chile nonetheless in little doubt that torture was a crime with universal jurisdiction, such was its abhorrence to all.19 A more recent case before the same House of Lords confirmed this.20 In an international order in which agreement can be gained on few other human rights, the prohibition on torture held effective universal assent: the large number of CAT ratifications21 is suggestive not only of the breadth of the moral consensus against torture, but the uncompromising nature of its terms suggests a depth of consensus that few other rights could claim. Obviously, the clarity of the law and the broadness of the underlying moral consensus did not reflect the actual behaviour of states. The use of

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inhuman and degrading treatment, even such as to breach the threshold of torture, was and still is a systematic feature of countless ‘legal’ systems around the world.22 Torture has even made its occasional appearance in the heartland of human rights protection, the western half of the Council of Europe.23 In dealing with these cases the European Court has clarified the meaning of the abstract wording of the Convention’s third article and even has become stricter over the years by lowering the threshold of what would count as such and by broadening the scope of what would fall within ‘the act of a public official’.24 Prior to 11 September 2001, then, in deciding the balance between security and constitutional rights ‘the people’ at least in theory came down heavily in favour of the prohibition of torture.

THE CONSENSUS BREAKS DOWN Were the people now to consider the legitimacy of torturing within the strict limits of the ticking-bomb scenario, however, they would look not only at the domestic and international prohibitions of torture, but would do so within the changed atmosphere post-11 September. In the weeks and months following the attacks on the US, ‘torture’ lost its taboo character and became the topic of intense public discussion.25 Since the force of the law is only as strong as its underlying moral consensus,26 the arguments in favour of the limited use of torture can withstand easy dismissals such as ‘it is in violation of the law’. The legal justifications and moral claims asserted in favour of interrogational torture as a legitimate means of waging the so-called global war on terror are sophisticated and need to be taken seriously. While the norms of most national legal systems remain in compliance with the standards laid down in CAT, we have witnessed the breakdown of the moral consensus on the use of torture. Many people no longer believe that the basic right of every human being to be free from torture has a high enough standing that it should trump the security of society as a whole. In addition to the media debate, torture is the topic of serious legal consideration in the now so-called ‘torture memos’ of the Bush Administration. These memos give us an inside perspective on the legal reasoning within the State Department, the Pentagon and the Department of Justice27 and they provide strong evidence that although the use of torture on suspected terrorists is not official policy of the United States government and its allies, it is considered to be a legal tool in the Commander in Chief’s armoury. In one of these memos, that of 1 August 2002 – solicited by White House counsel Alberto Gonzales – Jay S. Bybee, of the Office of Legal Counsel in the Department of Justice, examined the law, both domestic and international, relating to torture and concluded the following.

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First, this ‘Bybee memo’ sought to minimise the level of conduct that could be characterised as torture. It concludes, for example, that for an act to constitute torture, as opposed to mere inhuman and degrading treatment, it must inflict ‘severe pain’. The term is understood as pain ‘likely to result in permanent and serious physical damage’, a definition which is itself refined so that such ‘damage’ must ‘rise to the level of death, organ failure, or the permanent impairment of a significant body function’. In addition to raising the physical threshold of what is understood to constitute torture, the memo also sought to redefine the concept of mens rea as it applies to the infliction of severe pain. Whereas the CAT defines torture, in effect, as the intentional infliction of pain, the memo finds rather that even where severe pain (that is, pain of a severity to meet the standards of torture as qualified by the memo itself) will result from the given actions, such actions constitute torture only ‘if [one] acts with the express purpose of inflicting severe pain or suffering’. Where the infliction of pain is not the objective, but rather it is done in order to gather information to ‘prevent further attacks on the United States’, it does not constitute torture. Therefore, unless pain is inflicted by a sadist uninterested in anything the person within his or her custody has to say, it is not torture, and the ordinary criminal law defences of necessity and self-defence apply. Finally, the memo argues that the President has complete authority and discretion over the conduct of war ‘to protect the security of the United States … In order to respect the President’s inherent constitutional authority to manage a military campaign against Al Qaeda and its allies, Section 2340A [the section of title 18 of the US Code incorporating – together with Section 2340 – the provisions of CAT into domestic law] must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority’. This section, so Bybee concludes, prohibits ‘the Department of Justice [from] bring[ing] a criminal prosecution against a defendant who had acted pursuant to an exercise of the President’s constitutional power’.28 This slick memo can be summarised relatively easy: if it looks like torture, it probably isn’t; but even if it is, it is probably an act of self-defence. The underlying message is that in order to defend itself against an imminent threat, a society and its representative has the right to even use such horrible means, since the law exists in order to protect society and not to endanger its existence. The law cannot be a suicide pact. Obviously, there has been a fierce debate within the US and abroad concerning this reasoning and the abuse of prisoners in Abu Ghraib prison. This memo has now officially been withdrawn,29 but it should not be forgotten that its author, Mr Bybee, now sits as a judge on the Ninth Circuit Court of Appeals and its main addressee, Mr Gonzales, has been appointed as the new Attorney-General. More importantly, large sections of the people seem to have been convinced by the simple reasoning behind

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the original torture memo.30 In the war on terror, the information that can protect innocent lives needs to be extracted at any cost, as intelligence for counter-terrorism is the only way to save innocent lives. It would be irresponsible to ignore reliable intelligence with a direct bearing on terrorist threats. This is in accordance with the will of many people, maybe even of the majority. But is it in accordance with the ‘general will’? In order to try and answer that question, we need to bear in mind that the present debate does not suggest a return to widespread systematic torture for deterrence or punishment, or a wholesale replacement of the rule of law with a system of military dictatorships. A growing number of people, including vigorous supporters of civil liberties and liberal academics, are arguing that in the war against terror, we should no longer uphold a strict prohibition on the use of torture unquestioningly.31 The current debate is an attempt to draw the line differently between safeguarding the security and dignity of many and the integrity and dignity of some in comparison to the prevailing legal situation dominated by the absolute ban on torture in both domestic and international law. The debate concerns a weighing up of the right to life of the innocent against the inviolability of the dignity deserved by even those who would seek to harm the innocent. A new balance between the interests of security and well-being of society as a whole and the basic rights of individuals needs to be found, so it is argued. Where the objective is the extraction of information to protect innocents, torture cannot be considered a crime. The question is thus less whether torture is being used in our name and on our behalf,32 but rather how it came to this and what the consequences will be of our willingness to accept such officially sanctioned, interrogational torture.

THE MORAL CASE FOR INTERROGATIONAL TORTURE If there is a moral argument for torture, it is for interrogational torture and it has a clear utilitarian flavour.33 Deciding on how to act34 follows a laying out of the pros and cons – including the lives of innocents and physical integrities of the supposed terrorists – in a calculus that seeks to enhance the sum total of happiness. A utilitarian would consider the infliction of physical and mental torture as an ultimate violation of the dignity of the tortured and as a revolting act. But that is not at issue. The question rather is whether the survival of society as a whole and its individuals, equally endowed with dignity, suffices to justify the application of such treatment to a fellow human being who intends to destroy them. The answer is in the affirmative: the use of torture cannot and will not be rejected when the

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continuation of society as a whole is at stake.35 In situations of imminent danger, such as the ticking-bomb scenario, legal prohibitions and moral concerns should give way to the greater good. According to Levin, torture is not only permissible in such situations, but morally mandatory.36 It is the prime duty of government to protect the lives of its citizens and those within its territory and if this duty conflicts with the basic right of an individual not to be tortured, the priority is with the dignity of the innocents. Some supporters of such a limited use of torture have established proposals to ensure that it remains defensive and controllable. Dershowitz has argued that in certain scenarios the temptation to use torture to elicit information would be so strong that the real issue is not whether torture can be prevented but how to regulate it.37 He pleads for a judicial warrant system to authorise agents of the state to use torture. The information gathered under such interrogation should only be used to prevent impending attacks and the use of torture outside the warrant system would remain a criminal offence. Only under strict conditions would such a horrible practice be compatible with democracy, as its essence is placing responsibility for difficult choices in a visible institution like the judiciary.38 In order to prevent torture escaping from its narrow interrogational confines, another commentator has suggested that certain criteria, derived from the tradition of the just war, would need to be fulfilled before torture could be authorised: standing to act, right intention in acting and sound reason to act, which encompasses discrimination, necessity, proportionality and prospect for success.39 ‘Discrimination’ requires that it were known beyond reasonable doubt that the subject of interrogation indeed holds the information needed; ‘necessity’ that there is a ticking bomb and no other means of gaining the subject’s cooperation; ‘proportionality’ that something very serious is at stake which justifies the use of torture; and ‘prospect of success’ that there were good reasons to believe that violent compulsion would work. It would be morally legitimate to resort to the use of torture, only in situations where these criteria are met, so the argument goes. If utilitarian arguments provide succour to those who wish to introduce forms of interrogational torture, a non-utilitarian deontological reasoning is, it seems, not so easily won over. If the decision on whether an action is morally acceptable is based on whether it respects the inherent dignity or the absolute human rights of the suspect, interrogational torture seems unjustifiable, because it clearly does not. Deontological reasoning is by definition non-consequentialist and it would conclude that the torturous act is inherently evil. No person, let alone a state official, is allowed to use such methods on any other person. The act of torture violates the duty that one should never treat humanity, either in one’s own person or in the person of others, merely as a means, but always also as an end in itself.40

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Rawls would either argue that the right to be free from torture has priority over the well-being of society or belongs to the core of politically neutral basic human rights that have standing in an ideal Law of Peoples.41 But this reasoning seems to miss the point. If considerations of ‘dignity’ or ‘basic rights’ are able to trump considerations of utility, could the reverse not be true as well? Should one not consider the rule to treat humans as ends in themselves or to respect their inviolable rights as an important, general rule, which has nonetheless no unconditional validity? It seems evident that no rule exists without exceptions: a choice for good is not always possible; sometimes we are forced to make tragic choices.42 The deontological approach is thus challenged by what Walzer now calls ‘emergency ethics’. He argues that in situations of supreme emergency even very strict rules ought to be set aside. His well-known examples are the usual prohibitions to resort to war (jus ad bellum) and to target non-combatants during war (jus in bello). These prohibitions, important as they are, are no longer valid in extreme situations of immediate danger in which the continued existence of a community is at stake.43 Walzer’s examples include the pre-emptive attack by Israel on Arabic countries during the Six Day War, and the use of Allied area bombing during the early years of the Second World War. In both cases, he argues, there was no alternative to the evil action taken. Irrespective of the adequacy of the examples, Walzer’s general position highlights an important moral intuition, namely that rules have no categorical validity. Humanitarian intervention is a case at hand, where the rule to respect the integrity of a neighbouring state has to cede priority to the protection of innocents when genocide occurs, for example. This reasoning has been used by the International Court of Justice in its argument that it felt unable to rule nuclear weaponry categorically illegal on the basis that a scenario may arise in which the destructive power of such weapons was outweighed by the scale of the threat facing a nuclear power.44 This then is the way to think about torture: not as part of an ordinary utilitarian calculus, but still not to be outlawed categorically. In a situation of an immediate threat, such as when global terrorism aims at the destruction of the western way of life and where intelligence is the only real means of fighting back,45 torture is permitted despite its violation of a basic right. Obviously, there are people who would strongly refuse to apply torture to a defenceless person even if he or she was a terrorist, and who would be prepared to bear the consequences personally. Socrates may have held that ‘to do injustice is a greater, and to suffer injustice a lesser evil’,46 or Kant, that in extreme cases justice has to prevail even at the cost of the perishing of the world ( fiat justitia, pereat mundus),47 but the issue at stake is not a personal but a political dilemma. It is not the task of a politician to decide whether he is personally prepared to pay the price for upholding high moral

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standards, but to decide what is needed by society as a whole. If he refuses to dirty his hands, others, innocent citizens, are going to pay the price without having the opportunity to make their own decision. The choice is not for one person to either suffer or inflict injustice, but for government agencies either to respect the physical integrity of a captured terrorist48 or to safeguard the lives and dignities of the people whose protection is its very raison d’être. A good politician, according to Walzer, sometimes has to override the rules knowing that he has done something wrong, even if it was the best thing to do given the situation. A responsible politician cannot keep a clear conscience, but must sometimes break the moral and legal rules for reasons of state.49 The flipside of the acknowledgement that situations of emergency occur, that a choice for the good is not always possible and that hands have to be dirtied, is that such evil actions can be excused. Excuses typically are the acknowledgement that some wrong has happened and the admittance of fault, but that the wrong was needed. The torture memo considered above argues along these lines. Those who may be prosecuted for methods of torture interrogation prohibited under Section 2340A can claim either necessity or self-defence, the former known in US criminal law circles as the ‘choice of evils’ defence, the latter requiring that violence is necessary, proportional and in the face of an imminent threat.50 This is also the upshot of the most famous case-law on interrogational torture, namely that of the Israeli Supreme Court in 1999.51 While this court ruled that the coercive interrogational methods against captured Palestinians used by the Security Services and permitted on the basis of the earlier conclusions by the Landau Commission52 were illegal because the necessity defence could not be invoked ex ante, it was willing to accept the defence of necessity ex post.53 It ruled that general directives governing the use of physical means during interrogations cannot be based on defences to criminal liability such as necessity. But it left the way open for the legislator to act. If the state wishes to enable investigators to utilise such means, this must be decided by the legislative branch, which represents the people. Considering such a legislative act, the court added, the people should realise that in a democracy not all means are acceptable, because the rule of law and the liberty of the individual constitute important components of its understanding of security.54 So the question remains: what should the people decide? Should torture be applied in our name?

THE MORAL CASE AGAINST INTERROGATIONAL TORTURE When looking at the arguments so far, the conclusion seems to be that the ban on torture must be seen as general and not universal. The only morally

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acceptable course is to face the problem, to acknowledge openly that a clean hands approach is not always an option, and to act for the greater good. Whilst we must do no more than is necessary to gain the information that can protect ourselves, we cannot do less. Deontological arguments are not arguments at all, but rather the expression of individual preferences convincing only in abstract environments such as the philosopher’s study. There is no moral case against interrogational torture, or at least so it seems. This impression can, however, be challenged by the notion that the scenario from which the utilitarian and the lesser evil approaches draw their moral support is equally abstract55 and even misleading. The calculus on which benefits and costs, lesser and greater evils, are being weighed is far from as simple as is often depicted. It is arguably possible therefore to answer such consequentialist reasoning on its own terms without losing sight of the deontological arguments.56 While it is relatively easy to invent theoretically straightforward tickingbomb scenarios,57 it is highly unlikely that all the conditions of such an emergency would be clear in practice: that one act of terrorism threatens a large part of the population; that the single person or persons who can provide the information have been captured; that no other methods are available and that torture interrogation will be effective. But even if we could imagine that such a situation could exist, what would the use of torture require in terms of institutions? In weighing the utilitarian balance of allowing the torture of suspected terrorists, one must factor in not only the costs to the tortured, but also those of the torturer and of society as a whole. Its proponents are not arguing for a widespread application of torture, but want to restrict it to the minimum of extreme cases. Therefore it needs to be institutionalised. Interrogation is a skilled job and the individual skill of the interrogator seems to be more important than any other single factor in eliciting useful information.58 Interrogators thus need to be trained not only in the usual interrogation techniques but also in the physical methods of torture. Their activities and methods must furthermore be authorised and monitored by commanding officers to ensure both best practice in technique and that those under them do not exceed their remit. There have to be places of interrogation, either whole centres or detention facilities at which such practices go on; those employed in such centres, from cleaning staff to chaplains, those who live in the local neighbourhood and those who supply provisions to such places, are all related to the work that goes on within the confines of the interrogation rooms. Guards watch the cells and bring the detainee to the interrogation cell. The involvement of medical personnel is needed to treat the detainee and keep him or her alive, or to advance the techniques of violence to maximise pain with the minimum of violence and of long-term damage.59 Society at large and

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lawyers especially may argue for judicial authorisation in the sense that judges should issue, in a Dershowitz-type system, torture warrants and retain judicial responsibility for the process as a whole. This is all needed if the use of physical violence against suspects is to be effective and kept within strict boundaries.60 Moreover, suggestions such as the legalisation of torture via a public judicial warrant system will dirty the hands of the whole society. Interrogational torture does not simply invoke the occasional, singular application of targeted pain, at least not in a democracy. Further, even where interrogators are well-trained, there seem to be no techniques that are guaranteed to work, no certainty that the evil done will result in a respite from suffering evil. The religiously committed seem to be the hardest to break, and even extreme physical coercion does not always produce the desired information. The abstract utilitarian case depends on the presupposition that torture is, in most cases, successful in eliciting the needed intelligence; however, there is little convincing evidence to suggest that.61 In real life, suspected captured individuals might hold bits of useful information, which perhaps will be put together in a sensible scheme and which may avert some far-away, distant danger. In real life, the issue of torture is not small-scale, precision, torture interrogation programmes, but dragnet interrogation programmes by which large numbers of suspects or passers-by are arrested and interrogated.62 The more desperate the need for information is and the more the interrogators work in the dark, the more likely it is that torture will be used.63 In real life, coercion is almost impossible to keep within the confines established for it. Israel provides a pertinent example. The guidelines for the use of coercion by agents of the security services established in 1987 by the Landau Commission resulted in widespread physical violence against those arrested in the occupied territories; it was estimated that two-thirds of Palestinian prisoners had been subjected to violence in custody. This attempt to regulate a form of ‘judicial’ torture had clearly failed, and in 1999, as noted above, the Supreme Court ruled these guidelines illegal. If, however, in real life the acceptance of torture comes at a high price for society,64 if its use cannot for certain be confined within its strict limits and if the balancing of benefits and costs is notoriously difficult and notoriously seducing,65 then there is every good reason for the people to uphold the absolute legal ban on torture, although it may acknowledge that exceptional cases may arise in which resort to torture may be defensible.66 But as the saying goes: hard cases make bad law. Admitting that the necessity defence may successfully be invoked in a criminal law suit against a suspected torturer does not render torture legal. Where torture is tolerated and legally accepted, no matter how limited, it affects the self-understanding of the society and defines its nature.67 Torture expresses the view that the mantle of humanness

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can be removed, however temporarily; that humanness is expendable and as such, stands contrary to what democratic societies proclaim to stand for.68 By upholding the legal ban on torture, a society acknowledges the deontological motives for rejecting torture and upholds the symbolism of human dignity.69 Along these lines, Waldron recently called the ban on torture an ‘archetype of the law’, epitomising the conviction that a legal system transcends a system of pure violence.70 The extent to which torture more than anything else, including killing,71 exemplifies the violation of dignity, is harrowingly illustrated by the writings of Améry, a member of the Belgian resistance movement, who was captured and tortured by the SS. He wrote that a man who has been tortured stays tortured, that ‘someone who has been tortured is never capable of being at home in the world again’.72 Torture is a life-sentence, reducing the victim to the status of the living dead.73 In Agamben’s terminology, the torture victim becomes homo sacer, an example of bare life – a figure outside both the law of the living and of the dead, and as such incompatible with the living world.74 In an interesting recent analysis, Sussman suggests that someone who is being tortured is in a perverse way – by the overwhelming desire to stop the pain – set up against him or herself and is so forced to betray his or her own dignity.75 The situation for the torturer is precarious too. No ethical theory would conceive of torture as a virtuous activity or admire the torturer as a flourishing human being. The intentional infliction of severe pain and suffering upon a defenceless fellow human being has serious consequences for the torturer. His activities must be done in the hidden and remain secret; such perpetrators thereby place themselves outside the rank of humanity. However much justification interrogators feel they have in using violent compulsion, in doing so, they step beyond the bounds of co-humanity and it is thus to be doubted whether they too can ever be at home in the world thereafter.76

CONCLUSION If the people, after hearing the case for interrogational torture, decide to uphold the legal ban and to subscribe to the moral values underlying it, they implicitly acknowledge that situations of supreme emergencies should not be invoked too quickly. They will perhaps remember that many earlier generations assessed the threat that assailed them as urgent, as unlike any that had gone before, and thus as being in need of special measures to deal with it; that a look at history – those slices of our histories that concern the persecution of witches, Jews, Anabaptists, those of different religion, colour, appearance, or the suspension of constitutional protections, such as

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over the internment of Japanese or German civilians in the US during the Second World War – suggests that our descendants might find the cruelties of interrogational torture to be deeply shameful and utterly unnecessary. They would perhaps note that the episodes of history in which the people have allowed their fears to overrule both reason and conscience constitute a shameful blot upon the copybook of their history. It is a truism, but the law is only as good as the moral consensus that underpins it. The consensus brought about by the experiences of the Second World War is not a given moral fact. While the ban on torture appeals to common humanity, some have argued that humanity is not a ‘political’ concept at all. The concept of the political only invokes a distinction between friends and foes. If the people were to decide in favour of interrogational torture despite the risks involved, they would implicitly reject constitutional democracy, but not necessarily in favour of a majoritarian, parliamentary democracy. The Nazi lawyer Schmitt has argued that a liberal democracy is a contradiction in terms, because of a conflation of two very different concepts of ‘equality’. Whereas liberal equality emphasises the formal equality of every human individual, democracy is based on the presupposition of material homogeneity and the elimination of heterogeneity. So understood, a democratic polity only needs to treat its own equals equally and is allowed to strip its unequals of their basic rights without ceasing to be a democracy.77 The prerequisite for such a democracy to exist is the identity of governed and governing, in which the decisions of the executive reflect the will of the people, not institutions like parliamentary bodies or public reason. The acceptance of a division of humanity between friend and foe and thus the loss of our liberal heritage is the real risk entailed in the discussion of interrogational torture. Zizek has suggested that calls to keep an open mind about the use of torture are a sign that the terrorists are winning.78 We would suggest that he is right.

NOTES 1. Thomas Mertens is Professor of Philosophy of Law at the Radboud University, Nijmegen, The Netherlands. Morag Goodwin is Lecturer in European and International Law at Maastricht University, The Netherlands. 2. See, for example, The Universal Declaration of Human Rights, Article 21(3): ‘The will of the people shall be the basis of the authority of government’. 3. In a recent Newsweek poll on 11 November 2005, 58 per cent of those polled supported the use of torture in response to the question: ‘Would you support the use of torture by U.S. military or intelligence personnel if it might lead to the prevention of a major terrorist attack, or not?’, at http://www.pollingreport.com/terror.htm . In a Japanese poll, the population is evenly split, with only 53.1 per cent against torture, and 46.9 per cent in favour, to prevent further attacks, even were those attacks not to be imminent. Poll published in Japan Today, 14 November 2005, at http://www.japantoday.com/.

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4. This reasoning paraphrases Rousseau, J.J. (1762), The Social Contract or Principles of Political Right, book II, chapter 5. See, for example, http://www.constitution.org/jjr/socon. htm. 5. Walzer, M. (2004), Arguing about War, London: New Haven, p. 155. 6. The analogy here would be with the Caroline case (1841), resulting in the Webster doctrine, see, for example, Robertson, G. (2002), Crimes against Humanity – The Struggle for Global Justice (2nd edition), Harmondsworth: Penguin, p. 485. 7. See, for example, The Federalist Papers: No. 10 (1788), in: http://www.yale.edu/lawweb/ avalon/federal/fed10.htm. 8. Ignatieff, M. (2004), The Lesser Evil: Political Ethics in an Age of Terror, Princeton: Princeton University Press, p. 5. 9. Rawls, J. (1971), A Theory of Justice, Oxford: Oxford University Press, paras. 37, 54. 10. Dworkin, R. (1996), Freedom’s Law. The Moral Reading of the American Constitution, Oxford: Oxford University Press, p. 17. 11. Beccaria, C. (1764), Of Crimes and Punishments, chapter 16, in for example, http:// www.constitution.org/cb/crim_pun.htm ; Langbein, J.H. (2004), ‘The Legal History of Torture’, in Levinson, S. (ed.), Torture. A Collection, New York: Oxford University Press, pp. 93–103; Hope, D. (2004), ‘Torture’, International and Comparative Law Quarterly, 53, 807–32. 12. Ignatieff, M. (2004), ‘Evil under Interrogation: Is Torture ever Permissible?’, Financial Times, 15 May. See: http://www.ksg.harvard.edu/news/opeds/2004/ignatieff_torture_ft_ 051504.htm. 13. Cited in Crelinsten, R.D. (2003), ‘The World of Torture: A Constructed Reality’, Theoretical Criminology, 7, 293–4, adding in a Kantian vein: ‘it would be better even for Society to perish than for it to permit this relic of barbarism to remain’. 14. The full title of the convention is Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2(2) provides: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ 15. Evans, M.D. (2002), ‘Getting to grips with torture’, International and Comparative Law Quarterly, 51, 375. 16. For details, Rodley, N. (1999), The Treatment of Prisoners under International Law (2nd edition), Oxford: Clarendon Press 17. Filártiga v Peña-Irala, 630 F 2d 876 (2nd Cir 1980). 18. Prosecutor v Furundzija (IT-95–17/1). 19. R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. 20. A and Others v Secretary of State for the Home Department (2005), UKHL 71 (8 December 2005). 21. As of 23 April 2004, there were 131 ratifications. Information accessed 29 March 2005, http://www.unhchr.ch/html/menu2/6/cat/treaties/conratification.htm. 22. Disappointingly, empirical research suggests that a strongly negative correlation exists between states that ratify CAT and their actual behaviour, suggesting that ratification by certain states is motivated solely by grounds of reputation; as CAT is strong in substance but weak in enforcement, they have little to lose and much to gain: Hathaway, O.A. ‘The promises and limits of the international law of torture’, in Levinson, S. (ed.), Torture. A Collection, op. cit., p. 205. 23. See, for example, Selmouni v France (1999); Tomasi v France (1992); Ireland v UK (1978), all judgments of the European Court of Human Rights, available at http://www.echr.coe. int/Eng/Judgments.htm. 24. Evans, M.D. (2002), ‘Getting to Grips with Torture’, International and Comparative Law Quarterly, 51, 371–8. 25. In the immediate aftermath of 9/11, Jonathan Alter argued that it was ‘Time to Think about Torture’, Newsweek, 5 November 2001. Some time later, the New York Times, 5 November 2001, wrote that torture had become ‘a topic of discussion in bars, on commuter trains, and at dinner tables’ (‘Torture Seeps into Discussion by News Media’).

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26. 27.

28.

29.

30.

31. 32.

33.

34. 35. 36.

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Counter-terrorism and the post-democratic state The cover of January 2002 issue of The Atlantic Monthly, 289 (1), challenged us to consider the ‘Hard Questions’. See in the same issue Hoffman, B. ‘A Nasty Business’. See recently the debate around the McCain Statement on Detainee Amendments, reasserting the US Ban on Torture and the Administration’s threat to veto this amendment, arguing that an exception should be made for the CIA. in, for example, http://www.msnbc.msn. com/id/9929724/. See also: Waldron, J. (2005), ‘Torture and Positive Law: Jurisprudence for the White House’, Columbia Law Review, 105, 1712. These memos can be found in Danner, M. (2004), Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review Books; and in Greenberg, K.J. and Dratel, J.L (2005), The Torture Papers: The Road to Abu Ghraib, Cambridge: Cambridge University Press. US Department of Justice Office of Legal Counsel, Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. § 2340–2340A, 1 August 2002, as reproduced in Danner (2004), op. cit., pp. 118, 119, 126, 145, 155. See, for example, Taylor, S. (2004), ‘The Torture Memos: Putting the President Above the Law, The Atlantic, 15 June. See: http://www.theatlantic.com/politics/ nj/taylor2003-03-11.htm And replaced by a new memo dated 30 December 2004: Office of the Assistant Attorney General for J.B. Comey, Deputy Attorney General; http://www.usdoj.gov/olc/dagmemo. pdf. It is interesting to see that although 63 per cent of the US population in an American Broadcasting Corporation (ABC) poll on 27 May 2004 stated that torture is never acceptable, sleep deprivation (66 per cent), hooding (57 per cent) and ‘noise bombing’ (54 per cent) were acceptable to the majority. In Ireland v UK (1978), the European Court of Human Rights found such methods to constitute inhuman and degrading treatment, although it seems likely that the Court would now deem the interrogation techniques used to be torture. Further, in the ABC poll, 41 per cent of respondents accepted threats to shoot suspects, 40 per cent were willing to see exposure to hot and cold, 38 per cent supported water and food deprivation, 29 per cent accepted physical assault, 25 per cent supported stripping suspects, 21 per cent ‘water-boarding’ in which suspects’ heads are placed under water to the point of drowning, 19 per cent would condone threats to relatives, 17 per cent would support the use of electric shocks and 16 per cent sexual humiliation such as that recorded in Abu Ghraib prison. These figures imply that at least a proportion of the 63 per cent against torture do not consider these techniques to constitute torture, suggesting that the torture memos’ attempt to redefine the threshold of what is understood to be torture is having an impact on public opinion. For an analysis of the poll, Morris, D. and Langer, G. (2004), ‘Terror Suspect Treatment: Most Americans Oppose Torture Techniques’, 27 May, at http://abcnews.go.com/sections/us/ Polls/torture_poll_040527.html and Morin R. and Deane, C. (2004),‘Americans Split on How to Interrogate’, Washington Post, 28 May, at http://washingtonpost.com/wpdyn/articles/A59631-2004May27.html. For example, ‘Yale Professors Debate the Use of Torture’, Yale Herald, 9 November 2001; http://www.yaleherald.com/archive/xxxii/11/09.01/news/p3.html. The evidence is plenty that it is. See, for example, the extract of the Human Rights Watch Report on Iraq published in New York Review of Books, 52 (17), 3 November 2005; see: http://www.nybooks.com/. We benefited from Major (USAF) W. Casebeer, ‘Torture Interrogation of Terrorists: A Theory of Exceptions’, at: http:// www.usafa.af.mil/jscope/JSCOPE3/ Casebeero.3.html. Deliberately, the important difference between act utilitarianism and rule utilitarianism is neglected here in the first instance. See also: Brügger, W. (2000), ‘Vom unbedingten Verbot der Folter zum bedingten Recht auf Folter’, Juristen Zeitung, 55, 165–216. Levin, M. The Case for Torture, at: http://people.brandeis.edu/~teuber/torture.html.

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37. Dershowitz, A.M. (2001), ‘Is There a Torturous Road to Justice?’, Los Angeles Times, 8 November; Dershowitz, A.M. (2002), ‘Want to Torture? Get a Warrant’, San Francisco Chronicle, 22 January. His arguments are developed further in his 2002 book Shouting Fire: Civil Liberties in a Turbulent Age, Boston: Little Brown. 38. Dershowitz, A.M. ‘Tortured reasoning’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 264. 39. Kennedy, R.G. ‘Can Interrogatory Torture be Morally Legitimate?’, at: http://www.usafa. af.mil/jscope/JSCOPE03/Kennedy)03.html . In a somewhat similar vein: Allhoff, F. (2003), ‘Terrorism and Torture’, International Journal of Applied Philosophy, 17, 105–18. 40. Kant, I. (1968), Grundlegung zur Metaphysik der Sitten, in Berlin: Akademie Ausgabe Band IV, p. 429. 41. Rawls, J. (1971), A Theory of Justice, Harvard: Harvard University Press, p. 61; Rawls, J. (1999), The Law of Peoples, Harvard: Harvard University Press, pp. 65–80. 42. In his The Lesser Evil: Political Ethics in an Age of Terror (op. cit.) Ignatieff admits that torture is possibly the most difficult case of the lesser evil question, but argues in favour of upholding the ban on torture. 43. Walzer, M. (1992), Just and Unjust Wars, New York: Basic Books; Walzer, M., Arguing About War (op. cit.), pp. 33–50; See also: ‘An interview with Michael Walzer’, in Imprints, 7, 2003, available online at: http://eis.bris.ac.uk/~plcdib/imprints/michaelwalzerinterview. html. 44. Legality of the Threat of Use of Nuclear Weapons, ICJ Advisory Opinion of 8 July 1996; http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm. 45. See Bowden, M. (2003 ), ‘The Dark Art of Interrogation’, The Atlantic Monthly, October: ‘the most valuable weapon in its [America’s] arsenal may well be the art of interrogation’. See: http://www.theatlantic.com/doc/200310/bowden. 46. Plato, Gorgias, 509c. 47. Kant, I. (1968), Zum ewigen Frieden, Berlin: Akademie Ausgabe Band VIII, p. 378. 48. The guilt of the captured is assumed, as proponents of interrogational torture would see it applied only to those who they were certain were guilty and/or able to provide the necessary information. 49. Walzer, M. (1973) ‘Political Action. The Problem of Dirty Hands’, reprinted in Levinson, S. (ed.), Torture. A Collection, op. cit., pp. 61–75. 50. According to the torture memo, this defence encompasses situations in which ‘the greater good for society will be accomplished by violating the literal language of the criminal law’. It concludes that ‘any harm that might occur during an interrogation would pale into significance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives’ as, in this case, ‘the nation itself is under attack’, in Danner, M., Torture and Truth: America, Abu Ghraib, and the War on Terror, op. cit., pp. 150, 151, 154. 51. Public Committee Against Torture in Israel v Israel, 38 ILM 1471 (1999). http://www. stoptorture.org.il//eng/images/uploaded/publications/18.pdf. 52. In 1987 the Isreali government established the Landau Commission headed by former Supreme Court President Moshe Landau to investigate allegations of torture against its General Security Service (GSS). 53. Accepting that there have been cases in which physical coercion in interrogations had saved Israeli lives, http://www.stoptorture.org.il//eng/images/uploaded/publications/18. pdf, para. 1. 54. http://www.stoptorture.org.il//eng/images/uploaded/publications/18.pdf, paras. 36, 37, 39. 55. Change, for example, one of the elements of the scenario and imagine that the desired information can only be obtained by gang-raping the terrorist’s daughter in front of him. 56. Here we make use of the excellent work by Arrigo, J.M. (2003), ‘A Consequentialist Argument against Torture Interrogation of Terrorists’, Joint Services Conference on Professional Ethics, 30–31 January, Springfield, Virginia; see http://www.usafa.af.mil/ jscope/JSCOPE03/Arrigo03.html , and by Casebeer, W. (2003), ‘Torture Interrogation

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57.

58. 59. 60.

61.

62.

63. 64. 65. 66.

67.

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Counter-terrorism and the post-democratic state of Terrorists: A Theory of Exceptions’, at: http://www.usafa.af.mil/jscope/JSCOPE3/ Casebeero.3.html. See also Bufacchi, V. and Arrigo, J.M. (2006), ‘Torture, Terrorism and the State: A Refutation of the Ticking-bomb Argument’, Journal of Applied Philosophy, 23, 355–73. Such as those showcased in the hit US series, 24. The straightforwardness of the show resides in the fact that the viewer has an overview of all the action and thus concurs easily with the treatment meted out to those that the viewer knows to be a terrorist. Along similar lines, Scarry argues that the ticking-bomb scenario presupposes omniscience in a world where knowledge is ordinarily imperfect: Scarry, E., ‘Five Errors in the Reasoning of Alan Dershowitz’, in Levinson, S. (ed.), Torture. A Collection, op. cit., p. 284; See also Luban, D. (2005), ‘Liberalism, Torture and the Ticking Bomb’, Virginia Law Review, 91, 1425–61, at 1425: ‘… in a world of uncertainty and imperfect knowledge, the ticking bomb scenario should not form the point of reference’. For a detailed list of interrogation techniques and interviews with interrogators known for their success, see Bowden, M. ‘The Dark Art of Interrogation’, op. cit. Where torture is routinely practised, the involvement of medical personnel seems to be massive, see: Arrigo, J.M., ‘A Consequentialist Argument against Torture Interrogation of Terrorists’, op. cit. Crelinsten considers in detail the establishment of a regime of torture. Although his work concerns torture only within the context of dictatorships, parts of his analysis are nonetheless applicable in democratic societies, Crelinsten, R.D., ‘The World of Torture: A Constructed Reality’, op. cit., p. 307. Even the Nazis failed to break many members of the resistance movements they captured, although Himmler’s men employed every means to extract confession. Arrigo provides other examples of the failure of torture to extract information, see: Arrigo, J.M., ‘A Consequentialist Argument against Torture Interrogation of Terrorists’, op. cit. Although France’s Chief Intelligence Officer in the Battle of Algiers, General Paul Aussaresses, is often cited in support of the ticking-bomb argument, his memoirs show that he did not run a precision torture-interrogation programme but a dragnet operation under which 30–40 per cent of Algerian men were arrested and tortured in the course of the war. Arrigo, J.H.,‘A Consequentialist Argument against Torture Interrogation of Terrorists’, op. cit. Evidence from Iraq confirms that dragnet operations are the norm in intelligence gathering: see Danner, M., ‘The Secret Road of Abu Ghraib’, in Torture and Truth, op. cit., pp. 30–33; dragnet operations are here termed ‘cordon and capture’. In this regard, it is worth noting that when the arrests of top Al Qaeda operatives have been announced and the media has whipped itself into a frenzied discussion of whether torture should be used, there has been no suggestion that a ticking-bomb situation applied. As regards Iraq, this is now widely documented; see, for example, Human Rights Watch, (2005), ‘Torture in Iraq’, New York Review of Books, 3 November. According to Dorfman, it corrupts the whole social fabric, see: Dorfman, A., Foreword, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 9. All torturers claim that they act for the common good or in defence of some supreme value, like morality, God or dignity, see Osiel, M., ‘The Mental State of Torturers’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 132. We are aware that this is a contested point and prima facie in violation of international law as embedded in CAT. However, it should be borne in mind, firstly, that no criminal cases have been decided on this body of international law alone; secondly, that the Rome Statute admits of necessity and duress defences in its Article 31(1). This is in line with the Israeli Supreme Court case detailed above. Also see: Shue, H. (1978), ‘Torture’, Philosophy and Public Affairs, 7, 141; Gross, O., ‘The Prohibition of Torture and the Limits of the Law’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 234. Cohen’s consideration of the wider effects of the toleration of torture of Palestinians detainees, for example, found that it subverted the rule of law and democratic ideals: see Cohen, B. (2001), ‘Democracy and the Mis-rule of Law: The Israeli Legal System’s Failure to Prevent Torture in the Occupied Territories’, Indiana International and Comparative Law Review, 12, 75–106.

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68. On the abolition of torture as a precondition for entering the European Union see Aoilain, F.N., ‘The European Convention on Human Rights and its Prohibition on Torture’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 219. 69. Gross, O., ‘The Prohibition of Torture and the Limits of the Law’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 234. 70. Waldron, J., ‘Torture and Positive Law: Jurisprudence for the White House’, Columbia Law Review, 105, 1681–750, at 1727: ‘… the prohibition on torture is an archetype of our determination to draw a line between law and savagery or brutality’. 71. In comparison to killing, torture is not necessarily the lesser harm, see Shue, H. (1978), ‘Torture’, Philosophy and Public Affairs, 7, 125–6; See also Murphy, J.F. (1973), ‘ The Killing of the Innocent’, The Monist, 57, 527–50. 72. Cited in Sebald, W.G. (2004), On the Natural History of Destruction, Harmondsworth: Penguin, pp. 149–71; see also Parry, J.T.,‘Escalation and Necessity: Defining Torture at Home and Abroad’, in Levinson, S. (ed.), Torture: A Collection, op. cit., p. 153. 73. The incompatibility of torture victims with the ‘normal’ world is highlighted by the need to kill a victim once the torture is finished; while the murder of victims of torture is in part a need to ensure their silence, it is also an acknowledgement that they cannot be ‘released’ back into society. 74. Agamben, G. (1995), Homo Sacer: Sovereign Power and Bare Life, Stanford: Stanford University Press. 75. Sussman, D. (2005), ‘What’s Wrong with Torture’, Philosophy and Public Affairs, 33, 1–33, esp. 4, 24. Luban (2005) emphasises (with Scarry’s The Body in Pain) that someone under torture is in a world without an exterior, in ‘Liberalism, Torture and the Ticking Bomb’, Virginia Law Review, 91, 1431. 76. See, for example, Arrigo, J.M., ‘A Consequentialist Argument against Torture Interrogation of Terrorists’ (op. cit), in which he cites Horne, A., who wrote that torture ‘tends to demoralise the inflictor even more than his victim’. 77. Schmitt, C. (1923) (trans. Kennedy, E., 1985), The Crisis of Parliamentary Democracy, Cambridge, MA: MIT Press, p. 9. 78. Zizek, S. (2002), ‘Are We in a War? Do We Have an Enemy?’, London Review of Books, 23 May. See: http://www.lrb.co.uk/.

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Military justice: David Hicks and Guantanamo Bay1 Lex Lasry, QC

In the wake of the horrific destruction and loss of life caused by the 11 September 2001 terrorist attacks, the United States Congress authorised President George W. Bush to use military force against those responsible. The invasion of Afghanistan, which began in November 2001, was part of that response. Shortly after the invasion began, the President signed a military order, entitled ‘Detention, treatment, and trial of certain non-citizens in the war against terrorism’. Among those apprehended in Afghanistan, and detained under the President’s order, was David Matthew Hicks, an Australian citizen. Hicks converted to Islam in 1999. According to authorities in the United States (US), he was subsequently associated with Islamic groups, some of which are viewed as terrorist organisations. Allegedly, Hicks was involved in active combat on the side of Islamic groups in Kosovo and Pakistan, as well as Afghanistan. He is also alleged to have met Osama bin Laden. On 9 November 2001, Hicks allegedly took part in combat against US forces in Afghanistan, before being captured some three weeks later. Since December 2001, he has been in custody in various camps at the United States naval base at Guantanamo Bay, Cuba, with about 600 other detainees. Under the Presidential order, they were authorised to be detained and a process for the trial of those people was set out. The procedure enunciated was trial by military commission. Thus, a military procedure was formulated for the purpose of dealing with alleged terrorists rather than the use of the criminal law. In 2004, I was asked by the Law Council of Australia, the peak body representing Australia’s legal practitioners, to act as a legal observer at the military commission proceedings relating to David Hicks. I am not a military lawyer but I endeavoured to familiarise myself with the specific procedures which will apply to the military commissions, and to assess them against the basic principles which apply for any criminal justice process. 48

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My primary role was to comment on the fairness of the process and to come to a view as to whether the trial of David Hicks has been a fair one. I had originally considered that the real test of this process would be the trial itself and how it actually functions once it has commenced. However, I have come to the view that the military commission process is so lacking in the level of genuine independence required for criminal justice, and so ad hoc and effectively dependent on the procedural improvisation of the presiding officer, that the process itself is fundamentally flawed. The flaws in the proposed trial process begin with the structure and framework of the military commission. The orders which established the military commission had the stated intent that those appearing before it would receive ‘a full and fair trial’. However, the reality falls far short of this ideal. What are called military commission instructions (MCIs) are intended to regulate the conduct of the trials. Whilst compliance with these instructions is described as the ‘professional responsibility’ of Defense Department personnel, MCI No. 1 specifically states that although these instructions must be complied with, they do not create any right enforceable against the United States or its entities. Further, non-compliance with MCIs does not constitute error or give rise to judicial review or establish any right in an accused or other person. A particular problem with the proposed military commission process is the lack of clear and satisfactory rules of evidence. The rules of the commission allow evidence to be admitted if, in the opinion of either the presiding officer or a majority of the commission, it ‘would have probative value to a reasonable person’.2 The US Department of Defense provides a rationale for this rule in the following terms: This standard of evidence takes into account the unique battlefield environment . . . For example, soldiers are not required to obtain a search warrant when someone is shooting at them from a cave. This standard of evidence allows both the defense and the prosecution to admit evidence that was acquired during military operations.3

I frankly do not understand this rationale and in my view it is nonsensical. It is open to conclude that the real purpose of such a brief non-specific and non-regulatory rule is to ensure that evidence which would never be admissible in a civilian criminal court will find its way into the record of these commission hearings. The rule is notable for its brevity and lack of specificity. In fact, it provides no genuine rules of evidence and no guidance on how questions of admissibility should be dealt with. That such an absence of proper rules to regulate the evidence should be allowed to occur is, in my view, fundamentally unfair.

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Only the commission’s presiding officer has legal qualifications. The other members will be required to make judgments of their own about a large list of legal issues, including evidentiary issues, without knowledge or experience of the pitfalls of, for example, evidence of alleged confessions or evidence of identification.4 On its own, this ad hoc approach to such important issues almost guarantees that a ‘full and fair’ trial cannot occur. Equally troubling is the lack of a genuine appellate process. A review panel can be established by the Secretary of Defense but its role is somewhat unclear. What is certain is that the Secretary of Defense shall also review the proceedings and either return the case to the commission for further proceedings or forward it to the President with a recommendation. The President ultimately makes the final decision about the case. None of this process represents any form of genuine appeal and, indeed, the particular personnel involved admirably demonstrate a lack of independence. The commission represents a process created and exclusively controlled by the executive of the US Government.

THE CASE OF USA v DAVID HICKS On 25 August 2004, I was present during initial proceedings in the case of USA v David Hicks. The presiding officer was Colonel Brownback, and four other officers served as members. In one of those ironies no scriptwriter would dare create, two members of the commission were Colonels Bright and Sparks. The commission and its members were immediately the subject of challenges. Counsel for Hicks objected to the fact that Colonel Brownback, the only member with legal qualifications, was personally close to the commission’s appointing authority, Major-General Altenburg.5 Altenburg was effectively Brownback’s superior, and was himself answerable to the Defense Secretary. Counsel also challenged other members of the commission on their impartiality, disinterest and ability to grasp basic legal concepts. Commission members did not always perform well under this scrutiny. Colonel Bright, for example, had been deployed in Afghanistan during the invasion, where he had been involved in intelligence operations. At one stage he was asked to describe the difference between the test he might apply to analysing military intelligence and his understanding of the standard of proof, beyond reasonable doubt. On any view he struggled with the answer and eventually was relieved of the specificity the questioner was seeking by the intervention of the presiding officer at a most inappropriate time. The questioning was appropriate and went to an important question

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of this officer’s understanding of the manner in which he would carry out his role. Another commission member, Colonel Cooper, admitted that he had said the inmates at Guantanamo Bay were all terrorists and that this was a view he adopted during a conversation with others. He claimed that he did not hold that opinion any longer and recognised that it was a wrong opinion to hold because the term was not ‘fair’ and there had not been ‘due process’. He was then asked to define what he meant by ‘due process’ and said it meant ‘justice under the law’. Counsel then attempted to ask him whether it would be fair if a witness was permitted to give evidence of what he had been told by someone else, who could not be called to give evidence. Colonel Cooper struggled to answer and was rescued by the presiding officer who suggested that he might not want to answer the question until he knew more about the facts. The interference by the presiding officer was again, in my view, inappropriate and occurred at a point where Cooper was about to demonstrate his lack of understanding about the significance of the problem of hearsay evidence.6 The specific charges with which Hicks has been charged are complex, but they can be briefly summarised as: • Knowingly joining with others in a conspiracy with a criminal purpose, including attacking civilians; • as part of this conspiracy, attempting to murder American and other troops during armed conflict; and • intentionally aiding the enemy, specifically the Taliban and Al Qaeda. It has not been possible to assess the strength of the charges against Hicks on the information so far provided by the US authorities. However, basic objections can be made as to the nature of the charges, in particular that of conspiracy. Under the commission rules, a person would be guilty of conspiracy if he ‘joined an enterprise of persons who shared a common criminal purpose’. An ‘overt act’ must have been committed by one of the enterprise members but not necessarily by the accused. Indeed, it appears that the one ‘overt act’ may have been committed before the accused joined the enterprise.7 The count of conspiracy laid against David Hicks is so broad and so easily facilitates a conviction as to arguably represent a misuse of that charge. In September 2004, I presented my first report to the Law Council of Australia.8 In this report I argued that a fair trial for David Hicks was virtually impossible. I recommended that the Law Council of Australia should consider expressing the view that in the trial of David Hicks there

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was an unacceptably high risk that there would be a miscarriage of justice. The Law Council did so, and also called upon the Australian Government to re-examine its position on the issue. One year later, the position had changed little. David Hicks was still awaiting trial. Among the reasons for this added delay is a complex and at times confusing series of court cases in the US. These cases have, among other things, turned on the legal principle of habeas corpus, the Fifth Amendment to the US Constitution and its guarantee of due process, and the Third Geneva Convention on the Treatment of Prisoners of War. The decisions, which are sometimes contradictory, and the appeals against these decisions are too lengthy and complex to discuss here. Suffice it to say that the net effect has been to further delay the trial of many of the Guantanamo Bay detainees, including David Hicks, while not addressing the major concerns expressed by myself and others about the military commission’s procedures. In fact, if anything, the situation has become worse. For example, the appointing authority accepted challenges made against three of the members of the military commission, and excused them from duty. If three new members had been found who were closer to genuine independence then the level of fairness and, perhaps, objectivity might have been raised. However, no additional members were appointed. That decision is significant. For a finding of guilt in a military commission trial, a two-thirds vote is required. If the panel contained five members that would require four of them to vote for a guilty verdict before it could be reached. However with a panel of only three (the minimum) only two need to be persuaded before such a verdict could be reached. Another matter of concern is the conditions under which Hicks has been held, and the way in which evidence against him may have been gathered from other inmates. A number of detainees at Guantanamo Bay have been released. Some of them are, or were, to be witnesses in the case against Hicks. Also significant from an Australian point of view was the release in January 2005 of another Australian citizen held at Guantanamo, Mamdouh Habib. His release occurred despite the possibility that he had made numerous confessions all of which were false, and which are said to have been made by him in response to interrogation techniques alleged to include torture. Whatever did occur and whatever he may have told his interrogators, the fact remains that he was released without being charged. Hicks remains in custody. The question of whether or not David Hicks or Mamdouh Habib have been ‘abused’ has more recently been investigated and reported on by the US Naval Criminal Investigative Service (NCIS). That organisation

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has apparently reported that there was no evidence found to support the allegations made by either Hicks or Habib. That report appears to have been accepted by the Australian Government. However, this finding needs to be seen against the background of documents which are now in the public forum. They relate to methods of interrogation at Guantanamo Bay, whether the Geneva Conventions should apply, and what conduct would constitute torture. In August 2002, Jay S. Bybee, Assistant Attorney-General wrote a memorandum which deals with the standards of conduct under the Convention Against Torture (CAT)9 and what the Convention actually prohibits.10 Bybee concluded that ‘severe’ physical pain will not amount to torture unless it is equivalent in intensity to the pain accompanying serious physical injury such as organ failure or even death. For ‘severe’ mental pain or suffering, Bybee concluded that to amount to torture it must result from one of the proscribed acts in the statute, such as threats of imminent death. This memorandum was withdrawn in December 2004. However, the earlier approach had prevailed for two years and it can be assumed that interrogations were conducted in accordance with its standards. Regardless of the veracity of particular allegations of torture, in my opinion, this material accurately identifies the intent of the US Government in its approach to interrogation operations at Guantanamo Bay. It does not seem to me to be open to serious contradiction that the US Government intended to use severe physical and mental pressure on those they interrogated. This information leads directly to the question of whether David Hicks or any other detainee can obtain a fair trial before the military commission where such cases may be based on evidence which on any civilian test would be tainted because it was obtained as a result of physical or mental coercion. Apart from the law’s concern that persons in the custody of the executive be properly treated, it is axiomatic that confessions or information obtained by the use of such physical or mental coercion, or both, will rarely, if ever, be reliable or probative. As mentioned earlier there are several witnesses who were detainees at Guantanamo Bay and who were to be called by the prosecution relevant to the case against David Hicks but who have now been released. The prospect of them being available in person to give evidence and be cross-examined is obviously extremely low. There may well be questions concerning the method of interrogation by which the evidence was obtained. Under the military commission process there is no question that such evidence could be given despite the absence of the witnesses and the palpable unfairness of doing so. Material, inadmissible

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by virtually any other standard, would be admitted as evidence of the truth of the assertions made. It is important to state that interesting as all the various legal issues surrounding these cases are, David Hicks has now been imprisoned at Guantanamo Bay without trial and without even the certainty of a trial date for more than five years. It is likely that when his trial before the military commission proceeds, it will not occur before he has been in custody for at least six years. The length of his pre-trial detention is a serious injustice which may in itself prevent him receiving a fair trial. The delay and consequential prejudice through loss of access to exculpatory information as well as fading memories have long been recognised by the High Court of Australia, for example, as creating the risk of an unfair trial. Despite these concerns, the Australian Government has consistently maintained that it is satisfied with the fairness of the process. In my opinion, despite important concessions won for Hicks, the Australian Government’s contention that it is satisfied with the fairness of the process is untenable. All the indicators for a fair trial are negative. In June 2004, Britain’s Attorney-General, Lord Goldsmith, made it clear that in his opinion the process was unacceptable because it would not provide a fair trial by international standards.11 That criticism followed comments by Lord Steyn, in which he said that the military commission process was ‘a preordained arbitrary rush to judgement by an irregular tribunal, which makes a mockery of justice’.12 What makes the Australian Government’s attitude even harder to understand and accept is that there has been, all along, a superior alternative. The US military has a well-developed court martial process, the Uniform Code of Military Justice (UCMJ). Although I have not studied the UCMJ in detail, I understand it is a genuine system of military justice with qualified, experienced and independent military judges and a proper appellate process. Major-General Altenberg, the appointing authority, was asked in August 2004 why the Guantanamo Bay detainees could not be tried under the UCMJ. He answered that the military commission: is a better opportunity, if you will, to protect national security interests and to be careful about what kind of protected information is presented at trial and at open hearing. And I think that was the driving concern, was the national security interest. When they balanced those two, they felt commissions were the most efficient way to accomplish that.13

By any measure, and from any perspective, the Guantanamo Bay military commission has been neither effective nor efficient. It is worth pointing out that prior to 2001, the military commission process had not been

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used since World War II. As critics of this military commission point out, since then, … principles of international law, embodied in treaties to which the United States is a party, have prohibited ad hoc tribunals or special commissions. Both the Geneva Conventions which regulate military law and the International Convention on Civil and Political Rights say that people can only be tried by regularly constituted tribunals that give full and fair hearings and that are impartial.14

The fundamental criticism is that the process is not impartial or independent. Under existing arrangements, the US military is captor, jailer, prosecutor, defender, judge of fact, judge of law and sentencer with no appeal to an impartial and independent judicial body. As Michael Ratner puts it, ‘This is unchecked rule by the executive branch. It dispenses entirely with our system of checks and balances’.15 To me, this opinion is almost indisputable. I do not understand why, with an Australian national facing this process, the Australian Government is not expressing publicly its grave concerns about the process. In my opinion, the circumstances now faced by David Hicks at Guantanamo Bay are worse in many respects than they were in August 2004. In part that is because the extended litigation has severely delayed the progress of his case, exacerbated by the fact that the delay has not had the effect of making the process any fairer. Under the present structure not only is the military commission process unfair but it seems to be unworkable. Rather than attempt to remedy some of the injustices which are obvious in the process as it stands, the US Government appears determined to defend and apply it to those nominated for trial. I have recommended that the Law Council of Australia should make further representations to the Australian Government with a view to attempting to persuade them to request Hicks’ repatriation. The Australian Government should examine these matters very carefully. This is much less about David Hicks than it is about a grossly unfair and undemocratic process and in many ways Australia’s own moral authority is at risk if it continues to condone it as ‘fair’ or ‘just’.

NOTES 1. This is an edited version of two reports made by Lex Lasry, QC, to the Law Council of Australia: Lasry, L. (2004), ‘United States v David Mathew Hicks: First Report of the Independent Legal Observer for the Law Council of Australia’, September; Lasry, L. (2005), ‘United States v David Matthew Hicks, Report of the Independent Legal Observer for the Law Council of Australia’, July. The full reports are available at http://www. lawcouncil.asn.au.

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2. Military Commission Order No. 1 – 1 March 2002 – section 6 D(1). 3. Department of Defense Fact Sheet – Military Commission Procedures. 4. Note that in more recent times the procedures have been altered to avoid the need for non-legally qualified members to make legal rulings. 5. Major General Altenburg was selected by the Department of Defense as the appointing authority and his role (according to the Department of Defense) is to oversee the military commissions including the approval of charges, the appointment of members and approving plea agreements. 6. Given that the procedures have been slightly altered and the commission will be slightly differently constituted, this voir dire process will have to be repeated at the trial which I assume will now be held sometime in 2007. 7. See the Department of Defense Military Commission Instruction No. 2, 30 April 2003. 8. Lasry, L. (2004), ‘United States v David Mathew Hicks: First Report of the Independent Legal Observer for the Law Council of Australia’, September. 9. The full title is The Convention against Torture and other Inhuman and Degrading Treatment or Punishment. 10. Jay S. Bybee (2002), ‘Memorandum for Alberto R. Gonzales, Council to the President RE Standards of Conduct for Interrogation under 18 USC §§ 2340–2340A’, 1 August. Available at: http://www.pbs.org/wgbh/pages/frontline/torture/themes/redefining.html. 11. Associated Press (2004), ‘British Official Rips US Guantanamo Plan’, 24 June. 12. The Age (Melbourne), 27 November 2003. 13. Defense Department briefing on military commission hearings – John Altenburg Jr – appointing authority for the office of military commissions. 14. Ratner, M. and Ray, E. (2004) Guantanamo – What the World Should Know, Carlton North: Scribe, p. 74. 15. Ibid., p. 73.

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The long road to Guantanamo Bay Stephen Kenny

INTRODUCTION In January 2002 I was on an island beach holiday with my family in my home state of South Australia when I started reading of an Australian who had been captured by the Northern Alliance in Afghanistan, David Hicks. David came from my home town and while it is not unusual for Australians to become involved in other people’s war, what caught my eye was the fact that the American Government was planning to take him along with others to a place I had never previously heard of, Guantanamo Bay, Cuba. What was more concerning was the realisation that the American Government intended to take these prisoners to Guantanamo Bay for the specific purpose of ensuring that they were ‘beyond the law’. As lawyers with an interest in civil liberties, I, and a number of prominent lawyers in South Australia, offered our support to David Hicks’ family. It was gratefully accepted. The family advised us that David had gone to Afghanistan to further his interest in the Muslim religion and that they understood he had been associated with the Taliban in Afghanistan prior to 11 September 2001.

ACTION IN THE UNITED STATES It became clear that the United States (US) Government was not intending to hold these prisoners in accordance with the Geneva Convention, nor had they been charged with any offence. To clarify their legal status we needed to seek a writ of habeas corpus from the United States Courts. I appreciated that this would mean a civil action against President Bush and the United States military who were holding Hicks. Through contacts at the Law School in the George Washington University in Washington, I obtained a list of the large firms in Washington who undertook pro bono legal work. The Hicks family in Australia did not have the funds to be able to pay for lawyers. 57

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Armed with this list, I commenced late-night phone calls to the United States. At that time all of the large law firms I called were either extremely busy, tied up in other work or unable to take on such a case. Clearly no one was interested in taking action against the President on behalf of detainees that he had personally described as ‘terrorists, the worst of the worst’ and ‘killers’. Fortunately I was able to find Michael Ratner in the Center for Constitutional Rights and with assistance from him and Joe Marguiles, another from the University of Chicago, we commenced the action that became Rasul v Bush.1 Initially I believed that if we spoke out about taking the action, the Australian Government and the US Government might take steps to regularise the incarceration and either charge the individuals or declare them to be prisoners of war. They, of course, as we know, did neither but rather State Department officials made accusations that Hicks had ‘threatened to kill Americans’, ‘slipped his hands out of his handcuffs on his way to Guantanamo Bay’, attempted to damage the aircraft and so on.2 The then Attorney-General Daryl Williams described Hicks as ‘one of the ten most dangerous men in the world’.3 As a result of these allegations, we sought out representatives of British nationals in Guantanamo Bay and included them in the action. That action was commenced in the United States in February 2002. We were advised by the Australian Government that David Hicks was held pursuant to President Bush’s military order ‘For the detention, treatment and trial of certain non-citizens in the war against terrorism’ issued on 13 November 2001. It was this order that had set up the military commissions that were designed to try people in Guantanamo Bay for war crimes. The crimes, the procedures of the commission and the penalties were all dictated pursuant to that order. In our initial application in the US Federal Court we sought to challenge the President’s constitutional right to issue such an order. We challenged the procedures, the offences and the fact that the military commission violated Hicks’ rights under US national and international law, particularly his rights under the Geneva Convention. The writ was rejected in the first instance and later on appeal to the full Federal Court on the basis that the United States courts lacked jurisdiction to hear such an application. Relying upon an earlier US case known as Johnson v Eisentrager, 339 US 763 (1950). Ultimately the matter went to the Supreme Court in the United States on a question of whether or not Guantanamo Bay and those detained therein were within the jurisdiction of the United States courts. 4 Fortunately, and I believe aided by the later exposure of the atrocities of Abu Ghraib, the Court ruled that it was. Subsequent to that ruling, David Hicks along with

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other detainees from Guantanamo Bay commenced similar proceedings in the United States Federal Court. The larger law firms in the United States, the very type that were so nervous in January 2002, have recognised the significance of these cases and are now providing considerable pro bono assistance to all of those detained in Guantanamo Bay.

THE LONG ROAD TO GUANTANAMO BAY Whilst pursuing action in the United States courts, I also pursued direct access to David Hicks. It was only after considerable public pressure on the Australian Government, the obtaining of a security clearance, the signing of a confidential agreement restricting what I was able to say that, in December 2003, I was granted access to David Hicks in Guantanamo Bay. Camp X-ray Initially David had been detained in what was known as Camp X-ray (a collection of wire cages that reminded me of pig pens I saw in my youth). He was later transferred to Camp Delta, which was a collection of cells welded into shipping containers. David was finally moved to Camp Echo where I visited him on five occasions. On arrival at the wire compound known as Camp Echo, we were greeted by a guard who came to the gate opening and saluted, stating ‘honour bound’ to which our escorting officer saluted and answered ‘to defend freedom’, the motto of the command in charge of the camps. As a condition of my access to Guantanamo Bay I was gagged from describing or even mentioning Camp Echo; however, in 2004, the United States authorities became so embarrassed about the continuing showing of pictures from Camp X-ray that they allowed television journalists to inspect and film Camp Echo. Consequently I can now describe it. At Camp Echo, a series of gates lead to a white gravel paved compound in which are situated approximately a dozen plywood huts. Initially I thought there was something strange about the huts and then I realised that none of them had any windows. This was later changed apparently as a result of complaints by the Red Cross on the lack of windows. The United States authorities then proceeded to cut out a small slot in each hut, approximately six inches wide and two feet long near the bottom of the hut. These openings were then filled with thick opaque glass so that inside the hut you would never be able to tell whether it was day outside or whether they simply had floodlights on. Each hut is divided into half and each half contained

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a prisoner contained in a six foot by eight foot cell which has a metal bed and toilet and a small open area. Prior to my attendance, Australian federal police had visited David Hicks and informed his family that he had ‘a room of his own and regular exercise’. The room was actually solitary confinement and his regular exercise was two 15-minute periods each week. Initially each prisoner had a guard in the open area but later this was replaced by video surveillance. After almost a year in solitary, David wrote to his father stating: I feel as though I am teetering on the edge of my sanity after such a long ordeal, the last year of it being in isolation … I spent an average of 350 hours by myself between brief visits (by representatives of his legal team) … my entire world has become this little room and everything beyond is no longer reality.

British detainees who have been released described Camp Echo as ‘a white walled, sound absorbent hell of 24 hour solitary confinement in cells smaller than Camp Delta’.5 I understand at the time of writing that David Hicks is currently in Camp Delta awaiting the recommencement of his Military Commission. Much has been written about the inadequacies of the Military Commission that David is to face and even the changes to recent procedures and later will do nothing to provide a fair trial to David Hicks.

ABUSES AT GUANTANAMO BAY I do not wish to comment on matters that David has told me for obvious reasons but a statement issued on 26 July 2004 by three British detainees, Rasul, Iqbal and Ahmed deserves some comment.6 They along with the other four British detainees were released without charge after the British Government insisted that they not be tried before the Military Commission. Of their time at Guantanamo Bay they said: During the whole time that we were in Guantanamo, we were at a high level of fear. When we first got there the level was sky-high. At the beginning we were terrified that we might be killed at any minute. The guards would say to us ‘we could kill you at any time’. They would say ‘the world doesn’t know you’re here, nobody knows you’re here, all they know is that you’re missing and we could kill you and no one would know’.7

At Guantanamo Bay three of the British detainees were accused of being in a photo with Osama Bin Laden that had been taken in Afghanistan. All three deny any involvement with Al Qaeda and denied that they were the three in the photo.

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After various treatments including being delegated to what was known as ‘level four’, which meant they had no soap, toothpaste, cup, towels or blankets and had to sleep on bare metal, being placed in the isolation cells, being short shackled for periods of seven or eight hours in freezing cold rooms, being subject to strobe lights and very loud heavy metal music, Rasul, one of the detainees, said he arrived at the point where he could not take any more and admitted it was him in the photo.8 The other two did the same. They were eventually cleared of this allegation when MI5 agents arrived with documentary evidence to show that at the time the photo was taken in Afghanistan, all three of the accused were in England, one of them having attended court on a date very close to the date of the photo and others having work records from their employers in England. Another feature of the treatment of the detainees was what was known as ‘IRFING’ or a beating from the Immediate Reaction Force. One British detainee, Jamal Al Harith, gave details of his beatings in press interviews in March 2004. In one of his statements9 he said: ‘I could hear their feet stomping on the ground as they got closer and closer to my cell. They were given a briefing about me refusing the injection, then I heard them readying themselves outside’. Apparently a five man squad, wearing full riot gear, assaulted Jamal using their fists, feet, knees and batons, leaving him severely bruised. While beating him they shouted, ‘comply, comply, comply, do not resist, do not resist, do not resist’. Jamal stated ‘they were really gung ho, hyped up and aggressive … One of them attacked me really hard and left a deep red mark from my backbone down to my knees’. This huge back bruise was there for days after that, Jamal said. Apparently half an hour after the first belting he received a second belting. After his belting, Jamal was taken to an isolation unit where he was subjected to sleep deprivation, bright lights left on throughout the night and in a cell which was kept terribly hot in the day or freezing at night by using air conditioners in the ceiling. We now know there are over 500 hours of videotapes of these IRFINGS, which are yet to be made public.10 All British detainees have now been returned home as a result of representations made by the British Government.

THE US GOVERNMENT’S POSITION The US Government has continually denied that there have been any abuses at Guantanamo Bay, despite the statements of released detainees, documentation from Federal Bureau of Investigation (FBI) agents and evidence from the Red Cross. To date there have been three investigations into the treatment of the detainees at Guantanamo Bay. The most extensive

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military investigation (and they have all been military investigations) is the report of Naval Inspector General Vice Admiral Albert T. Church III delivered on 3 May 2004.11 Vice Admiral Church’s report not only covered Guantanamo Bay but elsewhere, noting 71 cases of detainee abuse including six deaths, another 130 cases remained open with ongoing investigation and I understand there are currently another 24 deaths in custody being investigated. As for Guantanamo Bay he noted 24 000 interrogation sessions had taken place, over 40 for each of the 600 detainees. As for the manner of interrogation at Guantanamo Bay, Vice Admiral Church found that: When conducted under controlled conditions, with specific guides and rigorous command oversight, as at GTMO, this is an effective model that greatly enhances intelligence collection and does not lead to detainee abuse. In our view it should be a model considered for use in other interrogation operations in the global war on terror.12

CURRENT DETAINEE SITUATION Five hundred and five detainees remained at Guantanamo Bay, although there are plans to transfer approximately 400 of those detainees back to their own countries. Only four detainees have been charged and there is no indication if or when any others will be charged. On 31 August 2005, the Center for Constitutional Rights in New York confirmed that a large number of prisoners had recommenced a hunger strike. It started in June 2005. The strike had not been disclosed by the military even though several prisoners were reportedly near death. A statement by counsel for and on behalf of Binyam Mohammed, reported by the Center for Constitutional Rights, stated: We ask only for justice, and treat us, as promised, under the Rules of the Geneva Convention for civilian prisoners, while we are held, and either try us fairly for a valid criminal charge or set us free.13

At least 12 detainees were treated in hospital as a result of the hunger strike.

HONOUR BOUND TO DEFEND DEMOCRACY At the present time, we are seeing a serious erosion of the rule of law, of the individual freedoms and the gathering of power to the executive government, not just in the United States but also in Australia.

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The breach of the rule of law by the United States has been seen in many countries, including Italy. Omar Nasr was snatched from a Milan street by CIA operatives and has now disappeared into Egypt. The Italian Government’s action in seeking to prosecute those operatives is to be applauded, and all governments should take action to protect their own sovereignty and rights. The Australian Government failed its citizens when it allowed the United States to knowingly extradite another Australian citizen, Mamdouh Habib, from Pakistan to Egypt where he was tortured for six months before being sent to Guantanamo Bay. Mamdouh Habib has now been released and returned to Australia without charge for fear that any trial would expose the actions of the United States executive. The Hamdan case14 before the Supreme Court of the United States was a test for democracy and in particular the separation of powers. It is interesting to note that Judge John Roberts, who ruled in the lower court case against Hamdan, was being interviewed by President Bush for a position on the Supreme Court on the very day he was ruling. The abuses of Guantanamo Bay and elsewhere are impacting on the attitude of insurgents in Iraq and Afghanistan. This was confirmed by General Meyers, the then US Chairman of the Joint Chiefs of Staff, in resisting an application for the release of certain damaging photographs of abuse at Abu Ghraib.15 General Meyers in an affidavit states that the release of the photographs will endanger the lives of US service personnel, aid recruitment efforts of insurgents, weaken new democratic governments in Iraq and Afghanistan and increase the likelihood of violence against the United States’ interests worldwide. Meyers is right in all of these things and his position was confirmed by the reaction to a Newsweek article concerning the abuses of the Koran at Guantanamo Bay. Despite a hasty retraction this led to riots throughout much of the Muslim world.16 The only way now to ensure that such responses are nullified is to ensure that those who perpetrated the original abuses are brought to justice. I believe that it is only then that we will begin to show the people of Iraq and Afghanistan that we are serious about democracy, that we are serious about human rights and that those standards are universal. If the United States will not bring the perpetrators of the abuses in Guantanamo Bay to justice, then it is a matter for the international community to take action.

NOTES 1. Rasul v Bush, 1 24 S.Ct. 2686 (2004).

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2. http://www.opinionjournal.com/best/?id=95001833, ‘Thursday, February 7, 2002 2:45 p.m. EST’. 3. Levy, C. (2005), ‘Art and Politics: Finding the Balance’, The Quarterly, 123, p. 23, accessible online at http://www.pen.org.au/docs/Quarterly0905.pdf. 4. Rasul v Bush, 1 24 S.Ct. 2686 (2004). 5. Rose, D. (2004), ‘Innocents Trapped in Cuban Hell’, Sunday Herald-Sun, 21 March. 6. Rasul, S., Iqbal, A. and Ahmed, R. (2004), ‘Composite Statement: Detention in Afghanistan and Guantanamo Bay’, 26 July. The full statement may be downloaded from the Center for Constitutional Rights in New York, www.ccr-ny.org. 7. Rasul et al., s134. 8. Rasul et al., s227. 9. Prince, R. and Jones, G. (2004), ‘My Hell in Camp X-Ray, Guantanamo Bay’, The Mirror, 12 March. 10. http://www.aclu.org/safefree/general/18834leg20050128.html and http://www.aclu.org/ safefree/general/17531prs20050429.html. 11. An unclassified executive summary is available at www.defenselink.mil/. 12. Ibid. 13. The statement is accessible online at http://www.ccr-ny.org/v2/reports/report.asp?ObjID =Dt1C09XkyL&Content=619. 14. 126 S.Ct. 2749 (2006). 15. American Civil Liberties Union and Others v Department of Defense, ECF Case No. 04 CIB. 4151 (AKH). 16. Thomas, E. (2005), ‘How a Fire Broke Out: The Story of a Sensitive Newsweek Report about Alleged Abuses at Guantanamo Bay and a Surge of Deadly Unrest in the Islamic World’, Newsweek, 23 May.

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7.

The prohibition of torture: absolute means absolute Nigel S. Rodley1

Our values as a Nation, values that we share with many nations of the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. … As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely ….2

These seemingly encouraging words, purporting to reaffirm the best humane traditions of the United States (US) and other nations, are in fact, a high-profile representation of a serious and sustained assault on basic legal values previously asserted by the US and many other nations. For the words unmistakably assert a legal right not to treat at least some detainees humanely. If that is so for the US, it is also the case for other nations, whether or not they share the US’s values as a nation. The statement was made on the basis of legal opinions emanating from, and signed by, political appointees in the Department of Justice’s Office of Legal Counsel (OLC), opinions at least partly contested by the Department of State’s Legal Adviser’s office.3 Several subsequent opinions from the OLC continued the legal construct that was calculated to allow the military and/or the Central Intelligence Agency (CIA), or similar shadowy bodies, to take off the proverbial gloves.4 The most notorious of these was an OLC memorandum of 9 August 2002, specifically dealing with interrogation practices.5 They were supplemented by a 2003 Department of Defense (DoD) working group report, also apparently finalized by politically appointed lawyers over the strenuous objections of the career lawyers, notably in the various Judge Advocate General’s offices.6 There was a partial attempt to undo the damage created by the OLC memorandum of 9 August 2002 and it was replaced by a 30 December 2004 memorandum.7 It is not clear how valid the DoD working group report remains now that its chief legal inspiration has been withdrawn.8 In this chapter, I shall set out the legal arguments according to which humane treatment of all detainees is indisputably required by international 65

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law, both international humanitarian law applicable in armed conflicts and international human rights law.9 In the process, I shall seek to refute what I take to be the key arguments raised by the United States Government’s lawyers. These arguments will follow a strategy, according to which, either the relevant treaty does not apply to these detainees, or the practices at issue do not constitute torture. I must make two preambular points. Unlike some, I do not view the atrocities of 11 September 2001 (9/11) as just another set of terrorist acts of the sort much of the world has had to endure in recent decades. The images and reality behind them will haunt us for decades, maybe centuries. They are the stuff of evil. The scale of the attacks, their enormity, places them on a substantially different scale from prior situations characterized by terrorism. Yes, other societies may have lost more people in facing ruthless terrorist enemies – internal or external – over a protracted period, but precisely the fact that the perpetrators of 9/11 could destroy in a single hour lives and property that other terrorist movements have taken years to destroy makes them an enemy requiring maximum resistance, provided that the resistance is within the law. My second preambular point relates to the interrogation practices that have been the subject of national and international concern. It would not be appropriate for me, as a member of the Human Rights Committee established under the International Covenant on Civil and Political Rights, to address contested matters of fact. Nor is it necessary to my purpose, which is to elucidate the relevant legal norms. So I shall not comment on how aberrant or otherwise were the scandalous violations of Abu Ghraib, in respect of which some courts-martial have taken place.10 But a number of hitherto unauthorized techniques approved by the Secretary of Defense for possible use by interrogators would be capable of constituting torture and/or cruel or inhuman treatment, namely: • hooding; • sleep adjustment (for example, reversing sleep cycles from day to night) – we are told ‘this technique is not sleep deprivation’; • false flag (‘convincing the detainee that individuals from a country other than the US are interrogating him’); • threat of transfer (‘threatening to transfer the subject to a third country that the subject is likely to fear would subject him to torture or death. The threat would not be acted upon, nor would the threat include any information beyond the naming of the receiving country’); • isolation for up to 30 days; • forced grooming (consider the effect of forced shaving on a devout Muslim);

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• • • •

use of stress positions such as prolonged standing (up to 4/24 hours); sleep deprivation; removal of clothing; increasing anxiety by the use of aversions (for example, presence of dogs); • deprivation of light/auditory stimuli (that is, sensory deprivation techniques). I refer to these as they must be presumed to be illustrative of the kinds of interrogation techniques that the authors of the legal memoranda were concerned should pass legal muster. Any combination of them, especially over a protracted period of time, would certainly ‘amount to’ torture. Many of these techniques have been used at Guantánamo Bay. The sin apparently committed at Abu Ghraib is that they were used without the appropriate safeguards (and on camera?). It was not done by the book, even if it was contemplated by the book.11 And it is a book approved by people with legal credentials. I am not aware of the case for the following not to constitute torture or cruel or inhuman treatment: • seizing and transferring people to the other side of the world for months or years without end;12 • holding them isolated from the outside world, sometimes hidden from the International Committee of the Red Cross (ICRC) (‘ghost detainees’); • ‘extraordinary renditions’ to countries where the rendered person faces torture. That case would make for interesting reading.

INTERNATIONAL HUMANITARIAN LAW International humanitarian law, since that is where the Presidential directive starts, always seemed reasonably straightforward. As far as international armed conflict is concerned, several provisions of each of the Geneva Conventions demand humane treatment. For example, the Third Geneva Convention on the Protection of Prisoners of War provides in article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.

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The Fourth Geneva Convention on the Protection of Civilian Persons stipulates in article 32: The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.13

Indeed, all the Geneva Conventions consider as grave breaches ‘torture or inhuman treatment’ and ‘wilfully causing great suffering or serious injury to body or health’.14 Grave breaches are a species of war crime. They are subject to jurisdiction by any state party ‘regardless of their nationality’.15 Meanwhile, article 3, common to all the Geneva Conventions, which applies in non-international armed conflict, requires that ‘persons taking no active part in hostilities, including … those placed hors de combat by … detention …, shall in all circumstances be treated humanely’. Among certain acts ‘prohibited at any time and in any place whatsoever’ are ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’, as well as ‘outrages on personal dignity, in particular humiliating and degrading treatment’. Violations of these provisions have been considered war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY).16 They are so considered by article 8 of the Statute of the International Criminal Court (ICC). It is worth noting that the only legislative definition in international humanitarian law of terms such as ‘torture’ and ‘cruel or inhuman treatment’ are to be found in the Elements of Crime agreed by signatories to the ICC, including the US. Thus both ‘inhuman’ (international armed conflict) and ‘cruel’ (non-international conflict) are defined as the infliction of ‘severe physical or mental pain or suffering’.17 There is no distinction between them. The only element that distinguishes each of these from torture is that torture has the additional element of purpose: the pain or suffering must be inflicted ‘for a purpose such as obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination of any kind’. What then could possibly be the basis for denying the legal obligation of humane treatment? The strategy is to argue that the treaties do not apply. The OLC has asserted that the war in Afghanistan (and presumably by extension the war against Al Qaeda) was an international armed conflict. So, according to the argument, first, the benefits of the guarantees were vouchsafed only to ‘protected persons’. The Taliban are not covered as protected persons because they are apparently ‘unlawful combatants’ (a

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category unknown to the Conventions) and Al Qaeda are not covered because they were unlawful combatants and they do not belong to a contracting party (i.e. a state) that is also a party to the conflict. Second, the protection of common article 3, which would cover anyone in the hands of any party to a non-international armed conflict, does not apply because it is an international armed conflict.18 This view that Professor Wedgwood and James Woolsey have described as ‘captious’19 may come as a surprise to anyone brought up on the observation about common article 3 in the great commentary on the Geneva Conventions compiled by Jean Pictet; ‘Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper when all the provisions of the Convention are applicable’.20 Nevertheless, let us allow, for the purposes of argument, that the guarantee articulated in common article 3, although applicable to anyone in the hands of a party to a non-international conflict, does not apply to such a person in international armed conflict if they are not ‘protected persons’. There is still the little matter of customary or general international law. In a long-awaited, recently published study, the ICRC includes the following rule of customary international humanitarian law, ‘Rule 90: Torture, cruel or inhuman treatment and outrages on personal dignity, in particular humiliation and degrading treatment, are prohibited’.21 One of the sources cited for the proposition is article 75 of Additional Protocol I (1977) to the Geneva Conventions.22 That article closes the ‘gap’, if there ever was one. It covers ‘persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the [Geneva] Conventions’. Such persons are to be ‘treated humanely in all circumstances’. The article goes on to prohibit ‘torture of all kinds, whether physical or mental’, ‘outrages upon personal dignity, in particular humiliating and degrading treatment … and any form of indecent assault’, as well as ‘threats to commit any of the foregoing acts’. Since the US is not a party to the Protocol, for reasons having nothing to do with article 75, it is not bound by it as a matter of treaty obligation. However, like common article 3, that the World Court had already considered as articulating ‘fundamental general principles of international humanitarian law’ and ‘a minimum yardstick’ even for international conflicts,23 this article is generally considered as on a par with common article 3. Indeed, the US Judge Advocate General’s own Operational Law Handbook (2003) has taken the view that article 75 is one of a large number of articles that are ‘either legally binding as customary international law or acceptable practice though not legally binding’.24 It cites an article by the Department of State’s

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Michael Matheson that includes article 75 among a number of provisions that are already, or should be recognized as, binding.25 The OLC memorandum has the following to say about the customary international law dimension: Some may take the view that even if the Geneva Conventions, by their terms, do not govern the treatment of Al Qaeda and Taliban prisoners, the substance of these agreements has received such universal approval that it has risen to the status of customary international law. Customary international law, however, cannot bind the executive branch under the Constitution, because it is not federal law.26

There is nothing more. But there, one can probably see, leaping out of the bag, with a grin as wide as it is long, the cat. For the relevant federal law is the War Crimes Act which incorporates, not customary international law, but the Geneva Conventions. If the Geneva Conventions fail to protect the Taliban and Al Qaeda detainees, then those who ill-treat them will not be committing offences under the War Crimes Act. The fact that the victims are entitled to protection under customary international law is of no concern, any more than is the fact that the perpetrators may be committing war crimes under customary international law.27 And what a far cry this is from the humane vision of ICRC member Daniel Thürer, for whom international humanitarian law could be seen as the basis of a constitutional system of public international law.28

INTERNATIONAL HUMAN RIGHTS LAW Article 5 of the Universal Declaration of Human Rights states simply: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. The prohibition is found in the International Covenant on Civil and Political Rights (article 7), the American Convention on Human Rights (article 5) and the European Convention on Human Rights (article 3, without the word ‘cruel’). None of the pertinent provisions can be derogated from, even in time of war or other public emergency threatening the life of the nation.29 It is also prohibited by article 5 of the African Charter on Human and People’s Rights, which has no derogation provision. It is the practice of the bodies set up under the treaties (the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR) and the European and Inter-American Courts of Human Rights) to consider that states parties are obliged to investigate allegations of torture and the graver forms of other prohibited ill-treatment with a view to prosecuting the perpetrators.30 All victims of a violation of

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the pertinent provision are expected to be compensated.31 Moreover, where there are substantial grounds for believing that there is a real risk of any violation of the prohibition, no one should be sent to a country where they would be exposed to that risk.32 The difficult problem with the treaties is that, like the Geneva Conventions, they do not offer a definition of torture or other forms of prohibited ill-treatment. I shall return to this point. In addition, there are the UN Convention Against Torture (CAT)33 and the Inter-American Convention to Prevent and Punish Torture. I shall focus on the UN Convention since, although the Inter-American Convention is generally more embracing in its protection, especially in its definition of torture, the UN Convention may, at present, be a better guide to the relevant general international law and it has also been ratified by the US. The Convention, having defined torture (see below), makes it clear in article 2(2) that ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’. It rules out the defence of obedience to superior orders (article 2(3)). It establishes criminal responsibility by requiring criminalization, not only of the infliction of the torture, but also the instigation of, consenting to or acquiescence in torture (article 1), as well as complicity or participation in torture (article 4). It requires submission of the case for prosecution, or extradition to another country having jurisdiction, of any person present in the territory against whom there is information that the person has committed torture (that is, (quasi)-universal jurisdiction) (articles 4–7). It requires redress and compensation for victims (article 14) and incorporates the common law idea of inadmissibility in legal proceedings of statements made under torture (article 15). It prohibits the sending of a person to a country in which there are substantial grounds for believing that the person would be in danger of being subjected to torture (article 3). It also requires states to prevent ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture’ (article 16 (1)). Certain provisions of the Convention apply both to torture and to cruel, inhuman or degrading treatment or punishment. These do not include the provisions I have referred to. Those embraced are the obligation to train relevant personnel (article 10), the obligation to keep interrogation practices under review ‘with a view to preventing any cases of torture (article 11) and the obligation to investigate not only specific allegations of torture (article 13) but also ex officio whenever there is reasonable ground to believe that an act of torture has occurred (article 12). However, the failure to include other provisions does not necessarily mean that the principles contained in the other provisions cannot apply to ill-treatment not amounting to torture. For the provisions of the Convention are expressly

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‘without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment’ (article 16(2)).34 How, then, does the OLC instruct us on these matters? It focuses on the CAT rather than the International Covenant on Civil and Political Rights, which was totally ignored in the withdrawn 2002 memorandum and has graduated to a ‘see also’ reference in a footnote to the 30 December 2004 memorandum.35 Having in the 2002 memorandum asserted a number of ways of avoiding responsibility for torture – the President’s Commander-in-Chief powers, and claimed defences of necessity and self-defence – the December 2004 memorandum refrains from addressing these on the grounds that they are ‘unnecessary’ in the light of ‘the President’s unequivocal directive that US personnel not engage in torture’. I have difficulty following how the President’s policy makes understanding of the legal responsibility of US personnel involved in interrogations unnecessary. But, since this is the official position now, I shall refrain from dealing with these disturbing doctrines, doctrines that have not been retracted and were evidently approved, if not encouraged, by the present Attorney General of the US.36 What is common to both of the OLC memoranda is the central reliance on a theory according to which torture is at the top end of a pyramid of pain or suffering. This theory is based on the practice of the organs of the European Convention on Human Rights. The locus classicus is the case of Ireland v UK,37 in which the European Court of Human Rights found five interrogation techniques used in 1972 by the British security forces against IRA suspects to be inhuman and degrading, but not torture. The five techniques were: hooding, wall-standing, deprivation of food and drink, deprivation of sleep and subjection to loud noise, in combination, but for less than 24 hours. According to the court, these practices did not deserve the ‘special stigma’ of torture.38 It invoked the recently adopted 1975 UN Declaration against Torture, according to which torture constituted ‘an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.39 Over the years the court has maintained its insistence on torture being at the top of a pyramid of suffering. However, it should be noted that it has manifestly adjusted downward the line between torture and inhuman treatment. It did this in Selmouni v France (1999).40 In that case, the applicant had been subjected to sustained beatings, leaving medically certified trauma on various parts of the body. In a series of similar cases, going back to the Northern Ireland case (which involved more than just the five interrogation techniques), the court had considered such treatment as inhuman and degrading, rather than torture.41 This time it announced that it was changing track. Invoking its doctrine of the Convention being a ‘living instrument’, the court said it:

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considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.42

It has generally been assumed that the court’s language of acknowledging change in what constitutes torture applies not just to physical brutality, but also to the mixed physical and psychological pressures involved in the five interrogation techniques used in Northern Ireland. Why is this regional case-law relevant to our concerns? Because the pyramid approach is being used to interpret the CAT. CAT article 1 defines torture as follows: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Like the 2002 memorandum, the 2004 OLC memorandum stresses the distinction the CAT makes between torture and other cruel, inhuman or degrading treatment or punishment. It footnotes the definition contained in the CAT’s predecessor, the UN Declaration against Torture, which defined torture as ‘an aggravated and deliberate form’ of other ill-treatment.43 Yet it does not ask why that language about aggravation is missing from the CAT. The reason that appears from the record is that there was a desire to leave the matter less certain. This can be inferred from the fact that compromise language was used in article 16. Article 16, it should be recalled, refers to acts of ill-treatment ‘which do not amount to torture’. Those, led assiduously by the UK, who wanted to place torture at the top end of pain or suffering, pressed for the formula: ‘which are not sufficient to constitute torture’. Others, wishing to avoid the pyramid approach, urged the formula: ‘which do not constitute torture’. The result was a stand-off, but a standoff in which the Declaration’s reference to aggravation is missing. This is part of an argument I have developed elsewhere, proposing that, European Convention practice notwithstanding, the better approach is that taken by the ‘Elements of Crime’ for war crimes under the ICC Statute (i.e. that the

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element of purpose be understood as the distinguishing factor).44 None of this appears in the OLC memorandum. Nor does it refer to the watershed Selmouni case. What is clear is that the pyramid theory was present in documentation before the Senate when it was deliberating on its advice and consent to ratification of CAT. So this point may be perceived as relevant to the interpretation of US legislation giving effect to CAT. And, again, here we may have the nub of the matter. The issue is what action may the US courts be expected to take vis-à-vis US personnel involved in interrogation. This leads to the question, what would US courts think of as ‘cruel, inhuman or degrading treatment or punishment’? At the time of the deposit of the US instrument of ratification, the US stipulated its understanding that the term would mean ‘the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth amendments to the Constitution of the United States’. This led the authors of the 2002 memorandum to assert that torture could not be found if the behaviour did not rise to that level. The Department of Defense working group report followed suit. The point is not made in the December 2004 memorandum. I find it difficult to follow whether US judicial practice interpreting these constitutional provisions would be substantially at variance with the practice of international bodies. It must be acknowledged that the tone of the December 2004 memorandum is altogether more consistent with mainstream legal discourse on the issue than its 2002 predecessor. Particularly welcome is its explicit rejection of the lurid threshold of severity for torture expressed by the earlier document, namely, that the pain would have to be ‘excruciating and agonizing’ or ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’. Also welcome is the re-examination of the notion of specific intent, especially the affirmation that ‘[t]here is no exception in the statute permitting torture to be used for a “good reason”’, such as with the motive of protecting national security. Nevertheless, we are left with the uncomfortable feeling that the Humpty Dumpty doctrine of verbal strategy remains operative: ‘When I use a word’, Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean – neither more nor less’.45 It is, after all, worth noting the statement in the December 2004 OLC memorandum, according to which ‘we have reviewed this office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum’.46 There can be no serious doubt that the prohibition of torture and cruel, inhuman or degrading treatment or punishment is not only a rule based

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on treaties, but also a rule of general or customary international law. While this is not the place to give extensive justification for this assertion, a few specific elements may serve to elucidate the issue. First, the fact that all the human rights treaties make the prohibition non-derogable is telling, as is the fact that torture and cruel or inhuman treatment are war crimes under international humanitarian law. Second, the UN General Assembly resolution by which the CAT was adopted spoke of the desire for ‘a more effective implementation of the existing prohibition under international and national law of the practice of torture and other cruel, inhuman or degrading treatment or punishment’.47 Third, states do not claim a right to engage in activity contemplated by the prohibition; rather, they deny the facts, or claim that the acts do not fall within the prohibition. Fourth, the relevant practices are usually unlawful in national law. Fifth, national and international courts have considered the prohibition one of general international law, if not jus cogens.48 Sixth, the teaching of the most highly qualified publicists overwhelmingly concurs.49 As far as the prohibition of torture is concerned, it can now safely be said that the US position is unequivocally consistent with this understanding of the law. The 30 December 2004 memorandum, in its first paragraph, affirms that the prohibition is one of customary international law. Indeed, in a footnote, it cites cases from the US and UK, as well as the Third Restatement of US Foreign Relations Law, in support of the suggestion that the prohibition is one of jus cogens.50 The memorandum is silent as to whether the analysis applies also to other prohibited ill-treatment. Certainly, all the international authorities for the proposition that torture is prohibited by a rule of international law (possibly jus cogens) apply pari passu to other prohibited ill-treatment. It is hard to know how to interpret the silence, because the memorandum does not draw any conclusions from the acknowledgement of the customary law nature of the prohibition of torture. The 9 August 2002 memorandum had not referred to customary international law. However, it will be recalled that the 22 January 2002 memorandum on the Geneva Convention did acknowledge ‘the possible customary international law status of the substance of the Geneva Conventions, but that [c]ustomary international law … cannot bind the executive branch under the Constitution, because it is not federal law’.51 As far as I am aware, this memorandum has not been withdrawn, and it may reasonably be inferred that the philosophy behind the statement applies also to the prohibition of torture or other ill-treatment in international human rights law. Indeed, the April 2003 DoD working group report, considering both international humanitarian law and international human rights law, quoted the January 2002 OLC memorandum for both this proposition

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and that ‘any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners … would immediately and completely override any customary international law’.

CONCLUSION As far as obligations under the Geneva Conventions requiring humane treatment of any detainee and, in particular, avoidance of torture and cruel, inhuman or degrading treatment or punishment are concerned, the OLC memoranda have maintained that certain detainees are not protected by the Conventions. In so doing, they have induced the President of the US to deny a legal obligation of humane treatment. Later memoranda, including the controversial August 2002 memorandum, subsequently withdrawn, and the replacement of the December 2004 memorandum, have not challenged the applicability of the CAT. Rather, the accent has been on torture as treatment at the apex of prohibited cruel, inhuman or degrading treatment or punishment, in terms of the pain or suffering inflicted. The legislation giving effect to the CAT only criminalizes torture (committed abroad), not other prohibited ill-treatment. Customary international law seems to be dismissed as unenforceable (at least through the criminal law) in US courts. In sum, the approach can be summarized by a modified version of the famous definition of law given by the great American jurist, Oliver Wendell Holmes: a prediction of what the American courts will do in fact, and nothing more pretentious, is what we mean by international law.52 Such an approach to international law does a disservice to the values of the US and the world community, just as the practices at Abu Ghraib and elsewhere, as found in the Taguba, Fay and Schlesinger Reports, have done to their image.53 As early as two months after the 11 September 2001 atrocity, in my capacity as UN Special Rapporteur on Torture, I made a valedictory statement to the UN General Assembly. I there said: However frustrating may be the search for those behind the abominable acts of terrorism, and for evidence that would bring them to justice, I am convinced that any temptation to resort to torture or similar ill-treatment, or to send suspects to countries where they would face such treatment, must be firmly resisted. Not only would that be a violation of an absolute and peremptory rule of international law, it would also be responding to a crime against humanity with a further crime under international law. Moreover, it would be signalling to the terrorists that the values espoused by the international community are hollow, and no more valid than the travesties of principle defended by the terrorists.54

That lawyers at the highest level of US officialdom were already about to provide opinions contemplating precisely what I was warning against is a

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challenge to the world community’s most deeply held legal values. It can only be hoped that serious efforts will be made to try to put the genie back in the bottle. Measures the US could take to help restore its traditional reputation for adherence to the legal principle that every person in the hands of a state or any party to an armed conflict is entitled to humane treatment and, in particular, not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of general international law would include: • replacing the 2002 Presidential directive with a new one that accepts the legal right of everyone not to be subjected to torture or cruel, inhuman or degrading treatment or punishment; • amend the law to ensure that all war crimes under international law involving torture or cruel, inhuman or other inhumane treatment are war crimes under US law; • ensure that all agencies of the US government are subject to that law; • ensure that they obey it; • produce any remaining ‘ghost detainees’ to the ICRC, give them substantial compensation and never again resort to the practice of creating them.

NOTES 1. Sir Nigel Rodley, Professor of Law, University of Essex, UK; former United Nations Special Rapporteur on Torture. This chapter is based on ‘Torture in the 21st Century: The Practice and the Law’, an address delivered on 23 September 2004 as the William J. Butler Lecture on International Law, commissioned by the Urban Morgan Institute of Human Rights, University of Cincinnati. Versions were also delivered at the University of Denver (‘The Absolute Prohibition of Torture and Why it Should Stay that Way’, Myres S. McDougal Distinguished Lecture, 10 March 2005), and to the annual meeting of the American Society of International Law, 2 April 2005. It is also to be published in the Denver Journal of International Law and Politics, 34 (1), Spring 2006, 145–60. 2. Presidential directive on humane treatment of Al Qaeda and Taliban detainees, 7 February 2002. 3. See ‘Memo: Alberto Gonzales to President Bush, Jan. 25, 2002’, in Danner, M. (2004), ‘Torture and Truth’, New York Review of Books, 51 (10) [hereafter Danner], p. 83; ‘Memo: William H. Taft IV to Alberto Gonzales, Feb. 2, 2002’, in Danner, p. 94; ‘Memo: Jay S. Bybee to Alberto Gonzales, Feb. 7, 2002’, in Danner. The Secretary of State and the Attorney General were themselves part of the correspondence: ‘Memo, Colin Powell to Alberto Gonzales, Jan. 26, 2002’, in Danner, p. 88; ‘Letter: John Ashcroft to President Bush, Feb. 1, 2002’, in Danner, p. 92. Note, the memoranda in question are also reproduced in Greenberg, K.J. and Dratel, J.L. (eds) (2005), The Torture Papers: The Road to Abu Ghraib, New York: Cambridge University Press [hereafter Greenberg and Dratel]. 4. Danner quotes an email from an unnamed captain in military intelligence: ‘The gloves are coming off gentlemen, regarding these detainees, Col X has made it clear that we want these individuals broken’. Danner, p. 33. 5. ‘Memo: Jay S. Bybee to Alberto Gonzales, Aug. 1, 2002’, in Danner, p. 115.

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6. ‘Pentagon Working Group Report’, in Greenberg and Dratel, p. 286. The texts of the JAGs’ memoranda may be found at the website of Human Rights First, Law and Security Digest, 57 (2005), http://www.humanrightsfirst.org/us_law/digest/usls_digest57_072805. htm. 7. ‘Memo: Daniel Levin to James B. Comey, Dec. 30, 2004’, from Department of Justice website, http://www.usdoj.gov/olc/dagmemo.pdf. 8. It is reported that the DoD is revising its army field manual in respect of interrogation methods. 9. See also O’Connell, M.E. (2005), ‘Affirming the Ban on Coercive Interrogation’, Notre Dame Law School Legal Studies Research Paper no. 05–21, downloaded from http:// ssrn.com/abstract=811046; Guiora, A.N. and Page, E.M. (2005), ‘The Unholy Trinity: Intelligence, Interrogation and Torture’, Case Western Reserve University Research Paper Series in Legal Studies: Working Paper 05–13, downloaded from http://ssrn.com/ abstract=758444. 10. Albeit only of those at the lowest level, caught on camera. The extent of the practices has been documented in three official reports: Article 15–6 Investigation of the 800th Military Police Brigade by Major General Antonio M. Taguba (2004), reprinted in Danner, p. 279; AR 15–6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade by Lieutenant General Anthony R. Jones; AR 15–6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade by Major General George R. Fay, reprinted in Danner, p. 409; Final Report of the Independent Panel to Review Department of Defense Detention Operations (Chairman James R. Schlesinger). 11. A list of approved interrogation techniques can be found in the Schlesinger Report, Appendix E. 12. One OLC memorandum, from Jack I. Goldsmith III to Alberto Gonzales, 19 March 2004 (Greenberg and Dratel, p. 367) argues that the United States ‘may, consistent with article 49 [of Geneva Convention IV], (1) remove “protected persons” who are illegal aliens from Iraq pursuant to local immigration law; and (2) remove “protected persons” (whether illegal aliens or not) from Iraq to another country to facilitate interrogation, for a brief but not indefinite period, so long as adjudicative proceedings have not been instigated against them’. Article 49, first paragraph, states: ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or that of any other country, occupied or not, are prohibited, regardless of their motive’. The reader is invited to consult the memorandum to discover by what juridical alchemy its author can assert that even protected persons who are not illegal aliens may be removed, albeit ‘for a brief, but not indefinite period’. 13. Other provisions include Geneva Convention (GC) I, art. 12; GC II, art. 12; GC III, arts 13, 14, 87, 89, 99; GC IV, arts 27, 31, 37, 118, 119. 14. GC I, art. 50; GC II, art. 51; GC III, art. 130; GC IV, art. 147. 15. GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146. 16. Prosecutor v Tadic, Interlocutory Appeal, ICTY, 2 October 1995, para. 134. 17. Pursuant to article 9 of the Rome Statute of the International Criminal Court (ICC), signatory states met to formulate the crimes contemplated by the Statute in precise terms in a document entitled Elements of Crime: ICC, Assembly of States Parties doc. ICCASP/1/3, 9 September 2002; as a participant in the Rome Conference the United States participated in the Preparatory Commission that drafted the text that was adopted by the Assembly of States Parties, see Elements of Crime for articles 8(2)(a)(i) (international armed conflict) and 8(2)(c)(i) (non-international armed conflict). 18. ‘Memo: Jay S. Bybee to Alberto Gonzales, 22 Jan. 2002’, in Danner. For the ICRC and many others, the Taliban, if not prisoners of war, must be protected civilians. There is no third category. Of course, persons in either category may be tried for criminal activity. 19. Wedgwood, R. and Woolsey, R.J. (2004), ‘Law and Torture’, The Wall Street Journal online, WSJ.com, 28 June. 20. International Committee of the Red Cross (Pictet ed.) (1960), The Geneva Conventions of 12 August 1949 – Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War, p. 38.

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21. International Committee of the Red Cross (Henckaerts and Doswald Beck, eds) (2005), Customary International Humanitarian Law – Volume 1 – Rules, p. 315. 22. The 1949 Geneva Conventions were supplemented by two Additional Protocols adopted in 1977 by Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict; Additional Protocol 1 applies to international armed conflict, while Additional Protocol 2 applies to non-international armed conflict. 23. Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Rep. 1986, 141, para. 218. 24. Operational Law Handbook (2003), accessible online through https://www.jagcnet.army. mil/ p. 11. 25. Matheson, M.J. (1987), ‘The United States’ Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’, American University Journal of International Law and Policy, 2, 419–20. 26. Supra n. 3, p. 32. 27. Prosecutor v Tadic, supra n. 14, paras 128–37. 28. Thürer, ‘International Humanitarian Law as a Core of a “Constitutional System” of Public International Law?’, in Baldini, S. and Ravasi, G. (eds) (2000), Humanitarian Action and State Sovereignty – International Congress on the Occasion of its XXXth Anniversary, San Remo 31 August–2 September 2000, Milan: International Institute of Humanitarian Law, pp. 46–58. 29. General human rights treaties allow states’ parties to suspend or derogate from some of their provisions, when confronted by a state of emergency such as internal or external conflict, but some of their provisions are insulated from being so suspended; see International Covenant on Civil and Political Rights art. 4, European Convention on Human Rights, art. 15, and American Convention on Human Rights, art. 27. 30. See Rodley, N. (1999), The Treatment of Prisoners Under International Law (2nd edn), New York: Oxford University Press, pp. 110–12. 31. Ibid., pp. 114–15. 32. Ibid., pp. 116–20. 33. The full title of the UN convention is Convention Against Torture (CAT) and other Cruel, Inhuman or Degrading Treatment or Punishment. 34. ‘Declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment,’ General Assembly resolution 3452 (XXX), 9 December, 1975, art. 10: ‘If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings’ (emphasis added). 35. Supra, n. 5, at p. 1, n. 1. 36. Johnston, D. and Lewis, N.A. (2005), ‘Bush’s Counsel Sought Ruling on Torture’, New York Times (nytimes.com), 5 January. 37. European Court of Human Rights (1978), Ser. A, No. 25. 38. Ibid., para. 167. 39. Supra, n. 30, art. 1(2). 40. European Court of Human Rights, Judgment, 28 July 1999. 41. See for example: Tomasi v France (1992), European Court of Human Rights, Judgment, Ser. A, No. 24/A, paras 112–16; Ribitsch v Austria, European Court of Human Rights, Judgment, 4 December 1995, paras 35–40 (but note, in these cases, the applicants failed to claim that their treatment amounted to torture). 42. Supra, n. 36, para. 10 (the Court still maintained the notion of ‘special stigma’ in its understanding of ‘torture’). 43. Supra, n. 5, p. 6, n. 14. 44. Rodley, N. (2002), ‘The Definition(s) of Torture in International Law’, Current Legal Problems, 55, 467. 45. Carroll, L. (1940), Alice Through the Looking Glass, London: Macmillan, p. 125. As Professor Paust has it, ‘moderate coercion to extract information from unwilling human

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46.

47. 48.

49. 50. 51. 52.

53.

54.

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Counter-terrorism and the post-democratic state beings and to create a sense of hopelessness in the minds of detainees is as lawful as moderate rape’. Paust, J.J., ‘After 9/11, “no neutral ground” with respect to human rights: executive claims and actions of special concern and international law regarding the disappearance of detainees’, Wayne Law Review, 50, 79, 81–2. Supra, n. 5, p. 2, n. 8. Even as he rescinded the list of approved techniques referred to in the text accompanying n. 9 supra, the Secretary of Defense reinstated some of them, including sleep adjustment, false flag and isolation for up to 30 days or more and indicated that others could be authorized on an ad hoc basis: Memo from US Secretary of Defense to Commander, US Southern Command, 16 April 2003, reproduced in Danner, pp. 199–204. General Assembly resolution 39/46, 10 December 1984; emphasis added. Prosecutor v Anto Furundzija, ICTY, Case No. IT-95–17/1-T, 10 December 1998, paras 153–7; Regina v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 3), [2000] 1 AC 147, 198; Siderman de Blake v Republic of Argentina, 965 F. 2nd 699, 714 (9th Cir. 1992); Al-Adsani v United Kingdom, European Court of Human Rights, Judgment, 21 November 2001, para. 61. A rule of jus cogens is a rule of general international law that is considered peremptory and incapable of being varied even by treaty. For example see s.702 and reporter’s n. 5 in Restatement (Third) of Foreign Relations Law of the United States, St Paul: American Law Institute Publishers, 1987. Supra, n. 5, at n. 1. Supra, n. 24 and accompanying text. In Holmes, O.W. (1897), The Path of the Law, reprinted in London, E. (ed.) (1960), The Law as Literature, New York: Simon & Schuster, pp. 614, 617, he states: ‘The prophesies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’. Supra, n. 8. In the words of the Schlesinger Report, ‘The damage these incidents have done to the U.S. policy, to the image of the U.S. among populations whose support we need in the Global War on Terror and to the morale of our armed forces, must not be repeated’. Article 15–6 Investigation of the 800th Military Police Brigade by Major General Antonio M. Taguba (2004), reprinted in Danner, p. 279; AR 15–6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade by Major General George R. Fay, reprinted in Danner, p. 409. Statement by Sir Nigel Rodley, Special Rapporteur of the Commission on Human Rights on Torture, 56th Session of the General Assembly, Third Committee, Item 119, 8 November 2001 (on file with the author), summarized in UN doc. A/C.3/56/SR.33 (2002).

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Constructing non-citizens: the living law of anti-terrorism in Canada Reem Bahdi

Inter arma silent leges – In time of war laws are silent. Cicero1

INTRODUCTION Contrary to Cicero’s famous edict, Canadian law does not fall altogether silent in times of war. Rather, it serves as the site through which Canada expresses its commitment to the global war effort, showing its willingness to suspend the rights of citizens and non-citizens alike in the name of national and international security. After the bombing of Pearl Harbor, for example, Canada legislated for the internment of individuals with Japanese ancestry, confiscated their property, stripped them of citizenship and deported them to Japan, even if they did not have concrete ties to that country. Canadian history has demonstrated that one cannot understand the demarcation between those who are imagined to belong to the community and those who are constructed as ‘foreigners’ simply on the basis of citizenship. Rather, the demarcation has also historically been constructed along racial lines. In times of war the law speaks loudly and clearly against those who are regarded as undesirable, untrustworthy and foreign. Since 11 September 2001, the trope of war has once again been invoked to justify the revocation of rights to certain segments of Canadian society. As a result of the ‘war against terrorism’, as it is popularly called, Arabs and Muslims in Canada have been disenfranchised and regarded as the foreigner within. The overtly racist instruments of the past have been put away. Arabs and Muslims are not being rounded up in internment camps nor are they being collectively stripped of their citizenship and required to leave Canada. Nonetheless, the war against terrorism has effectively constructed Arabs and Muslims in Canada as non-citizens because this war denies Arabs and Muslims rights that are otherwise guaranteed to other citizens. 81

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HEIGHTENED DISENFRANCHISEMENT AND A TALE OF TWO CITIZENS Conceptually, citizenship sits at the intersection of national and international law. It defines the rights and responsibilities of individuals qua individuals in relation to a particular political entity (usually a state). Citizenship also defines the rights and duties between states and individuals. The basic idea is that citizenship ties the individual to a state and articulates a belonging to a community which carries with it both rights and responsibilities. This special bond between citizen and state is reflected within Canadian domestic law in the oath of citizenship set out in the Citizenship Act 1985 which requires individuals to affirm allegiance to her Majesty and to faithfully observe the laws of Canada. The International Court of Justice has also recognized the unique juridical bonds that exist between state and citizen: According to the practice of States, nationality constitutes the juridical expression of the fact that an individual is more closely connected with the population of a particular State. Conferred by a State, it only entitles that State to exercise protection if it constitutes a translation into juridical terms of the individual’s connection with that State.2

Citizenship thus denotes a special relationship between a citizen and a state. Accordingly, it carries with it certain rights granted only to citizens. In most if not all countries in the world, citizens have a larger bundle of legal rights than non-citizens. The specific bundle of rights is country-dependent. In Canada, some of the rights of citizenship are codified while others are the creatures of the common law and still others operate at the international level. Citizenship at minimum entails certain mobility and due process rights that are denied to non-citizens. Citizenship is also supposed to keep one safe from acts of torture, at least at the hands of Canadian officials. Canada’s war against terrorism has weakened the bond of citizenship for the Arab and Muslim communities in Canada. Individual and community allegiances have been called into question in both official and popular contexts. As a corollary, the rights and protections that citizens claim from Canada by virtue of their belonging to the Canadian state have been diluted for the Arab and Muslim communities whose members can no longer take these rights and protections for granted. Canada responded quickly to the 11 September attacks in the United States with a series of complicated legislative moves. The new laws added a number of new features to the Canadian legal landscape including preventative arrest provisions, trials based on secret evidence, enhanced information-sharing protocols with foreign jurisdictions, and laws aimed

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at cutting off terrorist financing (Anti-terrorism Act 2001).3 Critics of the laws denounced these measures as unnecessary and warned that they would undermine fundamental civil liberties.4 However, the Canadian Government defended the anti-terrorism measures, contending that the new laws balanced individual rights with collective security and claimed that safeguards were in place to ensure that the laws would not lead to undesirable results. Senator Joyce Fairbairn summarized the government position when she proclaimed in the Senate that: In summary, the government believes that the powers granted under this bill are the right ones for a tough job and that they can be exercised with standards of fairness and justice which Canadians expect.5

Unfortunately, the Arab and Muslim experience in Canada is markedly different from what was anticipated by those who supported Canada’s antiterrorism laws. Arabs and Muslims in Canada have been constructed as non-citizens through the combined impact of various pieces of legislation, policies and operational decision, which are carried out against a backdrop of generalized fear and lack of understanding of the Arab and Muslim communities. This social context has contributed to hasty and ill-informed decision-making by Canadian officials who interpret and implement the anti-terrorism laws. These decisions in turn have heightened the sense of disenfranchisement experienced by the Arab and Muslim communities and traumatized some of its members. While the popular stereotype of Arab and Muslim as terrorist predated 11 September this terrorist event helped fuel the conviction that Arabs and Muslims threatened the internal order of things and thus constituted the foreigner within, regardless of their citizenship status.6 ‘The subtext is that Muslims are a foreign element, aliens ... with no tenure to citizenship, that they are here as sleeper terrorists ...’.7 Almost immediately following 11 September anti-Arab and anti-Muslim sentiment rose in Canada, likely fuelled by speculation that Canada represented a weak link in the North American ‘security perimeter’.8 Increases in public suspicion of Arabs and Muslim in Canada were also undoubtedly spurred by the rising anti-Arab animus in the United States. Louisiana Congressman John Cooksey perhaps best expressed Arab- and Muslim-phobia in the United States when he made the following remarks in a state-wide radio address: The terrorist had a different look, a different face … . If I see someone (who) comes in that’s got a diaper on his head and a fan belt wrapped around the diaper on his head, that guy needs to be pulled over.9

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Numerous community and civil rights organizations have detailed the generalized fear of Arabs and Muslims which exists in Canada along with the parallel feelings of disenfranchisement experienced by these communities beyond the immediate aftermath of 11 September.10 The legal disenfranchisement of the Arab and Muslim communities in Canada is perhaps best conveyed through the stories of Maher Arar and Liban Hussein, two Canadian citizens who, until relatively recently, shared little aside from the decision to take up residence in Ottawa, Canada’s capital, and their allegiance to the Muslim faith. Following 11 September however, Arar and Hussein found their lives following a similar trajectory. Almost immediately after 11 September both men came under suspicion by US officials for allegedly having connections to global terrorism and both men have suffered, in varying degrees and different ways, as a result. Their stories reveal the extent to which the Canadian Government has, through its legal commitments to the war against terrorism, abdicated its responsibility to protect the rights of Canadian citizens, at least where those citizens are Arabs or Muslims. In Canada, citizenship is not the only signifier which demarcates exclusion or belonging to the state; race and religion also operate as categories of exclusion. A significant amount of public information is available about Maher Arar’s story because Arar himself has recounted his trauma on several occasions in the quest to clear his name. Moreover, following intense pressure from Canadian human rights advocates and a growing number of citizens, the government of Canada, on 28 January 2004, announced a Commission of Inquiry into the actions of Canadian officials in relation to Maher Arar and appointed Justice Dennis O’Connor as Commissioner. Justice O’Connor released the first part of his report in September 2006, and the second part in December, shortly before this chapter went to press. The factual findings made by Justice O’Connor largely support the conclusions drawn here and have been incorporated into the analysis. Somewhat less is known about the experiences of Liban Hussein, in part because Hussein has largely shunned the public spotlight, preferring instead to try to protect his privacy and go on with his life as best as he can. In addition, while Hussein has reached an out of court settlement with the Federal Government in response to the Government’s falsely connecting him to terrorism, the terms of settlement remain confidential. Yet, Hussein did attract media attention in Canada and abroad. Sufficient information can be gleaned from press clippings to represent his experiences, at least in broad outline. Maher Arar Syrian-born Maher Arar came to Canada in 1991 at the age of 17 and eventually acquired Canadian citizenship. In September 2002, Arar, his

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spouse, Monia Mazigh, and their two children were vacationing in Tunisia when Arar arranged to return to Canada on his own. On 26 September while in transit in New York’s John F. Kennedy Airport, Maher Arar was detained by United States (US) officials and interrogated about alleged links to terrorism, including connections to Al Qaeda. During this detention, US officials focused on Arar’s connections to Abdullah Al Malki, another Canadian citizen who also traced his family roots to Syria. Al Malki had been under surveillance by Canadian security officials following the 11 September attacks. US officials produced a lease agreement to an apartment that Arar had rented. The agreement had been co-signed by Abdullah Al Malki. According to Arar, he realized that Canadian officials were somehow involved in his detention in the United States when he saw this lease because it could only have come from Canada. Arar indicated to US authorities that he had nothing to hide. He responded to all the questions put to him. For example, he explained that he knew Abdullah Al Malki only casually but had closer connections with Abdullah’s brother, Nazih. Arar had asked Nazih to sign the lease agreement but he was busy and sent it to Abdullah instead. In the course of being questioned about his connections to the Al Malki family, Arar asked to speak to a lawyer but his requests were denied. Eventually, he was shackled with chains at his wrists and ankles and taken to a cell. Twelve days later, again chained and shackled, Arar was flown to Jordan aboard a private plane. He later surfaced in a Syrian prison. Arar has given a vivid account of his time in Syria, where he spent most of his time held in a tiny ‘grave-like’ cell: We went into the basement, and they opened a door, and I looked in. I could not believe what I saw. I asked how long I would be kept in this place. He did not answer, but put me in and closed the door. It was like a grave. It had no light. It was three feet wide. It was six feet deep. It was seven feet high. It had a metal door, with a small opening in the door, which did not let in light because there was a piece of metal on the outside for sliding things into the cell. There was a small opening in the ceiling, about one foot by two feet with iron bars. Over that was another ceiling, so only a little light came through this. There were cats and rats up there, and from time to time the cats peed through the opening into the cell. There were two blankets, two dishes and two bottles. One bottle was for water and the other one was used for urinating during the night. Nothing else. No light. I spent 10 months and 10 days inside that grave.11

Eventually, the Syrians moved Arar to a better cell in a different prison. He spent 374 days in a Syrian cell before being released. During that period,

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he was beaten, tortured and forced to make a false confession about connections to terrorism: The tire is used to restrain prisoners while they torture them with beating on the sole of their feet. I guess I was lucky, because they put me in the tire, but only as a threat. I was not beaten while in tire. They used the cable on the second and third day, and after that mostly beat me with their hands, hitting me in the stomach and on the back of my neck, and slapping me on the face. Where they hit me with the cables, my skin turned blue for two or three weeks, but there was no bleeding. At the end of the day they told me tomorrow would be worse. So I could not sleep. Then on the third day, the interrogation lasted about 18 hours. They beat me from time to time and make me wait in the waiting room for one to two hours before resuming the interrogation. While in the waiting room I heard a lot of people screaming. They wanted me to say I went to Afghanistan. This was a surprise to me. They had not asked about this in the United States. They kept beating me so I had to falsely confess and told them I did go to Afghanistan. I was ready to confess to anything if it would stop the torture.12

Arar was finally released in October 2003. Bill Graham, Canada’s Foreign Affairs Minister at the time, credited Arar’s release to quiet diplomacy.13 Liban Hussein Liban Hussein’s story is not as tragic as Maher Arar’s if only because Hussein did not find himself in a torture cell. Nonetheless, like Arar, Hussein also appears to be the victim of over-zealous law enforcement in the name of national security. He lost his livelihood and his reputation as a result of false claims, made by both the US and Canadian Governments, that he had connections to terrorism. On 7 November 2001, Liban Hussein, a Somalianborn Canadian citizen was placed on a list of 62 people accused by the US government of supporting terrorism. Hussein ran Barakaat, North America Inc., a money-transfer business, based in Dorchester, Massachusetts, along with his brother.14 The money-transfer business, known as hawalas, had become an important method for transplanted Somalis to send funds to relatives in Somalia because war in that country had destroyed its banking infrastructure. The American Government, intent on shutting down the financing of terrorism, came to regard hawalas with suspicion because they move money around the world with little paperwork. On 7 November 2001, President George W. Bush announced that the al-Barakaat network, which included Liban Hussein’s company, provided funding to Al Qaeda. Bush claimed that hawalas funnelled millions of dollars from the United States to terrorist organizations, including Al Qaeda.15

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The United States listed al-Barakaat as a terrorist entity in the United States along with its owners, Liban Hussein and his brother.16 That same day, the Canadian Government also listed Liban Hussein, his brother and their company as terrorists.17 Canada adopted the American list apparently with no questions asked. Canadian officials did not conduct an investigation into the accuracy of the list but adopted the analysis of US officials as sufficient to satisfy the ‘reasonable grounds’ criteria required before an individual or entity could be officially labelled ‘terrorist’ under Canadian law. Conclusions drawn by a foreign government appeared to be good enough for Canadian officials and law. The United Nations Security Council also listed Liban Hussein as a terrorist; thus requiring all states to freeze any and all of Mr Hussein’s funds and assets.18 At the time, Liban Hussein was in Ottawa. The American Government asked Canada to extradite him. Hussein was arrested by the Royal Canadian Mounted Police (RCMP); however, a court released him on bail as evidence of terrorist links could not be produced. Eventually, Liban Hussein was cleared of the allegations made against him. In June 2002, seven months after he was originally listed as a terrorist, Hussein was taken off the terrorist list in Canada. However, he remained on the American and United Nations lists until the Canadian Government sought his de-listing in those jurisdictions as well.19 All of Mr Hussein’s dealings were frozen from November 2001 to June 2002 when the Canadian Justice Department announced that, having reviewed the US material, there was ‘no evidence he was connected with terrorist activities’ and the United States dropped its extradition request.20 Hussein’s brother was convicted in the United States for charges unrelated to terrorism. He spent 18 months in jail for running a money-transfer business without a licence. A similar offence does not exist in Canada. No allegations of terrorist connections or terrorist financing were made at the trial of Hussein’s brother in the United States. Eventually, Liban Hussein settled with the Canadian Government for an undisclosed amount and he has remained out of the public eye.21

CONSTRUCTING NON-CITIZENS: DENIAL OF CITIZENSHIP RIGHTS Maher Arar and Liban Hussein’s stories illustrate that one cannot understand the consequences of the war against terrorism by simply reading the law on the books. Rather, one has to closely examine the lived reality of the individuals who have been most affected by anti-terrorism laws. An examination of Arab and Muslim experiences reinforces that the law does not discriminate explicitly on the basis of race; however, it has a race-

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based impact. Optimists would say that we have made progress in human rights protection by the simple fact that law no longer explicitly dispossesses communities based on race. Cynics, however, might claim that law has simply become clever in its deception – promising respect for human rights but delivering delusion rather than protection. Ultimately, we are obliged to neither position. Rather, both possibilities exist within our legal landscape. We must be aware of how the law reflects itself in people’s lives so that we can fully evaluate the costs of the war against terrorism and consciously chart the route which we want to adopt as a society. Canadian Arabs and Muslims are not alone in claiming that the Canadian Government has failed to respect their citizenship rights when they needed them most. William Sampson, for example, has written an account of his torture in a Saudi jail. Sampson has scathingly criticized the Canadian Government for failing to secure his timely release.22 To date, however, only Arab and Muslim men have claimed that Canadian officials directly played a role in the deprivation of their citizenship rights and thus constructed them as non-citizens. The following section outlines the manner in which citizenship is racialized in Canada. Mobility Rights Section 6 of the Canadian Charter of Rights and Freedoms recognizes that ‘Every citizen of Canada has the right to enter, remain in and leave Canada’.23 This right, however, proved illusory for Maher Arar. Instead of being allowed to return to Canada as he had requested of US officials, Arar was instead deported to Syria, his country of birth. It is important to acknowledge that Arar is a dual citizen of both Canada and Syria; however, dual citizens faced with deportation from another country have the right to determine which country they want to enter. Arar clearly and unequivocally expressed to US officials his desire to be returned to Canada. Moreover, he explained to both US officials and Canadian consular staff that he feared being deported to Syria and further feared being tortured in Syria if he were deported.24 Once a citizen makes a request to return to Canada, she or he cannot be denied the right to ‘enter’ as recognized in section 6 of the Charter. Indeed, the right to enter one’s country is arguably the most important right of citizenship. The right to make demands against state borders constitutes the quintessential mark of citizenship: citizens can make claims against state borders by virtue of their status; non-citizens cannot. At the time of writing, it would appear that Canadian officials did not directly deny Mr Arar the right to return to Canada in the sense that they did not turn him back at the border. Nonetheless, a rights violation can

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be the result of both direct and indirect government action. The argument that Arabs and Muslims are being denied the rights of citizenship including the right to return to Canada turns to a large extent on the finding that Canadian officials played some role in the Arar saga. Justice O’Connor has concluded that, ‘there is no evidence that Canadian officials participated or acquiesced in the American authorities’ decisions to detain Mr Arar and remove him to Syria’.25 However, they did share information with American officials which portrayed Mr Arar ‘in an inaccurate and unfair way’. Canadian officials, for example, described Mr Arar and his wife as ‘Islamic extremists suspected of being linked to the al-Qaeda movement’.26 This negligent sharing of information increased the risk that Mr Arar would be abused by foreign governments, particularly in the sensitive months following 11 September. Although he was unable to definitively determine whether Canadian officials could have secured Mr Arar’s release at an earlier point in time, Justice O’Connor also raised serious concerns about specific acts of Canadian officials which ‘could have had an effect on the time taken to release Mr Arar’.27 For example, he noted that Canadian officials received a summary of a statement Mr Arar allegedly made to Syrian officials about his connections to terrorism. Foreign Affairs Canada failed to adequately consider whether the statement was the product of torture. Instead, they shared it with various security agencies.28 Canadian officials may not have directly taken Mr Arar to Syria or denied him the right to return to Canada. However, their actions, taken together, constitute an indirect violation of his right to enter Canada. Canadian officials played a sufficient role in the detention of Mr Arar in the United States and his imprisonment in Syria for one to conclude that Mr Arar was denied his right to enter Canada by Canadian officials. The possibility that Canadian officials knew about or facilitated Mr Arar’s detention in the United States translates into a denial of Mr Arar’s right to enter Canada because of the negligence of Canadian officials. Canadian officials knew or should have known about US policies or practices such as extraordinary rendition and their practice of deporting non-citizens to countries where they face risk of torture.29 If they contributed to his detention in the United States, then they were negligent in not putting into place safeguards against the extraordinary rendition of Mr Arar. By helping to create the conditions which led to his rendition, they denied him the right to enter Canada by necessary implication. If the actions of Canadian officials lengthened Mr Arar’s detention in Syria, then they denied Mr Arar his right to enter Canada as a corollary of preventing him from leaving Syria as soon as possible. Despite the Canadian Government’s steadfast refusal to disclose documents related to the detention and torture of Mr Arar, vital information

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emerged from official testimony given at the inquiry. This information suggested that Canadian policy and practices as well as the conduct of certain Canadian officials did indeed contribute to the detention and torture of Maher Arar in Syria. Of course definitive statements about the role of Canadian officials must await Justice O’Connor’s final report. However, several points emerging from the inquiry deserve to be emphasized at this stage because they point to the strong possibility that, at the very least, even prior to the release of Justice O’Connor’s report, information emerging from the inquiry pointed to the strong possibility that Canadian officials were negligently sharing information about Canadian citizens with foreign governments without ensuring that the information was accurate or employed in a responsible manner. First, an internal investigation by the Royal Canadian Mounted Police (RCMP) into Maher Arar’s case found that the agency did not properly follow the rules regarding information sharing with other agencies.30 Moreover, the inquiry has also revealed that information about innocent people can be entered into a database and provided to foreign governments. The day to day sharing of information is not documented and there is little follow-up to determine how foreign governments use this information.31 In addition, Canadian security agencies share information with governments that are known to use torture and, under certain circumstances, they accept information from foreign governments about individuals even at the risk that the information was obtained under torture.32 Indeed, Canadian officials often do not know if torture was used to obtain the information in the first place and have not fully directed their minds to the definition of torture.33 Even more disturbing, an internal RCMP investigation indicates that, although they did nothing to encourage it, the police force knew that Maher Arar would be sent to Syria, given that he had dual citizenship there.34 Moreover, Canadian officials knew that another Canadian citizen, Mr Al Maati, had complained about being tortured in Syria as a result of a terrorist investigation.35 Given that American officials were interrogating Arar about alleged terrorism connections, Canadian officials thus knew or ought to have known that he might be tortured if deported to Syria for the purposes of determining if he had connections to terrorism. The inquiry also raises questions about whether Canadian officials sought to benefit from the information obtained by Syrian intelligence from Arar.36 At the time of Arar’s detention in Syria, Canadian officials were clearly concerned about sending the message to American officials that Canada was committed to fighting terrorism. Overall, one gets the impression that insufficient attention was paid to the possibility that Mr Arar was being tortured.37 Although the details are not

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fully known, it may even be that the Canadian Security Intelligence Service (CSIS) requested that Arar be kept in Syria. At the very least, they did not want Arar returned to Canada and thus showed reluctance in asking Syria to return him to Canada.38 It is clear that CSIS officials visited Syria on a liaison mission while Arar was in custody but it appears that CSIS officials did not visit Arar during this visit.39 Finally, an internal RCMP investigation reveals that during the two weeks Arar was in US custody, a number of RCMP officials were in frequent contact with US officials, even providing a list of questions for Arar’s interrogation. Indeed, according to former US Secretary of State Colin Powell, the RCMP provided information used by the US authorities to justify their actions against Mr Arar.40 The American press reports that officials detained Arar in New York because he appeared on the American watch-list of terrorist suspects.41 Even if the RCMP did not directly facilitate or encourage Arar’s deportation to Syria, one must still ask whether the RCMP and other Canadian officials negligently allowed Mr Arar to be delivered to Syria. Their negligence would arise in part from the manner and extent to which they shared information with foreign governments. Perhaps the most disturbing finding made by Justice O’Connor relates to the manner in which information was shared by Canadian security and policing agencies with their international counterparts. Justice O’Connor details how the RCMP, often acting in violation of their own policies, provided false and misleading information which was inflammatory and unfairly prejudicial to Mr Arar. ‘The potential consequences of labelling someone an Islamic extremist in post 9–11 America are enormous’.42 However, Canadian officials did exactly that to Mr Arar and his family. As the Arar story reveals, the sharing of information renders individuals vulnerable to abuses by foreign governments and increases the risk that foreign agencies will use the information to justify acts that might prove unacceptable to Canadians and Canadian officials.43 Despite these risks, Canadian security agencies and other Canadian officials failed to introduce precautionary measures designed to protect citizens’ rights. Instead, individual officers were often left to decide for themselves when and how to share information. One would reasonably expect that additional precautionary measures would have been developed hand in glove with the decision to share information with foreign governments. Yet, the Arar story reveals that there was little if any accountability when individual security agents decided to act and little consideration for the profound human rights violations that might be triggered by their actions. Justice O’Connor’s much anticipated policy report is due in the spring of 2007 and will include recommendations for improving the accountability of the RCMP.

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Freedom from Torture Under international law, the right to be free from torture constitutes an absolute right from which no derogation is permitted. This right applies to everyone, regardless of citizenship status. States are also required to respect the principle of non-refoulement which dictates that refugee claimants are not to be deported to countries where they may face forms of persecution, including torture. Similarly, section 12 of the Canadian Charter provides that ‘everyone has the right not to be subjected to any cruel and unusual treatment or punishment’, which of course includes torture. Section 12 clearly prohibits the use of cruel and unusual treatment by Canadian officials on Canadian soil, again with respect to everyone and not just citizens. Canadian jurisprudence, however, has left the door open to sending a non-citizen to torture in another state pursuant to the Immigration and Refugee Protection Act. In Suresh v Canada, the Supreme Court of Canada, while stressing that deportation to torture generally cannot be condoned, nonetheless observed: We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1.44

The implication is that Canadian officials may deport non-citizens to torture, albeit under exceptional circumstances. It is important to note, however, that the court clearly expressed its expectation that non-citizens would be permitted a legal review of their case. While the procedures under which such review would take place have not been defined, it is clear that the court contemplates that the procedure would be defined in law and that the subject individual would be given legal protections and oversight through judicial review. In contradistinction to non-citizens, Canadian officials are prohibited from sending citizens to be tortured abroad under any circumstances. Nonetheless, it appears that Canadian policies and practices not only contemplate the possibility that citizens would be sent abroad to be tortured but in fact create the conditions under which torture can become a reality. Unlike the United States, Canada does not clearly engage in extraordinary rendition or the direct contracting out of torture. Nothing revealed publicly at the Arar Inquiry to date points to use of such a practice, although it should be noted that a good number of documents have been redacted.45 Although there is insufficient evidence to support the claim that Canada engages in extraordinary renditions, evidence is emerging to support the conclusion that Canada engages in what might be called ‘rendition by proxy’.

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That is, while we do not know whether Canada directly contracts out torture, there is sufficient information to support the view that Canada creates the conditions to allow foreign torturers access to specifically identified Canadian citizens. The most salient feature of rendition by proxy is that Canada will share names with foreign governments, even where the Canadian Government may consider the named individuals innocent, knowing that once they travel outside Canada, the named individual is vulnerable to being picked up by foreign officials and knowing that the named individual may be taken to torture chambers to be interrogated. The disturbing questions that must be asked are: rather than directly contracting out the torture of its citizens, does Canada simply allow foreign governments to pick up Canadian citizens when they are travelling? And, do Canadian officials wittingly or unwittingly provide the information to facilitate this result? It is instructive to note that Canadian officials can legally ask foreign governments to share information from terrorist suspects, including Canadian citizens, even if the information is obtained through torture. Thus, while Canadian law has opened the front door to the possibility of sending a non-citizen to be tortured abroad, it appears to allow this result in relation to citizens furtively through the back door. Again, the manner and extent to which Canadian law permits its security agencies to interact and share information with national security agencies around the globe represents the basis upon which non-citizenship status is constructed. Due Process Rights Often, citizens in Canada have greater procedural protections than do non-citizens. The Supreme Court of Canada has clearly articulated this point in Chiarelli.46 In Chiarelli, the court faced a Charter challenge to the Immigration Act provisions that call for the mandatory deportation of permanent residents involved in serious criminality. Chiarelli challenged the constitutionality of the deportation provisions in the immigration scheme. He argued that deporting permanent residents convicted of certain offences without consideration of the circumstances violated his right to equality because citizens convicted of such offences could remain in Canada. In dismissing Chiarelli’s claim, the Supreme Court stressed that because noncitizens do not have an unqualified right to enter or remain in Canada, parliament has the right to adopt immigration laws and policies which define when an individual can in fact remain in Canada. As a result, it has proven virtually impossible to challenge the process whereby a non-citizen’s claim to enter or remain in Canada is decided. The courts will generally defer to the legislature on such matters.

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In the anti-terrorism terrain, the different levels of procedural protection afforded citizens versus non-citizens is preserved to a certain extent. For example, both the Immigration and Refugee Protection Act and the Criminal Code of Canada contain preventative arrest provisions. The former applies exclusively to non-citizens while the latter technically applies to both citizens and non-citizens. The Criminal Code of Canada introduced detention without charge in section 83.3(2). Acting on information laid by a peace officer, a provincial court judge may order the arrest of a person if there are ‘reasonable grounds’ to believe that an act of terrorism will be prevented and that the arrest of a person is necessary to prevent the carrying out of terrorist activity. Generally, the individual can be held for a maximum of three days without charge. An individual held under the preventative arrest provisions of the Criminal Code can agree to a recognizance order under section 83.3(8). If they refuse to agree to recognizance, then they can be subject to 12 months’ imprisonment. By contrast, immigration legislation permits indefinite detention without charge on allegations of membership in a terrorist organization. The Criminal Code requirement that national security agencies be concerned that the non-citizen is about to commit a terrorist activity does not apply in relation to non-citizens. On its face, Canadian legislation thus appears to preserve a distinction between citizens and non-citizens and grants citizens a larger bundle of rights than are afforded to non-citizens. To be sure, there is much to criticize about this distinction. However, the distinction drawn between citizen and non-citizen in legislation such as the Immigration and Refugee Protection Act and the Criminal Code of Canada obscures the fact that in other important respects, the war against terrorism renders citizenship status irrelevant. Both citizens and non-citizens can be officially labelled ‘terrorist’ by the state purely through an administrative listing procedure with absolutely no due process rights attached. Citizenship becomes less meaningful in this context, at least at the front end of the process. As Liban Hussein’s story illustrates, both citizen and non-citizen can be added to the terrorist list and deemed to be terrorists without investigation. While citizens can challenge this designation if a charge is ultimately laid under the Criminal Code of Canada, charges need not be laid. An individual can be listed without ever being charged. Until charges are laid, the citizen has very few effective avenues to challenge the terrorist designation and it is better to be charged for some terrorist-related offence under the Criminal Code than not charged at all. This is clear from the experiences of Arab Muslim men like Abdullah Al Malki, the man whose relationship with Arar took Arar down the torturous path to Syria and back. Al Malki was held for two years in Syria on suspicion of being a security risk and he thinks that Canadian officials passed on information to the Syrians that led to his

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arrest. He has been under surveillance in Canada for several years. He has lost his business and his friends. Few want to associate with him for fear of being labelled a terrorist or also coming under security scrutiny. Al Malki has asked to be charged so that the allegations against him can be tested but no charges have ever been laid.47 Absent criminal charges, both citizen and non-citizen lack effective mechanisms to contest their being listed. In the end, the terrorist label can be applied to the citizen as easily as it can be applied to a non-citizen and the labelling itself can have significant legal and social consequences. For example, once Liban Hussein was listed as a terrorist by Canada, it became a criminal offence for individuals or institutions in Canada or abroad to have financial dealings with him. The mere fact of being listed resulted in Hussein being ostracized, unable to find a job, and his livelihood destroyed.48 His family, moreover, was traumatized even though Hussein was never officially charged with any crime in Canada and indeed, according to the available information, was never the object of security investigation in Canada. Hence, while the distinction between the Immigration and Refugee Protection Act and the Criminal Code of Canada remains meaningful in many respects, it is also irrelevant in many respects. The fates of citizens Hussein, Arar and others parallel those of noncitizens who have come under scrutiny for alleged links to terrorism. Both innocent citizen and innocent non-citizen have had their lives shattered by state action in the name of Canadian national security. Stephen Toope, who was mandated by the Arar Inquiry to assess the credibility of Mr Arar’s claim that he was tortured in Syria, gives a glimpse into the impact of the war against terrorism on Mr Arar and his family: I conclude that Mr. Maher Arar was subjected to torture in Syria. The effects of that experience, and of consequent events and experiences in Canada, have been profoundly negative for Mr. Arar and his family. Although there have been few lasting physical effects, Mr. Arar’s psychological state was seriously damaged and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been devastated.49

THE LIVING LAW OF ANTI-TERRORISM Citizenship is not meaningless in Canada. On the contrary, Maher Arar’s experiences propelled the Federal Government to establish a Commission of Inquiry which is headed by Justice Dennis O’Connor, one of the most respected and reputable judges in the country. The inquiry was called in part because of the national abhorrence at the thought that a Canadian citizen might have been subject to torture and that Canadian officials might

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somehow have been involved. By contrast, Canadian officials deport noncitizens to countries where they face some risk of torture but few notice such events. Moreover, Liban Hussein reached an out of court settlement with the Federal Government, the terms of which have not been disclosed. Presumably, part of the harm for which compensation was sought includes the loss of reputation and being falsely labelled a terrorist. By contrast, almost two dozen Pakistani non-citizens in Canada were falsely labelled terrorists as a result of an immigration investigation called ‘Project Thread’. It soon became clear that the men had no connections to terrorism. Notwithstanding this fact, they were deported. According to reports published in Canada, the men are threatened in their countries and they cannot find work to support their families because the terrorist label continues to hound them.50 In addition, at least five non-citizens, all Arab Muslim men, have been held in custody in Canadian jails without charge under the preventative security provisions of the Immigration and Refugee Protection Act on the possibility that they may harbour terrorist links.51 Yet, Maher Arar and Liban Hussein’s citizenship stories are not isolated. With the passage of time, more stories are emerging about wrongful accusations against Arab and Muslim Canadian citizens and their mistreatment outside Canada in circumstances which appear to implicate Canadian officials. Collectively, these stories call into further question the extent to which Canadian citizenship rights prove effective for members of the Arab and Muslim community. For example, Abdullah Al Malki has stepped forward and indicated that he too was tortured in Syria as a result of information provided by Canadian officials. Al Malki and Arar shared the same cell in Syria. When Maher Arar first returned to Canada, he recounted seeing Al Malki: On around September 19 or 20, I heard the other prisoners saying that another Canadian had arrived there. I looked up, and saw a man, but I did not recognize him. His head was shaved, and he was very, very thin and pale. He was very weak. When I looked closer, I recognized him. It was Abdullah Al Malki. He told me he had also been at the Palestine branch, and that he had also been in a grave like I had been except he had been in it longer. He told me he had been severely tortured with the tire, and the cable. He was also hanged upside down. He was tortured much worse than me. He had also been tortured when he was brought to Sednaya, so that was only two weeks before. I do not know why they have Abdullah there. What I can say for sure is that no human deserves to be treated the way he was, and I hope that Canada does all they can to help him.52

Another Ottawa resident Ahmad El Maati also found himself ensnared in allegations of having terrorist connections. El Maati came under suspicion of terrorist activity because of a map found in his possession which marked

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off nuclear facilities, virus labs and other government sites in Ottawa. He was interrogated by American and Arab security agents and, he alleges, tortured in Syrian and Egyptian jails in part because of that map. The precise role of Canadian authorities in El Maati’s detention remains to be determined; however, it is clear that El Maati did come under some suspicion by CSIS and it is quite probable that his name was forwarded to security agencies in other countries by Canadian authorities. At first blush, the map looks suspicious because it marks nuclear facilities, a virus lab and other supposed terrorist targets in Ottawa. An investigation by a newspaper reporter in Canada, however, revealed that the map was nothing more than a document issued by the Federal Government for tourists. The nuclear facilities, virus lab and other sites were marked on the map by tourism officials in Ottawa. But, this point appears to have escaped the attention of national and international security agencies. The reporter who investigated the case made the following observations: It is the map of Ottawa – with clearly marked federal nuclear facilities, a virus lab and other supposed terrorist targets – that fuelled an international panic and played into a chain of Middle East detentions of Canadian citizens. The map was of huge interest to U.S. border guards, who grilled Canadian truck driver Ahmad El Maati for hours about it. So, too, did interrogators in Syria and Egypt, where Mr. El Maati says he was tortured and repeatedly asked about the map’s provenance. The Globe and Mail has learned that the map – scrawled numbers and all – was in fact produced and distributed by the Canadian federal government. It is simply a site map, given out to help visitors to Tunney’s Pasture, a sprawling complex of government buildings in Ottawa, find their way around.53

To date, the Canadian Government has refused to call an inquiry into the treatment of Al Malki, Al Maati and another man, Muayyed Nureddin. All three men allege that they were tortured abroad with the complicity of Canadian officials.54 This is unfortunate for the individuals and families whose lives have been profoundly affected in the name of national security. It is also unfortunate for the integrity of the war against terrorism.

CONCLUSION The Canadian Government has consistently claimed that the anti-terrorism legislation balances the rights of individuals with the need for collective security. Yet, there are no mechanisms in place to adequately assess the impact of the war against terrorism on people’s lives. To adequately assess

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the trade-off between liberty and security, one needs to know something about the consequences – particularly the unintended consequences – of the legal regimes under consideration. As the stories of men like Maher Arar and Liban Hussein demonstrate, the individual and community costs are significant. Once again, the long arm of global conflict has permeated Canadian borders, but not in military form. Canada’s participation in global conflicts takes legal dimensions. The war against terrorism has reconfigured the relationship between Arab and Muslim identity and citizenship. Most significantly, Arab and Muslim citizens in Canada cannot assume that the fact of their citizenship will afford them the protection of the Canadian state in the face of acts of foreign governments. This reconfiguration of citizenship does not appear in any legislated pronouncements or policies, rather it is the consequence of the operation of the laws, policies and practices that form the foundation of the war against terrorism and that have embedded racialization into Canadian citizenship status.

NOTES 1. Cicero (2001), ‘Oratio pro annio milone 175’, in Everitt, A. (ed.), Cicero: The Life and Times of Rome’s Greatest Politician, Toronto: Random House, pp. 96–9. 2. International Court of Justice (n.d.), Case Summary: Nottebohm Case (Second Phase), retrieved 2 May 2006, from http://www.icjcij.org/icjwww/idecisions/isummaries/ ilgsummary550406.htm. 3. Anti-terrorism Act 2001 (Canada), also known as Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism, retrieved 2 May 2006, from http://www.parl. gc.ca/37/1/parlbus/chambus/house/bills/government/C-36/C-36_4/C-36_cover-e.html. 4. Pue, W. (2003), ‘The War on Terror: Constitutional Governance in a State of Permanent Warfare?’, Osgoode Hall Law Journal, 41 (267), 292–318. 5. Canada, Senate (2001), Debates of the Senate (Joyce Fairbairn), retrieved 2 May 2006, from http://www.parl.gc.ca/37/1/parlbus/chambus/senate/deb-e/068db_2001-11-07-E.ht m?Language=E&Parl=37&Ses=1. 6. Oxtoby, W. (1980), ‘Western Perceptions of Islam and the Arabs’, in Hudson, M.C. and Wolfe, R.G. (eds), The American Media and the Arabs, Washington, DC: Georgetown University Center for Contemporary Studies; Said, E. (1981), Covering Islam: How the Media and the Experts Determine How We See the Rest of the World, New York: Vintage Books; Ghareeb, E. (1983), Split Vision: The Portrayal of Arabs in the American Media, Washington, DC: American-Arab Affairs Council; Shaheen, J.G. (1984), The TV Arab, Ohio: Bowling Green State University Popular Press; Stockton, R. (1994), ‘Ethnic Archetypes and the Arab Image’, in McCarus, E. (ed.), The Development of Arab-American Identity, Ann Arbor: University of Michigan Press; Volpp, L. (2002), ‘The Citizen and the Terrorist’, UCLA Law Review, 49, 1575; Weston, M.A. and Dunsky, M. (2002), ‘One Culture, Two Frameworks: U.S. Media Coverage of Arabs at Home and Abroad’, Journal of Islamic Law and Culture, 7 (129). 7. MacAfee, M. (2002), Arab and Muslim Canadians Endure Year of Collective Blame, retrieved 1 May 2003, from http://cnews.canoe.ca/CNEWSSept11/arab-cp.html.

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8. Bahdi, R. (2003), ‘No Exit: Racial Profiling and Canada’s War against Terrorism’, Osgoode Hall Law Journal, 41 (summer/fall), 314. 9. McKinney, J. (2001), U.S. Rep. John Cooksey Calls Turbans Diapers on People’s Heads, retrieved 20 September 2001, from http://www.sikhnet.com/sikhnet/discussion.nsf/0/ 720e0e8f1a1ef1a287256acd005865d0?OpenDocument. 10. Department of Justice, Canada and Department of Public Safety and Emergency Preparedness Canada (2004), Summary Report: Public Consultation with Ethnocultural and Religious Communities on the Impact of the Anti-terrorism Act, retrieved 29 November 2004, from http://canada.justice.gc.ca/en/anti_terr/29nov_report.html. 11. Arar, M. (2003), I am Here Today to Tell the People of Canada What has Happened to Me, media release, retrieved 4 November 2003, from http://www.maherarar.ca/cms/images/ uploads/Maher_statement_nov04.pdf. 12. Ibid., p. 6. 13. CBC News (2003b), Syria Frees Jailed Canadian, retrieved 6 October 2003, from http:// www.cbc.ca/stories/2003/10/05/arar031005. 14. Dosman, A.E. (2004), ‘For the Record: Designating “Listed Entities” for the Purposes of Terrorist Financing Offences at Canadian Law’, University of Toronto Faculty of Law Review, 62 (2), 4. 15. Center for Defense Information (2002), The Financial War on Terrorism, retrieved 5 March 2002, from http://www.cdi.org/terrorism/financial.cfm. 16. Galvin, W.F. (2001), Suspected Terrorist List: To Massachusetts Registered Investment Advisers, retrieved 2 May 2006, from http://www.sec.state.ma.us/sct/sctter/teridx.htm. 17. Office of the Superintendent of Financial Institutions (2001), United Nations Suppression of Terrorism Regulations: Administrative Consolidation, retrieved 7 November 2001, from http://www.osfi-bsif.gc.ca/app/DocRepository/1/eng/issues/terrorism/other/admcon01_ e.rtf. 18. United Nations Security Council Committee Established Pursuant to Resolution 1267 (2001), Press Release of November 26, 2001: AFG/169 SC/7222, retrieved 2 May 2006, from http://www.un.org/news/Press/docs/2001/afg169.doc.htm. 19. Dyzenhaus, D. (2005), ‘The Rule of (Administrative) Law in International Law’, Law and Contemporary Problems, 68, 145. 20. Canwest Interactive 2003. 21. Loome, J. (2005), What Price Freedom?, retrieved 12 September 2005, from http://ottsun. canoe.ca/News/ChronicPain/2005/09/11/1212742.html. 22. Sampson, W. (2005), Confessions of an Innocent Man: Torture and Survival in a Saudi Prison, Toronto: McClelland & Stewart. 23. The Constitution Act 1982 (Canada), being Schedule B, Part I, Canadian Charter of Rights and Freedoms, 1982 (UK). 24. Arar, M. (2003), op. cit., p. 3. 25. O’Connor, D., Report of the Events Relating to Maher Arar: Analysis and Recommendations (Part I: Factual Inquiry), p. 14, retreived 18 September 2006 from http://www. ararcommission.ca/eng/26.htm. 26. Ibid., p. 24. 27. Ibid., p. 15. 28. Ibid., p. 15. 29. Patten, W. and Shamir, N. (2005), Human Rights Watch Report to the Canadian Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, retrieved 2 May 2006, http://hrw.org/backgrounder/eca/canada/arar/; Yale-Loehr, S.W. and O’Neill, J.C. (2005), The Legality of Maher Arar’s Treatment under U.S. Immigration Law, retrieved 2 May 2006, from http://www.ararcommission.ca/eng/12i.htm. 30. Loeppky, G.J. (n.d.), Testimony given by Garry Loeppky, Deputy Commissioner of the RCMP, retrieved 2 May 2006, from http://www.maherarar.ca/the%20inquiry%20today %20more.php?id=111_0_19_0_M. 31. Elcock, W. (2004), Transcripts from the Public Hearing for the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 21 June 2004, pp. 221–4,

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32.

33. 34. 35. 36.

37.

38.

39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

51. 52. 53.

54.

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Counter-terrorism and the post-democratic state retrieved 2 May 2006, from http://www.stenotran.com/commission/maherarar/2004-0621%20volume%201.pdf. Elcock, W. (2004), ibid., pp. 256–7; Cabana, M. (2005), Transcripts from the Public Hearing for the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, June 30, 2005, retrieved 2 May 2006, from http://www.stenotran.com/commission/ maherarar/2005-06-30%20volume%2033.pdf. Ibid. pp. 218–19, 241–4. Cabana, M. (2005), op. cit. p. 297; CBC News (2003a), RCMP Report Released on Arar Case, retrieved 24 September 2004, from http://www.cbc.ca/story/canada/ national/2004/09/24/rcmparar_040924.html. Cabana, M. (2005), op. cit., pp. 36–7. Waldman, L. and Edwardh, M. (2004), Submissions on Behalf of Maher Arar on a Motion Regarding the Application of Disclosure of Certain Documents in the Possession of the Government of Canada, retrieved 30 May 2004, from http://www.maherarar.ca/cms/ images/uploads/Motion_Arar_motion1_final_version.pdf. Pillarella, F. (2005), Transcripts from the Public Hearing for the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 14 June 2005, retrieved 14 June 2005, from http://www.stenotran.com/commission/maherarar/2005-0614%20volume%2027.pdf. Easter, W. (2005), Transcripts from the Public Hearing for the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 30 June 2005, p. 101, retrieved 2 May 2006, from http://www.stenotran.com/commission/maherarar/2005-0603%20volume%2021.pdf. Easter, W. (2005), ibid., p. 101. Ibid., pp. 110–12. Mayer, J. (2005), ‘Outsourcing Torture: The Secret History of America’s Extraordinary Rendition Program’, The New Yorker, 14 February, retrieved 2 May 2006, from http:// www.newyorker.com/fact/content/?050214fa_fact6. O’Connor, Dennis, op. cit., p. 25. Ibid., p. 23. Suresh v Canada (Minister of Citizenship and Immigration), (2002) 1 SCR 3. Waldman, L. and Edwardh, M. (2004), op. cit. Canada (Minister of Employment and Immigration) v Chiarelli, (1992) 1 SCR 711. Al Malki (2005), personal communication, 5 June. Cohen, S. (2002), Liberty and Security: Can we Have Both?, retrieved 2 May 2006, from http://www.isrcl.org/Papers/Cohen.pdf. Toope, S.J. (2005), Fact Finder’s Report on Maher Arar’s Treatment in Jordan and Syria, 27 October p. 23, retrieved 4 May 2006 from http://www.ararcommission.ca/eng/17.htm. Khan, S. (2004), ‘Shattering the Fantasy of Multiculturalism: Project Thread and Canada’s Secret War on Immigrants’, Samar Magazine, retrieved 2 May 2006, from http://www.samarmagazine.org/archive/article.php?id=149; Miranda, F. (2004), One Year Anniversary of ‘Project Thread’ Pre-dawn Raid: 24 Men Arrested, only 7 Remain, retrieved 2 May 2006, from http://www.ainfos.ca/04/aug/ainfos00119.html. CBC News (2004), Security Certificates Constitutional: Court, retrieved 21 December 2004 from http://www.cbc.ca/story/canada/national/2004/09/24/rcmparar_040924.html. Arar (2003), op. cit., p. 8. Sallot, J. and Freeze, C. (2005), ‘The Diagram that Caused the Fuss: Ahmad El Maati was Imprisoned and Tortured when a Map issued by the Government Came to Haunt Him’, The Globe and Mail, 6 September, retrieved 2 May 2006, from http://www.theglobeandmail.com/servlet/story/RTGAM.20050906.wxmap06/BNStory/National/. Amnesty International (2006), A Chronology of Non-accountability, retrieved 1 March 2006, from http://www.amnesty.ca/archives/resources/non_accountability_chron.pdf.

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Everyone and the citizen: the devaluation of principles and protection Guy S. Goodwin-Gill

Globalization and the global war on terrorism have much to answer for. These are both massive subjects, and this chapter allows for just three points and for one somewhat summary conclusion regarding the devaluation of principles and protection. In what follows, I use the word ‘principles’ to describe those primarily international legal principles and consequential rules which seek to guarantee fundamental human rights to everyone, an approach that is also common to many constitutional bills of rights. By ‘protection’, I betray my background as a refugee lawyer, where ‘the international protection of refugees’ is something of a term of art. Here, it implies the use by the office of the United Nations (UN) High Commissioner for Refugees, by individual refugees and asylum seekers, and by advocates of the legal tools – international treaties and national laws – which set out the rights and obligations that are intended to ensure, among others, non-refoulement (that no refugee shall be sent back to any country in which he or she is at risk of death, torture, or persecution); and the full complement of rights and liberties that will allow the refugee to find a durable solution to his or her situation. By ‘globalization’, I have in mind not merely the economic driving forces, increased market competition, international capital movements and technological innovation, but also the decisions of national political authorities which facilitate and often encourage these developments.1 I also have in mind the impact of ‘globalization’ on national sovereignty – on the narrowing of the realm for local responses and in the damage done to the rule of law, considered to be a fundamental constitutional principle in any system of democratic, representative and accountable government. I understand ‘security’ to mean, in standard Oxford English Dictionary terms, ‘the condition of being protected from or not exposed to danger’ and 101

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‘the safety or safeguarding of (the interests of) a state’. I further understand the word to cover not merely the territorial, military or political interests of the state, but also the conditions of ‘human security’, including the protection of human rights. Within the regime established by the UN Charter, ‘security’ is integrally linked to ‘international peace’, the maintenance of which is one of the ‘Purposes’ of the organization and is traditionally premised on the prohibition of the use or threat of force in the international relations of states and on the peaceful settlement of disputes.2 But stability and well-being are also necessary for peaceful and friendly relations among states, so the UN and its members have social justice and human rights responsibilities as well.3 I use ‘rule of law’ to express both a legal rule and a political ideal. In these senses, rule of law serves the purpose of stressing the ‘virtue of rules’ – legality, certainty, consistency, uniformity, congruence to purpose, accountability loosely so called, and the principle that law itself should be exercised in accordance with certain substantive and procedural standards of justice; in this sense, the ‘rule of law’ goes beyond the purely formal and descriptive, and into the normative realm. The political and social context in which I want to examine the application of these principles is primarily the United Kingdom (UK). Here, in recent times, the Prime Minister has claimed that ‘the rules of the game are changing’; here, too, the Secretary of State for Home Affairs has published a list of ‘unacceptable behaviours’ (sic);4 and here, it is now an offence to ‘glorify’ terrorism.5 Presumably this means that someone will have to decide whether it is to ‘glorify’ terrorism to hail the Irish Easter Rising as it approaches its centenary in 2016, the American War of Independence, the 1605 Gunpowder Plot, and presumably also the bomb attack on Hitler in 1944. This chapter does not deal so much with terrorism, as with the others, the strangers in our midst – refugees, asylum seekers, and migrants – who are now caught up in the ‘security framework’. This chapter, therefore, is not about ‘creating’ non-citizens, but about the deliberate, intentional accentuation of alienage, of otherness – a process which may appear a natural defence against the traditional external enemy, but which rapidly turns inwards.

REFUGEES, ASYLUM SEEKERS, MIGRANTS There is no past, ideal world in which refugees, asylum seekers and migrants were ever welcome and at ease. With the rise of the nation state, alienage and citizenship entrenched themselves as acceptable bases for distinction

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and discrimination, notwithstanding humanitarian concerns or individual needs. When refugees from Nazism were discussed in the League of Nations in 1938, it was not humanitarian need that counted for states, but the economic, social and public order problems, and the ‘severe strain on the administration facilities and absorptive capacities of the receiving nations’. It was argued that racial and religious problems would be rendered more acute, international unrest increased, and the ‘processes of appeasement in international relations’ hindered.6 After the Second World War, however, refugees suddenly acquired a measure of political significance, at least if they could be classed as victims of persecution. With the end of the Cold War and with the globalization of the world economy, that significance has vanished. It is their perceived costs which are now the primary concern, against which their rights or claims must be discounted. The intrinsic value of the protection system built up over so many decades should not be discarded, however; approximately 55 years ago, the drafters of the 1951 Convention relating to refugees, meeting in Geneva, understood that a refugee was someone in fear of persecution. They knew that the refugee question was an international issue, and that its solution called for international cooperation. They also knew that refugee protection incurred costs, moral, political and material, and they were sensitive to the security dimensions of refugee movements – after all, the world in 1951 was not a world at peace with itself. Still, they managed to draft a treaty which successfully balanced many of these apparently competing interests. Even when states came to update the Convention in New York in 1967, they left the basic structure unchanged. No one in 1951, of course, could have foreseen the way the world would develop. No one could have foreseen, either, how travel would open up the world and the windows of opportunity, or how information would impact on populations struggling to earn a living, or how inequality, not social justice, would seem to be the order of the day. Nor could anyone have foreseen how the failure to recognize the human and international dimensions to migration – and to put principled order into the migratory relations of states – would itself be a cause for tension and frustration, and a cause for discrimination and denial of rights. As a matter of principle, it is not unlawful to move, to migrate, any more than it is to seek asylum. Migration is the result of a rational choice to leave one’s home, region or country, with a view to settlement or survival elsewhere. There may be many reasons – to seek work, to escape, to join one’s family or friends – but there is no necessary reason which gives one motive for migration greater ‘legitimacy’ than another. In practice, of course, the decision to migrate may be less than free, and will frequently reflect a strategic option, rather than the simple exercise of an ideal of

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freedom of movement. But when that movement becomes ‘international’, it is still seen as challenging nation-state preconceptions about territory, membership and power. Some migration has to be tolerated by states, because it is demanded by the policies and institutions of a globalized economy. So in return for actual or possible investment, or to maximize competitiveness, states will open official immigration to workers having needed skills, or to those whose contribution to the economy will be time-limited.7 In this way, the state can often take the benefit of profit and investment while blocking ‘costly’ family member migration and avoiding local long-term commitments to pensions or social security – re-exporting the worker when he or she is no longer needed. The migrant without economic influence, or who is not backed by global capital, is left to be confronted with the full authority of the state, now desperate to reassert its power, and increasingly deaf to claims for protection against persecution, torture and/or war. This is well illustrated in recent United Kingdom (UK) law and practice in relation to asylum seekers. Over the last few years, the UK has used detention, mandatory accommodation, food vouchers, denial of employment, and pauperization to signal and maintain the non-membership of the asylum seeker in the local community, while simultaneously emphasizing, for the benefit of an often hostile media, the allegedly unacceptable costs of dealing with those seeking protection. These ‘aggressive’ policies in turn are advanced against a background – almost a tradition – of institutional inadequacy, inefficacy and ineptitude, for which the migrant and the asylum seeker are identified as responsible.8 The so-called problem of non-removal, or the extent of social costs alleged to flow from the asylum problem, for example, are the consequence of other policy decisions deliberately taken and maintained: from under-resourcing and failure of due process from the start, through to denial of the right to work (for fear that developing links with the community may disprove the lies and myths which the Government happily allows to pass uncorrected in the tabloid media). This is the context, then, in which the UK Government sought to implement its policy of ‘pauperization’. Section 55 of the Nationality, Immigration and Asylum Act 2002 requires the Secretary of State to refuse (social) support to an asylum seeker if not satisfied that his or her claim was made as soon as reasonably practicable after the claimant’s arrival in the UK. The burden is on the applicant to show entitlement, and there is no appeal against refusal. There are certain ‘savings’, however, and support is not to be refused if it is necessary for the purpose of avoiding a breach of a person’s rights under the Human Rights Act. Given that asylum seekers

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are also denied permission to work, the application of section 55 duly led to destitution as intended; it was challenged in the courts. In February 2003, a judge at first instance, Collins J, found that the effect of section 55 was that a considerable number of asylum seekers would be left destitute without means of support.9 The process failed, at every level, to take account of individual circumstances. Although the state has no duty to provide a home, perhaps even no duty to provide any form of social security, when denial of support was combined with denial of work, the result was a ‘real risk’ of inhuman or degrading treatment, such that Article 3 of the European Convention on Human Rights would be engaged.10 Similar rulings soon followed in other courts, although with differences between them over the test to be applied.11 For its part, the Government continued to argue in favour of the policy, claiming even that having to ‘sleep rough’ in consequence was not unacceptable. The appeal judges disagreed, although here too there were differences on the question of the test or threshold,12 and the issue was finally settled by the House of Lords in the case of Limbuela.13 There, the court held that a decision to withdraw support under section 55(1) was an intentionally inflicted act for which the Secretary of State was directly responsible and that the obligation under Article 3 of the Convention in relation to such acts was absolute. In his extensive judgment, Lord Hope took time to address the so-called positive obligation/negative obligation dichotomy, pointing out that while the prohibition in Article 3 ‘is in one sense negative in its effect, as it requires the state ... to refrain from treatment of the kind it describes ... it may also require the state ... to do something to prevent its deliberate acts which would otherwise be lawful from amounting to ill-treatment of the kind struck at by the article’.14 Lord Brown considered that analysis in these terms often produced ‘false dichotomies’: ‘The real issue ... is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim’.15 In determining the point at which ill-treatment attains the minimum level of severity so as to bring it within the Article 3 sense of inhuman or degrading treatment, Lord Hope cited the jurisprudence of the European Court of Human Rights, and specifically the case of Pretty v United Kingdom: As regards the types of ‘treatment’ which fall within the scope of article 3 of the Convention, the court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical

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or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.16

It is not necessary for such a level of ill-treatment actually to have occurred; as soon as an asylum seeker shows that there is an ‘imminent prospect’ of conditions reaching the necessary degree of severity, the duty to avoid it arises. The stand taken by the courts at different levels shows how, when received into national law, human rights can help to control the policies and mitigate the consequences of government action that is contrary to international legal standards. Despite the measured judicial response, the overall attitude towards the ‘outsider’ has not changed and the Government has turned its attention now to the so-called ‘failed asylum seeker’.17 The policy position has been expressed as ‘tackling the culture of “something for nothing”...’. The failed asylum seeker, denied the right to work, will now be denied support, irrespective of individual or social circumstance. Again, there is opposition, particularly from the local authorities and service providers who have the social responsibility for families and children and who are now called on to do central government’s work.18

SECURITY The second illustration of the devaluation of principles and protection draws on the security measures introduced, again in the UK. The most recent legislation draws on a long history of combating terrorist activities arising from the situation in Northern Ireland, spurred on by the events of 11 September 2001 and now, of course, by the London bombings and attempted bombings in July 2005. This chapter can do no more than touch the surface of a problematic area, looking at the Government’s response to the message from the courts: that whatever is done to meet the challenge must be consistent with the rule of law (and, I would add, with the UK’s international obligations).19 The UK’s initial response post-11 September 2001 (9/11) to suspected international terrorists was premised on a number of assumptions: (1) that they were foreign nationals; (2) that they could not be tried for any offence in the UK (either because they had committed none, or because the security services were unwilling to risk disclosure of their sources in open court); and (3) that they could not be deported to their country of origin, because there they would be at risk of torture. Faced with the authority of the rule prohibiting torture and return to torture, the UK chose a policy of indefinite

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detention of ‘suspected terrorists’ under Part 4 of the Anti-Terrorism Crime and Security Act 2001. Authority to detain follows from ‘certification’ by the Secretary of State, with only circumscribed opportunities for review involving the use of special advocates, non-disclosure of certain types of evidence, and limited powers of review and release. In December 2004, in the case of A v Secretary of State for the Home Department, the House of Lords declared Part 4 of the Anti-Terrorism, Crime and Security Act to be incompatible with the detainee’s human rights (under the European Convention of Human Rights, as incorporated by the Human Rights Act 1998), in particular because it discriminated against non-citizens.20 The Government’s response was not rights-oriented. It did not address the issue of discrimination. It did not move to prosecute those detained, or to make the necessary changes so as to permit the use of intercepted communications evidence in court, and it did not seek to rewrite its legislation from a human rights perspective.21 Instead, it announced renewed efforts to secure so-called diplomatic assurances which, it claimed, would allow the Government to deport individuals to countries where they would otherwise be at risk of torture.22 Notwithstanding the Government’s declared intention to seek out deals on the non-torture of prospective deportees, the international legal authority of the principle of non-return, regionally and internationally, should not be underestimated. The Government itself admitted as much in statements to the UN Committee against Torture, even as it set out its position on ‘assurances’.23 The central importance and value of the principle is no more clearly stated than in D v United Kingdom, where the European Court of Human Rights held that: in exercising their right to expel ... Contracting States must have regard to Article 3 of the Convention …, which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 … prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question ….24

The very process of seeking assurances is full of contradictions. Clearly, the fact that assurances are sought is a tacit admission by the deporting state that the individual concerned is at risk, that the state of destination does torture or permit torture. This is well illustrated by the facts in Agiza v Sweden, a case which involved an instance of so-called rendition in December 2001 by members of the US Central Intelligence Agency (CIA), acting with the cooperation of Swedish authorities. The UN Committee against Torture

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found that the Swedish Government knew or ought to have known that torture was practised in Egypt, and that ‘security detainees’ were especially at risk. The Government argued that it had obtained assurances from the Egyptian authorities that torture would not be used, but in the view of the Committee, assurances without any ‘enforcement’ mechanism provided no protection against that risk.25 In fact, the question of return to Egypt had already been considered in an earlier case in the UK, where the Prime Minister, Mr Blair, had sought unsuccessfully to override the opposition to removal of both the Home Office and the Foreign Office.26 Documents revealed in the case of Youssef v Home Office not only confirmed the likelihood of torture or ill-treatment in the case of politically active individuals, such as the complainant; they also showed the Prime Minister anxious, against the weight of the evidence, not to ‘press’ the Egyptian authorities too hard, and prepared even to forego any assurance as to post-return monitoring.27 Whether the UK’s renewed efforts to obtain diplomatic assurances against torture will go beyond forms of words remains to be seen. A memorandum of understanding has been signed with the Kingdom of Jordan,28 but it has not been applied as of the time of writing; there are reportedly problems in identifying an appropriate and willing monitoring body at the Jordanian end, and some concerns also about whether the death penalty might still be imposed. Whether this and other similar agreements will pass review by the courts also is open to doubt; due process, evidential requirements, reasons for decisions, and other procedural protections have been recognized as relevant by the Supreme Court of Canada in the case of Suresh,29 and are likely to be shared by jurisdictions having common values, such as those party to the European Convention on Human Rights.30 The UK Government’s approach again has been to warn the courts that they should respect any government-to-government agreements paving the way to the deportation of suspected terrorists.31 From a democratic and rule of law perspective, however, one may note that the Government has not so far suggested that Parliament itself should exercise any control over the assurances process, preferring to keep the issue at executive-to-executive level.32 Equally, in such an important field as that of non-derogable rights, the Government’s approach is not to seek a balance between the community’s interest in security and the rule of law, and the individual’s interest in security and the rule of law, but rather to move to executive accommodations on fundamental rights. In the meantime, and arising out of other aspects of the British Government’s measures to counter various alleged threats, the House of Lords has had occasion to underline the constitutional dimension to the prohibition of torture. In a case which concerned, among others, the use of evidence obtained by torture, the court found that:

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from its very earliest days the common law of England set its face firmly against the use of torture ... In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.33

The condemnation of torture, said Lord Bingham, ‘is more aptly characterised as a constitutional principle than as a rule of evidence’.34 As Lord Hope put it: The use of such evidence is excluded not on grounds of its unreliability – if that was the only objection to it, it would go to its weight, not to its admissibility – but on grounds of its barbarism, its illegality and its inhumanity. The law will not lend its support to the use of torture for any purpose whatever. It has no place in the defence of freedom and democracy, whose very existence depends on the denial of the use of such methods to the executive.35

GOVERNMENT (AND AUTHORITY) It is in relation to the role of the executive (again, in the particular constitutional arrangements presently prevailing in the UK), that I make my third point. Article 21(3) of the 1948 Universal Declaration of Human Rights provides a straightforward statement of the principle of representative democracy: ‘the will of the people shall be the basis of the authority of the government’. Simple and straightforward, perhaps, but it increasingly raises questions, notably about the freeness and fairness of elections held to determine ‘the will of the people’, but also about the system whereby votes are translated into legislative seats, and governments are appointed and held to account. The system in the UK is usually referred to as ‘first past the post’. Without going into detail, one of its practical consequences is that a political party obtaining, for example, 40 per cent of votes cast can find itself with an overall majority of 160 or so seats in a legislature of 650. Even with around 35 per cent of votes cast, it can still end up with a majority of more than 60 seats.36 In practice, this means that the government of the day may in fact be that least preferred by voters, that elections are effectively decided in just a few marginal constituencies, that voters do not enjoy meaningful equality, that diversity of views and policies is sublimated to the interests of established parties (and their corporate sponsors), and that an executive (government) drawn from the legislature is effectively not accountable, given the combination of substantial majorities and party discipline.37 The marginalization of minority groups and communities is a further result of

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this system, and a factor in alienation which cannot be disregarded in any analysis of popular discontent and varying degrees of community and inter-community violence. In 1995, the nowadays much maligned (and now departed) United Nations Commission on Human Rights adopted a resolution on promoting and consolidating democracy. In words since taken up by the UN General Assembly and in the work of regional and other organizations, it called for ‘the widest participation in the democratic dialogue by all sectors and actors in society’. In the context of elections, it urged a ‘pluralistic system of political parties and organizations, the independence of the judiciary, transparency and accountability in public administration’; it called for ‘maximising the participation of individuals in decision-making ...’, and measures to address ‘the representation of under-represented segments of society’.38 A similar position has been adopted by the Human Rights Committee, within the framework of a general comment on Article 25 of the 1966 International Covenant on Civil and Political Rights.39 Simplistic voting systems are seen increasingly as inadequate to the purpose of reflecting the will of the people and to achieving the goal of democratic, representative and accountable government. Although few international bodies have gone so far as to challenge the compatibility of ‘first past the post’ with the principle of the will of the people, increasing attention is being given to representation, to pluralism, to the involvement of women in politics, to popular participation, to equality of the vote, and to the deliberative dimensions of democratic government.40 As the authors of a recent Council of Europe paper put it, one of the problems that ‘democratic societies’ have faced in recent years has been ‘... a steady erosion of the scope of democratic decision-making ... a shift ... from politics to administration, from democracy to technocracy, ... reducing the space for the voice, influence and control of citizens’.41 In a recent British Broadcasting Corporation (BBC) World Service poll, 65 per cent said their country was not governed by the will of the people. Not surprising, perhaps, since many were not democracies; but 64 per cent in Europe also agreed.42 In the UK, there is an alarming degree of nonregistration – 9 per cent – of those eligible to vote; the young, the poor, and the ethnic minorities vote less; the lack of choice combined with the systematic inequality of individual votes are factors in that silent abstention. No government elected by a mere 25 per cent of the vote can claim a mandate from the people. But they do; and when challenged on divisive or controversial issues, they commonly react with assertions of elected legitimacy; the recent debates in the UK on asylum and terrorism provide ample evidence of these claims, as do periodic political attacks on the ‘democratic credentials’ of the courts. Although they must remain sensitive

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to security issues, it is not the role of the courts to give way to baseless executive claims. The courts are not an undemocratic unelected force, but a central participant in the democratic process, where power and policy are to be exercised responsibly, accountably, and within the rule of law. As Lord Bingham pointed out in the Belmarsh case, ‘While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision’.43 In my view, neither democracy itself nor democratic representative and accountable government are seriously threatened by terrorism. One of the strengths of democracy, after all, is the very expendability of Prime Ministers, Presidents, Secretaries of States, and the like. But I do think that democracy today is challenged by other, more insidious and anti-democratic tendencies – by untrammelled transnational corporate power, particularly in sections of the media; by the rise of the effectively non-accountable executives; by the damage done to legislative and accountability controls by party discipline in non-representative parliaments; by obsessive insistence on competitive, all or nothing, good or evil, politics, to the detriment of deliberative and consensual politics, and by the assault on the courts and the rule of law. One starting point here must be human rights, and they begin with the dignity and worth of every human being.44 Minor exceptions apart, human rights are written for everyone, and if a distinction is to be made, it must be to meet a special need, such as the best interests of the child, or to defeat a special risk, such as torture or persecution. As was remarked in opening this chapter, however, globalization and the global war on terrorism have much to answer for. Globalization itself puts much of our local culture in doubt, or in the shade; we are no longer confident that we are a part of the cultural process, or that we can influence its design, or whether we must simply bear the economic, social and cultural flattening around us.45 For those unconcerned with principle, or for whom issues are merely means to the ends of power, the ‘new’ interest in security has coincided fortuitously with the ‘new reality’ of globalization. Zealous executives have sought to maximize their control, particularly but not exclusively, over the marginalized and the displaced, and as the law and practice described above or the excesses of Guantanamo Bay show, one aspect of today’s ‘war on terrorism’ is equally the removal of those whom the executive suspects, from the protection of the rule of law. Long-established principles, such as everyone’s entitlement to fundamental human rights, to protection against torture and inhuman treatment, to recognition as a person before the law, to a remedy for violation of rights, are increasingly under attack. Many political systems are also silent witness to the marginalization of sections of the people, often failing adequately to

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link the act of voting to an outcome even approximately representative of society at large, or to translate the will of the people into the institutions of representative and accountable government. Social and minority groups are not engaged, many citizens and residents are alienated from participation in political decision-making, and frustration and disillusion follow. The results overall disclose a major democratic deficit. Who, then, will help make good the deficiency, if not the courts applying the rule of law? For they are not some undemocratic adjunct to the institutions of representative and accountable government; on the contrary, the courts are essential to the continuing evolution and strengthening of the democratic process, in which the separation of powers has proven its worth time and again. It is here that we need to focus, not on defining the indefinable, or debating the unacceptable, or sanctioning ever-increasing controls over the lives of the members of the community – citizens, workers, ourselves, and those to whom we owe a duty of protection. For if we are all in the plague, so we must all of us resist falling victim.46

NOTES 1. Schmitter, P.C. and Trechsel, A.H. (2004), The Future of Democracy in Europe: Trends, Analyses and Reforms: A Green Paper for the Council of Europe (commissioned by the Secretary General of the Council of Europe), Strasbourg: Council of Europe Publishing, 18f. 2. Article 1, United Nations Charter. 3. Ibid., Articles 1(3), 55, 56. 4. Home Office (2005), ‘Tackling Terrorism – Behaviours Unacceptable in the UK’, Press Release, Reference 124/2005, 24 August. 5. Under the rubric of ‘encouragement of terrorism’, a person commits an offence if he or she makes ‘statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism …’. Such statements include every statement which – (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances’. Section 1(3), Terrorism Act 2006. 6. (1938) 19 (8–9) LNOJ 676–7. 7. For recent proposals to introduce such a system in the United Kingdom, see Home Office (2006), ‘A Points-based System: Making Migration Work for Britain’, CM. 6741, March; Home Office (2005), ‘Controlling our Borders: Making Migration Work for Britain. Five Year Strategy for Asylum and Immigration’, CM. 6472, February. 8. Although they were written earlier, the appropriateness of these critical words could hardly have been illustrated better than by the débâcle revealed in April and May 2006 over the failure to initiate deportation procedures with regard to non-citizen convicted prisoners; see, among others, Silverman, J. (2006), ‘Problem of Dealing with Foreign Criminals’, BBC News, 25 April: http://news.bbc.co.uk/1/hi/uk/4940828.stm. 9. R (Q and Others) v Secretary of State for the Home Department [2003] EWHC 195; extracts annexed to the judgment of the Court of Appeal at [2004] QB 36, 85.

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10. [2003] EWHC 195, §§70–2. Article 3 of the European Convention on Human Rights provides: ‘No one shall be subject to torture or to inhuman or degrading treatment or punishment’. Cf. the comment of the Court of Appeal in R v Anufrijeva: ‘There is a stage at which the dictates of humanity require the state to intervene to prevent any person within its territory suffering dire consequences as a result of deprivation of sustenance. If support is necessary to prevent any person in this country reaching the point of Article 3 degradation, then that support should be provided’: [2004] QB 1124, [2003] EWCA Civ 1406, §35. 11. Among others, see also R (S and Others) v Secretary of State for the Home Department [2003] EWHC 1941. 12. See R (Q and Others) v Secretary of State for the Home Department [2004] QB 36, 85; R (Limbuela) v Secretary of State for the Home Department [2004] QB 1440; [2004] EWCA Civ 540. 13. R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. 14. Ibid., §46. 15. Ibid., §92. 16. Pretty v United Kingdom (2002) 35 EHRR 1, §52. See Goodwin-Gill, G.S. (2003), ‘Refugees and their Human Rights’, Barbara Harrell-Bond Lecture, Working Paper No. 17, University of Oxford: Refugee Studies Centre, 12 November, for earlier criticism of Court of Appeal approaches to the issue of ill-treatment. 17. See Churcher, J. (2006), ‘MPs Propose New Crackdown on Failed Asylum Seekers’, Independent, 26 March; ‘Blair Sets Asylum Removal Target’, BBC News, 16 September 2004: http://newswww.bbc.net.uk/1/hi/uk_politics/3661178.stm. 18. See, for example, Ward, D. (2005), ‘Disabled Refugee Family Fights Benefits Withdrawal’, Guardian, 15 August, p. 10; ‘Failed Asylum Seeker Evicted from Home’, Guardian, 29 August, p. 6. Section 9 of the Asylum and Immigration Act 2004 (Treatment of Claimants, etc.) removes the powers of local authorities to support failed asylum seekers who have been ‘certified’ as refusing to leave the UK voluntarily. See Willman, S. (2005), ‘Starving Them Out’, New Law Journal, 155, 1337. 19. This position is equally consistent with Security Council and General Assembly resolutions, unequivocally supported by the United Kingdom. These have reiterated the necessity for states to ensure that measures taken to combat terrorism comply with all their obligations under international law, and that such measures should be adopted in accordance with international law, in particular international human rights, refugee, and humanitarian law; see, for example, Security Council Resolution 1456, 20 January 2003, Annex, ‘Declaration on Combating Terrorism’, para. 6. 20. [2005] 2 AC 68; [2004] UKHL 56. 21. Under the UK’s Human Rights Act 1998, a minister in charge of a bill in either House of Parliament is required to make a statement in writing to the effect that, in the minister’s view, the provisions of the bill are compatible with convention rights, or a statement to the effect that, although no such statement of compatibility can be made, the Government nevertheless wishes the House to proceed with the bill: section 19. Such statements to date appear to reflect wishful thinking, rather than any serious assessment of the proposed legislation and its consequences. In this author’s view, the UK is still working its way towards a human rights culture and until parliamentary drafters show themselves able to write legislation in non-gender specific language (as they do in Canada), the twilight zone is likely to continue. 22. While outlining the Government’s plans to replace indefinite detention, the Home Secretary told the House of Commons that the government had been trying for some time ‘to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking memorandums of understanding with their countries of origin. We are currently focussing our attention on certain key middle-eastern and north African countries. I am determined to progress with this energy.’ Hansard, HC debates, 26 January 2005, col. 307. 23. ‘The UK is committed to abiding by its international obligations and it is UK policy not to remove any person to another state where there are substantial grounds for believing

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24.

25. 26. 27.

28.

29. 30.

31. 32.

33. 34. 35.

36.

37.

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Counter-terrorism and the post-democratic state that he or she would be in danger of being subjected to torture ... But if we consider that securing assurances from a state authority will enable us to remove a person to a country in a manner consistent with our international obligations, then we believe it is worth trying to do so. We acknowledge that this is a difficult area, but believe that, properly handled, assurances can help us meet our international human rights obligations, while allowing legal processes to be properly carried out’: Glover, Dame A. (2004), UK Responses to the UN Committee against Torture, 18 November; see also Committee against Torture, ‘Conclusions and Recommendations: Fourth Periodic Report of the United Kingdom of Great Britain and Northern Ireland’: UN doc. CAT/C/CR/33/3, 10 December 2004, sections 4(d), 5(i). The UK’s statement of position to the Committee is in marked contrast to that of the British Prime Minister, Mr Blair, as disclosed in Youssef v Home Office [2004] EWHC (QB) 1884. (1977) 24 EHRR 423, para. 47; see also Article 7, 1966 International Covenant on Civil and Political Rights; Article 3, 1984 Convention against Torture; Articles 5, 22(8), 1969 American Convention on Human Rights; Article 13, Inter-American Convention against Torture. See also, United Nations Human Rights Committee, General Comment No 20 (1992): ‘In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’. Agiza v Sweden: UN doc. CAT/C/34/D/233/2003, 20 May 2005. Youssef v Home Office [2004] EWHC 1884. On a related matter (whether it was known or believed that evidence had been obtained by torture), Lord Hoffmann noted in A and Others v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249, 1296, §98 that, ‘It appears to be the practice of the security services, in their dealings with those countries in which torture is most likely to have been used, to refrain, as a matter of diplomatic tact or a preference for not learning the truth, from inquiring into whether this was the case’. For text, see ‘Memorandum of understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Hashemite Kingdom of Jordan regulating the provision of undertakings in respect of specified persons prior to deportation’, International Legal Materials, 44 (2005), 1511. Suresh v Minister of Citizenship and Immigration [2002] SCR 3, paras 123–7. The UN Human Rights Committee has expressed itself in similar language in its General Comment on states of emergency and non-derogable rights: General Comment No. 29, ‘States of Emergency (Article 4)’: UN doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 15. See also Council of Europe Parliamentary Assembly Resolution 1433 (2005), ‘Lawfulness of detentions by the United States in Guantánamo Bay’, 26 April. ‘Terrorism: Clarke’s Balancing Act’, Guardian, 7 September 2005, p. 23. In May 2006, it was reported that the British Government had only been able to secure oral assurances from the government of Algeria; see Norton-Taylor, R. (2006), ‘UK Fails to Secure Deal on Algerian Deportees’, Guardian, 2 May. A and Others v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249, per Lord Bingham at 1259, §11 (citing sources back to the 15th century). Ibid., §§12, 51; see also Lord Hoffmann, §83. Ibid., at 1300, §112; see also §126 for the list of practices authorized for use in Guantanamo Bay by US authorities, ‘some of which would shock the conscience if they were ever to be authorised for use in our own country’. In the 2001 British General Election, the winning Labour Party polled 40 per cent of votes cast, and obtained a majority of 166 seats; in the 2005 general election, the same party polled 36 per cent of votes cast (amounting to no more than some 25 per cent of the total electorate) and obtained a majority of 66 seats. Further on the election results, see http://www.electoralcommission.org.uk/election-data. Dummett, M. (1997) (and others before and since) refer to this as ‘elective dictatorship’; Principles of Electoral Reform, Oxford: Oxford University Press, p. 8.

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38. Commission on Human Rights resolution 1995/60, ‘Ways and means of overcoming obstacles to the establishment of a democratic society and requirements for the maintenance of democracy’, adopted without a vote, 7 March 1995. 39. Human Rights Committee, General Comment 25, 12 July 1996; collected in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, 167. 40. On which see Goodwin-Gill, G.S. (2006), Inter-Parliamentary Union: Geneva. Part 1, ‘Free and Fair Elections: Further Steps along the Democracy Road’, in Free and Fair Elections, 2nd edition, Geneva: Inter-Parliamentary Union. 41. Schmitter and Trechsel (2004), op. cit., p. 61. 42. BBC (2005) ‘States Not Run “by People’s Will”’, http://news.bbc.co.uk/1/hi/world/ europe/4247158.stm , 14 September. 43. A and Others v Secretary of State for the Home Department [2005] 2 AC 68, 108, §39. Lord Bingham did not say what body he had in mind, or whether the Queen in Parliament satisfies that description any more. 44. ‘All human beings are born free and equal in dignity and rights’: Article 1, 1948 Universal Declaration of Human Rights; text in Brownlie, I. and Goodwin-Gill, G.S. (2006), Basic Documents on Human Rights, 5th edition, Oxford: Oxford University Press, p. 23. 45. Goodwin-Gill, G S. (2002), Toleranz in einem Zeitalter der Ungewißheit/Tolerance in an Age of Uncertainty, Goetschel, W., ed., Vienna: Passagen Verlag, p. 64. A further consequence is the devaluation of the individual considered or determined to be ‘non-productive’, whether citizen or non-citizen, migrant, refugee or asylum seeker; see generally Jordan, B. and Düvell, F. (2003), Migration – The Boundaries of Equality and Justice, Cambridge: Polity Press. 46. ‘We are all in the plague ... All I know is that one must do one’s best not to be a plague victim ... And this is why I have decided to reject everything that, directly or indirectly, makes people die or justifies others in making them die.’ Albert Camus (1948), The Plague, trans. Stuart Gilbert, London: Penguin Books, pp. 206–7.

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Dangerous evasions: enforcing limits on government action in the ‘war on terror’ Devika Hovell1

In the climactic scene in Dangerous Liaisons, Vicomte de Valmont effectively evades accountability for his betrayal and abandonment of Madame de Tourvel by his powerfully shameless repetition of the phrase, ‘It’s beyond my control’. There is, of course, no natural symbiosis between the tribulations of a buckled and corseted French aristocracy and the challenges of counter-terrorism. Yet this scene, and in particular the repetition of this apparently exculpatory yet hollow phrase, occasionally springs to mind in the face of repeated governmental statements about ‘national security’, ‘state of emergency’ and ‘war’. At every level of government, such language is being used to create the impression that the principal actors have little choice except to implement an increasingly invasive raft of counter-terrorism measures. ‘It’s beyond our control’, says the executive government. ‘We’re in a “state of emergency”’. ‘It’s beyond our control’, says the legislature. ‘We have to pass this legislation (though we acknowledge it is hastily pushed through and ill-considered) because we are in a “war against terror”’. ‘It’s beyond our control’, say the courts. ‘The issue implicates “national security concerns” – it is not for us to decide’. The key problem addressed in this chapter is the legal effect of such language, which has the sometimes surreptitious effect of generating exceptions to existing legal standards. While the measures may be intended only to operate in the short term, the implications for the international legal order are more permanent. The chapter assesses the viability of several key measures proposed in the ‘war against terror’ as an enduring part of the international legal framework.

THE LANGUAGE OF EXCEPTION The powerful role of language in the struggle against terrorism, and its accompanying ‘war of ideas’,2 is indisputable. Since 11 September, it has 116

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been one of the most important weapons. Yet, rather than serving as a sword against the pernicious threat of terrorism, much of the language used has been directed toward shielding the protagonist governments from accountability for evading restrictions we might normally understand to bind them. Governments have repeatedly taken action which deviates from the normal course of action we might have expected, employing legal-sounding rhetoric to justify this and provide the impression that they have no other choice. Terms such as ‘war’, ‘pre-emptive self-defence’, ‘state of emergency’, ‘enemy combatants’, ‘extraordinary rendition’, ‘military commissions’, ‘rogue state’ and ‘national security’ have become part of a web of counter-terrorist, and ostensibly legal, vernacular. The language used has been crucial to convincing us that we are living in a time of crisis in which the normal limitations on government action – both domestic and international rules of long standing – cannot apply. Exceptional responses are necessitated by exceptional circumstances of the ‘war against terror’. Governance revolves around bringing possible future undesired events into calculation in the present, and making their avoidance the central object of the decision-making process.3 Governance is now about problematizing the social context, using language which exposes the risks and reminds the populace of what they must fear. Yet this language of compulsion to act in certain ways, implying as it does a jettisoning of accountability and rejection of customary restrictions, has had the effect of forging a domain of exception in which governments are increasingly asserting the entitlement to act. This domain of exception is often referred to by informed detractors as a legal black hole. It has been suggested that, in responding to the threat of terrorism, governments have created law-free zones where political will reigns and the rule of law has no purchase. Lord Steyn of the House of Lords has described the climate as an insurgence of ‘utter lawlessness’4 and Harold Koh has criticized ‘the creation of extra-legal zones’.5 Anthea Roberts has referred to ‘the location of certain people and places in legal vacuums’6 while Philippe Sands has written an entire book under the heading Lawless World.7 To opposite effect, but using the same terminology of lawlessness, those supporting greater executive freedom in the ‘war against terror’ have rediscovered a pin-up boy in Carl Schmitt. Schmitt famously remarked, ‘Sovereign is he who decides on the exception’.8 In Schmitt’s view, the sovereign can only be bound where he voluntarily accepts his own subordination.9 Moreover, at times of threat, the sovereign has an obligation to violate the normal rules of governance because survival of the state is the sovereign’s responsibility.10 In this, Schmitt recognizes that politics sometimes requires action beyond the law.

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Yet, arguably, this notion of lawlessness, used by both detractors from and supporters of this ‘state of exception’ from law, misrepresents the field of play. Indeed, rather than an absence of law, the response to terrorism has been full of law.11 Terms such as ‘unlawful combatants’ and ‘pre-emptive self-defence’ are often proffered as legal explanations for governmental action. In her article, ‘Guantanamo Bay and the Annihilation of the Exception’, Fleur Johns refers to a quite striking media briefing about the military commission process at Guantanamo Bay in which Secretary England (responsible for making the ultimate decision regarding the release, transfer or continued detention of each detainee) presents an impression of being quite shackled by law, using language of reasonableness, proportionality and process. Speaking about the Combatant Status Review Tribunal’s determination of the ‘enemy combatant’ status of one of the detainees, Secretary England said: In this case we set up a process, we’re following that process, we’re looking at all the data … Determinations were made he was an enemy combatant. We have now set up another process; more data is available … Time has gone by … I believe the process is doing what we asked the process to do, which is look at the data as unbiased as you can, from a reasonable person point of view … and I believe the process is working …12

If law is indeed vehicle rather than vacuum, it seems that the overriding concern should be, not the existence of black holes, but the creation of loopholes. This chapter posits the view that the loophole is far more dangerous, for it does not distance itself from the law, but cloaks itself in it. In doing so, the law becomes implicated in the political mission, and the legitimacy of and future faith in domestic and international legal systems are put on the line. The loophole becomes part of the law, inexorably entrenching itself as a permanent fixture via the device of legal precedent. Some may argue this is just an alternatively worded version of the ‘lawlessness’ or ‘state of exception’ argument. It acknowledges the presence of law, but demonstrates that the body of law applied is so indeterminate, so political in nature, so manipulated by particular states, that it is, in effect, non-law. As Giorgio Agamben states the position, ‘[t]he normative aspect of Law can in this way be obliterated … by a governmental violence which … pretends to continue applying the Law’.13 Yet such a position undermines the notion of law, portraying it merely as a grab-bag of rules that can be endlessly manipulated by states to achieve the desirable outcome. It is true that the law has been grossly abused by certain states in recent times, and many international legal principles have been stretched almost to breaking point. However, to adopt the words of Duncan Kennedy, ‘law is [not] always indeterminate, [n]or … is [it] always possible to argue both sides of a question

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… as a matter of fact, it is not always possible to argue both sides’.14 The fact that a state (even a powerful state such as the United States) takes certain action, or asserts a certain legal position, does not operate to pressure-cook new principles of law which automatically bind the international community. Formation of international law requires evidence of widespread and virtually uniform state practice.15 Practice that tends toward the creation of a new legal principle will (and must) therefore be subject to the response of other states and the scrutiny of the ‘invisible college of international lawyers’, to adopt Oscar Schachter’s well-used phrase.16 Where the violator does receive widespread support for its actions, new principles of law can be the result. In international law, lawbreakers can sometimes turn out to be lawmakers. However, where a state fails to achieve widespread support for its action in violation of existing principles of law, that action amounts to nothing more, and nothing less, than a breach of the law.17 The language used by governments, contributing as it does to the body of state practice from which international legal principles are moulded, inevitably carries legal implications. Yet the conduct of governments plays out against the backdrop of existing legal standards which already impact upon whether, in a particular case, a state can legally resort to armed force, declare a state of emergency or try individuals before a military commission. Certain language used by governments has implied, in the context of the ‘war against terror’, that such standards can be amended or superseded. However, it would be a mistake to conclude that conduct against existing standards serves automatically to fast-track new principles of international law. The breach of these standards does not obliterate them. The world that Carl Schmitt inhabited – in which the sovereign could act in relative freedom in his domestic domain, free from interference – disappeared with the Nazi party for which he served as Crown Jurist, a party epitomizing the extreme endpoint of ultimate executive control. Contemporary international society recognizes that the concept of sovereignty evokes responsibilities toward the international community as well as rights against it, such that a state no longer has a monopoly, for example, over the decision whether to accord human rights to its citizens. As Kim Lane Scheppele states, ‘the defining aspect of the new sovereignty is that even the new sovereign is bound by rules’.18 A state resorting to a particular regime to deal with terrorism must operate within that regime in good faith, adhering to its limitations and restrictions. It cannot utilize regimes in an à la carte manner, cherry-picking privileges, and ignoring restrictions. To do so distorts the legal regimes developed through years of state practice, and gravely undermines the future effectiveness of each regime in regulating international order. What, then, of the principles thus far implemented by states in the ‘war against terror’? Are they violations or renovations of the law? As emphasized

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above, it is vital that the language used by government, invoking new legal categories and loopholes, should be scrutinized at every step. Violations of the law must be firmly and unreservedly acknowledged and rejected by the international community to prevent any misunderstanding that they have achieved widespread support. This chapter will therefore proceed by addressing three deviations from existing law implemented in the course of the ‘war against terror’, to analyse whether these measures constitute violations, or an acceptable renovation to the existing legal framework in response to contemporary terrorism.

LAWFULNESS OF THE USE OF FORCE AGAINST TERRORISTS19 Traditionally, the international legal community has regarded terrorism as a phenomenon most appropriately classified as a crime, and best addressed by establishing a cooperative scheme for the domestic prosecution of terrorist offences.20 More recently, alongside this organized international regime for the criminal prosecution of terrorists, a more ad hoc practice of using military force against terrorists has simultaneously developed. While this practice certainly predates the response to 11 September, the belligerent rhetoric of the ‘war against terror’ has given new prominence to the use of military force. Moreover, the use of force is contemplated beyond circumstances permitted by the UN Charter, extending to a number of events that do not appear to fit neatly within the current regime governing the use of force in the international community. Under the regime imposed by the United Nations Charter, the use of force is prohibited unless it is in self-defence in response to an actual or imminent armed attack, or authorized by the Security Council.21 How does the declaration of a ‘war on terrorism’ sit with this? Of course, reference to a ‘war’ in this context is a rhetorical flourish, not a legal characterization. Indeed, the term ‘war’ does not even exist in law. Under international law, we prefer to speak of the term ‘armed conflict’ of an ‘international’ or ‘non-international nature’. We speak not of the laws of war, but international humanitarian law. Even Donald Rumsfeld qualified his use of the term at a news briefing on 20 September 2001: What we’re engaged in is something that is very, very different from world war two, Korea, Vietnam, the Gulf war, Kosovo, Bosnia, the kinds of things that people think of when they use the word ‘war’ or ‘campaign’ or ‘conflict’. We really, almost, are going to have to fashion a new vocabulary and different constructs for thinking about what it is we’re doing … What I do know is the standard words jangle in my head when I hear them, and then I put them onto the subjects

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they’re relating to, and I know what’s going on, and I think to myself, Gee, that isn’t really as good a word as we ought to be able to find.

Yet the terminology stuck. And, as it transpired, the reaction to the events of 11 September was expressed rapidly in terms of recourse to force. The blueprint for the ‘war against terror’ is found in a publication of the US Government entitled the National Security Strategy of the United States of America.22 The Strategy expands the possibility for unilateral (in this context, referring to the use of force in the absence of Security Council authorization) use of force beyond the isolated category of ‘self-defence if an armed attack occurs against a Member state of the United Nations’ currently recognized by the Charter regime. In particular, the Strategy incorporates three doctrines of questionable legality under the current international legal framework. First, unilateral attacks against terrorist organizations and the states harbouring them. The Strategy declares that it will disrupt and destroy terrorist organizations, ‘defending the United States … by identifying and destroying the threat before it reaches our borders’. While the intention is declared to enlist the support of the international community, the policy warns that ‘we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country’. In doing so, the Strategy emphasizes, ‘[w]e make no distinction between terrorists and those who knowingly harbor or provide aid to them’.23 Secondly, unilateral pre-emptive self-defence, or the unilateral resort to force in response to a threat that is not imminent, but might materialize at some stage in the future. Such action is regarded as particularly necessary against states in possession of weapons of mass destruction who have demonstrated aggressive intent with regard to other nations, and whom it is suspected might pass these weapons on to terrorists. The third doctrine is unilateral humanitarian intervention, or the unilateral resort to force to relieve a population from egregious human rights abuses. This element of the strategy springs from the rationale that danger can incubate in weak, incompetent and/or profoundly corrupt states where transnational terrorist groups can locate safe havens in which to plan, recruit, train and hide following a terrorist attack. While these doctrines must be assessed against the present regime for the use of force, they should not be rejected purely on the basis that they do not comply strictly with a narrow interpretation of the exceptions defined in the UN Charter. The Charter is an organic document with a meaning that must evolve with the international society it regulates. However, developments in the Charter regime must proceed with regard to the long-term consequences

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of these developments. There must also be evidence that there is widespread acceptance of these developments by states in the international community. Of the strategies discussed above, it is possible to identify one renovation to the legal framework, one burgeoning principle that may in the future achieve sufficient acceptance and one violation. (1) Unilateral Attacks against Terrorist Organizations and the States that Harbour Them The controversial point in the first doctrine is the suggestion that force can be used in self-defence against states that harbour terrorists. The self-defence exception in the UN Charter is circumscribed by important limits, which curb the ability of a state to use force against another state. The UN Charter authorizes force in self-defence ‘if an armed attack occurs against a Member of the United Nations’.24 While it might be possible to construe an attack by terrorists as an ‘armed attack’, this may not justify the use of force in self-defence against any sovereign state harbouring those terrorists unless that state can itself be said to have committed an armed attack.25 The question then becomes: what level of state engagement in a terrorist attack is necessary to implicate a state in an ‘armed attack’ within the meaning of article 51 justifying the use of force against that state in self-defence? In the Nicaragua case, the International Court of Justice assimilated the phrase ‘armed attack’ with that of ‘aggression’.26 Having regard to the Definition of Aggression agreed upon by the General Assembly in 1974, the use of force in self-defence will be justified in response to a state which has ‘substantial involvement’ with a terrorist group responsible for an attack.27 However, it is less clear whether force will be justified against a third state which has a lesser involvement with a terrorist group, for example, a state harbouring terrorists. It must be noted that the failure to extend the Definition of Aggression to mere support for terrorist groups was far from accidental, but was the subject of extensive debate within the Special Committee for the Definition of Aggression, and was expressly rejected.28 However, since 1974, there have been transformations in the nature of international society which may have led to a development in the position at customary international law. For example, article 3(f) of the Definition of Aggression provides that aggression includes ‘[t]he action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State’. In light of the increasing sophistication of international terrorism, with terrorist groups now recognized as capable of acts of aggression on a state level, it could be argued that article 3(f) should be extended to encompass states allowing their territory to be used

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by terrorist groups. To ascertain whether this position has garnered sufficient support to testify to its recognition under customary international law, it is necessary to have regard to state practice. Two states stand out in the international community as active supporters of the right to use force against third states harbouring terrorists, namely Israel and the United States. In order to ascertain whether there is a broader consensus on the issue, it is helpful to look to the international community’s response to the actions by these states. Until the mid-1980s, counterterrorist force against third states was almost consistently condemned as a violation of the prohibition of the use of force.29 Nevertheless, since that time, it is possible to discern a decline in opposition to, if not an increasing tolerance for, coercive measures against terrorism, even where those measures violate the territorial integrity of a third state.30 Further, widespread support for the war against Afghanistan, coupled with heightened concern about terrorism worldwide, leads to the conclusion that a modification of customary international law might be said to have occurred.31 Support for the legality of the action against Afghanistan was demonstrated by a wide number of states,32 with only a limited number expressing their opposition to, or reservations about, the use of force in these circumstances.33 This is a clear example of international law developing in response to contemporary threats to international society, to the point where necessary and proportionate force may legitimately be used in selfdefence against a state which knowingly harbours terrorist groups following a terrorist attack of the scale of an armed attack. (2) Unilateral Pre-emptive Self-Defence Conversely, the proposed doctrine of pre-emptive self-defence is one that appears to have been rejected out-of-hand by the international community. The one significant case where a state did rely on pre-emptive self-defence to justify its use of force was Israel’s bombing of the Iraqi Osirak nuclear reactor near Baghdad in June 1981. Israel claimed that ‘in removing this terrible nuclear threat to its existence, Israel was only exercising its legitimate right to self-defence within the meaning of this term in international law and as preserved also under the United Nations Charter’.34 Israel was unable to point to evidence of an imminent nuclear attack by Iraq against Israel. Its action was unanimously condemned by the Security Council,35 and by over 100 states in the General Assembly.36 This doctrine of pre-emptive self-defence must be distinguished from the less controversial (though still contested) doctrine of anticipatory selfdefence. Anticipatory self-defence has a long history in international law. The most celebrated example harks back to the Caroline incident referred

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to earlier, in which US Secretary of State Daniel Webster stated, and British Foreign Secretary Lord Ashburton agreed, that self-defence was justified in the face of a threat which was ‘instant, overwhelming, leaving no choice of means and no moment for deliberation’.37 The doctrine of anticipatory self-defence recognizes that force will be justified against an armed attack that is imminent. Some argue that the language of article 51 put an end to the right to resort to force in anticipation of an attack by its express requirement for an ‘armed attack’.38 However, as Professor Franck notes, common sense, rather than textual literalism, is often the best guide to interpretation of international legal norms.39 Indeed, it would seem an absurd interpretation of the law if a state had to await a certain armed attack (which could compromise its ability to respond) before it was entitled to defend itself.40 As has been said before, the Charter is not a suicide pact. The doctrine of pre-emptive self-defence proposed by the Bush Administration moves the law one step beyond the doctrine of anticipatory self-defence. Essentially, the proposed doctrine advocates removing the requirement for ‘imminence’ of attack from the current test for anticipatory self-defence. The Strategy claims the right to act in self-defence ‘even if uncertainty remains as to the time and place of the enemy’s attack’.41 The doctrine proposed by the Strategy is intensely problematic in that it does not even appear to posit a requirement of ‘certainty’ in relation to future armed attack. While rapid advances in weapons technology may mean that self-defence can be utilized in response to threats that are less imminent in the temporal sense than described by Secretary Webster over 150 years ago, the danger must be imminent in that it can be identified credibly, specifically and with a high degree of certainty.42 To extend the right of self-defence to enable states to defend themselves whenever they felt threatened by the actions of another state would open the floodgates to the cycle of violence the Charter was enacted to prevent.43 Israel, North Korea, India and Pakistan are other states that could reasonably resort to the doctrine, which would undoubtedly have a destabilizing if not disastrous impact on international peace and security. Moreover, it is a position which has garnered little support among members of the international community,44 let alone the widespread and uniform state practice necessary to establish a principle of customary international law. Any attempt by states to rely on this doctrine would be in clear violation of international law. (3) Unilateral Humanitarian Intervention A surprising and more positive aspect of the war against terrorism has been the renewed focus on regimes that violate the human rights of their citizens, a focus stemming from a perceived link between these regimes and

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the incubation of terrorism. Yet while the use of force for humanitarian purposes can be, and has on several occasions been, authorized by the Security Council, the Strategy envisages the use of force in circumstances where Security Council authorization is not given. Military action against regimes for the purpose of rescuing a population from massive human rights violations, without the prior authorization of the Security Council or the consent of the legitimate government of the state acted against, is more commonly known as ‘humanitarian intervention’. Such intervention is clearly outside the framework of the Charter. First, it falls foul of the Charter as it does not come under either of the exceptions to the prohibition on the use of force – the force would be resorted to without Security Council authorization and could not constitute collective self-defence as the force would be used without the target state’s request or indeed consent. Secondly, article 2(7) of the Charter prevents intervention by the United Nations ‘in matters which are essentially within the domestic jurisdiction of any state’. Yet over the 50 years since the UN Charter was adopted, there has been increasing recognition of the importance of human rights and a diminishing deference to state sovereignty.45 Contemporary international society recognizes that the concept of sovereignty evokes responsibilities towards the international community as well as rights against it, such that a state no longer has a monopoly over the decision whether to accord human rights to its citizens. In its report, The Responsibility to Protect, which was commissioned to form the basis of a push for state consensus on the principle of humanitarian intervention, the International Commission on Intervention and State Sovereignty confirmed this changing conception of sovereignty on the part of states: in the course of our consultations … [w]e found broad willingness to accept the idea that the responsibility to protect its people from killing and other grave harm was the most basic and fundamental of all the responsibilities that sovereignty imposes – and that if a state cannot or will not protect its people from such harm, then coercive intervention for human protection purposes, including ultimately military intervention, by others in the international community may be warranted in extreme cases. We found broad support, in other words, for the core principle identified in this report, the idea of the responsibility to protect.46

Accordingly, the legal landscape is certainly open to the recognition of a doctrine of humanitarian intervention. The one thing lacking in the aftermath of the North Atlantic Treaty Organization (NATO) intervention in Kosovo was a broader acceptance on the part of states necessary to breathe life into the principle. Surprisingly, impetus for recognition of the principle has emerged in a new form, cloaked in the rather unlikely guise of counter-terrorism. In the course of the ‘war against terrorism’, human

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rights concerns have already been pressed as a contributing basis for the overthrow of two regimes by recourse to military force – the Taliban regime in Afghanistan and Saddam Hussein’s regime in Iraq. While humanitarian concerns were not the primary motivation for either action, and humanitarian intervention was never formally asserted as a justification, the human rights motivation is arguably a necessary element to justify the toppling of the Taliban regime (a consequence which otherwise might have exceeded the bounds of proportionate self-defence). Further, against the backdrop of a continuing failure to locate weapons of mass destruction, the liberation of the Iraqi population has become the rationale most strongly advocated in support of the 2003 Gulf war. The doctrine of humanitarian intervention has not yet garnered sufficient support to claim recognition as a principle of customary international law. Further if states do seek, in future, to rely on the principle of humanitarian intervention, they cannot ignore that the principle has important limits. Yet, while the parameters of the principle are still very much in development, and insufficient state will exists to recognize the principle as customary international law, the principle could form a workable part of the international legal framework where limitations are incorporated to ensure against its over-use and abuse.

CLASSIFICATION OF ENEMY FIGHTERS IN THE ‘WAR AGAINST TERROR’ In addition to the jus ad bellum (law regulating the use of force), certain fundamental protections provided by the jus in bello (law regulating the conduct of hostilities) have been put in question by the counter-terrorism response. In so far as states resort to armed conflict in the course of the broader rhetorical war against terrorism, the regime of international humanitarian law, or the law of armed conflict, is brought into play. However, particularly in its dealings with individuals captured during the armed conflict against Afghanistan in 2001, certain states have shown, and continue to show, a dismissive approach to a number of long-standing principles of the law of armed conflict. Chief among these is recognition of the prisoner of war status, and fair trial rights. The United States has taken the approach that terrorists, and anyone associated with terrorists, should be denied prisoner of war protection. On 7 February 2002, President Bush issued a blanket determination that no detainees captured in the armed conflict against Afghanistan were prisoners of war.47 This extended both to Al Qaeda and Taliban members. The refusal to recognize this status has never been adequately explained,

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though arguments both for and against this position are provided in legal advice obtained by the US Government on the issue.48 The underlying rationale appears to have been the reluctance to attach legitimacy to either the Taliban or Al Qaeda. There is, and should be, a genuine debate as to whether terrorists should be covered by the law of armed conflict. One advantage of admitting the application of the laws of war to terrorist groups is that it then subjects them to obligations as well as protections. As John Yoo and James Ho argue: Simply by operating outside the confines of the traditional concepts of nation-states, terrorists cannot shield themselves from the prohibitions universally commanded by the laws of armed conflict. If terrorists can wield the military power of a nation-state, but are exempted from the laws of war, other groups with similar aims will be encouraged to follow the example of al Qaeda. International law does not and should not create such a perverse incentive.49

Of course, the flip-side is that recognition of terrorists as ‘lawful combatants’ will entitle them to legitimately attack military objectives in the states against which they are engaged in hostilities. During parliamentary debate in the House of Lords in 2002, Lord Thomas summarized the position: [a] terrorist is a criminal; he is a criminal who has no legitimate target, whether civil or military. To allow such a person to be labelled as a ‘prisoner of war’ suggests, for example, that an attack on the Pentagon would be a legitimate military target. That cannot possibly be allowed. This country has entered into many anti-terrorist conventions. We have made it clear that we stand shoulder to shoulder with many nations around the world against terrorism. The IRA terrorists and the loyalists in Northern Ireland were always anxious to be treated as prisoners of war.50

Yet, beyond this essentially political debate, there is an existing legal regime, which provides more definitive answers. The law of armed conflict is found essentially in the Geneva Conventions, the Additional Protocols to the Geneva Conventions and customary international law. This legal regime only applies in circumstances of an ‘armed conflict’, defined as ‘a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’.51 The requirement of ‘protracted’ violence means the rhetorical ‘war against terrorism’ is not such a conflict, and terrorists would not gain an automatic entitlement to attack military objectives merely by virtue of the recognition that this legal regime may occasionally apply to them. Moreover, even where terrorists become involved in a genuine armed conflict, such as that in Afghanistan in 2001, this does not necessarily mean

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protections under the law of armed conflict will apply to them. For example, the fact that the Geneva Conventions applied to the Afghan conflict does not mean that all individuals captured during the conflict were entitled to be recognized as ‘prisoners of war’. In order to determine whether individual Al Qaeda or Taliban members qualify as prisoners of war, the appropriate inquiry is to the definition contained in the Geneva Conventions and customary international law. Article 4A of the Third Geneva Convention provides that ‘prisoners of war’ include: 1. 2.

3.

Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

It is unlikely that Al Qaeda members would be found to be prisoners of war. There is a persuasive argument that the Allied coalition was involved in a separate conflict against Al Qaeda in Afghanistan, which was not covered by the Geneva Conventions at all. The United States has declined to recognize the application of the Conventions to the conflict against Al Qaeda in Afghanistan on the basis that Al Qaeda fighters do not represent any country that is party to the Geneva Conventions and so are not protected by the Conventions.52 This argument has received some support in academic literature.53 In any event, even if the struggle against Al Qaeda is most appropriately classified as part of the broader armed conflict against the Taliban, it is unlikely that Al Qaeda fighters would satisfy the definition of ‘prisoner of war’ contained in Article 4A. They would be unlikely to be classified as ‘belonging to a Party to the conflict’ as required by Article 4A(2) or to satisfy the four requirements for militia forces set out in that sub-section. Yet in the case of Taliban members (including those who were also members of Al Qaeda at the relevant time), it is likely a competent tribunal would find certain individuals to fall within the definition of ‘prisoner of war’. Article 4A(1) of the Third Geneva Convention clearly recognizes

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prisoners of war to include ‘[m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces’. While the President failed to clarify why he denied Taliban fighters the status of ‘prisoner of war’, a memorandum from the then Counsel to the President, Alberto Gonzales, suggests that the rationale was that the Taliban were ‘militia’ forces rather than the regular armed forces of Afghanistan.54 This classification would be unlikely to survive serious legal challenge. Article 4A(3) of the Third Geneva Convention, cited above, provides that prisoner of war protections apply in relation to ‘[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power’. Even if the Taliban armed forces included militia forces within its ranks, its members would still qualify as prisoners of war under Article 4A(1) of the Convention, which expressly extends to ‘members of militias or volunteer corps forming part of such armed forces’. The key issue that would need to be resolved by a competent tribunal established under Article 5 of the Third Geneva Convention is whether the individual Taliban members distinguished themselves from the civilian population. Although regular armed forces described in Article 4A(1) are not expressly made subject to the four criteria set out in Article 4A(2) in relation to militia and volunteer corps, this was because the drafters of the Conventions assumed that such forces would already satisfy these standards, chiefly, to wear a uniform or a distinctive sign and carry arms openly.55 Yet, importantly, such standards do not require combatants to wear a uniform. Even the US Air Force Pamphlet acknowledges that ‘less than a complete uniform will suffice provided it serves to distinguish clearly combatants from civilians’.56 If Taliban members carried their arms openly, and were clearly distinguishable from civilians, they should be recognized as prisoners of war. Regardless of how the issue is resolved, it is clear that the blanket determination by the President that no detainees were entitled to prisoner of war status was, in itself, in clear violation of the Geneva Conventions. Article 5 of the Third Geneva Convention requires all persons falling into enemy hands to be presumed to be a prisoner of war until determined otherwise by a competent tribunal. The United States President does not qualify as a competent tribunal – the amendment of the initial draft text from ‘responsible authority’ to ‘competent tribunal’ was based on the view that decisions which might have the gravest consequences should be taken to a court and should not be left to a single person.57 The establishment of a Combatant Status Review Tribunal by the United States Government did not correct the omission. This Tribunal is charged with the distinct role of determining whether detainees are ‘enemy combatants’, defined as ‘an

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individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners’.58 The definition is quite distinct from that of ‘prisoner of war’ in the Third Geneva Convention.59 Respect for the law of armed conflict, and in particular ‘prisoner of war’ status, has been severely threatened by the conduct of certain states in the ‘war against terror’. Attempts to circumvent the laws of war by labelling the armed forces of a party to the conflict a ‘militia’ and replacing the ‘prisoner of war’ status in the Geneva Conventions with a more flexible ‘enemy combatant’ status merely distorts these valuable legal standards, endangering their application in future conflicts. Refusal to associate with terrorism misconceives the purpose of the legal regime applicable in times of armed conflict. The law of armed conflict is not concerned with legitimizing the causes or participants involved in hostilities, but with injecting a lowest common denominator of humanity into warfare. The Geneva Conventions were drafted in the aftermath of the Second World War in an attempt to rescue a modicum of humanity from a war which had exposed the lingering consequences of uncompromising brutality, concentration camps and show trials. The ‘war against terror’ threatens to undermine the important lessons learned from past wars. At Guantanamo Bay, many of the 500 detainees are preparing to enter their fifth year of detention without charge. The four individuals who have so far been charged are subject to trial by a military commission governed by gravely inadequate rules of evidence60 with no independent right of appeal.61 Under the law of armed conflict as it currently stands, subjecting prisoners of war to an unfair trial of this kind would constitute a war crime.62 Moreover, the right to a fair trial is a universally recognized human right – it would be a regression, not an advancement, to deny this right to certain individuals in society, notwithstanding the crimes with which they are charged.

RECONCILING HUMAN RIGHTS WITH NATIONAL SECURITY Even away from the battlefield, the struggle against terrorism has become synonymous with restrictions on civil liberties. We are frequently reminded that involvement in the ‘war against terror’ carries the seemingly inevitable price of restrictions on freedom. Americans have been informed that it is their patriotic duty to forego certain rights (as set out in the fittingly entitled PATRIOT Act63), and not complain about it. John Ashcroft berated those speaking out against restrictions on civil rights, telling the American public, ‘Your tactics only aid terrorists, for they erode our national security

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and diminish our resolve. They give ammunition to America’s enemies.’64 The British population were warned by their then Home Secretary, David Blunkett, that, ‘we could all live in a world which is airy-fairy, libertarian, where everyone does precisely what they like and believe the best of everybody … and then they destroy us’.65 Australians were advised by their AttorneyGeneral Philip Ruddock that, ‘the unavoidable fact is that any tightening of security arrangements does involve some diminution of rights’.66 The tendency to polarize national security and human rights should be challenged. They are not distinct and irreconcilable aims. Even in a state of emergency or war, governments do not have unlimited discretion to violate civil liberties. Indeed, the international human rights regime already accommodates a balance between rights and national security. The human rights regime builds in its own exceptions. For example, the International Covenant on Civil and Political Rights (ICCPR)67 incorporates a scheme for the derogation from human rights. It lists certain rights from which no derogation is possible, even in a time of emergency, including the prohibition on torture, freedom from slavery and freedom of religion.68 Certain rights, such as freedom of movement, freedom to manifest one’s religion and freedom of association and peaceful assembly, may be limited by law for legitimate purposes such as national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.69 Other rights, including due process and fair trial rights, may only be derogated from in limited circumstances. Article 4 of the ICCPR provides: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.

The right to derogate therefore depends on the fulfilment of two key criteria, namely existence of a public emergency and proportionality. A public emergency has four characteristics:70 (1) it must be actual or imminent; (2) its effects must affect the general public, as distinct from particular groups; (3) it must constitute a threat to the organized life of the community; and (4) the crisis or danger must be exceptional, in that normal measures permitted for the maintenance of public safety, health and order are plainly inadequate. The second requirement contained in Article 4 is to ensure the measures taken are proportionate to the emergency in severity, duration and scope. International law provides that any derogation measure must fulfil five basic requirements:71 (1) the measures must be rationally connected to addressing the emergency; (2) the measures must

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be necessary (meaning that normal less restrictive measures would not be sufficient to meet the threat); (3) the measures can only be used as long as they are necessary; (4) the degree to which the measures impinge upon human rights must be proportionate to the severity of the threat; and (5) effective safeguards must be implemented to avoid the abuse of emergency powers (this may include regular review by independent national organs). At the coal-face, the task of determining whether derogation from fundamental rights is required in the interests of national security is an unenviable one. Moreover, it is one that must be engaged in by governments. Apart from anything else, the judiciary, human rights organizations and members of the public simply do not have access to the security and intelligence necessary to make such decisions. However, as experience has shown, it is not unknown for threats to be exaggerated and excessive measures taken in response. In the Second World War, the US detained all persons of Japanese descent based on a presumption of disloyalty to the United States. While the internment of the Japanese is now regarded as a shameful episode, the parallels with the detention of many Arab and Muslim individuals, in terrorist detention and refugee detention facilities are stark.72 As Justice Brennan of the United States Supreme Court stated: ‘After each perceived security crisis ended, we have remorsefully realized that the abrogation of civil liberties was unnecessary. But we have proven unable to prevent ourselves from repeating the error when the next crisis came along’.73 The government and intelligence agencies must be given wide discretion to determine when measures which derogate from civil liberties are necessary for the protection of national security. However, citing national security concerns is not sufficient. An appropriate balance must be struck. It is appropriate that this balance takes account of the limitations built into the international human rights regime, engineered by states familiar with national security concerns in the wake of two world wars. Where states rely on exceptions beyond these limitations, the future operation and legitimacy of the human rights regime is threatened.

CONCLUSION The beginning of a crisis should not, therefore, spell an end to the law. Many principles of international law have been drafted precisely to operate in times of crisis, war and emergency. Governments must not be allowed to plead unmitigated discretion due to uncontrollable forces, but must themselves be reined in and controlled to prevent the panacea becoming worse than the malady it seeks to address. Measures taken by governments have the

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capacity to seriously and permanently infect the society in which we live: both domestic and international spheres. The problem with acting outside the law in the short term is that you lose its protection in the long term. Anarchy risks being replaced by chaos. In the struggle against terrorism, we must not tolerate the erosion of fundamental values, particularly in areas as fraught and complex as the use of force, the law of armed conflict and respect for human rights. In the end, it is the respect for these values that distinguishes us from the terrorists.

NOTES 1. Director, International Law Project, Gilbert + Tobin Centre of Public Law, University of New South Wales. 2. See The White House, National Security Strategy of the United States of America (2002), http://www.whitehouse.gov/nsc/nss.pdf, 6. 3. See, for example, Beck, U. (1992), Risk Society: Towards a New Modernity, London: Sage; Giddens, A. (1999), ‘Risk and Responsibility’, Modern Law Review, 62, 1. See also Hudson, B. (2003), Justice in the Risk Society, London: Sage. 4. Steyn, J. (2004), ‘Guantanamo Bay: The Legal Black Hole’, International and Comparative Law Quarterly, 53, 1–15. 5. Koh, H. (2003), ‘Rights to Remember’, The Economist, 1 November, p. 24. 6. Roberts, A. (2004), ‘Righting Wrongs or Wronging Rights? The United States and Human Rights post-September 11’, European Journal of International Law, 15, 721–42. 7. Sands, P. (2005), Lawless World: America and the Making and Breaking of Global Rules, New York: Viking. 8. Schmitt, C. (1922), Political Theology: Four Chapters on the Concept of Sovereignty (translation by G. Schwab (1985)), Cambridge, MA: MIT Press, p. 5. 9. Ibid, p. 12. 10. Ibid. 11. See Johns, F. (2005), ‘Guantanamo Bay and the Annihilation of the Exception’, European Journal of International Law, 16, 613. 12. US Defense Department News Briefing, 8 September 2004, available at http://usinfo.state. gov/dhr/Archive/2004/Sep/09-891868.html, quoted in Johns, ibid., p. 631. 13. Agamben, G. (2005), State of Exception (translation by K. Attell), Chicago: University of Chicago Press, p. 87. 14. Kennedy, D. (1994), ‘A Semiotics of Legal Argument’, in Academy of European Law (ed.), Collected Courses of the Academy of European Law, vol. 3, book 2, Amsterdam: Kluwer Academic Publishers, p. 319. 15. North Sea Continental Shelf Case (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969] ICJ Rep 1, 47. 16. Schachter, O. (1977–8), ‘The Invisible College of International Lawyers’, Northwestern University Law Review, 72, 218. 17. See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 98: ‘[I]nstances of a state’s conduct inconsistent with a given rule should generally … [be] treated as breaches of that rule, not as indications of the recognition of a new rule’. 18. Scheppele, K.L. (2004), ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’, Journal of Constitutional Law, 1, 75. 19. This section is a summary of the author’s more detailed consideration of this issue in ‘Chinks in the Armour: International Law, Terrorism and the Use of Force’, University of New South Wales Law Journal, 27, 398.

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20. International law relating to terrorism is found in 12 terrorist conventions, entered into between 1963 and 1999, relating to a range of individual terrorist offences, including attacks against aircraft, attacks on government representatives, the taking of hostages, possession of nuclear material, attacks against ships, attacks on fixed oil platforms, manufacture of unmarked plastic explosives, terrorist bombings and the financing of terrorism. See, for example, Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969). 21. Charter of the United Nations, arts 2(4), 39, 42 and 51. 22. The White House, National Security Strategy of the United States of America (2002), http://www.whitehouse.gov/nsc/nss.pdf, p. 6. 23. Ibid., p. 45. 24. Charter of the United Nations, art 51. 25. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep [139], where the International Court of Justice held that ‘[a]rticle 51 of the Charter … recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’ (emphasis added). 26. Nicaragua Case (Merits) (Nicaragua v United States of America) [2986] ICJ Rep 14, 101. This interpretation gains further force in light of the French version of article 51 of the UN Charter, which refers to ‘une aggression armé’, which can be interpreted in a broader manner than ‘armed attack’. 27. Resolution on the Definition of Aggression, GA Res 3314 (XXIX), UN GAOR, 29th sess, Supp No 31, UN Doc A/9631 (1974), art 3(g). 28. See Report of the Sixth Committee, UN GAOR, 28th sess, 11, UN Doc A/9411 (1973): ‘it was found unacceptable that the mere fact that the receiving State organized, helped to organize or encouraged the formation of armed bands should constitute an act of aggression independently of whether or not it also participated in sending them on the incursions. Nor was it acceptable, a fortiori, that by making its territory available to such armed bands a State could be considered as committing an act of aggression’. 29. See Draft Security Council Resolution, 749th mtg, UN Doc S/3710 (1956) (supported by a majority, but failed to pass due to the veto of the United Kingdom and France); UN SCOR, 748th mtg (1956), 11 [71] and General Assembly Resolution 997, UN SCOR, Fourth Year, Special Supplement No 3, UN Doc A/RES/997 (ES-I) (1956) (condemning Israel’s occupation of the Sinai Peninsula in 1956); Security Council resolution 262, UN SCOR, 1462nd mtg (1968) (condemning Israel’s attack on Beirut airport in December 1968); Security Council resolution 337, UN SCOR, 1740th mtg (1973) and Draft Security Council Resolution S/17796.Rev 1, 6 February 1986 (declaring Israeli interceptions of civilian aircraft in 1973 and 1986 to be unlawful); UN SCOR, 31st sess, 1939th mtg, UN Doc S/PV.1939 (1976); UN SCOR, 31st sess, 1940th mtg, UN Doc S/PV.1940 (1976) (debate following the Entebbe Incident); Security Council Resolution 573, UN SCOR, 2615th mtg (1985) (condemning Israel’s attack on PLO headquarters in Tunisia); The Yearbook of the United Nations (1986), 247 (criticizing United States bombing of Tripoli in response to 1986 Berlin disco bombing in 1986). 30. See, for example, responses to US counter-terrorist military action against Iraq in 1993 and against Sudan and Afghanistan in 1998, discussed in Gray, C. (2000), International Law and the Use of Force, Oxford: Oxford University Press, p. 118. 31. Byers, M. (2002), ‘Terrorism, the Use of Force and International Law after 11 September’, International and Comparative Law Quarterly, 51, 401–9. 32. See, for example, Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1368, UN SCOR, 56th sess, 4370th mtg, UN Doc S/RES/1368 (2001); GA Res 56/1, 56th sess, UN Doc A/RES/56/1 (2001); North Atlantic Treaty Organisation (‘NATO’), ‘Statement by the North Atlantic Council’ (Press Release 124, 12 September 2001); Organization of American States resolution CP/RES 796 (1293/01), 19 September 2001; Conclusions and Plan of Action of the Extraordinary European Council meeting, 21 September 2001, 1, http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/

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33.

34. 35. 36. 37. 38.

39. 40.

41. 42.

43. 44.

45.

46. 47. 48.

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ec/140.en.pdf; Resolution on International Cooperation to Combat Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, 4385th mtg, UN Doc S/ RES/1373 (2001). For the positions of Angola, Australia, Canada, Chile, Cyprus, Croatia, Ethiopia, France, Israel, Italy, Japan, Kyrgyzstan, Lithuania, Portugal, Romania, the Seychelles, Singapore, Sweden and the Ukraine, see Centre de Droit International de l’Université Libre de Bruxelles, ‘L’intervention des Etats-Unis et du Royaume-Uni en Afghanistan le 7 Octobre 2001’ (‘CDI extracts’), http://www.ulb.ac.be/droit/cdi/fichiers/ PEAP1.htm. See the positions of Belarus, Brazil, North Korea, Cuba, Iraq, Iran and Malaysia: Centre de Droit International de l’Université Libre de Bruxelles, ‘L’intervention des Etats-Unis et du Royaume-Uni en Afghanistan le 7 Octobre 2001’ (‘CDI extracts’), http://www.ulb. ac.be/droit/cdi/fichiers/PEAP1.htm. Explanation of Votes on Security Council Resolution (1981) 20 ILM 994, 996. Security Council Resolution 487, UN SCOR, 2288th meeting (1981). General Assembly Resolution 36/27, 13 November 1981. Letter from Daniel Webster, US Secretary of State, to Lord Ashburton, August 1882, reprinted in Moore, J.B. (1906), A Digest of International Law, 2, 409–12. Bothe, M. (2003), ‘Terrorism and the Legality of Pre-emptive Force’, European Journal of International Law, 14, 227; Randelzhofer, A. (2002), ‘Article 51’ in Simma, B. et al (eds), The Charter of the United Nations: A Commentary, 2nd edition, New York: Oxford University Press, p. 803; Dinstein, Y. (1988), War, Aggression and Self-defence, Cambridge: Cambridge University Press, p. 184. Franck, T. (2002), Recourse to Force, Cambridge: Cambridge University Press, p. 98. See Bowett, C. (1958), Self-defense in International Law, New York: Praeger, pp. 185–6; Sapiro, M. (2003), ‘Iraq: The Shifting Sands of Preemptive Self-defense’, American Journal of International Law, 97, 599–602. The White House, National Security Strategy of the United States of America (2002), http://www.whitehouse.gov/nsc/nss.pdf, p. 15. Yoo, J. (2004), ‘Using Force’, University of Chicago Law Review, 71, 26; Sapiro, M. (2003), ‘Iraq: The Shifting Sands of Pre-emptive Self-defense’ American Journal of International Law, 97, 599–604; Sofaer, A. (2003), ‘On the Necessity of Pre-emption’, European Journal of International Law, 14, 209, 221–3. See Brownlie, I. (1963), International Law and the Use of Force by States, Oxford: Clarendon Press, p. 275. See, for example, Secretary General Kofi Annan, Speech delivered at the General Assembly, 58th session, 7th plenary meeting, 23 September 2003 [3], UN Doc A/58/PV.7 (2003), 4; ‘Russia, France, Germany Say Iraq War Illegal’, Reuters, 20 March 2003; ‘French Foreign Minister Renews Attack on US Foreign Policy’, Agence France Presse, 1 March 2002; ‘Patten Lays into Bush’s America – Fury at President’s “Axis of Evil” Speech’, Guardian (London), 9 February 2002, 1. Three generations of Secretary-General have reflected this outlook: see Javier Pérez de Cuéllar, Report of the Secretary-General, Yearbook of the United Nations 1991 [11]; Boutros Boutros-Ghali, Provisional Records of the 3046th mtg of the Security Council, 47th sess, UN Doc S/PV.3046 (31 January 1992); Kofi Annan, (UN Press Release, 20 September 1999) SG/SM/7136, GA/9596 http://www.un.org/News/Press/ docs/1999/19990920.sgsm7136.html at 15 November 2004. International Commission on Intervention and State Sovereignty, (2001), The Responsibility to Protect, available at http://www.iciss.ca/report2-en.asp. President George W Bush, Fact Sheet: Status of Detainees at Guantanamo, 7 February 2002, http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html. See Memorandum for the President from Counsel to the President Alberto Gonzales, ‘Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban’, 25 January 2002; Memorandum to Counsel to the President Alberto Gonzales from Secretary of State Colin Powell, ‘Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to

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49. 50.

51.

52. 53.

54.

55.

56. 57.

58. 59.

60.

61.

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Counter-terrorism and the post-democratic state the Conflict in Afghanistan’; Memorandum from William H. Taft IV, Legal Adviser, Department of State, to Counsel to the President Alberto Gonzales, 2 February 2002. Yoo, J. and Ho, J. (2003), ‘The Status of Terrorists’, Virginia Journal of International Law, 44, 207–15. UK, Parliamentary Debates, House of Lords, 21 January 2002, 630, 1363 (Lord Thomas of Gresford), quoted in Peter Rowe (2002), ‘Responses to Terror: The New “War”’, Melbourne Journal of International Law, 3, 301–16. The Prosecutor v Dusko Tadic, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, pp. 67–70. President George W. Bush, Fact Sheet: Status of Detainees at Guantanamo, 7 February 2002, http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html. Aldrich, G.H., (2002), ‘The Taliban, Al Qaeda and the Determination of Illegal Combatants’, American Journal of International Law, 96, 891–3; Paust, J. (2003), ‘War and Enemy Status after 9/11: Attacks on the Laws of War’, Yale Journal of International Law, 28, 325–7 (though note Paust’s statement in a subsequent article: ‘Thus, outside the context of war to which the laws of war apply (as in Afghanistan and Iraq) members of al Qaeda who were not otherwise attached to the armed forces of a belligerent or state cannot be “combatants”’ (emphasis added): Paust, J. (2004), ‘Post-9/11 Overreaction and Fallacies regarding War and Defense, Guantanamo, The Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions’, Notre Dame Law Review, 79, 1342. Memorandum for the President from Counsel to the President Alberto Gonzales, ‘Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban’, 25 January 2002, p. 1. Pictet, J.S., ‘Commentary to Article 4’, Commentary to the Third Geneva Convention Relative to the Treatment of Prisoners of War, p. 52, accessible online at http://www.icrc. org/ihl.nsf/COM/375-590007?OpenDocument. US Air Force Pamphlet (1976) para 3. See also Parks, W.H. (2003), ‘“Special Forces” wear of Non-standard Uniforms’, Chicago Journal of International Law, 4, 493–516. Pictet, J.S., ‘Commentary to Article 5’, Commentary to the Third Geneva Convention Relative to the Treatment of Prisoners of War, p. 77, accessible online at http://www.icrc. org/ihl.nsf/COM/375-590008?OpenDocument. Deputy Secretary of Defense, Order Establishing Combatant Status Review Tribunal, 7 July 2004, http://www.dod.gov/news/Jul2004/d20040707review.pdf. Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, [1958] 75 UNTS 135 (entered into force 12 October 1950) (Third Geneva Convention), Article 4A. See US Department for Defense, Military Commission Order No 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War against Terrorism, 21 March 2002. This provides that evidence shall be admitted ‘if, in the opinion of the Presiding Officer …, the evidence would have probative value to a reasonable person’. The President’s ruling can be overruled by a majority of the other representatives of the commission. In a panel on which only the President is required to be legally qualified, those making decisions on the admissibility of evidence may not even be aware of the rules of evidence, let alone apply them. This attracts greater concern in light of the power of the commission to allow, in addition to live testimony from witnesses, ‘any other evidence including, but not limited to, testimony from prior trials and proceedings, sworn or unsworn written statements, physical evidence, or scientific or other reports’, the veracity of which would be unable to be tested by cross-examination. Military Commission Order No 1, ibid, provides that appeal against a decision of the military commission is to a review panel, consisting of three US military officers selected by the Secretary of Defense. The panel may provide a recommendation to the Secretary of Defense, yet the President is to make the final decision as to whether this recommendation should be adopted.

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62. Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, [1958] 75 UNTS 135 (entered into force 12 October 1950) (Third Geneva Convention), Article 129, 130. 63. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, US HR 3162, S 1510, Public Law 107–56 (26 October 2001). 64. Testimony of Attorney-General John Ashcroft to the Senate Committee on the Judiciary, 6 December 2001. 65. Wintour, P. (2001), ‘Blunkett Rejects “Airy-fairy” Fears’, Guardian, 12 November. 66. Ruddock, P. (2003), ‘Opening Address to 12th Annual Conference of the Australian Institute of Professional Intelligence Officers’, Canberra, 22 October. 67. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UN Doc A/6316 (1966), 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). 68. ICCPR, art 4(2). 69. ICCPR, arts 12, 19, 21 and 22. 70. Lawless v Ireland (No 3) (1961) 1 EHRR 15; Greek Case (1969) 12 Yearbook ECHR 1, [153]. 71. See discussion in Michaelsen, C. (2003), ‘International Human Rights on Trial: The United Kingdom’s and Australia’s Legal Response to 9/11’, Sydney Law Review, 25, 275, 291–2. 72. Roberts, A. (2004), ‘Righting Wrongs or Wronging Rights? The United States and Human Rights post-September 11’, European Journal of International Law, 15, 721–8. 73. Brennan, Justice W.J. (1988), ‘The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises’, Israel Yearbook of Human Rights, 18, 11, quoted in Tushnet, M. (2003), ‘Defending Korematsu?: Reflections on Civil Liberties in Wartime’, Wisconsin Law Review, (2), 273.

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Counter-terrorism and the rise of ‘security policing’ Jenny Hocking and Colleen Lewis1

The events of 11 September 2001 transformed the Western world, a transformation caused not only by terrorism but by counter-terrorism. In Australia for instance, a country that has experienced no incidents of terrorism within its borders during this contemporary post-Cold War security resurgence, counter-terrorism has been acknowledged by its Attorney-General as the nation’s most significant contemporary policy field.2 Developments in this area throughout the Western world were swift and so disturbing that in 2004 the International Commission of Jurists, meeting in Berlin for their Biennial Conference, adopted a resolution that read in part: The world faces a grave challenge to the rule of law and human rights. Previously well-established and accepted legal principles are being called into question in all regions of the world through ill-conceived responses to terrorism. … The postSeptember 2001 climate of insecurity has been exploited to justify long-standing human rights violations carried out in the name of national security.3

In the last five years over 30 security-related statutes have been enacted by Australia’s Federal parliament, dramatically reconfiguring and expanding the domestic security infrastructure. At the same time these measures have enabled an alarming expansion of arbitrary and discretionary Executive power within the state’s counter-terrorism machinery.4 As a result Australian domestic law has been transformed, creating an effective second tier of quasi-judicial process outside the established criminal justice system and free of key legal protections including habeas corpus, the right to silence, the presumption of innocence and access to independent legal advice. The passage of several ‘omnibus’ pieces of legislation, each in turn amending several other Acts and operating pre-emptively and incrementally to expand unfettered Executive power has been described by Senator Greig (Australian Democrats) as ‘an ambit claim for arbitrary executive power at the expense of civil rights and fundamental principles of law’. Australians as young 138

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as 16 can now be detained with neither indictment nor trial, potentially indefinitely, interrogated without legal representation, placed under house arrest, restricted in where they might go, whom they might see and what they can discuss. It is now possible for political association to be a criminal offence and for journalists to be jailed even for reporting that people are being detained and, some have claimed, even for disputing government policy on security issues such as the war in Iraq.5 The Security Legislation Amendment Act 2002 (No 2) introduced a range of ‘terrorism offences’ for the first time in Australian Federal law, defining the central term ‘terrorist act’, introducing a means for Executive proscription of ‘terrorist organisations’ and creating derivative organisational crimes in relation to membership and other specified connections to these ‘declared organisations’. The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 greatly expanded the powers of Australia’s pre-eminent domestic security organisation, the Australian Security Intelligence Organisation (ASIO), enabling it for the first time to operate within the policing sphere through new interrogation and detention powers that exceeded those in comparable Western nations. ASIO’s powers to question and detain extend to anyone who may have information of interest to this security organisation and are not confined by evidence of reasonable suspicion, much less conviction.

SECRECY AND INFORMATION CONTROL IN THE SECURITY STATE The introduction of unprecedented ‘Attorney-General’s certificates’ during any trials potentially involving matters of national security has created an overwhelming structural impediment to due process and fair trial through the power of the Attorney-General to exercise an effective veto over material presented to court, including witnesses and evidence. These information control provisions even extend to a person’s choice of lawyer. The National Security Information (Criminal and Civil Proceedings) Act 2004 enables the Attorney-General to issue ‘Attorney-General’s certificates’ to prevent the disclosure, in Federal criminal trials, of information deemed likely to prejudice Australia’s national security. Legal representatives in such cases would be vetted by the security service and could only appear if they received a security clearance. Such trials would be closed hearings, removing the possibility of independent media coverage.6 Furthermore, extensive secrecy provisions now insulate the security sector and its activities from scrutiny whilst at the same time allowing for the release of otherwise prejudicial

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material from government and prosecution (even during the trial process) with impunity and attendant distortion. Finally, Executive proscription powers have been established through which the Attorney-General can, on his own determination, outlaw an organisation and render membership of it illegal. Like the use of Executivedesignated control orders, these provisions overturn the formal separation of powers constitutive of democracy, enabling an Executive designation of guilt and the consequent criminalisation of continued association with a proscribed organisation, a process normally associated with authoritarian states. All 19 of the organisations designated by Australia’s AttorneyGeneral as ‘terrorist organisations’ are Muslim or Arabic groups.7 Whilst these counter-terrorism developments have been subjected to intense public criticism and sustained academic analysis, the debate has largely focused on concerns over the primacy of Executive decrees over judicial process, their impact on established civil and political rights, the rule of law and democratic structures.8 Certainly there are few areas of academic study than can boast the quantity, range and varied quality of analysis as the remarkable growth area of counter-terrorism. Less explored has been the passage of counter-terrorism laws through State parliaments and the impact this raft of measures has had on Australia’s Federal and State-based police forces, the organisations most directly responsible for their implementation.9 In critical respects security activities have merged with those of domestic policing, whilst in other capacities their respective functions rely on unprecedented levels of information collection, exchange and pre-emptive application. The remainder of this chapter focuses on State-based counter-terrorism policy, its passage through parliament and the increase in police powers which in many instances requires citizens to trust police to exercise their proscribed duties fairly, impartially and in accordance with the rule of law. It then analyses more recent Federal and Victorian counter-terrorism legislation and the further compromising of fundamental democratic principles.

STATE PARLIAMENTS The initial counter-terrorism legislation in Australia’s most populous States, New South Wales and Victoria, showcased the procedural and substantive failings already evident in the pattern established by the passage of the more extensive Federal legislation. The Terrorism (Police Powers) Bill 2002 (NSW) and the Terrorism (Community Protection) Bill 2003 (Vic) were steered through their respective Parliaments with minimal opportunity for scrutiny or debate, much less popular input into their provisions.

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The Terrorism (Police Powers) Bill 2002 (NSW) was rushed through the New South Wales Parliament. There was no exposure draft or discussion paper and no parliamentary committee established to allow for public comment and input into laws which, inter alia, removed time-honoured judicial oversight from the search warrant process. Search warrants in New South Wales in respect to this legislation only require ministerial approval. The authorisation for the use of the special powers conferred on police is now a matter between the police and the Executive. The police commissioner or deputy police commissioner (or if they cannot be contacted and the matter is urgent, a police officer above the rank of superintendent) can authorise the use of special powers, but only with the concurrence or confirmation of the police minister.10 Transferring the approval of these warrants from the judiciary to government ministers removes a vital check and balance on the exercise of Executive power. It also undermines the separation of powers, a fundamental characteristic of a democratic society. There is no logical or compelling reason to exclude the judiciary from the process except to increase Executive power, for it is highly unlikely, indeed inconceivable, that a court would deny police the powers they need to deal with a genuine terrorist incident. That is not the role of the judiciary nor is it part of their culture to deny police the authorisation needed to do their job.11 Nevertheless, in liberal democratic societies the independence of the judiciary is seen as a safeguard against possible abuse of police powers and the arbitrary exercise of state power. In New South Wales in respect to counter-terrorism legislation that safeguard has been removed. Deficient parliamentary process at the crucial formulation stage of the policy process, accompanied as it was by the winding back of fundamental democratic safeguards, resulted in an extraordinary expansion of police power in relation to counter-terrorism. Despite the significance of the legislation there was little if any opportunity for dissemination, debate or community interaction. The passage of the Act through the Legislative Assembly was marked by a lack of rigorous, critical comment by most members of the major Opposition Liberal party. However some Independent and minor party members of the Legislative Council were strident in their criticisms of the Bill, particularly its implications for the democratic state. Lee Rhiannon, Legislative Councillor for the NSW Greens, noted the expansion of Executive power untrammelled by judicial oversight proposed by the Bill. She argued that ‘Allowing Ministers to approve warrants and prohibiting any judicial oversight of the new powers are unacceptable erosions of our democratic freedoms’.12 The Independent member Helen Sham-Ho, also recognised the dangers inherent in the transfer of power to a non-reviewable Executive and forcefully made the point that, ‘The Courts are the people’s greatest watchdog over government. The judiciary

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must have an oversight role over these new police powers. By transferring the authorisation for police to use special powers from the judiciary to the executive, the Labour government is playing a dangerous game in terms of the separation of powers’.13 Undermining the separation of powers is not however the only dangerous game played by the provisions of the Terrorism (Police Powers) Act 2002. The rule of law itself, specifically the application of the law to the authorisation of and consequent decisions made under this Act, has simply been removed at the stroke of a pen. Under section 13, the validity of an authorisation and any decision of the police minister with respect to the Act; ‘may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus’. Hocking has argued that, ‘The emergency powers enacted in New South Wales around “credible terrorist threats” are a further example, at the state level, of the Executive authorising itself in the exercise of highly contentious exceptional measures, this time with the express removal of the possibility of legal challenge other than by another executive body’.14 In this instance, independent oversight has been impossibly constrained just when it is needed most. In Victoria the following year, the Terrorism (Community Protection) Act 2003, also passed through Parliament with great haste and little consideration despite its unprecedented provisions that would allow police to secretly enter the homes and vehicles of citizens and covertly search their possessions including private correspondence, documents, financial records and computer files. As with its New South Wales counterpart, there was no formal consultation process for the Bill, no exposure draft or discussion paper and no select parliamentary committee established to provide the opportunity for input by citizens, community groups or other interested parties. The Victorian Department of Justice’s Terrorism Multi-Jurisdictional Crime Unit was charged with writing to organisations including the Bar Association and the Law Institute requesting comment. The written request allowed barely a week for return comment on this highly controversial and certainly most complex piece of legislation. Although a two week extension was granted following an outcry over this haste, it remained an inadequate time-frame in which to examine, analyse and critique what was arguably one of the most significant legislative measures to come before the Victorian Parliament for decades. Despite the lack of an open and consultative process and the limited time given to a few selected associations for comment, the Terrorism (Community

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Protection) Bill 2003 was introduced into the Legislative Assembly on 26 February 2003, second read by the Labour Premier the Hon Steve Bracks the following day and debated on the next sitting day, 18 March 2003. On 18 March the guillotine was set for 4 pm on 20 March. The standing committee charged with scrutinising all Bills that come before the Victorian Parliament was without parliamentary members. Although the Parliament had had ample time to constitute this critical committee, it had not done so by the time the Bill was introduced into the Lower House. The Terrorism (Community Protection) Act 2003 was passed by the Legislative Assembly on 20 March. Six days later the Legislative Assembly appointed seven of its members to the Scrutiny of Acts and Regulations Committee and on 27 March two members from the Legislative Council were also appointed. The newly appointed Committee met the following week and looked at half of the outstanding 26 Bills, although the purportedly urgent Terrorism (Community Protection) Bill 2003 was not one. The Bill was finally considered by the Committee on 7 April, the same day on which the Privacy Commissioner, who is obliged to examine all Bills, was interviewed. The Committee had completed its report by the following day and the Bill passed through the Legislative Council with little further comment on 10 April 2003. Although some members of the Opposition expressed concern about the procedural and substantive aspects of the Bill, they voted for it nonetheless. The Leader of the National Party, Peter Ryan, noted the Bill’s ‘very important provisions’ and the scant time given for their consideration; ‘If I had time I would like to look at an analysis of it’. Nevertheless Ryan continued, ‘We have some concerns about some aspects of its content, but otherwise we wish it a speedy passage’.15 Unlike New South Wales, the Victorian Terrorism (Community Protection) Act does offer the community some safeguards in that it confines the authority to issue covert search warrants to the Supreme Court of Victoria, and police are required to report back to the Court on the execution of the warrant. But given the secret nature of the powers granted to police further protections are needed. In an excellent report on the Bill, the Victoria Privacy Commissioner suggested that police be obliged to provide additional information in an affidavit. For example, they should not only provide information that supports the application but also document factors which could be used to challenge the granting of an application. Both perspectives need to be documented as covert warrants are in effect, ‘an application for a legal authorisation to go on a fishing expedition’.16 Information about ‘context and history’ should also be mandatory. This information is particularly

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important if police have made applications to different judges. Applications should also detail how information was used in any previous applications that targeted the same person or place, and if applicable outline the reasons why the courts may have denied previous applications in relation to the same target.17 Judges can only make a decision on the information put before them and this information is not always complete. This issue was raised in a December 2001 confidential Victorian Ombudsman’s report in which the Ombudsman expressed concern about police deliberately omitting ‘vital’ information from affidavits when applying to the courts for permission to use listening devices. He noted that this type of conduct ‘may be symptomatic of a wider systemic problem’ as the same issue had arisen seven years earlier.18 The giving of inaccurate and misleading explanations by police is not confined to applications for search warrants, nor is this an isolated example. The Ombudsman was also misled when his office investigated the disappearance of several Special Branch files some years previously.19 If vital information has been deliberately withheld from affidavits over a number of years in respect of listening devices, and if police are less than truthful to the Ombudsman when he is officially investigating a serious civil liberties breach by police, it is essential that covert search warrants are subject to increased accountability. This is particularly so as the covert search warrant provisions in the Terrorism (Community Protection) Act are asking the citizens of Victoria to trust the police with extraordinary powers that one day could be used against them. In relation to New South Wales, the removal of the courts from the warrant process is asking for even greater levels of trust. As will be discussed later in this chapter, there is damning evidence of police misusing their power and lying to cover up abuse which seriously calls into question whether that trust is well placed. Subsequent changes to the Victorian Terrorism (Community Protection) Act further insulated the State’s police force from scrutiny in this contentious and potentially dangerous field. The Terrorism (Community Protection) (Further Amendment) Act 2006 exempted any documents created by the counter-terrorism coordination and emergency management department of Victoria Police from Freedom of Information requests, at the same time cementing Executive control over the flow of information regarding actions taken and decisions made under the rubric of counter-terrorism. ‘The new law would allow the minister to determine that a document “ceased to be, or is not to be, available for public inspection” … The new section would also allow the minister to permit access to withheld documents for research purposes’, according to specified conditions on publication or release.20

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CONTINUED WINDING BACK OF THE DEMOCRATIC STATE The most significant legislative enactment in terms of implementation by Federal and State police forces is the Federal Anti-Terrorism Act 2005. This Act builds on the British experience in its introduction of two types of Executive detention without trial. The first of these is ‘preventative detention’ through which individuals neither suspected of any offence nor charged can be held for up to 14 days, without charge, without trial, without access to independent legal advice and incommunicado – including children as young as 16 years old in cases of an actual incident or imminent terrorist threat. Secondly, like much of the counter-terrorism legislation, the AntiTerrorism Act 2005 operates pre-emptively, enabling the use of ‘control orders’ against ‘terrorist suspects’ – including detention as house arrest, electronic tagging, isolation, restrictions on communication and association – for up to a year and potentially indefinitely through the use of rolling orders. Those subject to such orders will have been charged with no offence and cannot know the evidence against them, being able only to obtain a summary of the grounds on which the order is made and unable to access independent legal counsel. Those grounds will in turn have been supplied by the security service, blurring the line between security intelligence and judicial evidence and enabling what Paye describes as the ‘primacy of suspicion over fact’ in the implementation of an Executive, non-judicial, detention regime.21 In August 2006 a Melbourne man, Jack Thomas, became the first Australian held under these control order provisions. What is remarkable in this instance is not only that a form of Executive detention has been imposed without conviction of any offence, but that Thomas has actually been charged and acquitted of terrorism charges in the weeks leading up to the imposition of the control order. Thomas was therefore, at law, not only an unconvicted man but an innocent one. As Professor George Williams noted; Control orders are a quite extraordinary part of our law. They’re not something that we’ve had in Australia in the past. And they’re a brand new way that the Government can impose limitations upon people that go even beyond someone being jailed for committing an offence. It’s a second go, if you like, for the authorities.22

Given that at the time of the imposition of the Executive order Thomas’ appeal process was yet to be exhausted, the Attorney-General’s intervention could be seen as undermining Thomas’ ability to receive a fair trial.

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Yet more changes to the counter-terrorism armoury in mid-2006 created a further impediment to fair trial for those charged with terrorism offences. Thirteen men charged in Melbourne with being ‘members of an unnamed and unspecified organisation’ were denied access to legal aid unless their lawyers agreed to being vetted by the security service, ASIO.23 The lawyers for the accused all refused to submit to a personal security check, fearing that to do so would undermine access to independent legal advice and would potentially necessitate the use of Executive-sanctioned legal counsel rather than counsel of the accused’s choice. Ultimately a compromise was reached. The Federal Attorney-General, Philip Ruddock, advised the accused that as their lawyers would not submit to a security clearance, a designated Executive-appointed lawyer would be engaged if required during the trial. Describing the security presence at the preliminary hearing as ‘theatre’, the solicitor for most of the accused, Rob Stary, thanked Legal Aid for the resolution of the impasse; ‘now these men have now the capacity to receive a fair trial’ that a lack of legal representation would have denied them.24 The Federal Anti-Terrorism Act 2005 contained such contentious provisions and was based on such dubious constitutionality that it required both the ceding of State powers to Federal jurisdiction and the concomitant passage of State legislation to inure it from inevitable High Court challenge. Late that year the Victorian Government introduced the necessary State legislation through the Terrorism (Community Protection) Amendment Bill 2005 that would enable the police to implement both the preventative detention and extensive stop and search powers contained in the Federal legislation. Although an application for preventative detention ‘will usually be made by the police to the Supreme Court’, in ‘more urgent cases’ the application can be made by police to police. In such cases an order can be granted by a senior police officer without reference to a court and in the absence of the subject of the order.25 Further expansive and discretionary powers enabled by the Terrorism (Community Protection) Amendment Act authorise state police to exercise ‘special powers’ to stop, search and seize, in order to, inter alia, ‘secure an event or gathering of persons that may be the target of a terrorist act or police resources cannot ensure the security of the event or persons attending it’.26 Clearly the reach of the police ‘special powers’, although introduced to meet a putative need to enhance counter-terrorism capabilities, in fact and quite explicitly could extend to any large gathering such as demonstrations and industrial disputes. It is these highly contentious areas where police have already been shown to readily extend their ‘exceptional’ counter-terrorism training methods and squads, with disastrous results.27 The Victorian State Government claimed that the nature of terrorism necessitate these exceptional powers and related new measures, ‘the

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consequences of terrorist acts mean that police may need to intervene earlier to prevent a terrorism act with less knowledge than they would have required using traditional policing methods’. It is startling to introduce exceptional measures that require unprecedented and unaccountable police discretion, that rely on careful analysis and which by their very nature undermine individual liberties and rights, with the frank admission that police will act with ‘less knowledge’ than usual. The breadth of these provisions indicate that the rubric of ‘counter-terrorism’ has provided the means for normalising a Draconian and non-reviewable security policing regime and raise concerns about the exercise of ‘arbitrary police power’; ‘Rather than requiring reasonable suspicion, police are empowered to search anyone merely for being in the security zone. This will in practice authorise arbitrary searches for those who “look like a terrorist” and could normalise discriminatory practices of racial profiling’.28 That these laws would necessarily entail discretionary decision-making by individual police officers was recognised immediately by those police responsible for its implementation. State and Federal Police Unions ‘dismissed the new regime as flawed, impractical and political’.29 In particular they and many others expressed concern over the inevitable racial profiling in the implementation of such a broad and ill-defined approach to policing and security.30 Recognising this inevitability, the Police Federation of Australia sought legal protection for police against the prospect of being sued for unlawful discrimination in their implementation of State-based stop and search powers.31 The President of the Lebanese Muslim Association, Ahmad Kamaleddine, and a former member of the Community Relations Commission, Jamal Rifi, pointed to the raft of counter-terrorism measures enacted since 11 September 2001 as having created fears of persecution within their communities and with growing evidence of the use of racial profiling.32

TRUSTING THE POLICE The raft of counter-terrorism legislation passed through Australian parliaments over the past five years is asking citizens to trust police. But history calls into question the degree to which police exercise their powers according to due process and the rule of law. The evidence raised in earlier inquiries regarding listening devices and Special Branch files and the findings of commissions of inquiry into various Australian police organisations seriously question the granting of more coercive powers to police with less rather than more independent oversight. Over the past 40 years, several

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inquiries into police conduct in Australia have revealed systemic illegal behaviour by police, including: lying under oath; the planting of evidence; unlawful and brutal violence; systematic harassment of minority groups; and police exceeding their powers.33 A watershed commission of inquiry into policing in the Australian State of Queensland, conducted between 1987 and 1989, the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (the Fitzgerald Inquiry), revealed that for many years police had been contemptuous of the criminal justice system, disdainful of the rule of law and apparently unaware that it applied also to them. Their disregard for the truth meant that for 25 years verbal confessions (verbals) were a feature of criminal trials in Queensland.34 However, verballing was not peculiar to Queensland, it has been widespread in other Australian States, including New South Wales. By the 1980s concerns about the use of such disputed confessions had reached the High Court, with Justice Lionel Murphy of that court remarking that: ‘In Australia, the problem of fabricated and pressured confessions has been recognised by the judiciary as a continuing problem’.35 A 1994–97 Royal Commission into the New South Wales Police Service (the Wood Inquiry) revealed that police behaviour in that state included: perjury, the planting of evidence, abuse of due process, alcohol and drug abuse, police interference with prosecutions in return for bribes, protection of the drug trade and direct police involvement in the supply of cocaine, heroin and cannabis.36 More recently the 2004 reports of the Royal Commission into Whether there has been Corruption or Criminal Conduct by any Western Australian Police Officer found, among other things, that ‘there is little doubt that … search warrants were forged, obtained by misleading Justices of the Peace and used for improper searches and to “legitimise” improper searches’. While the Commission concluded that it was not possible to ascertain the degree to which warrants had been forged or otherwise improperly obtained, it was ‘clear’ that those police who had acted improperly did not try to hide the forgery from colleagues. This, the Royal Commission found, ‘indicates that there was a culture of expectation among those officers that improperly obtained warrants might be used in certain circumstances’.37 This damning evidence from independent inquiries established by various State governments in Australia challenges the wisdom of granting more coercive and at times secret powers to police with insufficient or no oversight by the independent judiciary and independent officers of the parliament such as Ombudsmen and public interest monitors.

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CONCLUSION At the heart of the dilemma confronting Western nations is the overarching question of whether the crime of terrorism warrants the curtailing of democratic freedoms. When attempting to resolve this issue: … we need our politicians to recall the basic principle of security provision in liberal democratic societies, namely that the security of the state and the security of individuals do not necessarily coincide and have often been at odds, and we need to demand opportunities for significant grassroots involvement in the definition of security needs and the provision of security solutions.38

A democratic state, underpinned by fundamental principles of the rule of law, freedom of political association, responsible government and a free media cannot compromise such principles without at the same time compromising the democratic nature of the state itself. These four requirements, pillars of a democratic state, must be non-negotiable, for the preservation of rights and liberties do not undermine security but constitute the very means by which it is sustained. A recent report from the United Nations’ Human Rights Council examined Australia’s human rights compliance in the area of countering terrorism. The report recalled the UN’s earlier recognition of this persuasive sophistry of ‘balance’: ‘effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones. The defence of human rights is essential to the fulfilment of all aspects of a global counter-terrorism strategy’.39 The current political environment that privileges the interests of national security over individual liberties and legal protections has seen the nature of the law shift from a means of achieving justice, a defining feature of the democratic state, to a mere tool of its Executive branch. In presiding over this transformation legislatures have been complicit in the formation of a new type of post-democratic state, whose democratic substance has been diminished if not irrevocably compromised. The irony of the current political environment is that the democratic West, including Australia, spent hundreds of billions of dollars fighting the war against communism: the ‘Cold War’. It took place for over 40 years and during that time election campaigns were fought and won on the basis of protecting democratic freedoms from the threat of communism. In 1989 the Berlin Wall that symbolised communism was torn down. Much jubilation followed as democratic governments around the world loudly proclaimed a victory for democracy. Since then further billions of dollars have been spent to assist the spread of democratic values. Paradoxically, since the 11 September terrorist attacks in the USA these same governments are, at

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the same time, enacting laws that curtail the rights and freedoms of their own citizens. In doing so they are moving their democratic states into a dangerous post-democratic era.

NOTES 1. Jenny Hocking is Professor and Colleen Lewis Associate Professor in the School of Humanities, Communications and Social Sciences, Monash University, Australia. 2. Australian Attorney-General Philip Ruddock. 3. Berlin Declaration, adopted 28 August 2004. International Commission of Jurists Australian Section, http:www.icj-aust.org.au/?no=14, accessed 24 January 2007. 4. See ‘Legislation’, http://www.nationalsecurity.gov.au. Accessed 4 October 2006. 5. Brown, Senator B. (2005) in AAP General News Wire, ‘Disrespect to Howard could Land People in Jail: Brown’, 22 October. 6. National Security Information (Criminal and Civil Proceedings) Act 2004, Division 2. 7. http://www.nationalsecurity.gov.au, ‘Listing of Terrorist Organisations’. 8. See details of these developments in Hocking, J. (2004), Terror Laws: ASIO, Counterterrorism and the Threat to Democracy, Sydney: University of New South Wales Press; Hocking, J. (2007), ‘Academic Freedom in an Age of Terror’, in Turk, J. and Manson, A. (eds) Academic Freedom in Fearful Times, Canada: James Lorimer Publishing; Hocking, J. (2005), ‘Liberty, Security and the State’, in Saunders, P. and Walter, J. (eds), Ideas and Influence: Social Science and Public Policy in Australia, Sydney: University of New South Wales Press, pp. 178–97; Lynch, A. and Williams, G. (2006), What Price Security?: Taking Stock of Australia’s Anti-Terror Laws, Sydney: UNSW Press; and all contributors to University of New South Wales Law Journal (2004), 27(1) Thematic Issue: The Legal Response to Terrorism. 9. Australia is a Federation with one Federal parliament, six State and two Territory parliaments. Criminal justice issues fall under the power of the States and Territories. Hence, each Australian State, New South Wales, Victoria, Queensland, Tasmania, South Australia and Western Australia, and its two Territories, Northern Territory and the Australian Capital Territory, have their own police force. The Australian Federal Police falls under the power of the Federal Government. 10. If the police minister is not contactable at the time the authorisation is given he/she must be notified of the authorisation as soon as they are available to be notified. If the police minister has not confirmed the authorisation within 48 hours it ceases to have effect. The police minister also has the power to revoke an authorisation at any time. 11. The New South Wales Privacy Commissioner, in its application to the New South Wales Law Reform Commission Report, looked at the number of warrants sought and the number granted in respect to the Listening Devices Act 1984. In 1999, 1544 warrants were sought and none refused. In 2000, 1214 warrants were sought by law enforcement agencies and again not one application was refused by the Supreme Court. 12. Rhiannon, L. (2002), NSW Legislative Council, Hansard Second Reading, Terrorism (Police Powers) Bill, 3 December. 13. Sham-Ho, The Hon. H. (2002), NSW Legislative Council, Hansard Second Reading, Terrorism (Police Powers) Bill, 3 December. 14. Hocking, J. (2004), Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, Sydney: University of New South Wales Press, p. 239. 15. Ryan, The Hon. P. (Leader of the National Party) (2003), Hansard Legislative Assembly, Second Reading, Terrorism (Community Protection) Bill, 19 March, pp. 379, 382. 16. Perry, Dr B., Victorian Ombudsman (2003), quoted in Moor, K. (2003), ‘Police Abuse Home Bugging’, in Herald Sun, 6 February, p. 2.

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17. Office of Victorian Privacy Commissioner (2003), Submission to the Victoria Parliament’s Scrutiny of Acts and Regulations Committee in relation to the Terrorism (Community Protection) Bill, March, p. 14. 18. Confidential report by Dr Barry Perry, Victorian Ombudsman (December 2001), referred to in Moor, K. (2003), ‘Police Abuse Home Bugging’, Herald Sun, 6 February 2003, p. 2. 19. Victorian Ombudsman (1999), Final Report of the Ombudsman, Allegations Raised Concerning the Activities of the Operations Intelligence Unit and Other Related Issues, Ordered by the Legislative Assembly to be printed, No. 48, Session 1998–99, Victoria, Victorian Ombudsman. 20. Dowling, J. (2006), ‘Anti-terror Bill Limits FoI’ Sunday Age, 9 April. 21. Paye, J.-C. (2005), ‘The End of Habeas Corpus in Great Britain’, Monthly Review, 57 (6), November, p. 34; Hocking, J. (2007), ‘Academic Freedom in an Age of Terror’, in Turk, J. and Manson, A. (eds), Academic Freedom in Fearful Times, Canada: James Lorimer Publishing. 22. Williams, G. (2006) in ‘Lawyers Challenge Jack Thomas Control Order’, The World Today, ABC Radio, 29 August. 23. ABC Radio (2006), ‘Terrorism Trial: Legal Aid Funding Resolved’, PM, 14 June. 24. Stary, R. (2006) in ABC Radio, ‘Terrorism Trial: Legal Aid Funding Resolved’, PM, 14 June. 25. Department of Premier and Cabinet (2006), ‘Victorian Counter-Terrorism – Questions and Answers on Recent Issues’, http://www.dpc.vic.gov.au, p. 5. 26. Ibid, p. 8. 27. Hocking, J. (2004), Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy, Sydney: University of New South Wales Press. 28. Pettitt, A. and Sentas, V. (2005), ‘Laws for Insecurity’, Alternative Law Journal, 30 (6), December, pp. 284–5. 29. Dyer, P. (2005) ‘Tough Times: New Laws to Combat Terror Strike in Australia’, Sunday Times (WA), 2 October. 30. AAP General News Wire (2005), ‘Disrespect to Howard Could Land People in Jail: Brown’, 22 October. 31. Georgiou, P. (2005) ‘Multiculturalism Does Not Breed Terrorism’, Speech delivered at the Castan Centre for Human Rights Law, Monash University, 18 October, http://www. safecom.org.au/georgiou-multiculturalism.htm, accessed 21 November. 32. Jamal, N. and Wainwright, R. (2005), ‘Plea for Computer Seized in Terrorism Raid’, Sydney Morning Herald, 3 December, p. 9. 33. See, for example, Kennedy, G.A. (2004), Royal Commission into Whether there has been Corrupt or Criminal Conduct by any Western Australian Police Officer, Final Report, vol. 1, Perth: Government Printer; Wood, J.R.T. (1997) Royal Commission into the New South Wales Police Service, Final Report, Vol. 1: Corruption and Vol. 2: Reform, Sydney: The Government of the State of New South Wales, Fitzgerald, G.E. (1989), Report of a Commission of Inquiry Pursuant to Orders in Council (the Fitzgerald Report), Brisbane: Government Printer; Justice White (1977), Special Branch Security Records Report, Adelaide: South Australian Government Publishers; Beach, B. (1976) Report of the Board of Inquiry into Allegations against Members of the Victoria Police Force (the Beach Report). Melbourne: Government Printer. 34. Fitzgerald, G.E. (1989) Report of a Commission of Inquiry Pursuant to Orders in Council (the Fitzgerald Report), Brisbane: Government Printer, pp. 200–6. 35. See Murphy, J. (1982), Cleland v The Queen 151 CLR, p. 12 in Hocking, J. (2000), Lionel Murphy: A Political Biography, Melbourne: Cambridge University Press, p. 273. 36. Wood, Hon J.R.T. (1997), The Final Report for the Royal Commission into the New South Wales Police Service, Sydney: NSW Police Integrity Commission. 37. Kennedy, G.A. (2004) Royal Commission into Whether there has been Corrupt or Criminal Conduct by any Western Australian Police Officer, Perth: Government Printer.

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38. Valverde, M. (2001) ‘Governing Security, Governing Through Security’, in Daniels, R.J., Macklem, P. and Roach, K. (eds), The Security of Freedom: Essays on Canada’s Antiterrorism Bill, Toronto: University of Toronto Press, p. 90. 39. UN Global Counter-Terrorism Strategy (part IV) in Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin (2006), Australia: Study on Human Rights Compliance while Countering Terrorism, A/HRC/4/26/Add.3, 14 December, p. 5.

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‘Devils and dust’: extending the ‘uncivil politics of law and order’ to the ‘war on terror’ David Brown and Janice Gray Well I’ve got God on my side And I’m just trying to survive What if what you do to survive Kills the things you love Fear’s a dangerous thing It can turn your heart black you can trust It’ll take your God filled soul Fill it with devils and dust1

INTRODUCTION The excessive responses to the threat of terrorism exhibited by many western governments are frequently characterised as exceptional responses. These include: extensions of police powers, the use of preventative detention, the criminalisation of communication, the creation of doctrines such as ‘preemptive strike’ and ‘enemy combatants’ to legitimate manifest illegality, the use and justification of torture, and the use of distorted trial processes such as ‘military commissions’ outside the foundations of law. The proponents of these measures portray their exceptional character as a necessary response to the danger presented by the actuality, threat or risk of terrorist attack. Opponents of the measures stress their exceptional nature in order to highlight the sweeping aside of centuries of traditional protections, civil liberties and constitutional or common law rights and understandings about the exercise of power in western societies, these rights described as ‘not the stuff of empty rhetoric [but] the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny’.2 153

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In the Australian context the exceptional nature of some of the measures contained in a welter of legislation illustrates the view of Mr von Doussa, a former Federal Court judge and Howard Government-appointed President of the Australian Human Rights and Equal Opportunity Commission, that the Anti-Terrorism Bill (No 2) 2005 (Cth) would ‘seriously fail the human rights test’ and contravene the International Covenant on Civil and Political Rights unless it allowed courts to review the factual merits of control orders and preventative detention. The defining characteristic of a police state is that police exercise power on behalf of the executive without being effectively subject to the courts. ‘Regrettably this is exactly what the laws which are currently under debate will achieve’, von Doussa said.3 Such comments came on top of a range of strong criticism of the measures by a host of former judges, including two former Australian Chief Justices of the High Court, Sir Anthony Mason and Sir Gerard Brennan, two former Chief Justices of the Australian Family Court, Elizabeth Evatt and Alister Nicholson, and two former Australian Prime Ministers, Gough Whitlam and Malcolm Fraser.4 The strength and depth of the opposition from such prominent figures is an indication that indeed something exceptional is afoot. Without wanting to diminish such concern, our aim in this chapter is to argue that some of the pernicious elements of anti-terrorism responses, rather than being entirely exceptional, have their origins in existing practices already operating in many western domestic criminal justice systems. In particular our argument is that many of these measures represent an extension of an ‘uncivil politics of law and order’5 which has been a feature of the domestic politics of many countries from the 1980s onwards. The aim in highlighting continuity with an existing ‘uncivil politics of law and order’ rather than the rupture of an historical legacy of due process, is not to downplay or attempt to defend the excessive and anti-democratic character of recent anti-terrorism measures, nor to ‘disarm ourselves before power’6 as E.P. Thompson put it in his spirited defence of the rule of law. Rather it is to challenge a self-congratulatory tone that sometimes accompanies the portrayal of that historical legacy in ideal terms and that confuses these ‘ideal representations of law with the way existing legal institutions (and in particular criminal justice) actually are, or perhaps ought to be or could be’.7 It is of vital importance that the historical legacy of struggles to ‘impose effective impositions upon power and the defence of the citizen from power’s all intrusive claims’8 be both recovered and upheld – lest we all end up standing ‘on a very narrow ledge, watching the tides come up’,9 those twin tides of terrorism and anti-terrorism, of Orientialism and Occidentalism. However, it is also vital that we recognise the inroads which ‘power’s allintrusive claims’ have already made in the body politic, and the extent to

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which those inroads in the domestic realm constitute the contour maps for the current assaults on our liberties and way of life. What also becomes apparent in an examination of those inroads, is how flimsy in legal terms are the foundations of our liberties in Australia in the absence of either a constitutional or a statutory Bill of Rights. The chapter will sketch out this argument in three stages, first, by briefly outlining Garland’s analysis that as the ‘limits of the sovereign state’ in protecting us from crime have become more obvious, so two contradictory responses have emerged.10 One of these is an ‘hysterical denial’ of those limits, by symbolic reassertions of sovereign power in exclusionary and punitive ways against a pathologised ‘other’. This analysis clearly has resonances for recent national security policy. Secondly, we examine some of the key characteristics of the domestic ‘uncivil politics of law and order’ through which constraints on the impulse to revenge have been weakened and the distinction between civilian and military life and values have been blurred. Thirdly, preventative detention is examined as an example through which to trace certain continuities between an established domestic politics grounded in the promotion and exploitation of fear, risk, and insecurity and a similar politics constructed around responses to terrorism, conducted on a larger national and international stage. A secondary theme emerges from the discussion, namely that human rights and civil liberties protections rest on flimsy legal foundations in Australia. Indeed it is not even clear that there is anything in the Australian Constitution to prevent the enactment of genocidal policies.

THE ‘LIMITS OF SOVEREIGN CRIME CONTROL’ AND ITS ‘HYSTERICAL DENIAL’ In an influential article in 1996 David Garland argued that common features of contemporary crime control in societies such as Great Britain, the United States of America (USA), Australia and elsewhere are the acceptance of high crime rates as a ‘normal social fact’ and an increasing recognition of the limitations on what can be achieved through reliance on criminal justice agencies. Garland argued that this has led to the erosion of ‘one of the foundational myths of modern societies: namely, the myth that the sovereign state is capable of providing security, law and order, and crime control within its territorial boundaries’.11 A ‘predicament of control’ follows as governments realise that they need to withdraw or qualify their claims to be the primary providers of security and crime control and that the political costs of such moves are likely to be disastrous. Law and order politics have thus become increasingly volatile and contradictory as particular policies are

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generated which adapt to the predicament by ‘responsibilisation’ strategies which seek to enlist citizens and non-state agencies in crime control ventures. Simultaneously, the political wing of government engages in an ‘hysterical denial’ of this predicament and seeks to symbolically reassert the myth of sovereign crime control with a range of ultra-punitive and exclusionary policies of harsher and mandatory sentences, the death penalty (in the USA), soaring imprisonment rates and the pathologising of particular categories of offender. One response then is to ‘routinize crime, to allay disproportionate fears and to promote preventative action. The other is concerned to demonize the criminal, to excite popular fears and hostilities, and to promote support for state punishment’.12 Quietly and behind the scenes, the ‘responsibilisation’ equivalent is the recognition of the increasingly integrated and globalised nature of international relations and forms of governance. Simultaneously, however, we have witnessed something akin to Garland’s ‘hysterical denial’ of ‘the myth of sovereign crime control’ writ large in national and international politics around the construction of national security. Prime Minister John Howard’s mantra at the launch of the Liberal Party’s 2001 election campaign following the Tampa and the ‘people (not) overboard affair’13 that ‘we will decide who comes to this country and the circumstances under which they come’, is a prime example, as is the Howard Government’s hostility to human rights and international standards promoted through treaties. This hostility is manifest in the Government’s attack on the Australian Human Rights and Equal Opportunity Commission’s (HREOC) ‘stolen generations’ Report (1997);14 its attacks on United Nations (UN) human rights treaty bodies and its downgrading of Australia’s role in these committees in September 2000 in response to criticism over mandatory sentencing, native title amendments, indigenous health and the treatment of refugees. This was followed by a ban on visits to Australia by UN human rights monitoring bodies, and the government’s refusal to sign an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women which would have enabled women to seek an opinion from the UN Committee on the Elimination of Discrimination against Women. The refusal to sign occurred despite the fact that Australia had played a major role in drafting the Protocol. Evident in all these actions is an ‘hysterical’ and symbolic reassertion of national sovereignty which is supposedly under threat from UN Human Rights Committees and from the suggestion that Australia should comply with international treaties and protocols that it helped draft. As then Federal Minister for Veterans Affairs, De-Anne Kelly, put it, in response to the suggestion that the denial of a pension to an ex-serviceman’s gay spouse was in breach of international conventions, ‘we are not interested in the opinions

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of extraneous agencies’.15 Respected legal commentators have described this ‘intrusion’ perception of international law as ‘akin to a form of legal xenophobia’ connected to ‘the politics of Australian fundamentalism’.16 Ghassan Hage sees it as an illustration of ‘paranoid nationalism’.17

THE UNCIVIL POLITICS OF LAW AND ORDER In Rethinking Law and Order, Hogg and Brown argued that law and order politics in the Australian context was becoming increasingly ‘uncivil’.18 In what have since become commonplace observations, they noted the rise in importance of law and order as an issue in electoral politics and the scramble by politicians to be seen to be ‘tough on crime’ especially in the lead-up to elections. The authors also noted the extent to which law and order has become a daily staple of mass communications, particularly talk-back radio, the tabloid press and television ‘current affairs’; and the deriding of those who called for more considered responses as ‘bleeding hearts’ or ‘the chardonnay/latte set’. They characterised this trend as reflecting: a certain style of public and political debate about law and order issues: closed and narrow rather than open and inclusive; inclined to disqualify rather than welcome diverse viewpoints; suspicious of knowledge and expertise where it fails to validate pre-existing prejudices; predisposed to populist pandering to private insecurities and resentments instead of the promotion of informed, public-spirited debate; and whose timeframe is always the short rather than the long term. We call this the uncivil politics of law and order.19

Hogg and Brown argued that this ‘uncivil politics of law and order’ was ‘spreading its influence into other areas of Australian politics, notably race and immigration’,20 to which we can now add foreign policy, defence and national security issues, including the response to terrorism. Foremost among the principles of civil government is the idea that violence be kept out of politics and daily life. Western liberal states take for granted the core political and historical dimension of this principle, the distinction between civilian and military life and the exclusion of military authority and martial values from the regulation of the internal life of the state. But there remains a conundrum at the heart of this idea of the civil. Civil society requires protection, not only from external enemies, but also from internal violence. This often necessitates a resort to forcible control of the sources of such threats. The recourse to ignoble, often violent means to control or prevent violence and to protect society obviously carries the risk that at some point it may itself destroy the civil fabric; that to preserve civility means must be resorted to which are themselves uncivil, or risk

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becoming so. In broad historical terms, this dilemma has been managed by the renunciation of unreasoned retaliation and violence in daily life in favour of the legal governance of the agents and means of legitimate coercion. However a more civil politics – open, tolerant, reasoned, mindful of the public good – is not easy to sustain, particularly when it comes to questions of crime and punishment. Law and order provides a strenuous test of adherence to standards of civility, for crime itself offends the values and institutions of a civil society. It engenders passionate feelings and emotions, including the need to retaliate against the perpetrators. For these reasons, though, it is all the more vital that civilised standards and practices are observed. The more punishment is permitted simply to mirror the crime, the greater the risk of losing sight of any difference between them, of setting in train a brutalising cycle of violence and counter-violence in which the means ostensibly adopted to preserve a civil society end up threatening it. There are many societies in the world today where this is a glaringly familiar pattern, societies in which public executions, quasi-official death squads, vigilantism and the exaction of private vengeance are a prominent feature of the fabric of law and order. As Susan Jacoby points out in her study of revenge, we can never entirely disentangle ourselves from these dilemmas and tensions and the competing values and sentiments they arouse. Our arrangements for responding to crime therefore are inevitably composed of a rather fragile mix of elements, a compromise between the different values, sentiments, norms, objectives, demands and procedures that cluster around the questions of crime and punishment. As Jacoby explains: Establishment of a balance between the restraint that enables people to live with one another and the ineradicable impulse to retaliate when harm is inflicted has always been one of the essential tasks of civilisation ... Laws are designed not to weed out the impulse toward revenge but to contain it in a manner consistent with the maintenance of an orderly and humane society.21

Jacoby’s balance between restraint and ‘the ineradicable impulse to retaliate when harm has been inflicted’ has shifted since the 1980s, and law and order has been the field in which that shift has been most clearly apparent. Law and order has operated as a Trojan horse through which an increasingly unconstrained ‘impulse towards revenge’ has entered the wider political spaces of defence, national security, and international affairs. Some of the counter-terrorism measures have attracted considerable public support in Australia, illustrated in public opinion surveys, with two thirds of respondents supporting two weeks’ detention without charge for terrorist suspects, three quarters supporting some sort of restrictions such as house arrest or tracking devices but 60 per cent opposing shoot-to-kill powers.22

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This is, in part, because notions and practices such as preventative detention have already been legitimated through their use in the field of domestic law and order. Of course such public opinion is volatile and subject to shifts as various ‘scandals’, such as those over the existence of ‘weapons of mass destruction’ as a reason for invading Iraq and that asylum seekers had thrown their children overboard when in fact their boat had sunk, come to light. Public support is also in part a consequence of the current political convergence in countries like Australia and the United Kingdom where the mainstream political opposition is supporting the government on national security issues and offering no real political alternative.

PREVENTATIVE DETENTION ORDERS IN THE ANTI-TERRORISM ACT (NO 2) 2005 A controversial aspect of recent anti-terrorism legislation is the provision for preventative detention orders to ‘prevent an imminent terrorist attack occurring; or preserve evidence of, or relating to a recent terrorist act’.23 An application for an initial preventative detention order can be made by members of the Australian Federal Police (AFP) (s 105.7) and granted by a senior member of the AFP (s 105.8). Grounds for the order include that: (a) there are reasonable grounds to suspect that the subject: (i) will engage in a terrorist act; or (ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or (iii) has done an act in preparation for, or planning, a terrorist act; and (b) making the order would substantially assist in preventing a terrorist act occurring.24

An initial preventative detention order runs for 24 hours (s 105.8(5)) followed by an extension for a further 24 hours (s 105.10). The AFP can apply to an ‘issuing authority’ appointed by the Minister (s 105.2) for a continued preventative detention order of someone subject to an initial order, on the same grounds. An ‘issuing authority’ may be a Judge of a state or territory Supreme Court; a Judge; a Federal Magistrate; a retired Judge of a superior court; and the President or Deputy President of the Administrative Appeals Tribunal (AAT). The ‘issuing authority’ is acting in a personal capacity and not as a court (s 105.18(2); s 105.46(1)), and the application is heard ex parte as an executive action. The Act sets a period of 48 hours for continued orders (s 105.12(5)) but under complementary laws passed by all states and territories a maximum period of 14 days applies.25 A media release from the Prime Minister’s Office stated: ‘States and Territories will be asked to

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provide for longer detention periods … because there are constitutional restrictions on the capacity of the Australian Government to provide for this type of detention’.26 As pointed out by three leading academic lawyers, this manifests ‘the explicit intent to circumvent the constitutional separation of powers between the executive and the judiciary which prevents the executive from imposing punitive sanctions without trial or conviction by the courts’.27 As the hearing is ex parte, information on which the application for an order is made cannot be tested or counter-information presented. The person must have the effect of the order explained to them (s 105.28), and be given a copy of the order and a summary of the grounds on which an order is made (s 105.32). There is an entitlement to contact a lawyer (s 105.37) but communications with the lawyer will be monitored by the AFP (s 105.38) and the lawyer commits an offence punishable by five years’ imprisonment if they disclose to any other person the fact that the order has been made (s 105.41(2)(a)). If a prohibited contact order is made against the lawyer the AFP must assist the person to choose another lawyer (s 105.37(3)), with priority given to ‘lawyers who have been given a security clearance at an appropriate level by the Department’ (s 105.37(4)). Detainees can contact the Commonwealth Ombudsman (s 105.36) to complain about their treatment and can contact one family member, an employer, one employee or business partner, or someone the police agree to, ‘but solely for the purposes of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being’ (s 105.35(1)). Various disclosure offences punishable by imprisonment for five years are created where someone discloses to another person the fact that a preventative detention order has been made or that a person is being detained under such an order (s 105.41). A ‘parent/guardian’ commits an offence if they disclose the fact that a detention order has been made to another person (s 105.41(3)), a criminalisation extending to a parent who, without obtaining prior approval of the AFP, tells the other parent that a son or daughter has been detained (s 105.41(4)). Application may be made to the AAT for a review of a decision to make or extend a preventative detention order – after the fact – and the order can be declared void and compensation granted (s 105.51). The legislation is subject to a 10 year sunset clause (s 105.53). Byrnes, Charlesworth and McKinnon argue that ‘there has been no attempt by the Commonwealth government to justify the need for these specific provisions, and the severe restrictions on individuals’ human rights, as required by the ICCP’.28 They raise specific concerns: that the regime provides for detention without a judicial hearing; judicial review of the regime is inadequate; there is no guarantee that a detainee will be told the reasons for their arrest; detainees are to be held almost incommunicado;

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communications are monitored; they may be held in prisons and remand centres and there is no requirement that children be detained only as a last resort. They point out that ‘the safeguards of a criminal trial which are provided to people charged with a terrorist offence are far greater than the safeguards given to people against whom there is insufficient evidence for prosecution’.29 Given that public opinion surveys indicate majority support for preventative detention orders it is instructive to examine the extent to which preventative detention is already an established feature of Australian domestic criminal and civil law. Aspects of preventative detention can be seen in: current sentencing policies; specific state legislation providing for preventative detention or for additional periods of imprisonment beyond what was proportionate to the offence previously committed; mandatory penalties; ‘natural life’ sentences; Habitual Offenders legislation; and in civil law fields such as mental health and immigration law. The essential feature of preventative detention is that a person is being detained or imprisoned not as punishment for a criminal act which they have already committed but on the basis of the risk of them committing criminal acts on release. The following discussion will examine only the High Court’s approach to the constitutionality of preventative detention in two pieces of state-based legislation.

THE CONSTITUTIONALITY OF PREVENTATIVE DETENTION: FROM KABLE TO FARDON In the 1996 Kable case, a majority in the High Court struck down a NSW Act aimed at enabling the preventative detention of Mr Kable on the ground that the Act required the NSW Supreme Court, a court vested with federal jurisdiction within an ‘integrated’ judicial system, to act in a manner ‘incompatible’ with the exercise of Commonwealth judicial power.30 The case came about after the NSW Parliament passed the Community Protection Act 1994, which applied to Mr Kable alone. It sought to provide for his preventative detention by way of an application by the NSW Director of Public Prosecutions to the Supreme Court for a detention order, in what were described as civil proceedings (s 14) determined on the balance of probabilities (s 15). Section 5 empowered the Supreme Court to make a detention order for up to six months against Mr Kable if it was satisfied on reasonable grounds that he ‘is more likely than not to commit a serious act of violence; and that it is appropriate, for the protection of a particular person or persons or the community generally, that [he] be held in custody’.

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Under section 4, more than one application could be made and the matter was to be heard by a single judge of the Supreme Court. One application was made as Kable’s release was imminent and an interim three month preventative detention order was made, followed by a further six month order, in proceedings described by the Judge, Levine J, as ‘a melancholy moment in the law and history of the administration of justice in this state’.31 A further extension of the order was refused. The NSW Court of Criminal Appeal dismissed an appeal against the order of Levine J and a further appeal was taken to the High Court. McHugh J in the majority held that: At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the Constitution and was and is invalid.32

Kable did not directly confront the issue of preventative detention but was decided on the incompatibility argument, which enabled an extension of the separation of powers doctrine to state legislation, previously regarded as embodying plenary powers unconstrained by the constitutional separation of powers argument. Hopes that Kable would provide a bulwark against further forms of state preventative detention legislation were dashed with the High Court decision in Fardon.33 In Fardon the High Court upheld the constitutionality of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) against a Kable challenge. The Act provided for the continued indefinite detention in custody or supervised release of a particular class of prisoners serving imprisonment for a serious sexual offence. Orders may be made by the Queensland Supreme Court if satisfied that the person would constitute a serious danger to the community, the danger being ‘an unacceptable risk that the prisoner would commit a serious sexual offence’ (s 13(2)). The onus of proving this to a high degree of probability lies on the Attorney-General. Six High Court justices upheld the legislation with only Kirby J in dissent. McHugh J in the majority provided a check-list for the legislator seeking to enact ‘Kable-proof’ provisions. He pointed out that the legislation was not directed at one person but a class of persons; McHugh further held that the court making the decision is exercising judicial power, has to determine the case in accordance with the rules of evidence, is exercising a discretion

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in the process, and needs to be satisfied that the Attorney-General has met the standard of proof. Most incredibly, he held that the Act ‘is not designed to punish the prisoner’.34 Mr Fardon, who is, as a result, being detained in prison for an indefinite period following the expiration of his sentence, might hasten to disagree. There was nothing in the Act or surrounding circumstances, according to McHugh J, which would lead ‘to the perception that the Supreme Court … is acting in conjunction with, or not independently of, the Queensland Legislature or executive government’.35 Warming to the overturning of Kable and opening the door to further preventative detention, McHugh J went on to argue that there was little apparently that state legislatures constitutionally could not do. This is an argument of particular relevance to the use of military commissions or other such procedures which are instituted with the aim of avoiding the due process and fair trial guarantees of normal civil criminal courts and even military courts martial: Nor is there anything in the Constitution that would preclude the States from legislating so as to empower non-judicial tribunals to determine issues of criminal guilt or to sentence offenders for breaches of the law. … the Queensland Parliament, if it wished, [could] abolish criminal juries and require breaches of the criminal law to be determined by non-judicial tribunals. … If a State legislates for a tribunal of accountants to hear and determine ‘white collar’ crimes or for a tribunal of psychiatrists to hear and determine cases involving mental health issues, nothing in Ch III of the Constitution prevents the State from doing so. Likewise nothing in Ch III prevents a State, if it wishes, from implementing an inquisitorial, rather than an adversarial, system of justice for State courts. … 36 State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.37

‘CHIMERICAL’ PROTECTIONS AGAINST THE ‘PATENTLY UNJUST’ On what weak foundations lie legal protections against the ‘patently unjust’, for according to McHugh J, the states are largely untrammelled by constitutional encumbrances flowing from separation of powers arguments. This was the very reason that Australian Prime Minister, John Howard, sought to

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tie the state Premiers into supporting his proposed anti-terrorism legislation. Sadly, with the initial exception of the Australian Capital Territory (ACT) Chief Minister Jon Stanhope, the Premiers proved only too willing to oblige. They were fearful perhaps of being ‘wedged’ as ‘soft on terrorism’, prey to the either/or simplicities of certain media commentators: ‘the fact is that most Australians – Muslim or otherwise – would rather give the police a few more powers than be blown up on a bus on the way to work’.38 What Fardon demonstrates, as Kirby J argued in the minority, is that ‘“the Kable principle” has repeatedly been revealed as a chimera … confined virtually to the point where the principle itself has disappeared at the very time when the need for it has greatly increased …’.39 Preventative detention thus already has an established foothold in Australian law, a foothold established in the criminal justice realm. A back-door version of preventative detention can be smuggled into standard sentencing decisions through the formula in Veen v The Queen No 2 40 that ‘dangerous propensity’ can be taken into account in relation to ‘protection of society’ so as to ‘indicate that a more severe penalty is warranted’, albeit that that penalty should still be proportionate ‘to the gravity of the instant offence’.41 Gummow J put it even more strongly in Fardon when he said, ‘it may be accepted that a propensity to commit serious offences in the future and the consequential need for protection of the public may, consistently with Ch III, support the imposition at trial of a sentence which fosters that protection by a measure of preventative detention’.42 Various State-based forms of preventative detention exist, including the Queensland legislation considered in Fardon. An earlier experiment with ad hominem legislation, the Community Protection Act 1990 (Vic), introduced to prevent the release of Garry David, who had a history of self-mutilation, violent offences and threats of violence and who died in custody in June 1993 from self-inflicted wounds, was repealed in 1993 and replaced with a regime of indeterminate sentencing provided by way of amendment to the Sentencing Act 1991 (Vic) s 18A.43 But this has only been used four times since 1993.44 The most frequently used provision in state indefinite and preventative detention regimes is s 98 of the Sentencing Act 1995 (WA). This provides that a superior court which sentences an offender to a term of imprisonment for an indictable offence can in addition order the offender to be detained indefinitely if the ‘court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody … he or she would be a danger to society, or a part of it, because of a range of factors’. These include ‘(b) the risk that the offender will commit other indictable offences’.45 In NSW the decision to reactivate the Habitual Offenders Act 1957 (NSW) that provides for preventative detention of up to 14 years,

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upheld in the recent High Court Strong decision,46 is a further example of the increasing normalisation of preventative detention in Australian domestic criminal law. Other examples of forms of indeterminate and preventative detention upheld by the High Court include the immigration detention of ‘unlawful non-citizens’ for the purposes of deportation;47 quarantine detention for reasons of public health; and detention of the mentally ill and the legally insane for the protection of the community.48 In Al Kateb a majority of the High Court (McHugh, Hayne, Callinan and Heydon JJ) held, first, that the Migration Act authorises (continued and potentially indeterminate) detention even where there is no prospect of a detainee being removed from Australia in the reasonably foreseeable future, and secondly that the Act was within the legislative power of the Commonwealth. In 2004 the High Court (Kirby J dissenting) also held that inhumane conditions in immigration detention centres did not mean that the detention could be regarded as ‘punitive and an invalid exercise of judicial power’.49 That same year the High Court upheld the mandatory detention of ‘unlawful non-citizen’ children.50 In all the immigration detention cases the characterisation of the detention as ‘non-punitive’ was made on the abstract basis of the declared purpose of the legislation, with little concern for the actual consequences in real terms – potential indeterminate life detention without charge – or material living conditions that were akin to and on many accounts worse than criminal justice imprisonment. Courts have generally adopted a ‘cautious’ approach51 or ‘avoidance tactics’52 towards preventative detention legislation in the criminal justice field and the numbers of orders have been small. Fardon may, however, signal to legislatures an ‘all clear’ to further regimes.53 Indeed in 2006 the NSW Parliament, with minimal notice or opportunity for consultation or debate, passed the Crimes (Serious Sex Offenders) Act 2006 (NSW) which provides for extended supervision and detention orders for up to five years after the expiry of the original sentence. One of the matters to which the Supreme Court ‘must have regard’ in making such orders is ‘the results of any statistical or other assessments as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence’ (s 9(3)(d)), raising the prospect that people might be detained beyond the expiration of their sentence for the crimes of others. Similarly immigration detention cases like Al Kateb may signal the ascendancy of formalist characterisations of detention based on its declared purposes rather than its actual material practices and effects. So when preventative detention of suspected terrorists is proposed and a majority of public opinion appears to be supportive of such measures, this may be in part because preventative detention has already been adopted

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in a variety of criminal justice and other regimes which have found favour with legislators and have survived court challenge. As long as preventative detention is confined to relatively small groups of unpopular people who can be defined as outsiders, ‘othered’ and pathologised, it seems there is limited concern. As Justice Kirby puts it in Fardon: Protection of the legal and constitutional rights of minorities in a representative democracy such as the Australian Commonwealth is sometimes unpopular. This is so whether it involves religious minorities, communists, illegal drug importers, applicants for refugee status, or persons accused of offences against anti-terrorist laws. Least of all is it popular in the cases of prisoners convicted of violent sexual offences or offences against children. Yet it is in cases of such a kind that the rule of law is tested. As Latham CJ pointed out long ago … constitutional protections only really become important in the case of ‘minorities, and, in particular, of unpopular minorities’. It is in such cases that the adherence of this Court to established constitutional principle is truly tested, as it is in this case.54

Whilst this chapter has focussed on preventative detention, continuities between existing domestic criminal justice provisions and anti-terrorist measures might also be glimpsed in other areas. To suggest just a few, the control orders enacted in the Anti-Terrorism Act (No 2) 2005 (Cth) which provide for house arrest, electronic tagging and tracking and bans on approaching certain areas or people55 invite comparison with existing provisions available in a number of States such as sentences of home detention backed up by electronic tagging and non-association and place restriction orders.56 Wider police stop-and-search powers to stop people in transport hubs or at mass gatherings similarly echo existing stop-andsearch and ‘move-on’ powers which are frequently directed at young people to prevent them from congregating at particular locations. In seeking to identify certain continuities between anti-terrorism legislation and existing domestic criminal law the discussion thus far has thrown up a sub-theme: that constitutional protections in the Australian context are weak, illustrated by the retreat from Kable. As a further illustration it might be instructive to ask whether there is any constitutional protection or limitation against a Commonwealth government legislating genocidal practices? The bald answer, after the High Court case of Kruger v Commonwealth57 appears to be, as Kerruish puts it, that ‘the proposition that the Commonwealth parliament has the power to authorise genocide, … has been said by one judge to be true, by another judge to be false and by the remaining four judges to be undecided’.58 The Kruger decision has been described by former High Court Chief Justice Sir Anthony Mason as demonstrating a ‘glaring inadequacy in Australian human rights protection’.59

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CONCLUSION This chapter has argued that current excessive anti-terrorism measures draw part of their public legitimacy from existing measures which have become familiar in domestic criminal justice legislation passed as part of the ‘uncivil politics of law and order’ and an ‘hysterical’ reassertion of sovereign crime control. The result is an anaesthetised response to anti-terrorism measures that blurs the important distinction between civil and military life in the direction of an increasing militarisation of politics in the ‘war on terror’, and weakens constraints on the ‘impulse toward revenge’ that has seeped from the criminal justice realm into the politics of national security. The elision produced is encapsulated in the title of the British legislation: the AntiTerrorism, Crime and Security Act (2004) (UK). The seepage was illustrated by an examination of the constitutionality of state preventative detention regimes in existing domestic criminal law. It was suggested also, in passing, that yet other examples might be examined and the weakness in Australia’s legal fortifications against such developments was illustrated by the example of genocide, which it seems is not necessarily unconstitutional. There are at least two dangers in engaging in such an analysis. One is that it might be used to downplay the novelty, scope and excessive character of the current anti-terrorism offensive. This is not our intention; we do regard many of the anti-terrorism measures as excessive, unnecessary and dangerous in their attacks on long-established rights and liberties. However, we also wish to draw attention to the extent to which such dangers already exist in a range of current measures which operate in the criminal justice sphere.60 One of the aims is to encourage renewed scrutiny of these measures and the arguments that have been used to justify them. The second danger is one common to much legal analysis and that is to overplay the role of law in securing liberties and rights. A healthy social democracy built on principles of open and pluralistic governance, the strengthening of the fabric and institutions of civil society and a commitment to maintaining welfare and redistributive measures to combat social and economic marginality, is a more secure foundation for liberty than the most elaborate constitution. The disparity between exemplary constitutional provisions and flagrant breaches of human rights in practice is illustrated by the disparity between the 1936 (Stalin) Constitution in the USSR and the purges and liquidations of political opponents and ‘reactionary elements’ then taking place. A further illustration is the gap between the US Constitution and Bill of Rights and the existence of an impoverished, largely racially based, underclass; minimum wages so low as to produce millions of ‘working poor’; lack of universal health care; continued recourse to the death penalty and felony disenfranchisement laws which produce a

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racially based gerrymander. Almost four million Americans, one in every 50 adults, have currently or permanently lost their voting rights as a result of felony conviction, including 1.4 million people who have completed their sentences.61 Australian Prime Minister John Howard recently argued that ‘the best safeguards are not written down in constitutions or bills of rights. The best safeguards for our democracy are a robust parliamentary process, a free press, and an incorruptible judiciary. If you’ve got those things you’ve got a free country’.62 In response it seems trite but necessary to point out that legal protections and a healthy social democracy are not either/or alternatives but are complementary. Secondly, if the aim of the Prime Minister was to excuse the role of his government in further weakening the legal protection of human rights and civil liberties it needs to be pointed out that his government has also attempted to weaken the three ‘safeguards’ he mentions. First, the ‘robustness’ of parliamentary democracy has been diminished through tactics such as rejecting the doctrine of ministerial responsibility; keeping the draft of Bills (including the Anti-Terrorism Bill 2005) secret; using gags to restrict debate on vital issues; providing little time for submissions on lengthy and complex draft legislation; winding back the scrutiny provided by Senate Committees; subduing and intimidating the public service from providing robust advice; leaking material to selected journalists to denigrate public service whistle-blowers; carpeting senior ‘independent’ officials such as Federal Police Commissioner, Mick Keelty, for pointing out that the Howard Government’s participation in the invasion of Iraq had made Australia an increased terrorist target; and engaging in hugely expensive advertising campaigns at public expense to sell government policies, to list but a few. Secondly, it is widely recognised that the Australian media, heavily concentrated in its ownership and destined to become more so if current restrictions are lifted as the government proposes, gave the Howard Government a very easy ride over the Tampa incident, ‘the children (not) overboard’ affair and the (non) existence of ‘weapons of mass destruction’ as a justification for joining the invasion of Iraq. The Murdoch-owned press in particular is running a consistent pro-government line on the Iraqi invasion and the necessity for stronger anti-terrorism laws. The supine quality of much of this coverage is evident: ‘We have now entered a time in which we must accept without public debate a significant range of matters related to the protection of our very lives. ... If John Howard says we have to hop for three hours a day to halt terrorism, the whole nation will be on one leg for the required period’.63 Meanwhile relentless government attacks have

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been made on the alleged ‘bias’ of the Australian Broadcasting Corporation (ABC). The result has been a diminished public and political discourse. Thirdly, the government has conducted a running battle with the judiciary, features of which have included senior ministers, such as the former Deputy Prime Minister, Tim Fisher, attacking judges over the Mabo and Wik decisions, and successive Howard Government Attorneys-General, Daryl Williams and Philip Ruddock, abandoning the convention of defending the judiciary. Fear is, as Bruce Springsteen sings, ‘a dangerous thing’. Former (Liberal Party) Australian Prime Minister, Malcolm Fraser, believes ‘Australia has become, or has been led to be, a fearful nation’, one in which the ‘preservation of the basic liberties’ will come to be seen as having been sacrificed in a ‘very significant step back to a darker past’.64 As Springsteen asks: ‘what if what you do to survive, kills the things you love’? 65

NOTES 1. Springsteen, B. (2005), ‘Devils and Dust’. 2. Dean J. in Re Tracey; Ex parte Ryan (1988) CLR 518 at 528. 3. Dodson, L., Metherell, M. and Clennell, A. (2005), ‘Soften Bill, Demand Coalition Backbenchers’, Sydney Morning Herald, 1 November. 4. Pelly, M., Stephens, T. and Wilkinson, M. (2005), ‘Former Leaders Call for Debate’, Sydney Morning Herald, 25 October. 5. Hogg, R. and Brown, D. (1998), Rethinking Law and Order, Sydney: Pluto Press. 6. Thompson, E.P. (1975), Whigs and Hunters, Harmondsworth: Penguin Books, p. 266. 7. Hogg, R. (1995), ‘Note on Constitutionalism, Liberty and Criminal Justice’, in Brown, D., Farrier, D., Neal, D. and Weisbrot, D. (2001), Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, Leichhardt: The Federation Press, pp. 261–2. 8. Thompson, E.P. (1975), op. cit., p. 266. 9. Ibid., p. 260. 10. Garland, D. (1996), ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’, British Journal of Criminology, 36 (4), 445–71. 11. Ibid., p. 460. 12. Ibid., p. 461; and see generally Pratt, J., Brown, D., Brown, M., Hallsworth, S. and Morrison, W. (eds) (2005), The New Punitiveness: Trends, Theories, Perspectives, Devon: Willan Press. 13. See for example Marr, D. and Wilkinson, M. (2003), Dark Victory, Sydney: Allen & Unwin; Kevin, A.C. (2004), A Certain Maritime Incident: The Sinking of SIEV X, Carlton: Scribe Publications; Keating, M. (2003), ‘In the Wake of “A Certain Maritime Incident”: Ministerial Advisers, Departments and Accountability’, Australian Journal of Public Administration, 62 (3), 92. 14. Human Rights and Equal Opportunity Commission (HREOC) (1997), Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Canberra: Australian Government Publishing Service. 15. ABC-TV, 7.30 Report, 3 November 2005. 16. Charlesworth, H., Chiam, M., Hovell, D. and Williams, G. (2003), ‘Deep Anxieties: Australia and the International Legal Order’, Sydney Law Review, 25 (4), 424.

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17. Hage, G. (2003), Against Paranoid Nationalism: Searching for Hope in a Shrinking Society, Sydney: Pluto Press. 18. Hogg, R. and Brown, D. (1998), op. cit. 19. Ibid., pp. 1–2. 20. Ibid., p. 2. 21. Jacoby, S. (1983), Wild Justice, New York: Harper and Rowe, p. 288. 22. Humphries, D. (2005), ‘Voters Say Yes to Terror Australis’, Sydney Morning Herald, 25 October. 23. s 105.1 Criminal Code Act 1995 (Cth) inserted by Schedule 4 of the Anti-Terrorism Act (No 2) 2005. 24. s 105.4(4). 25. For example, Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005 (NSW) Schedule 1; Terrorism (Police Powers) Amendment Act 2002 (NSW) s 26K. 26. Byrnes, A., Charlesworth, H. and McKinnon, G. (2005a), ‘Human Rights Implications of the Anti-Terrorism Bill 2005’, letter to Mr Jon Stanhope, MLA, Chief Minister and Attorney-General of the ACT Legislative Assembly, 18 October, p. 6; available at http:// www.law.unsw.edu.au, accessed 15 November 2005. 27. Ibid. 28. Byrnes et al. (2005b), ‘Human Rights Implications of the Anti-Terrorism Bill 2005’, submission to Senate Legal and Constitutional Committee, 11 November. 29. Ibid., pp. 2–3. 30. Kable v DPP (NSW) (1996) 189 CLR 51. 31. DDP v Kable unreported, NSWSC, 23 February 1995 at 187. 32. Kable v DPP (NSW) (1996) 189 CLR 51, para. 124. 33. Attorney General for the State of Queensland (2004) 210 ALR 50. 34. Ibid., para. 34. 35. Ibid., para. 34. 36. Ibid., para. 40. 37. Ibid., para. 41. 38. Devine, M. (2005), ‘A Reality Check for the Wise and Good’, Sydney Morning Herald, 10 November. 39. Attorney General for the State of Queensland (2004) 210 ALR 50, para. 134, para. 190. 40. Veen v The Queen No 2 (1998) 164 CLR 465. 41. Ibid., para. 477. 42. Attorney General for the State of Queensland (2004) 210 ALR 50, para. 70. 43. See R v Moffat [1998] 2 VR 229. 44. Richardson, E. and Freiberg, A. (2004), ‘Protecting Dangerous Offenders from the Community: The Application of Protective Sentencing Laws in Victoria’, Criminology and Criminal Justice, 4 (1), 81. 45. See McGarry v R [2001] HCA 62. For preventative detention via indeterminate sentencing regimes in other jurisdictions see Sentencing Act 1995 (NT) s 65; Penalties and Sentences Act 1992 (Qld) s 163; Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 1997 (Tas) s 19; for a useful review see McSherry, B. (2005), ‘Indefinite and Preventative Detention Legislation: From Caution to an Open Door’, Criminal Law Journal, 79 (10), 94–110; and for the broader background see Pratt, J. (1997), Governing the Dangerous, Sydney: The Federation Press; Brown, M. and Pratt, J. (eds) (2000), Dangerous Offenders, London: Routledge. 46. Strong v R (2005) 216 ALR 219. 47. Al Kateb (2004) 78 ALJR 1099. 48. See generally Lim (1992) 176 CLR 1; Kirby J in Fardon at para. 159. 49. Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 (per Gleeson CJ at para. 21). 50. Re Woolley, Ex parte Applicants M276/2003 by their friend GS [2004] HCA 49 (7 October 2004). 51. McSherry, B. (2005), op. cit., p. 105. 52. Richardson, E. and Freiberg, A. (2004), op. cit., p. 90.

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‘Devils and dust’ 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

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McSherry, B. (2005), op. cit., p. 105. Attorney General for the State of Queensland (2004) 210 ALR 50, para. 143. Division 104 of the Criminal Code Act 1995 (Cth). See for example s 17A Crimes (Sentencing Procedure) Act 1999 (NSW). Kruger v Commonwealth (1997), 146 ALR 126. Kerruish, V. (1998), ‘Responding to Kruger: The Constitutionality of Genocide’, Australian Feminist Law Journal, 11, 79. Mason, A. (1998), ‘The Judiciary’s Role in Developing Human Rights’, in Kinley, D. (ed.), Human Rights in Australian Law: Principles, Practice and Potential, Sydney: Federation Press, p. 43. See generally Pratt, J. et al. (2005) op. cit. The Sentencing Project (1998), Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, available online at http://www.sentencingproject.org/tmp/File/ FVR/fd_losingthevote.pdf. Marr, D. (2005), ‘And to Crown it All’, Sydney Morning Herald, 5–6 November. Farr, M. (2005), ‘Cowardly Monsters Don’t Care Who Dies’, Daily Telegraph, 3 October. Ramsay, A. (2005), ‘Here and There, the Signs of Tyranny’, Sydney Morning Herald, 12–13 November. Springsteen, B. (2005), op. cit.

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13.

Command and control: how the media and military are reshaping televised coverage of war Tony Maniaty

On 24 February 2005, fully two years after the American-led invasion of Iraq, Australia’s Prime Minister John Howard declared on national radio: ‘There’s no analogy between Iraq and Vietnam … I think those sorts of analogies are really not only misplaced but they’re quite pointless’.1 John Howard was right but not in the sense he meant. In media terms, the television news coverage of the wars in Vietnam and Iraq sits far apart, not only chronologically but in substance. Vietnam was ‘the first television war’. Ever since, despite rising levels of ‘immediacy’ and technologically fuelled spectacle, the depth of war coverage on television news has been generally in decline. As television provides the bulk of daily news coverage to most people in the United States, Europe, Japan and Australia, the impact of this decline on viewers’ comprehension of war-related issues, on public opinion and the democratic process, cannot be overstated. When we talk of ‘embedded journalism’, we are talking colloquially of the process of placing journalists with coalition military units in Iraq during the American-led invasion of early 2003. It is impossible not to see this process as a form of military control of news management, and potentially as a form of censorship; though in many ways, coupled with new technologies, it did allow civilian viewers to see war in a manner they had never seen it before. Critically, the process cannot be viewed in isolation, but rather as part of a much wider trend in, to use a military term, the ‘command and control’ of battlefield journalism, particularly in the field of television news coverage. This trend has grown steadily since the end of the Vietnam war. To address this shift and its impact, we need to go back four decades or more – to the early years of the 1960s, to an era when television news, still in its infancy, was staffed by a mixture of hard-nosed ex-newspaper people, broadcast journalists who had covered World War II for radio, and former newsreel camera people. Television was still in its all-entertainment phase; 172

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it is worth reminding ourselves that the first half-hour nightly television news bulletin in the United States did not begin until 1963 – The CBS Nightly News, with Walter Cronkite appearing as a ‘new human species’ called ‘the anchor’. For the most part, the Vietnam war was conducted in a relatively sparse television environment: one that mostly lacked nightly debates and current affairs and investigative programmes, not to mention communications satellites, videotape, or live coverage of practically any kind, least of all from foreign war zones. In a vivid account of his time covering Asian affairs for half a century, veteran Australian correspondent Denis Warner cannily observed that: … the United States accredited only thirty-six correspondents in the First World War, three hundred and fifty in the Korean War and five thousand plus in Vietnam. The Americans were the victors in the first, fought a draw in the second and lost the third. All sorts of conclusions may be drawn from this and any may just be right. But whatever these may be, the Vietnam War ended the happy relationship that had hitherto existed between the armed forces and the correspondent.2

If a single factor was to sour relations between the military and the media in Vietnam, it was the advent of television news coverage of war in its later years. Although represented by far fewer correspondents than print media, television had a disproportionately large impact on public opinion, notably in the United States and in Australia. Certainly, print and news agency reporters suffered the wrath of the American military because of the output of their TV colleagues. Hugh Lunn, an Australian and a Saigonbased Reuters correspondent, felt the Americans at least made themselves accessible to reporters, despite ever-mounting criticism: But that is not to say the American military was happy about its daily battles with the media. Once I got to know them these military briefers told me that at the start of the war the army was given the option to permit or deny independent press coverage. ‘Knowing what we know now’, one said, ‘we should have taken no reporters’.3

Yet television news and the war in Vietnam was a marriage not only of historical circumstance, but almost of destiny. Vietnam as a subject was not only controversial, but highly visual, visceral and gritty, bringing together in the rawness of battle the two elements that Hollywood had long employed in celluloid warfare: the clash of machinery and humanity. Vietnam would become the first, and perhaps the ultimate, TV reality show. Concurrently, and critically, the concept of testing government strategic policy through media channels prior to taking action was still in its infancy. Government in the early 1960s was conducted behind well-closed doors and via diplomatic networks; decisions were made, then announced as a

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fait accompli, unambiguously, through the press, rather than ‘floated’ in the media. Media monitoring was a matter of scanning the papers over breakfast; the glaring, ceaseless eye of televised discussion and analysis, of presaging the public mood, had yet to permeate Western society and decision-making. Linearity – one thing carefully following another, in timehonoured order – would be superseded, thanks largely to the confluence of Vietnam and television, by circularity and apparent randomness, a ‘disordering’ that would confound traditional governmental processes, and change the way government and the media operated, with impacts that continue to this day. Vietnam would be a bridge between not only two worlds and eras, but two ways of conducting public policy and public affairs. Within this realm of relatively uncomplicated media, TV news reporting found its feet in Vietnam. If you wanted to film battle, you filmed a battle; if you wanted to get good pictures of ‘bang bang’, you hopped on a chopper and went, because there were places reserved for the media from anywhere to anywhere – almost nowhere was off bounds. The military was too busy fighting a war and saving its skin to worry about you, a mere newsperson; if you wanted to speak with a top general or a lowly private, and they were happy to talk, you turned on your camera and filmed. You dispatched the footage to the airport, shipped it to your network, and they put it to air. American networks established their Saigon bureaux around 1965, as the war heated up. But not all cameramen covering Vietnam were employed by the networks. Visnews film agency’s cameraman, Neil Davis, an Australian whose talents (and off-duty exploits) would become legendary,4 perceived the internationalism of agencies such as Visnews (London-based and owned collectively by Reuters and public broadcasters including the British Broadcasting Corporation (BBC), Australian Broadcasting Corporation (ABC), Canadian Broadcasting Corporation (CBC) and New Zealand Broadcasting Corporation (NZBC)) as an advantage for reporters over individual television and print outlets with ‘national barrows to push’.5 In keeping with his Australian persona, individualistic and not caring for instructions from distant bosses, Davis also ‘valued the freedom Visnews gave him to select, shoot and script his own assignments’. Although he was often irritated with the editing of his film in the Visnews London office, he believed that he experienced far less interference than if he had worked for an American network; with the television network he would be working with a reporter and his work would be governed by not only the editorial direction of the reporter, but also head office editorial policy.6 Davis and his kind feared not only editorial direction but also being placed in danger: Up to the middle of 1965, no cameraman had been killed in action … that unwanted honour fell to a Swiss-born American cameraman … in the next seven

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months, seven more cameramen died in action … When a cameraman accompanies the soldiers in the field in Vietnam he must be able to move independently … .7

This points to a major feature of the Vietnam television coverage. The absence of contact between television correspondents and their head offices in London, New York or Sydney allowed an independence of operation and decision-making that is impossible in today’s environment. In an era long before communications satellites, mobile phones and email, international calls from Saigon to the outside world were prohibitively expensive; correspondents would typically not speak by phone to their superiors for weeks or even months at a time. The principal means of communication was telex; in the ABC’s case in Saigon, this meant a walk to the Reuters office, at a time of the reporter’s choosing. Once received, a telex instruction might be acted upon immediately or, equally, ignored for hours or even days in favour of stories the correspondent decided were more newsworthy. If later pressed, the correspondent could plead that he had been ‘upcountry’ and thus ‘out of touch’.8 Journalistic independence was as much about movement as content. While this seems leisurely against today’s levels of immediacy, even vaguely irresponsible, there was nothing unprofessional in the Vietnam context in a correspondent pursuing the news as he saw fit, unfettered by instructions from afar. If the military imposed no restrictions on the television correspondent’s movement or subject matter, why should a news producer or news executive 8000 kilometres away? In fact, this ‘renegade’ factor – the inverse of regulated, homogenized pool coverage – would produce some of the most memorable, unique footage of the war, and make Vietnam the standard for all war coverage to come. Don Simmons, who covered Vietnam for the ABC from 1960 to 1966, spending much of his time away from Saigon, wrote in 1966: There are no rules to govern a correspondent’s role in a war theatre. And, no one really can give you any advice about the job. What you do, and how you do it really depends on how seriously you take your work … how much you value truth … how conscientious you are … what premium you place on your life … and what you are prepared to do for a story. Sort these things out in your own mind and the path defines itself … .9

This approach meant television correspondents could devote reasonable time and effort to shaping a story, rather than shooting random sequences for nightly news clips. Indeed, much of Neil Davis’ output from the Vietnam war consists of ‘whole’ narratives using the conventions of cinema, such as wide shots, medium shots, close-ups, reverse shots, positioned within a linear flow of action: pre-battle preparation, the nervous approach to

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battle, engagement of the enemy, fighting sequences, deaths, aftermath.10 Davis’ style and care – born of a passion for cinema, plus his earlier training with the ABC as a daily news cameraman – is evident in his hand-drawn maps, shotlists, narrative text explaining each of the filmed sequences, and extensive technical information.11 The outcome was that television viewers saw the war – in these stories at least – as a comprehensible narrative rather than as an assemblage of often dramatic but isolated shots. The complexity of editing 16-millimetre film and the relatively small supply of daily news footage from Vietnam also meant that on-air stories did not possess today’s diversity of image sources. The footage may have been up to a week old, even older, but it told a story that viewers could understand and empathize with. Field correspondents and studio-based TV producers were not averse to highlighting casualties, including close-ups of the dead on both sides – along with the plight of the Vietnamese civilians. Decisions on how much violence to screen were left mostly to studio-based news producers; field correspondents did not see it as their role to censor, but rather to film and to report what they saw with their own eyes.12 In the event, more of the horror of war was screened on television during the Vietnam war than in any conflict since both the Gulf war of 1991 and the Iraq war of 2003; the reality of ‘blood and gore’ would be replaced by relatively bloodless ‘shock and awe’. Once the battle footage was ‘in the can’, delivery back to television networks was cumbersome and slow.13 Satellite transmission of images only began in the final years of the Vietnam conflict, and remained too expensive for all but major stories. Australia for example did not begin receiving regular satellite feeds until 1975, just as the war ended. Until then, virtually all news film shot in Vietnam was transported by air cargo to Bangkok or Singapore and air-freighted to Sydney for processing, editing, scripting and duplication, before further distribution by domestic airlines to ABC studios in Australia’s far-spread capital cities. The delay between war footage being shot and screened was typically three-to-four days, and the logistical hurdles involved were often considerable: Often the only reliable way to get tapes and film on the desired flight was to bypass airline offices in the city and take them to Saigon airport. A bribe to the freight clerk enhanced the likelihood that they’d actually be put on the plane. However, if there wasn’t enough time for working the air freight system, we went to the departure lounge and found a passenger headed for Singapore and asked them to carry the [audio] tapes and unprocessed film.14

In those years in Vietnam, from 1963–65, the bar was set: television war reporting began as it intended to continue – though not as it would in

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fact continue – among an aggressive young band of correspondents based in Saigon. Forty years later, TV news was entrenched not only as a public information medium but also as a public relations tool, with its own methodology and fee structure – an established industry. Yet in the mid-1960s, TV was already starting to offer a Warholesque seduction to those in ruling elites. Politicians were grabbing the spotlight, and generals in Vietnam were not immune to wanting to see their faces and hear their voices on the nightly news, introduced by Walter Cronkite. Why did the Americans allow so much media freedom in Vietnam, even when the impact of open media access on the US military’s efforts had become all too apparent? One obvious reason is that, in terms of the mission they had undertaken, they had very little choice. They had opted to embark on substantial military intervention to bring democratic freedom to Vietnam; eventually they would commit more than half-a-million troops to this sacred if doomed cause. How then could they impose media censorship on those who wanted to cover the struggle for freedom? Other factors, however, also need to be considered. The war in Vietnam did not begin with a bang, but as a dribble of military build-up and activity. Likewise, the television coverage crept up on both the administration and military, and on the public. In the early 1960s, Western society was still coming to grips with the power of TV as a medium; in particular, television news – unlike daily newspapers – was virtually an unknown quantity. By the time the power of television news had been fully revealed as a Trojan horse in the US efforts to win the war, culminating in the graphic 1968 Tet Offensive coverage, it was beyond even the President’s power to reverse the media freedoms in place. Another seven years of tactical errors and military reverses, culminating in America’s defeat, would be shown on television and burned nightly into the dispirited American consciousness. Vietnam exposed not only the limits of American power, but also the growing power of the media in the conduct of warfare. In just a few years, television cameras had moved from offstage to centre-stage: never again would the media (especially TV news) fail to be recognized as being as potent a weapon as any Cruise missile. In Vietnam, the military had lost control of the media; whether or not the military had lost the war because of the media was debatable. For the Pentagon, control was the issue: in future, television media would work with the military, or not work at all. As the first television war, the mired Vietnam conflict provided ample opportunity for dramatic narratives and graphic footage: not only of dead bodies, but of the world’s most technologically advanced army in freefall. Vietnam shaped its own symbols of aggression and its own sense of ingrained defeat, nightly recreating its horrors until the word itself – ‘Vietnam’ – came

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to incorporate for one generation a mindset of negative images. This was largely the work of television news, even if the Pentagon and not television was to blame. ‘When television covered its “first war” in Vietnam’, observed CBS News executive William Small, ‘it showed a terrible truth of war in a manner new to mass audiences. A case can be made, and certainly should be examined, that this was cardinal to the disillusionment of Americans with this war, the cynicism of many young people towards America, and the destruction of Lyndon Johnson’s tenure of office’.15 The final verdict on Vietnam is: television news was not to blame.16 Nevertheless, its impact, created above all by the absence of censorship and control, was so severe and loaded with unanswerable questions, so negatively impressive, that the media freedoms it unleashed were lost the moment America lost the war. ‘It is now clear that in the wars of our time, Vietnam was an aberration’, observes Phillip Knightley in his seminal work, The First Casualty: The freedom given to correspondents there to go anywhere, see everything, and write what they liked is not going to be given again … The rules turned out to be fairly simple: control access to the fighting; exclude neutral correspondents; censor your own; and muster support, both on the field and at home, in the name of patriotism, labelling any dissidents as traitors. After all, as [newspaperman Max] Hastings Senior said, objectivity could come back into fashion when the shooting was over.17

The Gulf war of 1991 can be viewed in hindsight as a kind of fulcrum between the Vietnam and Iraq conflicts – in strategic, military and media terms. While the coalition intervention of the 1991 Gulf war was supported by United Nations endorsement, and involved a significant number of likeminded nations. This broad coalition suggested a post-Cold War world in which conflict might be resolved through major coalitions putting aside political differences in the name of morality (aided by near-universal loathing of Saddam Hussein and his Ba’athist regime and by the moral outrage, and troubling example, of his invasion of a neighbouring country). Nevertheless, this was essentially America’s war – and particularly, the Pentagon’s war. New battlefield technologies, Tomahawk cruise missiles, stealth fighter planes, Apache attack helicopters, Patriot air defence missiles, were deployed and tested in real war environments. They provided a glittering showcase of America’s new global strength, and gave the media – television news in particular – extraordinary live images of war, and stellar audience ratings. Internationally, CNN’s revolutionary live coverage of the Gulf war turned warfare into spectacle, screened in 105 countries. Live reportage

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became the medium of choice, offering immediacy yet fragmented and reassembled endlessly. War and its coverage had finally caught up with postmodernism.18 Scarred and haunted by Vietnam, the Pentagon took control, authorizing ‘pool reporters’ to be escorted by the military on field trips, while those left behind would sit around hotels and await copies of the pool-shot video and text stories. The Pentagon’s tactics for media handling could be summed up in four points: • Make war hell. By 1991, battlefield weaponry had become so devastating at all levels that journalists feared stepping outside; even a high-velocity bullet to a limb could kill by shock. The bravado of old was replaced by new caution; coverage would be equally cautious, and thus limited. • Make war spectacular. Ensure the focus was on fireworks, not on battlefield horror such as combatant or civilian deaths. The TV screen would be filled with carnival-like images of night skies lit up by orange glows and sudden bursts of incendiary devices. • Make war a game. Warfare would cease to be a high-risk human-driven activity and would become instead an extension of digital technology. Video zapping of greyish targets at 10 000 feet would become the norm, easily digested with takeaway meals: actual dead bodies would not be included. TV would represent the day’s battle activity, with the Pentagon’s help, using on-screen video-game technology. War would appear ‘strategic’, a lively extension of video gaming. • Do not put reporters near soldiers. Vietnam taught the military one vital rule – do not take the constitutional rights of American individuals, especially soldiers, too seriously. The right to free speech would be limited to authorized personnel only; grunts were too likely to blather about lousy conditions and loss of morale, and even to question why they were fighting in the first place. From now on access would be, to cite the soldiers’ simile, as tight as an ant’s ass. As a result, the coverage of the Gulf war (but not war itself) became antiseptic, cold, impersonal – as the White House and Pentagon wanted. CNN’s coverage was a giant leap forward (video vaporization in your living room) but also massive retreat from the bloody rawness and uncensored freedom of the Vietnam coverage. Even print journalists were restricted. New York Times reporter Chris Hedges violated the rules, and ‘the rest of the war, during which I spent more than half my time dodging military police and trying to talk my way into units, was a forlorn and lonely struggle against the heavy press control’.19 Reporters were not allowed to forward

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their material until it had been subjected to ‘security review’, a control ‘unprecedented in the history of US warfare’.20 The Gulf war was significant in terms of Australian television news coverage because, for the first time, Australian commercial TV networks committed to in-depth, on-the-ground coverage – if not in Baghdad, then in the Middle East region, a domain until then ruled exclusively by reporters and crew of the Australian Broadcasting Corporation (ABC). Yet coverage of the war from the Iraqi military side was all but impossible, and while the gear was state-of-the-art, controls on the coalition side meant that uniquely filmed reportage of battlefield action was impossible. Thus, while the ABC officially cited its Gulf war output as ‘the most sustained and demanding news and current affairs coverage in the history of the ABC’,21 its Middle East correspondent Greg Wilesmith noted the downside: Saudi Arabia was host to some 1400 reporters and camera crew attempting to cover the allied war effort. Fewer than 100 of the foreign media spent any time with front-line troops – and they were only drawn from nations that had contributed ground forces. Television pictures were released only after being cleared by the military censors. After the ground war began, many of the reporters with American combat units found themselves unable to transmit their stories for three or four days. Consequently, accounts of the initial air/sea campaign in January, and then the combined services offensive in late February, were drawn heavily from the media briefings provided by the US, British, French and Saudi forces in the Saudi capital Riyadh.22

What Australians saw was what everyone saw: blurred destruction at 10 000 feet, and bewildered Israelis standing around looking at burned-out Iraqi Scud rocket tubes. Although it was over in a flash – actual combat lasted only 44 days, from 16 January to 28 February 1991 – the Gulf war was a turning point in war coverage, striking a high note for sheer spectacle and a low note for media independence. Chris Hedges, from the New York Times, lays the blame at television’s feet: Television reporters happily disseminated the spoon-fed images that served the propaganda effort of the military and the state. These images did little to convey the reality of war. Pool reporters, those guided around in groups by the military, wrote about ‘our boys’ eating packaged army food, practicing for chemical weapons attacks, and bathing out of buckets in the desert. It was war as a spectacle, war as entertainment. The images were designed to make us feel good about our nation, about ourselves. The Iraqi families and soldiers being blown to bits by huge iron fragmentation bombs just over the border in Iraq were faceless and nameless phantoms.23

The Gulf war was less significant for the rise of Cable News Network (CNN) than for the birth of the US military–media complex. Since the

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Vietnam era, the major US networks had come increasingly under the control of conglomerate cultures with far greater commercial interests than news reporting. Their allegiance had increasingly shifted away from journalism towards entertainment, and the dividing line between the two forms – previously a granite wall shored up by professionalism – had been replaced by the ethical equivalent of a silk screen. More vulnerable (and also more amenable) to business and government influence, the network chiefs accepted greater control over television correspondents in the interests of closer ties with power. By 1991, this drift to collusion with power was palpable and disturbing. Suddenly, sections of the media and the military were in alignment and sharing technologies and objectives; one complex was feeding off the other and the lines of separation were becoming increasingly blurred. An example: CNN co-founder Reece Schonfeld is in London during the war, awaiting a flight to the United States: Bernie [Bernard Shaw, who had been in Baghdad for CNN] excuses himself to make a phone call. John [John Holliman, another CNN reporter pulled out of Baghdad as the war got under way] tells me Bernie is calling General Colin Powell [the Chairman of the US Joint Chiefs of Staff]. CNN has left [Peter] Arnett in Baghdad. Bernie is asking General Powell not to send any missiles into the hotel where Peter is staying.24

Preserving the CNN link in Baghdad was vital to war planning; it gave Powell and other generals, not to mention the President and the Central Intelligence Agency (CIA), a ringside seat on the action. ‘I was up most of the night of January 16–17, on the phone constantly’, Powell recalls, ‘watching television out of the corner of my eye as we conducted our first war while it was being broadcast live from the enemy capital. The euphoria of the first day actually created a problem. Reports by CNN’s Wolf Blitzer from the Pentagon made it seem as if all that remained was to organize the victory parade. I called Pete Williams, the Defense Department’s spokesman. “Pete,” I said, “tell Blitzer and these other press guys to cool it. This is the beginning of a war, not the end of a ballgame.” In this age of instant information, people tended to expect instant results’.25 Indeed, President George Bush senior’s decision to terminate battle was based largely on both men’s fears – not shared by the field commander of the war, General ‘Stormin’ Norman Schwarzkopf – that continued coverage on CNN and other networks of the so-called ‘Highway of Death’, the road from Kuwait into Iraq littered with thousands of civilian casualties, would turn public opinion against America’s prosecution of the war.26 Short, sharp and brutal, the first Gulf war produced its own media fallout. Worldwide, questions were raised about the lack of media access to the actual fighting,

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about Pentagon control of cameras and satellite feeds and about restrictions on the movement of journalists. The controls initiated by the Pentagon had clearly worked, but it was also clear that they would not work again without criticism and possibly ugly dissent. Control was still the key requirement, but the last thing the Pentagon and the White House needed was an angry media. A new plan was called for. By the start of the 21st century, media, government and the military had acquired much experience in the televised coverage of warfare, yet few foresaw where the next global battle would begin – in the heart of Manhattan. The impact of the cataclysmic events of 11 September 2001 reverberated worldwide, leading ultimately to the divisive invasion of Iraq in 2003. Argument over armed commitment centred on America’s real strategic objectives in inflicting (once again) massive firepower on a relatively small country. Critics pointed to the failure of the Americans to produce hard evidence of weapons of mass destruction in Iraq; the failure to gain a United Nations sanction for the invasion; and the failure of Washington and its allies (including Australia) to prove any substantial links between Saddam Hussein’s regime and groups such as Al Qaeda. A particular concern for many Australians centred on what appeared to be the re-emergence of a fawning, obsequious manner in dealing with the United States – the exact values that, four decades earlier, had led Australia into the quagmire of Vietnam. Despite failing to gain support for the proposed invasion from the UN Security Council, George W. Bush pressed ahead with his ‘coalition of the willing’: principally the Americans and the British, with support from other allies including Australia, Italy, Poland, Ukraine, Netherlands, Denmark and a range of smaller nations. (Tonga sent 45 Royal Marines.) The grinding build-up to war in Iraq involved not only US efforts to gain more coalition partners, but a concerted push by the Administration and the Pentagon to enlist media support. This would not be another Gulf war, but it would not be another Vietnam either. The media, especially television news, would be catered for, but it would also be controlled. Nothing would be left to chance. In Vietnam, the war had built slowly, as had television coverage; by contrast, the Iraq war would begin with the bang of ‘shock and awe’, but would definitely not commence until the media was in place and under control. Those who cooperated would get close-up imagery of battle – good pictures of the Allies in action; those who chose to go solo would not only risk being scooped on the battlefield, but also risk their lives. As events proved, the Iraqi army was not the only danger – American forces would also be a hazard to non-cooperating media.

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For its part, the Pentagon read the substantial levels of domestic and international opposition to military engagement in Iraq – it had also long anticipated media demands for greater access to the battlefield than had been the case in the Gulf war. What had worked so eloquently in the Gulf war – war as armchair video game – would not suffice in the more divisive and complex post-9/11 environment. Advanced technologies, many derived from military research, had given the media more flexibility and freedom and new players, such as the Doha-based Al-Jazeera Arab network, could counter any strict limitations on television coverage of the war. The Pentagon’s bold solution was to revert to the strategy of World War II, to offer networks unprecedented access to the battlefield (if not the frontline) by embedding correspondents and television crews inside US military units. What appeared to be a radical innovation was in fact almost as old as the craft of war reporting. Sitting somewhere between the misery of the foot soldier and the glory of the generals was an ideal position from which the correspondent could observe the slaughter of the lower ranks and the strategy of the higher orders, and in which they could be monitored carefully for any transgressions of either security or empathy. In the new televisual idiom, strict censorship would not be necessary, the cameras and their crews would be reliant on military transport and would be guided wherever the military wanted them to go. Globally, television networks embraced the proposition. To reject it suggested foolhardiness since unprotected, independent operators would be easy targets for Iraqi snipers – and, as it happened, for ‘friendly fire’. Network managers were quick to realize the economic value of access to guaranteed images of battle however ‘staged’ rather than the hit-and-miss possibilities of having crews seeking out their own fireworks. The insurance bills for embedded crews would presumably also be lower. Embedding might also bring that most unpredictable breed of reporters – war correspondents – under some control, albeit military control, resulting in fewer ethical dilemmas and arguments with the White House about shots of dead bodies. Embedding seemed a very ‘clean’ solution. The military loved embedding because, for the first time since Vietnam, they could have journalists in their midst with neither the embarrassing limitations of the Gulf war nor the open-ended freedoms of Vietnam. They could have the media ‘onside’ with full control of the media. The reporters involved loved embedding because, working alongside the troops, they were guaranteed ‘instant story’ – if not close-ups of battle, then of enough military activity to count as ‘close to battle’. The White House loved embedding because it offered ‘controlled action’ footage – footage of American forces in action but without the bodies, body bags or burials. In

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the new sanitized warfare, despite the enormous firepower being unleashed, almost nobody – on either side – would appear wounded, let alone killed. The scent of war quickly produced a media beehive. About 1000 media personnel covered the action, in the biggest newsgathering operation in the history of television. Money would be no object – CNN alone budgeted $35 million to beat its rival Fox News in the secondary (but by no means insignificant) war, the battle for ratings. British TV news networks would extend their budgets by a combined £22 million. The major world networks would show everything live, a real-time war, 24 hours a day, and marketed endlessly on-air. To cite just one example, Australia’s ABC mounted an impressive mix of journalistic talent and electronic gadgetry to cover the biggest story since 11 September 2001. It had accepted the ‘embed’ option for at least two of its personnel, reporter Geoff Thompson and cameraman Michael Cox, both experienced TV news professionals, who were embedded with an American Marines division on the route from Kuwait through to Baghdad. Cox did not find the ‘embed’ process unduly restrictive. ‘One of the rules of the “embed”’, he observed, ‘was that you had to remain with the unit you were assigned to for the duration of the conflict. But as one Marine had said, “The further you are away from the flag the easier it becomes”’. The closest Cox and Thompson came to ‘battle’ was an encounter with an Iraqi civilian vehicle which refused to stop. Marines opened fire, killing the three occupants. Cox filmed the entire episode and Thompson interviewed the Marines involved. Their film story was a highlight of the ABC’s war coverage and was screened worldwide. This story was an excellent example of how the Marines and the American Department of Defense lived up to their promise; unrestricted access and no interference. There were ground rules regarding operational security that we agreed to at the start but during the six weeks we spent with the Marines we were allowed to go where we wanted and report what we wanted without interference of any kind. [ ] … at every turn the Marines assisted us as best they could and in some cases their efforts improved the coverage we could provide.27

The limitations of the system were widely accepted by networks. John Stack, Fox News’ Vice-President, Newsgathering, was prepared to do what was necessary to get Iraq war footage: ‘This is a gentleman’s agreement [and] it’s understood going into this that it’s not a democracy. We have to abide by the rules’.28 Others were less than impressed. The BBC’s John Simpson, while noting that embedding often provided first-class coverage, felt there was ‘a price to be paid for this kind of closeness. That, after all, is why it was offered to us’. Simpson noted the price of this closeness was that it became hard for

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all but the thickest-skinned correspondents to be honest about the soldiers who fed and transported them, gave them the power for their equipment, and (when necessary) saved their lives from the enemy: That mere word, ‘enemy’, shows how a mind-set was created, and the word was used by plenty of reporters who didn’t work for Fox news. If you are with one side in a war, your fortunes and those of the soldiers you are with are pretty tightly intertwined; deep down, you are praying that they won’t fail.

Simpson and others decided firmly against embedding. ‘We didn’t want to be beholden to the very people whose actions we were obliged to report on impartially’. The decision almost cost Simpson his life when his convoy was strafed by an American fighter plane; his translator was killed. It also provided one of the most graphic reports of the war.29 Iraq would prove the costliest war in media history in many ways. In the year following the US invasion, 27 journalists were killed covering the war and its aftermath. Most were correspondents from the United States, United Kingdom, Spain, Australia, Germany and elsewhere.30 As the insurgency grew, an increasing number of media personnel killed were Iraqis. Amid all the frontline coverage, embedded or otherwise, the television media witnessed another shift. Control was moving from the battlefield correspondent to the producers and programme editors ‘back at base’, often thousands of kilometres from the fighting. Advances in communications technology meant field reporters could no longer disappear ‘upcountry’ as they did in Vietnam, chasing leads, using their intuition, producing unique eye-witness coverage that offered viewers diversity, greater textures and a challenging range of viewpoints. Real-time connections and live crosses now meant correspondents were always on call, forever responding to the demands of programme producers, constantly ‘in the loop’ of news agency cover and military handouts, and fully aware of what the competing networks were covering. The resulting pressure to ‘match’ opposition coverage resulted in an increasingly narrowed and homogenized perspective, a ‘funnel vision’ in which a majority of stories from the war zone began to look the same, often because they in fact carried the same, endlessly syndicated shots. In many cases, only the reporter ‘stand-ups’ (or ‘pieces-to-camera’) differentiated one television story of a war event from another, while creating the often fraudulent impression that the reporter had been present in the battle sequences shown. Highlighting the technology dilemma, ABC war correspondent Eric Campbell at once treasured and bemoaned his satellite phone:

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Unlike my experience in other war zones, I was now in constant phone range. The new-model satellite phones were handheld and worked like mobile phones, so you didn’t have to stop the car and set up a satellite dish to make a call. The downside was that the newsroom could reach you at any time of night or day.31

To his credit, and at substantial personal risk, Campbell at least was in the war zone. An American dictionary defines a war correspondent as ‘A journalist, reporter, or commentator assigned to report directly from a war or combat zone’.32 The most contentious word here is not war, but directly. Increasingly, war correspondents do not report directly from the battlefield, but at a considerable distance from the killing zone. In the Iraq invasion, television journalists were often positioned far from action; rather than being witnesses to the ‘shock and awe’ of modern warfare, they were primarily conveyors of what others had seen or heard, a trend that had developed since the mud-and-gore Vietnam era. Indeed, many so-called ‘war’ correspondents working in the highly regulated environment of the Iraq conflict were not direct observers of battle but conduits of secondary and tertiary knowledge – information cleverly packaged to imply both immediacy and a sense of relatively close engagement with hostile events. Their battle zone, just slightly off screen, consisted of a hotel room strewn with video cameras and cables, monitors, digital editing gear, and (increasingly) an armed guard. A balcony with a palm tree backdrop signified that the correspondents were not in Kansas any more and a satellite dish linked to a network producer on the other side of the planet, who issued instructions (‘Don’t go anywhere!’) and demands for specific content. Pressure to talk in repetitive live crosses about events happening far from the reporter’s field of vision increasingly skewed the war’s coverage. Yet while technologies available to cover war had changed dramatically, the war correspondent’s fundamental role had not: to cover the standalone events, but equally to lock them into the context ‘chain’, assessing both their immediate impact and deeper meaning. In failing so frequently to meet this objective during the Iraq war, aiming instead for moments of spectacle drawn from ‘embeds’, television news often conspired against a more focused context, discouraged serious debate in doing so and in contradiction to the media’s stated aims, made democracy poorer. In a sense, war correspondents are no different from soldiers. War reporting cannot be mastered from a textbook, but is rather an acquired skill gained over time and played out in rapidly changing environments. Yet many variables have come into play since the legendary William Howard Russell of the London Times outlined the essential dilemma: ‘How was I to describe what I had not seen? Where to learn the facts for which they were

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waiting at home?’33 As a result, what was a straightforward proposition – observation, investigation, explanation – has become a minefield of ethical and professional dilemmas. If balanced and diverse coverage of warfare is under threat from both new technologies and government pressure, is the war correspondent also under threat? Will rising costs and a growing risk of death force networks and reporters alike to ‘pull back’ from the enterprise begun so valiantly by Russell of the Times, who launched the genre in the 19th century? Russell modestly saw himself as ‘the miserable parent of a luckless tribe’,34 yet he managed in a lifetime to change not only the view of field reportage but also of war. Edwin Godkin of the Daily News observed having a special correspondent in the Crimea ‘ … brought home to the War Office the fact that the public had something to say about the conduct of wars and that they are not the concern exclusively of sovereigns and statesmen’.35 Indeed, the need to obtain up-close, accurate, timely and well-informed news of military involvements in foreign wars remains as vital to the democratic process as ever.

NOTES 1. Howard, J. (2005), Australian Prime Minister, AM, ABC Radio, 24 February. 2. Warner, D. (1995), Not Always on Horseback: An Australian Correspondent at War and Peace in Asia 1961–1993, Sydney: Allen & Unwin, p. 42. 3. Lunn, H. (1985), Vietnam: A Reporter’s War, St Lucia: University of Queensland Press, pp. 56–64. 4. Davis was the subject of an Academy Award-nominated documentary, Frontline (Director: David Bradbury), 1980. He was subsequently killed while filming a minor coup in Thailand in 1985. 5. Torney-Parlicki, P. (2000), Somewhere in Asia: War, Journalism and Australia’s Neighbours 1941–75, Sydney: University of New South Wales Press, p. 15. 6. Ibid. 7. Davis, N. (1967), ABC Radio Active magazine, cited in ABC around the World website, http://abc.net.au/aroundtheworld/content/s1059129.htm, accessed 28 August 2005. 8. Author interview with Andrew Swanton, ABC Saigon correspondent 1970–73, recorded on Bribie Island, Queensland, 25 May 2005; author interview with John Tulloh, formerly International Editor, ABC News and Current Affairs, recorded in Sydney, 10 June 2004. 9. Simmons, D. (1966), ABC Radio Active magazine, cited in ABC around the World website, op. cit. 10. Davis shotlists held in author’s archive collection, Mitchell Library, State Library of NSW, Sydney. 11. Perhaps his least ‘cinematic’, yet most famous, footage was shot in 1975 on the day the Communists conquered Saigon, when Davis hastily caught the iconic image of a North Vietnamese tank smashing through the gates of the Presidential Palace. Even here, facing possible death, Davis managed to capture a sense of narrative around the primary event.

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12. Author interview with Peter Munckton, ABC Saigon correspondent, recorded in Brisbane, 25 May 2005. 13. Torney-Parlicki, op. cit., p. 28. 14. Revitt, J., ABC Saigon Correspondent, 1966–67, in ABC around the World website, op. cit. 15. Knightley, P. (1975; reprint 2003), The First Casualty: The War Correspondent as Hero, Propagandist and Myth-maker from the Crimea to Iraq, London: André Deutsch. 16. See Knightley, op. cit.; Bowden, T. (2001), One Crowded Hour: Neil Davis, Combat Cameraman 1934–1985, Sydney: Angus & Robertson; Hoskings, A. (2004), Televising War: From Vietnam to Iraq, London: Continuum; Rowe, J.C. and Berg, R. (1991), The Vietnam War and American Culture, New York: Columbia University Press. 17. Knightley, op. cit., pp. 481–2. 18. Schonfeld, R. (2001), Me and Ted against the World: The Unauthorised Story of the Founding of CNN, New York: Cliff Street/HarperCollins, p. 328. 19. Hedges, C. (2002), War is a Force that Gives us Meaning, Cambridge, MA: Public Affairs Books, p. 142. 20. Kellner, D. (1992), The Persian Gulf TV War, Boulder: Westview Press, pp. 80–81. 21. ABC Annual Report 1990/91. 22. Wilesmith, G., former ABC Middle East correspondent, in ABC around the World website, op. cit. 23. Hedges, op. cit., pp. 142–3. 24. Schonfeld, op. cit., p. 330. 25. Powell, C., with Persico, J.E. (1995), A Soldier’s Way: An Autobiography, London: Hutchinson, p. 508. 26. Ibid. 27. Cox, M., ABC around the World website, http://abc.net.au/aroundtheworld/content/ temp_iraq2003.htm, accessed 10 July 2005. 28. Gay, V. (2003), ‘War Coverage gets a Front-row Seat’, Newsday, 20 February. 29. The attack resulted in the death of the translator and 17 others. ‘I was left with the feeling that it was, somehow, my own fault: the US forces had made it possible for journalists to be embedded with them, so my team and I had no business being out in the open where we could be attacked’. Simpson, J. (2003), The Wars against Saddam: Taking the Hard Road to Baghdad, London: Pan, p. viii. 30. Campagna, J. and Sabra, H. (2004), ‘Under Threat: Iraqi Journalists Frequently Face Hazardous Conditions on the Job’, Committee to Protect Journalists, 17 May. Website http://www.cpj.org/Briefings/2004/iraq_journ_5_04/iraq_journ_5_04.html, accessed 7 May 2004 31. Campbell, E. (2005), Absurdistan, Sydney: HarperCollins, p. 322. 32. American Heritage Dictionary of the English Language (2004), New York: Houghton Mifflin. 33. See Knightley, op. cit., for an excellent summary of Russell’s work and influence. 34. Knightley, op. cit., pp. 2–3. 35. Odgen, R. (ed.) (1907), The Life and Letters of Edwin Lawrence Godkin, New York: Macmillan, pp. 102–3; cited in Knightley, op. cit. Godkin himself was a remarkable observer not only of warfare but of the media: he chided his lazier American colleagues in the Civil War for their ‘wild ravings about the roaring of guns and the whizzing of the shells and the superhuman valour of the men …’: see ibid., p. 205.

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Embedded journalism: at home and abroad Martin Woollacott1

My chapter addresses four questions: Are the media under new pressures from governments and military establishments trying in one way or another to co-opt them? My answer is, yes. Are the forces bearing down on the media succeeding in an overwhelming or permanent way? My answer is, no. Are there dangers, other than co-optation by the powerful, facing the media? My answer is, yes. Is there a need for reflection, particularly in the coverage of intervention and war? And my answer to that is, yes.

NEW PRESSURES The modern press is used to being spun, influenced, and persuaded, but it is relatively new that the process is talked about as clinically as it sometimes is these days. Soldiers can be particularly forthright. The Australian (then) Major-General Peter Cosgrove said that the management of the press in East Timor was like ‘pushing a wheelbarrow full of frogs’.2 The British General Rupert Smith, who was the last United Nations (UN) commander in Bosnia and later the deputy commander of the North Atlantic Treaty Organisation (NATO) during the Kosovo war, is another frank speaker. In his new book, The Utility of Force,3 he writes that the commander should be the ‘producer’ in his relationship to journalists: ‘We are conducting operations now as though we were on a stage’ and ‘the media is a crucially useful element in modern conflict for attaining the political objective of winning the will of the people’. By ‘the will of the people’, Smith means not only people at home but people in the war zone itself, and indeed people in the whole world. The media, Smith argues, should not be the driver of events, as it often was in Bosnia, where, he writes, ‘each major decision was triggered by television coverage of some gross incident ... This usually resulted in imposing on the UN another task for which it was promised forces and resources that arrived 189

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late, if at all’.4 The media can press its agenda on a commander, in this way, via his or her political masters and through public opinion. But he/she, in turn, can use it to deceive the enemy, and Smith gives an example from the first Gulf war, when he let TV crews shoot many sequences of the British armoured division’s men and tanks, all with the sea in the background. He then stopped all TV opportunities while the division moved north away from the coast, calculating that the television channels would use library footage without saying so, thus fixing in the minds of Iraqi intelligence people monitoring Western broadcasts the notion that the British were still next to the ocean. But such tricks are a very minor part of what Smith means when he stresses the pivotal role in the media. ‘If you are fighting for the will of the people, however many tactical successes you achieve, they will be as naught if the people do not think you are winning. It is by communicating through the media that this understanding is in large measure achieved’. There is, therefore – and here we come to the nub of the matter – ‘a need to capture the story – to which end a narrator is necessary, one who explains to the audience what has happened, its significance, and where events might lead’. The commander, he argues, ‘is the producer’ when working with journalists, and ‘ownership of the story’ must be ‘claimed from the start’.5 You could not be much clearer than that. Smith, an exceptionally decent and intelligent soldier, is only expressing rather more eloquently than others what is now generally believed in governments and military establishments. This is more than ‘get the press on side if you can’, and more, in a way, than the old propaganda approach of the world wars: it is a theory of warfare which has media management at its very centre. The sociologist Martin Shaw offers some strikingly similar arguments in his recent work, in his concept of ‘global surveillance warfare’.6 He echoes Smith’s understanding of war as taking place on a stage subject to the gaze of people everywhere. Shaw argues that Western countries developed a new form of low cost, low casualty war after the trauma of Vietnam, in which the political and human risks to their societies were minimized and real risks ‘transferred’ both to enemy combatants and to civilians in the fighting zone. He characterizes these wars, even when conducted for worthwhile ‘humanitarian’ reasons, as degenerate, because of the arrogant transfer of risk from, say, fighter bomber pilots to schoolchildren near military targets. Shaw also argues that, because of Iraq in particular, this ‘new way’ of war is in crisis, for both practical and moral reasons – one is that media control often breaks down. Shaw makes a powerful point about the nightmare which haunts media managers in these situations: ‘What they fear is a single incident that is so challenging that it threatens to “break” the established narrative, suggesting to journalists, readers, and viewers the need for a

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radically different understanding’. Narrative is a fashionable word that has been brought in from the social sciences and cultural studies, but it is the same concept once expressed in phrases like ‘the line’, ‘the party line’, ‘get with the programme’ and so on. Still, its use represents a more widespread tendency to think in terms of commanding rather than merely influencing information and communication than used to be the case. The ‘narrative breaking’ incident could be a huge wave of refugees heading into Turkey; a convoy of farm families on tractors and carts incinerated by NATO bombs on a road in Kosovo; a suicide bomber taking out a hundred people in an Iraqi town; or an attack on commuters in Madrid or London. In each instance a struggle then breaks out to control the narrative, to keep it ‘on track’ from the point of view of the authorities, or to open it up to other possibilities. Examples include that action must be taken, as in the Kurdish case, or that the Kosovo air attacks were far from surgical, or that the Iraq war is wrong or foolish, or the opponent is winning, or both. Older and legitimate discussions about responsible journalism in time of war have tended to be overtaken by this new kind of thinking. In developing his ideas on the media and modern wars, Shaw comes up with the idea – a horrifying idea, but it appears to have more than a grain of truth in it – that many modern wars are constructed around massacres – the ‘inadvertent’ massacres which the West tries to explain as collateral damage, and the ‘intentional’ massacres which some Western opponents want to commit and to publicize.7 This, he suggests, makes the media even more central – to suppress, on the one hand, and to publicize, on the other. Control of the media in wars is intimately connected to control of the media in general. Of course, even the most peaceable governments, Sweden’s for instance, try to manage the press on domestic policies. And in Britain, there is an official ‘narrative’ about the National Health Service, for example, which has little to do with anything happening abroad. But in the United States (US), it is clear that the Bush regime has tried, with the global war on terror, to construct a narrative into which it can fit all of its foreign policies and most of its domestic policies, and which should, in theory, allow it to connect up nearly all forms of criticism, dissent and opposition into one ‘axis’ which all right-thinking people ought to repudiate. That narrative is falling apart, in my opinion, under the weight of its own contradictions, and because American common sense, including the common sense of parts of the media, is being brought to bear on it. It is subject to Shaw’s law of the narrative breaking incident, of which the most recent was not in Iraq, surprisingly, in spite of all the horrors there, but in Louisiana. There, in the aftermath of Hurricane Katrina, you even saw Fox reporters baulking at being led by pro-Bush anchormen.

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But, while it looks ragged now, there was certainly a time when the Bush narrative was dominant in the US, when people were very circumspect in expressing opposition to it, and when the American media was powerfully shaped by it. A version existed in Australia, thanks to the ubiquity of the Murdoch press. In Britain, there was a more dilute and contested version, and the British people never really wholeheartedly bought the global war on terror. During that period the US Government took the decision to invade Afghanistan and then the decision to invade Iraq, followed in that venture by the governments of countries like Britain and Australia. It prosecuted the war there in a counter-productive fashion. At home, it amended America’s laws, and the international laws of war, in highly dubious ways. Other countries followed, some of the way. And Bush won a second election in which his opponents had to present their dissent and their differences in ways which fitted ‘his’ narrative. So too did the British Prime Minister, Tony Blair. Before the invasion of Iraq, the media, seen as a whole, largely failed in its duty to weigh government assertions, to give publicity to alternative views, even to reflect the doubts and anxieties of many in government and the armed forces. For a while, the story really was ‘captured’, almost completely in the US, and to some extent in Britain. Whatever one may think of the decision to go into Iraq, and I might as well mention now that I, as a columnist on the Guardian, was equivocal on the matter, most viewers, listeners, and readers in our countries were not given a full account of the arguments for or, particularly, against. And the investigatory capacity of the media was not seriously employed to weigh two sets of assertions and assumptions. One set concerned the weapons of mass destruction (WMD) claims of the two leading governments. The other, equally or more important, concerned the defective understanding of the political forces at work in Iraq, under the carapace of Saddam Hussein’s regime, which led to the view that a transition to democracy – to a state led by a secular middle class and by religious moderates – would be easy. If that investigatory capacity had been employed, it could have produced a narrative breaking revelation of a kind that might – just might – have checked the rush to war. There is no denying the importance of this chapter in the relationship between media and government. It may have been, quite literally, fateful. Yet the story is no longer in the custody of the Bush Administration. Events have taken it away from them, the media has recovered some of its balance – and in certain cases gone in for public self-criticism, as with the New York Times and the Washington Post. The Administration’s narrative still has some hold, of course. It was significant, for instance, that when George Galloway8 crushed a gaggle of US senators, the British papers led on his line that he had met Saddam Hussein only as often as Donald Rumsfeld

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had and that he, at least, had not been offering arms or military aid to the dictator .9 The American papers buried that line halfway down their stories, and left out the part about arms.

HOW BAD IS THE SITUATION? In the aftermath of Iraq, the first question is whether in this battle for meaning we are seeing something that is different in kind from what went before. The evidence suggests it is different in degree, but is it different in kind? The second question, which overlaps with the first, is whether the media managers are winning – it being understood in this question that the media managers are not only governments and the military but also some of those who own, control, and run the media. You have only to watch Fox TV for half an hour to understand the seriousness of both questions. Yet we all know that this struggle over narrative, or, to use an older terminology, over the ‘big picture’ or the ‘big story’, the overarching story into which all the little stories fit, is neither new nor likely to be settled one way or another. I would go beyond that to say that it is a condition of democracy that this struggle is always in the balance. If that is so, the task is to determine whether we are now in a particularly dire phase of the struggle or not. James Cameron once memorably wrote that, ‘Ever since I can remember ... democracy has been disintegrating, diplomacy doomed, parliament pooped, capitalism collapsing, and socialism sunk’.10 It is easy, in other words, to exaggerate the problems of today and to forget the problems of the past. It is after all more than 80 years since Walter Lippmann, writing in the aftermath of a great war and at a time when the peace settlement was being almost criminally mismanaged – something which he believed a proper public opinion ought to have prevented – first said that public opinion could be manufactured.11 He also wrote that, ‘There can be no liberty for a community which lacks the information by which to detect lies’, a sentence which may seem very prescient today.12 Lippmann was reacting to the burgeoning of public relations men in the United States, to the way in which a jingoistic press helped bundle America into the First World War and to the secrecy and manipulation of the press and public opinion which marked the peace negotiations which followed. Lippmann grappled all his life with the question of what public opinion, so vital to the story of how democracies work, actually was. Was it a phenomenon of management, or of ignorance, or a mere congeries of local interests brokered by politicians? Did it, as the title of one of his books, The Phantom Public,13 suggests, actually exist at all? It was clear to Lippmann, in the three books he wrote on such subjects in the decade

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after the First World War, that the press as then constituted could not fully carry out the duty which democratic theory assigned to it.14 Yet he still said that the crisis of civilization was a crisis of journalism. His rather mundane solutions were that better people should go into journalism, they should be better trained, and that the press should be supplemented in its role of giving the people the information they needed to participate in important choices, by what we would now call think tanks. All that has been done, although we now also have television, whose central principle, Lippmann later said – and remember he was writing of what we would now call good television – was: ‘First simplify, then exaggerate’. We may be no better off than when Lippmann wrote but we are probably not that much worse off, and one reason is the nature of journalists. They are in general relatively contrarian and critical, or, in other words, usually resistant to embedding, both to the actual arrangement and in the metaphorical sense. Embedding is new coinage but old practice, and it is worth saying that governments and militaries have not always liked it. It is a complex business, for getting ‘inside’ institutions and groups is a journalistic aim in most circumstances, whether under cover or officially, whether it is drug dealers or health workers, police forces or maypole dancers. Indeed the combination of intimacy and distance, of ‘in’ and ‘out’ is what makes for the best journalism. Authority, in other words, embeds at its peril, for, unless the media are totally cowed, embedding will bring empathy and common feeling and a certain amount of control, but also on the spot, authentic, and undeniable witness of what the authorities may very well wish had never been seen. An example from the American war in Vietnam will illustrate this. Embedding was actually forbidden in Vietnam, in spite of its reputation as a much less tightly controlled war than later conflicts like those in the Falklands and the Gulf. Reporters were not normally allowed to stay over days and weeks with particular units, precisely because senior officers feared what they might see and learn, but the young Columbia Broadcasting Service (CBS) correspondent John Laurence persuaded the US Army to make an exception for him and his crew. Two minute segments on the life of a particular company – patrols, meals, shellings, rest times, lulls – fascinated viewers at home for a few weeks. The experiment came to a sudden end after Laurence and his cameraman witnessed and filmed the refusal of some of the soldiers to obey the orders of an inexperienced officer to walk down an obviously ambush-prone trail. This little rebellion worried Americans who watched the episode, and it worried the army because wary conscripts and inadequate officers were not part of the message they wanted to communicate.

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Laurence, as he puts it in his fine memoir of the war, ‘wanted to show Americans how costly the war had become, how brutal and wasteful it was, what it was doing to the individual young men who were trapped in it’.15 Embedding had been a way to achieve that purpose, which makes the point that it is not so much the bed that matters as the person in it. If we come right up to Iraq now, embedding certainly produced some objectionable gung ho reporting, but it also produced some important and revealing stories. Whether Bill Brannigan of the Washington Post was formally embedded at that stage or not, he was certainly ensconced with an American unit when its frightened members fired on a civilian car at a road block, killing most members of a family. Only a week or so after the invasion, this was one of the first stories to alert people outside Iraq to the too swift resort to firepower which was to mark American military behaviour in Iraq, and to take many more civilian lives. Staying with Iraq, it was typical of an American press broadly sympathetic at that moment with the aims of the Bush Administration that they seized on what turned out to be the very temporary difficulties of the advance to Baghdad and produced a burst of stories critical, especially of Donald Rumsfeld for not having dispatched enough troops, and not the right kind of troops, to do the job properly. True, these were technical rather than moral criticisms, but they were indicative of two things. One is that the critical instinct is always close to the surface. The other – I advance this more tentatively – is that the media have a nose for what is going wrong. In other words, they sensed the quagmire dimension in Iraq, but located it, on that occasion, in the wrong place, in the possibility of a heavily contested advance to Baghdad. It came later, of course, and in a very different form. I would argue that nobody could say that the media, including the American media, went to Iraq in an automatically ‘positive’ frame of mind. The Fox network and a few others aside, were open to signs of trouble. I remember Nicholas Kristoff, of the New York Times, noting within a day or so of the invasion the palpable lack of enthusiasm among Shi’ites near the Kuwaiti border. I recall television footage, although less analytical and less critical than the serious print media, conveying uneasiness and anxiety, particularly after the looting to which Baghdad was subject at that stage. To say the media were in a critical frame of mind is not to say that they did not on the whole share the assumption that inside Saddam Hussein’s Iraq was a democracy trying to get out. The miscalculation and wishful thinking which led to that assumption, but which, it is worth remembering, quite a number of middle-class Iraqis, inside and outside Iraq, also shared, were only later to become apparent.

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DIFFERENT DANGERS There are, as everybody knows, enormous technical and commercial changes under way which are threatening the old media. Big journalism – the journalism conducted by strong and wealthy newspapers and by large and prosperous state and commercial broadcasters – has already suffered, and it has a problematic future. It is unclear whether the alternative media the web has fostered will provide an acceptable substitute. The problems of the old journalism, manifest in such things as the decline in the number of foreign correspondents, have obviously already handicapped the media, and perhaps they make it easier for the managers and spinners to have their way. But I want to highlight other dangers which arise more from the way the media manages itself than from the way others try to manage it. For example, the media in Britain certainly, and in the US less so but still much more so than in the past, are now systematically dubious about government claims over Iraq. When not directly critical, they leave stories strewn with clues suggesting the enterprise is in trouble, perhaps in terminal trouble. I think we could guess that the American media’s attitude to a new military venture, like an air campaign against Iran, would be far more questioning than its attitude during the run-up to the Iraq invasion. And if there were to be another terrorist attack in the US, it would be less likely to be taken, and presented by the media, as proof of the inexplicably evil intentions of the perpetrators than as evidence that Bush had got Americans into terrible trouble that they might otherwise have avoided. All this is good. Less good is that, on this side of the Atlantic, we are close to liberal media consensus that a stable and democratic Iraq is unachievable, and certainly to a consensus that the attempt to change Iraq should never have been made. The second part of this consensus, in particular, should be subject to the same rigorous analysis which ought to have been applied by the media to the arguments for the invasion. It has to be laid bare that this new consensus implies the abandonment of Iraqis who ought to matter to us, democratically inclined people, trade unionists, and many, though not all, on the Iraqi left. Perhaps it is true that those who did the damage cannot undo it, but it needs the most serious examination – and by examination I mean reporting, of what can be learned on the ground in Iraq, of the real views of policy makers and diplomats and soldiers at home – before we conclude, or urge on readers, listeners, and viewers that we should simply get out of Iraq, as some British papers have been doing after the incidents in Basra.16 This argument brings up two important and connected issues. One concerns the failure of the press to pre-empt government action and the other concerns the failure of the press to oppose government action. If we are to have pre-emptive wars on the Bush model, do we not also need a

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pre-emptive journalism? It is worth going back to Lippmann, who argued that news deals with symptoms, which means by definition that a process is advanced, perhaps well advanced, before it is noticed. There must be, Lippmann wrote, a ‘manifestation’,17 an event which reveals the process. He also argued that for unavoidable reasons to do with the need to gain and keep an audience, news is typically presented as the ‘story of interference with the reader’s life’.18 If this is so, there is a further time lag because news cannot usually be fully explored until it affects the reader’s safety or comfort or the prices at the supermarket or the petrol pump, or, to take it further, kills his son or daughter. This is the way newsrooms work, the way news editors and reporters function. Journalism mainly reflects what has happened, not what may happen, whether for good or ill – that is its nature. For all that has been said, including my own remarks, on the failures of the media before the Iraq invasion, it has to be understood that the press is, as a tool of democracy, largely a retrospective instrument. It can establish, through accurate reporting and through good analysis, what is wrong with a policy once it has been adopted, as reporters like John Laurence did in Vietnam. It is not that good at predicting that policy will fail, and its value is more about lessons learned than about disasters avoided. It may be able to prevent a repetition of a particular kind of disaster but it has not been, historically, that good at warning of new dangers. It is an open question whether this can change. The second issue is opposition, and here I find myself strongly in agreement with commentators like John Lloyd who maintain that the job of opposition in a democracy belongs to the opposition parties, and not to the press.19 That goes for the ideological opposition of the past – leftwing media campaigning against a government of the right and vice versa – but, more pertinently today, it includes the non-ideological ‘oppositionism’ which much of the media in Anglo-Saxon countries have adopted as a kind of general strategy. This plays to the appetite for drama, conflict, and scandal, and to the sport of building up public figures only to pull them down. It ravages left and right in politics almost equally and, ever on the look-out for the foolishness, knavishness, or viciousness of rulers, or the vulnerabilities of actors, footballers, television academics, and other stars – even other journalists – it has an effect rather like a Daisy Cutter bomb on genuine public life. Of course this too is an old story, if we remember Mark Twain writing in the 1890s of a press ‘licensed to say any infamous thing it chooses about a public or private man ... tied in no way ... the public opinion which should hold it in bonds it has itself degraded to its own level ...’. That ‘public opinion ... is created in America by a horde of ignorant, self-complacent simpletons who failed at ditching and shoe

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making and fetched up in journalism on their way to the poorhouse’.20 Whether, when political opposition is flattened or inert in a democracy, the press can temporarily play the opposition role is worth discussion. But it is not its natural role, and if assumed for any length of time will distort or subvert its true informational function. How do we reconcile the view that the media is, sometimes, in the government’s pocket with this other understanding of the same media as loose cannon careening round the deck of state and society? The answer is that there are elements of both in the media scene in all Western countries, and of both, it has to be said, even in the most serious papers and broadcasting organizations. A co-opted media which has let the story be captured by the authorities is bad; a sensation-seeking media which captures the story from serious democratic actors, whether politicians or intellectuals or trade unionists or business leaders, is equally bad. A combination of the two is worst of all.

THE ACTIVIST MINDSET I will conclude with a final point which I think is of special importance in assessing the approach of the media, and the Anglo-Saxon media in particular, to the kind of interventions with which men like Generals Smith and Cosgrove have been involved and in which category Iraq is the latest and biggest example. Western journalists are creatures of their culture, and that culture, shaped by a long history of success in the world and by imperialism, is a profoundly activist one. It believes that problems can be resolved, that action, including military action, is often the best course. We see that instinct at its best in the readiness to intervene for humanitarian reasons in northern Iraq and later, although very ineffectively, in Bosnia. We see it at its worst in other situations, say Suez or Cambodia. Western journalists have repeatedly reported critically on such interventions but usually, as in Vietnam, on the manner of them rather than the fact. Western journalists have reported with anger, too, on failures to intervene, as in Rwanda. Their implied protest has usually been that there is another kind of activism which would be better, that there is a better war. There is, in the West, particularly the Anglo-Saxon West, no tradition of doing nothing in the face of disturbing events – we call that Munich – but instead a tradition of robust response. Tiziano Terzani, of Der Spiegel and La Repubblica, one of the best reporters of his generation, who died last year, was one of those who questioned that response. Influenced by Buddhism, he deplored the West’s military activism, but he did not romanticize those who opposed the West, some of whom went on to interventions of their own. He

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made a powerful case against the West’s self-appointed role, asking whether it was necessary, practical or moral in his Letters Against the War.21 Even if we cannot follow a man like Terzani all the way, he points to the need – in the media as much as in government – for a profound reconsideration of the tradition of intervention. If anybody detects in that thought an element of nostra culpa and indeed of mea culpa they would be right.

NOTES 1. This chapter draws on work done during three months as an Associate Fellow at the Institute for Advanced Studies at La Trobe University, Melbourne, Australia in winter 2004–05. The author wishes to express his gratitude to those institutions, and to the Media Studies Department of the same university. 2. Remarks after a lecture to the Royal United Services Institution, London, 24 November 2000. 3. Smith, R. (2005), The Utility of Force, London: Allen Lane. 4. Ibid., p. 353. 5. Ibid., p. 391. 6. Shaw, M. (2005), The New Western Way of War, London: Polity. 7. Ibid., pp. 65–7. 8. Appearing before the US Senate’s Permanent Sub-Committee on Homeland Security and Government Affairs, on 17 May 2005, Galloway told the chairman, Norm Coleman, that he had not, as the committee had alleged, had ‘many’ meetings with Saddam Hussein, but only two, which was ‘exactly the same number of times as Donald Rumsfeld met him’. Galloway went on ‘The difference is that Donald Rumsfeld met him to sell him guns and to give him maps the better to target those guns. I met him to try to bring an end to sanctions, suffering, and war’. 9. Rumsfeld met Saddam Hussein when visiting Baghdad 19–20 December 1983 as a personal envoy of President Reagan. He visited Baghdad again in March 1984. 10. Cameron, J. (1975), Guardian, 14 July 1975, p. 9. 11. In a letter about his essay ‘Liberty and the News’, quoted in Starr, P. (2004), The Creation of the Media, New York: Basic Books, p. 387. 12. Lippmann, W. (1920), Liberty and the News, reprinted 1995, New Brunswick: Transaction Publishers, p. 58. 13. Lippmann, W. (1925), The Phantom Public, reprinted 1993, New Brunswick: Transaction Publishers. 14. The books referred to are Public Opinion (1922), The Phantom Public (1925), and A Preface to Morals (1929). 15. Laurence, J. (2002), The Cat from Hue, New York: Public Affairs Ltd, p. 441. 16. On 19 September 2005 an incident occurred in which British armoured vehicles in Basra were attacked and set on fire and several soldiers were injured. 17. Lippmann, W. (1922), Public Opinion, reprinted 1991, New Brunswick: Transaction Publishers, p. 340. 18. Ibid., p. 350. 19. Lloyd, J. (2004), What the Media are Doing to our Politics, London: Constable and Robinson. 20. Twain, M., (1873), ‘License of the Press’, reprinted in Budd, L.J. (ed.) (1992), Mark Twain: Collected Tales, Sketches, Speeches and Essays, New York: The Library of America, pp. 551–3. 21. Terzani, T. (2003), Letters against the War, New Delhi: India Research Press, available as a free e-book at http://www.tizianoterzani.com/TT_letterenglish.pdf.

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15.

Empire and democracy John Keane

When historians look back at the fate of parliamentary democratic institutions in 50 or 100 years from now, they will likely note that their decline and possible disappearance happened because of a series of overdetermined processes. These include the breakdown of the Keynesian welfare state, new forms of social inequality and a triangle of violence that has settled on the world. Other concerns include the thickening networks of cross-border governmental and legal institutions which greatly complicate patterns of representation that no longer can be supposed to work purely within territorial state frameworks; the rise of media saturation, the effects of which we as thinkers and practitioners of democracy do not very well understand; and the growth of new security systems and the militarisation of power. I want to add to this list the rise of a new global empire. I want to say something briefly to begin with about democracy and empires, a strange combination if ever there was one. You know that democracy contains within it a radical bite: the whole idea that human beings can gather together, that they can invent and use special institutions to decide for themselves, as equals, how they want to live together on the face of the earth. This invention was something new. It was not a Greek invention. The very word democracy is older than classical Greece, and if you include within it an understanding of democratic assemblies, then it is undoubtedly an invention of Syria-Mesopotamia, well before the Greeks, in a geographic area that today ironically is Iraq and Iran. It was transported to the west and later claimed by the Greeks as their own. It has a long and very complicated history, but from today’s standpoint when we speak about democracy we have an understanding of it as something like this: it was the first ever human form of government. All government of course is human in the sense that it is created and built up and operated by human beings, but the exceptional thing about democracy as a form of polity, as a way of being in the world, is that it demands that human beings see that nothing is necessarily carved into stone, that everything is built on shifting sands of time and place. Therefore, it would be wise to invent and protect institutions that can ensure a certain flexibility, a certain openness, whereby 200

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equals can govern themselves. Democracy, in plain English, abandoned all the inherited thinking about power in terms of gods and goddesses. It got rid of the notion that power relations were somehow natural or based upon natural superiority. Democracy meant that, within any context, who gets what, when and how would be permanently an open question. This is putting very abstractly what democracy is about. When we speak about empires it would seem immediately obvious that to speak of empires and democracy in the same breath is to risk trouble. The two little words ‘empire’ and ‘democracy’ are not exactly happy family members or even friendly neighbours. Think about them for a moment. Democracy is a type of polity, or self-government among equals. Empire, by contrast, is a form of geographically extended polity whose diverse lands and peoples are held together and ultimately controlled by a centrally positioned ruler, emperor or imperial ruling group. This ruling group or ruler claims to be representative of the whole of the universal jurisdiction. It claims as well to be superior to its subjects, based on criteria of religion, law, race or history. Empire is in every case backed up ultimately by the exercise of the means of violence. Seen in this way an empire is a form of dominant power that can measure its strength against all its rivals combined. This is what Pericles had in mind at the beginning of the Peloponnesian war when he observed that his imperial Athenian naval forces were more numerous, more efficient and more effective than all the rest of Hellas. And it is what William Pitt the Younger (1759–1806) had in mind when reflecting rather pompously on the state of the British armed forces, its navy in particular, against revolutionary France: ‘however great France might be’, he said, ‘we have an army superior to all of Europe, a navy superior to all of Europe and commerce as great as that in Europe, and to make us quite gentlemen, a debt as large as that of all Europe’. This is typical of the way in which empires think about themselves and it reveals a basic structural feature of empires in all their different historical forms. If we see democracy and empire in this way then they are self-evidently opposites and this would explain why in the last half century there is almost no writing at all on the question of democracy and empire. Certainly there is no scholarly literature on it and that is strange because around the year 1900 there was a lot of it. That is understandable when you consider that most power sharing democracies as we know them today, and that have survived war, class conflict and coups d’état, were in fact born of empires. That has been the pattern in modern times, beginning with the first recorded case where democracy was used as a positive narrative in the struggle for self-determination in the Low Countries in the late 16th century in the struggle against the Hapsburg Monarchy, and in the Spanish Americas in the early 19th century. The pattern in other words is that democracy is

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often born in the womb of empires. This rather runs counter to much of contemporary thinking. It suggests that we ought to rethink this subject of democracy and empires. Of course it has to be said very quickly that there are many different forms of empires and ways of classifying and analysing them. From the point of view of democracy, I see at least three different types. There are those empires which explicitly set out to crush power sharing institutions. Hapsburg Spain was of this kind, so was King Leopold II’s so-called Congo Free State, the Soviet Empire and for the most part so was the Japanese Empire, every one of whose soldiers went into battle with a small pocketbook on their bodies in which they observed that they would follow every command of the Imperial Way. This is one type of empire. There are those, secondly, where things are messier and more complicated. A measure of centralised control to extract tributes and taxes for example combined with some measure of power sharing. The Ottoman Empire I think was of this kind with institutions like the endowment societies, and guilds. Towards the end, the Ottoman Empire had a functioning assembly system as a means of regulating and monitoring its own empire. There were then empires in which, despite the violence of conquest, despite the centralised administration, the greed and the vanity, all the high-brow ideological claims nevertheless functioned in part at least as midwives of some basic power monitoring, power controlling institutions that later came to be considered as vital for democracy. Franklin Gideon’s book Democracy and Empire and John Hobson’s study of imperialism1 both examined this third type. I want to look (not for nostalgic reasons) at the British Empire as a case in point. It sailed around the globe, planted its feet under fluttering flags and marked and justified what it did through a collage of different justificatory rhetorics. Countless noises were made about the links between population and wealth to stave off the fear of population decline. There was the political economists’ talk of the world of markets and the progress of knowledge. There were references to the Christian qualities of British rule, the advantage of secularity over superstition, and of course theories of the biological disadvantages of the lower races under its tutelage. Such presumptions were not only in themselves self-contradictory, a kind of dog’s dinner; they also stood at right angles to the principles of parliamentary-style government. One of the interesting things historically about the British Empire is that it developed within its bowels criticisms of the very function of empire of the way that the very structure of empire violated the principles of parliamentary selfgovernment. Think of Edmund Burke’s outburst against what he called geographical morality, the view that supposes that when you leave the heartland of the empire and travel to its fringes there are different standards of morality, so

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that slavery and brutality are acceptable there but not at home. Or look at Jeremy Bentham’s attack on the prison system of early New South Wales. There is a very famous essay by him in which he says that if you have despotism in the colonies it actually will come home to the heartlands of the empire. Think of James Mill’s2 attack on empire as a vast system of outdoor relief for the upper classes. What’s interesting about these criticisms is that they were in some contexts backed up by new inventions, new institutional innovations that could not have happened in the heartlands of the empire, but only took shape on its fringes. Take briefly the case of Canada. Following a British military defeat of France, some things new were born in that part of the empire, beginning with the province of Quebec which was given a legislative assembly even though 95 per cent of the population was Catholic and/or Aboriginal. Very early on, for the first time in the empire, the vote was extended to adult males regardless of whether they were Catholic, French speaking or native. This is something that had not happened before in the empire itself. It was in Canada that the first free elections for all adult males, property owning aged 21 and over happened in 1792. It was in Nova Scotia in 1854 that virtually universal male suffrage was won and it was in that context that the negotiated creation of a new federation and a new constitution in 1867 was developed without a shot being fired. These power sharing innovations, which were part of the British Empire, were not uniquely Canadian. They rather suggest that there is something unusual about the logic through which empires typically operate. Those who want to exercise imperial control over subject populations are permanently faced with the problem of how to secure these power relations. Empires require something like reticulations of power, the dispersal of power that in certain contexts – it did historically – work in favour of the opponents of empire, providing opportunities for opposition to imperial control. You can see this dynamic unfolding for example in the Australian and New Zealand context. So it is not surprising that the first ever modern example of proportional representation was observed in Adelaide in 1840. The post of Auditor-General, embodying the idea that you cannot trust government and you need some independent monitoring of the spending and administrative policies of government, was first introduced into the colony of Victoria in 1851. Gladstone only managed to do it in 1866 in Britain. The secret ballot otherwise known as the Australian ballot in the 19th century, was another such invention. Women first won the right to vote and the right to stand for election in South Australia in 1894. The first declarations in favour of Aboriginality happened in the 1830s and culminated in the treaty of Waitangi3 in 1840 which recognised not only land entitlements of Aboriginal peoples, but their entitlement to vote and to have full membership, in principle, within the governmental and legal structures.

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So, what about the United States? And what about the United States today? Is it meaningful to speak in terms of the problem with democracy and empire with respect to the United States? This is to ask a question that Gore Vidal long ago thought to be the key to understanding the role of American power in the world. Gore Vidal has many times said that the secret of American empire is that it should never be mentioned. So I want to open up this question and to ask whether it is at all meaningful to talk about the United States as an empire, to look at what implication this might have for democracy and to talk about some of the turbulence that I think the United States is bringing presently to the whole field of democratic institutions, probably endangering the future prospects of democracy. This empire has unusual qualities. Since 1989, it is the first ever global empire in a way that Pax Britannica never was. It operates in all four corners of the earth. In hard power terms it has over 1.45 million men and women stationed on five continents in over 132 countries. It is the world’s biggest, most dynamic, most innovative, most aggressive weapons manufacturer with a virtual monopoly on so-called smart weapons and ‘brilliant’ weapons – those that are completely robotic – thanks to the revolution of military affairs, which is its virtual monopoly. It was expected that by the year 2007 military spending in the United States would equal the rest of the world but that in fact happened early in 2006. The US Department of Defense currently officially maintains 725 military bases outside the country and 969 at home; one wonders how many secret bases there are. The actual figure is anybody’s guess. American hard power is clearly reshaping global institutions, turning some of them into de facto colonial bodies. Think of the way in which the United Nations has in some certain contexts become something like the Kleenex in humanitarian operations. The US drops the bombs and the clean-up operation, all the mess and human suffering, is offloaded and outsourced to global institutions. Think of the way in which American hard power operates its veto power. Look at the recent behaviour of the United States leading up to the UN Millennium Conference.4 At the last minute, American delegates went through the 39 page document and objected virtually to every line, thereby making it impossible to reach anything meaningful as an agreement at that conference. In soft power terms, the United States also operates globally. It is the driving force, the heartland, of what has been called ‘turbo-capitalism’. It is the heartland of the telecommunication industry, it is the driving force of de-regulation or re-regulation or marketisation of property, production, exchange and consumption. It is the global champion of consumer ways of life. This is the subject of a very good book by Victoria de Grazia5 who has pointed out that all European ways of life were superseded around the

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time of the late 19th/early 20th century, by this new way of living called consumerism which was itself an American invention. This is the first sense in which I think the United States is the first ever global empire. It is also unique in a second sense. Its political class thinks of itself in universalist terms, as did every previous empire. Henry V dreamed of a reunited Christendom, Gustavus Adolphus dreamed of a Protestant unity in Europe, Hitler dreamed of a new order based on biosupremacist principles. The United States repeats this kind of universalist language but it is the first ever empire – this is something new in the history of democracy – that speaks the language of democracy. In this way it is putting democracy on trial globally. I do not need to quote to you President George W. Bush. I have looked very carefully at when in the Bush Administration this language begins. The first recorded case where he, shirt sleeves rolled up, talks like a Jacksonian Democrat of the 1820s, is to an army tank plant in Lima in Ohio in early 2003. On first-name terms to some of the workers and the bosses, he says: you know, we went through our transition to democracy, it was painful but we did it, and we know that God has entitled all nations to live democratically. We have shown others how to do it and this is why we are going to show that democracy is indeed a universal and this is why we shall go into Iraq and we shall make Iraq democratic. Such talk, as some historians have pointed out, is not new. There is actually a much older history of the United States as a champion of universal democracy. It raises some uncomfortable counterpoints. The history of American democracy includes of course a nasty civil war that was driven by two completely different understandings of democracy. The rise of the American empire was also based partly on the will to power of colonisers moving westward, conquering native peoples. Democracy was, in the American context, understood and often used in the 19th century as part of the language of conquest of Aboriginal peoples. Going back to James Mill and his idea of the British Empire as a source of enrichment of the upper classes, it can be said that in the United States colonisation was a vast system of opportunity for men and women who thought of themselves as democrats, as equals and of course at very considerable human cost of the Aboriginal peoples who suffered conquest. And it should not be forgotten, finally, that in the history of the rise of the American empire and its association with democracy, conquest was carried out using the gentle soldier called Money. This history tells us quite a lot about the nature of the American empire. This empire has two unusual qualities. It is the first ever global empire and the first ever empire that speaks the language of democracy. In Washington it is often said that there is no problem with this. Look at the Philippines, where democracy was brought through the occupation of the country by

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the United States, the first big occupation in the name of democracy at the turn of the 20th century. Look at the case of Japan, look at the case of Germany. Democracy happened. So what is the problem? I think the problems are several: First, if you look at the occupations that have been carried out in the name of democracy, enforced transitions to democracy let us say, you will find that most of them failed. There is a Carnegie Endowment for International Peace research report that examined 16 enforced regime changes and it shows that in all but four cases they failed.6 This study does not include Afghanistan and Iraq, but it shows that the only two really clear-cut cases that were successful were Germany and Japan and possibly Granada after 1983 and Panama after 1989. But the typical pattern is failure. So this immediately throws in doubt the official claims of those in Washington and elsewhere in the United States that this empire is basically successful in what it is doing. It is also worth noting the deeply reductionist understanding of democracy that has for a long time been part of the discourse of American imperial power (and is very striking today). That is the view that basically the core institution of democracy is periodic elections. That as we know is not very convincing. Iran, Russia, China and Singapore have periodic elections but it is doubtful, at the very least, to say that these policies measure up to textbook definitions of democracy. There is also the growing problem of hypocrisy. The failure of American democratic transitions, the terrible shrinkage of the norm of democracy, and the sheepishness about the human costs of establishing it – some 250 000 Filipinos died during that occupation of the Philippines in the name of democracy – all of this increases the suspicion, which seems to me is rising in a wave-like formation in a way that it has not done before, on any scale, that American talk of democracy is maquillage. It is a mask for violent power manoeuvres that may have little or nothing to do with democracy and much or everything to do with the material interests of the dominant power. I think if you look at the Middle East, it is clear that the smell of hypocrisy that rises from the house of democracy is one of the great dangers that hangs over the whole of the ideal image and the way of life that we call democracy. I recall a definition of democracy put by Walid Jumblatt just on the eve of the occupation of Iraq. He said: ‘when I think of the word democracy I think of American planes, I think of American tanks, I think of American troops’. It is obvious to him that democracy is a thoroughly polluted idea. Now there is a final point that I wanted to get at and it is the problem of hubris. All historians have noted that there come moments in the history of empires where the problem of hubris sets in. Hybris is an old Greek word which refers to the way concentrated power tends to turn those who exercise

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that power into fools. They do things against common sense. They make judgements which are misjudgements, they tend to believe, being drunk on their own power, that they are capable of doing anything in the world. This happened in the Athenian case. It happened as well in the French imperialist experiment with democracy in the early 19th century. The question that I think ought to be central is whether there is a possibility that the American empire will in fact destroy democracy at home and abroad in some kind of orgy of hubris? Here I just want to remind you of the very fine work of John Hobson, Imperialism. Published in 1902, it is an extremely interesting and strongly critical account that was later very influential in all kinds of contexts of the failures and growing hubris of the British Empire.7 Hobson pointed out that after 1870 the Canadian, Australian, and New Zealandtype experiments cease and that there was every sign according to Hobson of a new and much greedier and reckless kind of imperialism. A short paragraph from his book gives a sense of what he had to say: With the exception of a couple of experiments in India the tendency everywhere has been towards a closer and more drastic imperial control over the territories when hunting the next. The occupation of these new territories was comprised of a presence of a small minority of white men, officials, traders and industrial organisers, exercising political economic sway with great cause of population regarded as inferior and incapable of exercising any considerable rights of self government in politics or industry. … [A new empire which was driven] by selfish interests of serving industrial, financial and professional classes seeking private advantages out of a policy of empire expansion, oil and by the new biology and racial superiority, racist presumptions about lower races and lots of Christian and post-Christian arrogance.

He quotes Lord Rosebery’s declaration that ‘the British empire is the greatest secular agency for good known to the world’; and Lord Salisbury: ‘the course of events which I should prefer to call the acts of Provenance, a call this country to exercise an influence over the character and progress of the world such as has never been exercised in any empire before’. What Hobson wanted to say is that rightly speaking, after 1870 the growth of empire and the consolidation of empire in the British case led to the expansion of autocracy. And this he thought was a great danger, not only for the struggle for a parliamentary democracy and equality at home, but throughout the whole of the Empire. I want to ask whether something like that moment of hubris is once again arriving, acting on us? How did the American empire reach the point at which it serves as a disruptive force in world affairs and generally interferes with and endangers democratic processes and institutions everywhere? It is becoming evident that we are witnessing the transformation of American democracy into something like a garrison democracy. The

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militarisation of strategic thinking, of politics and everyday life, the worshipping of military prowess, everything seems currently to be reckoned in terms of the greatness of war. It is as if war is the exemplary common project. A cowed Congress, an opposition party that barely deserves the name, acquiesces with the often-repeated words of the President that this country must go on the offence and stay on the offence. There is an old habit of American presidents talking like that. George Bush is the latest version of the same thing that happened in the Vietnam war. You may know from the account of Robert Darling that President Johnson, when surrounded in the Oval Office by a small group of journalists, was asked repeatedly: ‘why are we in Vietnam?’. You may not know the next part of the anecdote that seems to have been verified: in response to the journalists’ questions Johnson zipped down his fly, pulled out his penis and he said: ‘This is why: manhood’. It is something like this spirit it seems to me that is beginning to infect the way that not only Bush but the whole political apparatus tends to regard itself, in the way they regard international law, the way judges are cowed. Think of the growth in the apparatus for interrogation. Torture methods include simulated drowning, electric shocks to body parts, and sexual taunting. There is a whole change of language, talk of creating war, pre-emptive war, surgical war, and a narcissistic obsession with war and rumours of war. One has the feeling that the Commander in Chief is beyond criticism, and that if you criticise him then you are somehow betraying the nation. These kinds of trends are unfolding before our eyes. Think of the militarisation of daily life. Why is it that millions of Americans do their trips to and from shopping malls in large expensive vehicles that look exactly like those from the First Armoured Division? It is the only functioning democracy where press conferences of key government officials are now regularly attended by military generals in uniform. I could go on and grow a little angrier, but think about all that, and about the less visible ways in which there is a kind of garrisoning of democracy going on. I looked in some detail at the Presidential inauguration ceremony in January 2005. As an operation it is breathtaking in the degree of militarisation that never, ever happened in the history of the American Republic, with control centres and everything pre-designed and a whole military apparatus that surrounds a very short speech which is actually delivered in another location. If we look at the words of a former West Point graduate who points out that it looks as though the American political class is coming to see that its only comparative advantage in the world is violence. Not surprisingly there are critics coming from within the belly of the whale. Some of them interestingly, many of them disproportionately, are ex-pats who were thought to have gone native, including Sir Michael Jagger. ‘It’s

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liberty for all, cause democracy’s our style. Unless you are against us, then it’s prison without trial. But one thing is certain, life is good at Haliburton. If you’re really so astute you should invest at Brown and Root.’ What is amazing about the American political scene in these times, if I am right that the moment of hubris is here, is that this kind of criticism is absorbed and refracted in terms of a kind of realism. You can hear the unashamed voices. There is a realist case for America being on full alert. The sun must never set on this empire. There needs to be a desperate struggle to control the fuel supply. The US consumes 25 per cent of the oil produced in the world, it has control of only 2 per cent, hence the need for supremacy in regions which are energy rich, areas like the Middle East and central Asia. In the face of these trends what is to be done? The friends of democracy everywhere must redouble efforts to preserve what has been achieved in matters of rule of law, multi-party systems, the protection and development of a wide and vibrant civil society, in the defence of freedom of communication. And in every domestic context I think we need as well to work for the creation of new democratic institutions, symbolised by the European Parliament, citizens’ commissions or the Hague Tribunal. Can we think of new institutions that can counter current trends so that the historians looking back on this period will see where new institutions that helped to protect democratic ways of being in the world emerged? But there is a tough nut to crack, and it is the geo-political pre-conditions of democracy. This is how I want to end my talk. If you look back on the history of democratic institutions and their successful defence, you will see that in every case they have survived only in so far as, like endangered plants, they are guaranteed an eco-system. The cases of Japan and Germany are instructive. The plant called democracy took root in those countries only within widely supported institutional processes that were protective and nurtured by a neighbouring power, the United States in conjunction with more minor powers. President George W. Bush said recently that every young democracy needs the help of friends. That is true, but the inverse is also true. Lending a helping hand requires practising the art of letting go. So, I want to raise the whole question of the way in which democracy requires the democratisation of the democratiser. If it is the case that this empire is the great friend of democracy, then who shall democratise the democratiser? That is a question I think in the history of democracy that we have barely formulated and we do not have any straightforward easy answers or political strategies to fall back on. Democracy cannot survive – and it could not in either the Athenian case or French imperial case – in a world where the dominant power, the empire, consistently asserts its dominance, behaves arrogantly or like a frightened bull in a many-sided fragile china shop. If you want to think this through further, I recommend to you the

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very fine book by an American scholar John Ikenberry8 who points out that American power has only ever worked effectively geo-politically speaking and has only earned a measure of acceptability when it restrains itself, when, paradoxically, it committed itself to controlling its own hubris. Put differently, he shows that strategic restraint is a vital condition of democracy. Self-limiting power to restrain oneself, in a word humility, is often a highly effective form of power. What is worrying about empires, this one included, is that this fundamental rule tends to be forgotten. That is why I object, and object strongly, to President Bush’s tactic of aggressive military power, shadowy financial negotiations, à la carte multilateralism, coalitions of the willing, and of course his scrapping of joined-up governmental arrangements that began during 2002 in the public repudiation of the Kyoto Protocol, the Rome statutes of the International Criminal Court, the Protocol of the Biological Weapons Convention and so on. That kind of Bush tactic, to repeat Joseph Conrad’s reaction to Rudyard Kipling in The White Man’s Burden, a justification for armed British intervention in South Africa, is enough to make one die laughing. Making publicly accountable the existing multi-layered system of global governing institutions is one vital priority, it seems, of democratisation. Developing civil society institutions from below and across borders is another one. But none of this can be done without the cooperation of the United States itself and here a brand new question in the history of democracy surfaces. It is a fundamental question of our time, a question that is now explicitly on the table in bodies like the World Trade Organization and the G8 in which, so far, the United States is often prevented from acting unilaterally: can the most powerful democracy in the world itself be democratised? Can its citizens, including leaders, come to recognise and to repeat the words that Harry Truman spoke in 1945, that no matter how great its strength the United States must deny itself a licence to do always as it pleases? Can new ways be found to make the United States see that it has a material interest in behaving itself in relation to its global neighbours? Is something like a global coalition of democrats and democracies now an urgent priority, a coalition against the United States? Or to put it differently, is something like a global transition to democracy possible; one that would ensure that American power is made less threatening, more restrained and more accessible to the opinions and sanctions of others?

NOTES 1. Hobson, J.A. (1902), Imperialism, London: Allen and Unwin. 2. See for example Jahn, B. (2005), ‘Barbarian Thoughts: Imperialism in the Philosophy of John Stuart Mill’, Review of International Studies, British International Studies Association, 31, 599–618.

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3. The Treaty of Waitangi was signed between Māori Chiefs and the British Crown on 6 February 1840, whereby, according to the English version, Britain would protect Māori interests from the encroaching British settlement, provide for British settlement and establish a government to maintain peace and order. 4. The United Nations hosted a Millennium+5 Summit, 7–9 September 2005, at the UN headquarters in New York. It produced the document entitled Our Challenge: Voices for Peace, Partnerships and Renewal. The Global Policy Forum, which monitors policy making by the UN, argued in criticism of the conference that: In September 2000, hundreds of heads of state met at the United Nations and ratified the UN Millennium Declaration. In September 2005, the UN hosted a Millennium+5 Summit to evaluate the progress towards the goals spelled out in the document. … Between 2000 and 2005, however, many governments had not acted on their promises, and the gap between rich and poor continued to widen. Many calculated that the world would not meet the UN goals in one hundred years, let alone by 2015. … Massive last-minute changes demanded by Washington further unravelled [sic] the process. (http:// www.globalpolicy.org/msummit/millenni/index.htm) 5. de Grazia, V. (2005), Irresistible Empire: America’s Advance through Twentieth-century Europe, Cambridge, MA: Belknap Press. 6. Pei, M. (2003), ‘The “Morning After” Regime Change: Should US Force Democracy Again?’, Christian Science Monitor, 15 January. Accessible online at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=1158&prog=zch&proj=zdrl. 7. Hobson, J.A. (1902), op. cit. 8. Ikenberry, G.J. (2001), After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars, Princeton: Princeton University Press.

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Index abduction of terrorist suspects, by US see extraordinary renditions Abu Ghraib Detention Facility Fay Report on 76 torture used in 22, 34, 58, 63, 66, 67 Administrative Appeals Tribunal (AAT) (Australia) 159, 160 Afghanistan 4, 7–8, 13, 60 David Hicks in 48, 57 Taliban 57, 68–9, 76, 126–7, 128–30 Afghanistan, US/UK invasion 20, 21, 48, 50, 63, 68–9, 123, 127, 192 African Charter on Human and People’s Rights 70 Agamben, Giorgio 47, 118 aggression, UN definition 122 see also terrorism Ahmed, R. 60–61 Al Harith, Jamal 61 Al-Jazeera news network 183 Al Malki, Abdullah 85, 94–5, 97 in prison in Syria 94 torture of 95, 96 Al Malki, Nazih 85 Al Qaeda 2, 13, 34, 48, 51, 60, 76, 85, 89, 126–7, 182 funding of 86 status as prisoners 128–30 as ‘unlawful combatants’ 68–9 America see United States American Convention on Human Rights 70 American empire concept 204–7, 209, 210–11 Anti-terrorism Act 2001 (Canada) 83 Anti-Terrorism Act 2005 (Australia) 145, 146, 168 Anti-Terrorism Act (No 2) 2005 (Australia) 154, 159, 166 preventative detention orders authorised under 159–61

Anti-Terrorism, Crime and Security Act 2001 (UK) 107, 167 anti-terrorism measures see counter-terrorism measures Arar, Maher 84–6, 87, 95, 96 Commission of Inquiry into treatment of 84, 89, 90, 91, 92, 95–6 dual Canadian/Syrian nationality 84, 88, 90 in prison in Syria 85–6, 88, 89–91 torture of 86, 90–91, 95 US suspicion of 84, 85, 89, 91 Arrigo, J. M. 45 Ashburton, Lord 124 Ashcroft, John 130–31 asylum seekers see refugees/asylum seekers Australia Aboriginal peoples 156, 203 as a British colony 203 civil liberties, curtailment of 138–9, 145–6, 147, 149–50, 155–69 counter-terrorism measures 131, 138–52, 154, 155–69 criticism of 140–44, 146, 147, 154, 167 at state level 140–44 crime control 157–9 David Hicks case and 53, 54, 55, 58, 63 elections 203 human rights 154, 156 information control 139–40, 144 Iraq, US/UK invasion and 168, 182 Islamic citizens/communities 140, 147 judicial system 161 Law Council 48, 51–2, 55 media 168–9, 173, 180, 192 migrants in 156, 157, 165

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national sovereignty 156 New South Wales 140–42 political structure 10, 168 preventative detention in 155, 159–66 case law on 161–3, 164–6 refugees/asylum seekers 156 separation of powers 141–2, 167 terrorist suspects 145–6 under Howard 10, 17, 156, 163–4, 168–9, 172 Victoria 140, 142–4 Australian Broadcasting Corporation (ABC) 17, 169 war reporting 174, 175–6, 180, 184, 185–6 Australian Federal Police (AFP) 159, 160 Australian State-based police 139, 140–42, 144, 146–8, 168 Australian Security Intelligence Organisation (ASIO) 139, 146 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 139 Baader-Meinhof group 12 Barakaat, North America Inc., Massachusetts (al-Barakaat) 86 BBC (British Broadcasting Corporation) 15–16, 17 war reporting 174, 184–5 BBC World Service 110 Beccaria, C. 31 Bentham, Jeremy 203 bin Laden, Osama see Al Qaeda Bingham, Lord 109, 111 Blair, Tony 2, 3, 9–10, 13, 15–16, 18, 108, 182, 192 Blitzer, Wolf 181 Blunkett, David 131 Bosnia 14, 189–90 Bracks, Steve 143 Brannigan, Bill 195 Brennan, Sir Gerard 154 British Empire 7–8, 207–8 as a democracy 202–4 see also United Kingdom

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broadcast media as biased 169, 181 embedded journalists see embedded journalists impact of 173, 176, 177–8, 180 journalistic independence 174–6, 177, 180–82, 183–7 news bulletins 172–3 political debate and 11, 15–17, 173–4 by satellite 176, 186 war reporting 172–88, 189–99 importance of 190–91 military control of 172, 173, 174–6, 177–8, 180–82, 183–7, 188–99 Brown, D. see Hogg, R. and D. Brown Burke, Edmund 203 Bush, George (Snr) 181 Bush, George W. 1, 2, 3, 4, 33, 57, 58, 182, 191–2, 205, 208, 209, 210 his war on terror see war on terror Bybee, Jay S. 33–4, 53, 65 Byrnes, Justice 160–61 Cameron, James 193 Campbell, Eric 185–6 Canada anti-Islamic feelings 84, 87–8 as a British colony 203 counter-terrorism measures 82–3 civil liberties and 81, 82, 83–100 deportation from 92, 93, 96 detention without charge in 94, 96 due process, as a right 93–5 extraordinary renditions approved by 92–3 information sharing by 89, 90, 91, 93, 97 Islamic citizens/communities 81–98 migrants in 96 mobility/travel, as a right 88–91 Project Thread 96 terrorist suspects, listing of 88, 94–5, 96–7 torture, right to freedom from 92–3 war against terror 82, 98 Canadian Broadcasting Corporation (CBC) 174

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Index Canadian Charter of Rights and Freedoms 88, 92 Canadian police 87, 90, 91 Canadian Security Intelligence Service (CSIS) 91, 97 Canadian Supreme Court 95, 108 capitalism 6–8, 10, 205 CBS (Columbia Broadcasting Service) (US) 173, 194–5 Center for Constitutional Rights, New York 58, 62 Central Intelligence Agency (CIA) 63, 65, 107–8, 181 Charlesworth, Justice 160–61 Chile 32 China 6, 8, 10 Church, Vice-Admiral Albert T. 62 Cisneros, Gustavo 11 citizenship 82, 102–3 disenfranchisement of Muslims in Canada 81–98 race/religion and 84, 98 see also civil liberties; human rights legislation Citizenship Act 1985 (Canada) 82 civil liberties counter-terrorism measures and 1, 11–12, 17–19, 81–100, 130–32, 153, 155–69 in Australia 138–9, 145–6, 149–50 in Canada 81–98 in democratic states 7, 11–12, 17–19, 26, 20, 31 due process, right to 93–5 mobility/travel, right to 88–91 torture, freedom from 92–3 see also torture: prohibition of in war on terrorism 22–4, 25–6 civil society concept 157–8, 209 Clarke, Kenneth 9–10 CNN (Cable News Network) (US) 178–9, 180, 181, 184 Cold War 1, 6, 20, 149 Collins, Judge J. 105 colonialism 7–8 British Empire 202–4, 207–8 Combatant Status Review Tribunal (US) 118, 129–30 Community Protection Act 1990 (Victoria, Australia) 164

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Community Protection Act 1994 (NSW, Australia) 161–2 Community Relations Commission (Australia) 147 Congo Free State 202 Convention Against Torture (CAT) see UN Convention Against Torture Cooksey, John 83 Cosgrove, Major-Gen. 189 counter-terrorism measures 1, 2, 17–19, 22–4, 116–37, 153–71 in Australia 131, 138–52, 154, 155–69 in Canada 81–100 civil liberties and 1, 11–12, 17–19, 81–100, 130–32, 153, 155–69 in Australia 138–9, 145–6, 149–50 in Canada 81–98 crime control and 155–69 criticism of 83, 117, 140–44, 146, 147, 153–5, 167–9 as damaging to democracy 157–8 as exceptional 116–20, 153–4 human rights legislation and 130–32, 167–8 justification of 116–20, 121, 153, 155 legal limits to 116–37 in international law 119 police powers and 87, 90, 91, 139, 140–42, 144, 146–8 as pre-emptive 145, 196–7 revenge motives for 155, 157–9 as self-defence 120–21, 122 short/long term 116, 118 types of 82–3, 117, 153, 166 see also preventative detention in UK 2, 17–19, 102, 106–9, 110–11, 131 case law on 107, 108, 111, 131 in US 17–19, 22–3, 192 see also terrorism Cox, Michael 184 crime control in Australia 157–9 counter-terrorism measures and 166–9 David Garland on 166–8 legal limits to 155–6 as a political issue 155–6, 157–9

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Crimes (Serious Sex Offenders) Act 2006 (NSW, Australia) 165 Criminal Code of Canada 94, 95 criminal law, terrorism as subject to 24–5, 120, 127 Cronkite, Walter 173, 177 cruel, inhuman and degrading treatment 59–60, 61, 70, 71–3, 74–5, 105 see also torture: definition Dangerous Prisoners (Sexual Offenders) Act 2003 (Queensland, Australia) 162 Darling, Robert 208 David, Garry 164 Davis, Gavyn 15, 16 Davis, Neil 174–6 de Grazia, Victoria 205 democratic states 4–5, 6–12, 28–31, 200–201 capitalism 6–8 civil liberties 7, 11–12, 17–19, 26, 30, 31 counter-terrorism measures see counter-terrorism measures decision-making 29–30 elections 109–10, 203, 206 history 200–204 imperialism and 200–211 international corporations and 9, 10 Islamic communities 14, 81–98, 132 military authority in 155, 157, 167, 208 multi-party systems 197–8, 209 as neo-liberal 6, 8–9, 11, 12 political debate/dissent 11–12, 15–17, 28–31, 139 public emergencies 131–2 rule of law 29–33, 102, 209 support for 25–6, 209–10 UK as 109–12 war on terror and 20–27 deportation from Canada 92, 93, 96 to countries allowing torture 92 see also extraordinary renditions Dershowitz, A. M. 36 detention without charge/trial in Australia 139, 145–6

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in Canada 94, 96 in Guantanamo Bay camp 130 preventative detention 145, 146, 155, 159–66 drug trafficking 2 Dworkin, R. 43 Dyke, Greg 15–16 East Timor 189 Egypt 22, 63 torture, use of 108 alleged 97 El Maati, Ahmad 96–7 elections, as a democratic process 109–10, 203, 206 embedded journalists 172–88, 194–5 censoring of reports 180, 183 communication technology 176, 185–6, 187 independence of 174–6, 177, 180–82, 183–7 killed/injured in Iraq 185 military control of 172, 173, 174–6, 177–8, 180–82, 183–7, 188–99 opposition to 185 see also broadcast media emergency ethics concept 37 enemy combatants, terrorists as 22, 57–9 energy supplies 209 European Convention on Human Rights 31, 70, 72, 73, 105, 107, 108 European Court of Human Rights 33, 70, 72, 105–6, 107 European Union (EU) 23, 26 terrorism, definition of 25 Evatt, Elizabeth 154 extraordinary renditions, by US 22, 26, 63, 67, 77, 85–6, 89, 92, 107–8 by proxy 92–3 UK attitude to 108 Fairbairn, Joyce 83 Fay, Major-Gen. George R: Report [on the] Investigation of the Abu Ghraib Detention Facility 76 Federal Bureau of Investigation (FBI) 61 Financial Times 16, 17 First World War (1914–18) 7, 20

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Index Fisher, Tim 169 Fitzgerald, G. E: Report of a Commission of Inquiry … into Possible … Police Misconduct (Australia) 148 Fox News (US) 184, 191, 193, 195 Franck, T. 124 Fraser, Malcolm 154, 169 freedom of information 144 see also information control Galloway, George 192–3 Garland, David, on crime control 155–6 Geneva Conventions on the Treatment of Prisoners of War 18, 52, 53, 57, 58, 62, 67–8, 69, 70, 71, 75, 76, 127, 128 Additional Protocols 69 prisoners of war, definition 128–9, 130 genocide 37, 166 Germany, in Second World War 37, 41, 42, 103 Germany (post-unification) 9, 10 ‘ghost’ detainees see extraordinary renditions Gideon, Franklin: Democracy of Empire 202 global terrorism see terrorism global surveillance warfare 190–91 globalisation 101, 102, 104, 111 international corporations 9, 10, 101 Godkin, Edwin 187 Gonzales, Alberto R. 33, 34, 65, 129 Goodman, Amy 16–17 Gould, Philip 15–16 Graham, Bill 86 Granada 206 Great Britain see United Kingdom Guantanamo Bay camp, Cuba 17, 118 Camp Delta 59, 60 Camp Echo 59–60 Camp X-ray 59 conditions in 52, 59–61, 62, 67 deaths in custody 62 enemy combatants held in 22, 57–9 David Hicks held in 48–56, 59–61 case against 50–55 interrogation methods 52–3

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legal assistance to prisoners in 48–56, 57–64 as a military base 48, 54–5, 130 prisoner numbers 62, 130 prisoner status, review of 118, 129–30 prisoners released from 52, 53 British 60, 61 torture, use of 67 alleged 52–3 number of cases 62 US investigations into 61–2 UK concerns over 54, 60 Guardian 12, 15, 16, 17, 192 Gulf war 178, 180–82 media coverage 176, 178–82, 183, 190 Gummow, Justice 164 Habitual Offenders Act 1957 (NSW, Australia) 164–5 Hadley, Stephen 21 Hage, Ghassan 157 Hague Tribunal 209 Hedges, Chris 179, 180 Hicks, David Matthew 48, 57 in Afghanistan 48 Australian Government and 53, 54, 55, 58, 63 in Guantanamo Bay camp 48–56, 59–61 alleged abuse of 52–3 legal access to 59–60 HIV/AIDS 3 Ho, James 127 Hobson, John A: Imperialism 202, 207–8 Hocking, J. 142 Hogg, R. and D. Brown: Rethinking Law and Order 157 Holmes, Oliver Wendell 76 Hope, Lord 105–6, 109 Howard, John 10, 17, 156, 163–4, 168–9, 172 Human Rights Act 1998 (UK) 104, 107, 113 Human Rights and Equal Opportunity Commission (HREOC) (Australia) 154 Bring them Home … 156

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human rights legislation 31, 32, 67–8, 102 counter-terrorism measures and 130–32, 167–8 derogation of 131–2 in international law 101–12, 125 on migrants 103–6 non-refoulement principle 96, 101, 107 on refugees/asylum seekers 101, 103–6 security issues and 130–32 on terrorist suspects 107–8 on torture see legal framework, on use of torture see also civil liberties; International Covenant on Civil and Political Rights humanitarian intervention 37, 121, 124–6 Hussein, Liban 86–7, 94, 95, 96 US suspicion of 84, 86 Hussein, Saddam 178, 182, 192, 195 see also Iraq Ignatieff, M. 30, 31 Ikenberry, John 210 immigrants see migrants; refugees/ asylum seekers Immigration and Refugee Protection Act (Canada) 92, 93, 94, 95, 96 imperialism, democracy and 200–211 Independent 16, 17 India 7, 124 information control, in Australia 139–40, 144 information sharing, by Canada 89, 90, 91, 93, 97 Inter-American Court of Human Rights 70 Inter-American Convention to Prevent and Punish Torture 71 International Commission on Intervention and State Sovereignty: The Responsibility to Protect 125 International Commission of Jurists 138 International Committee of the Red Cross (ICRC) 59, 61, 67, 69, 70, 77

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international corporations 9, 10, 101 see also globalisation International Court of Justice 37, 69, 82, 122 International Covenant on Civil and Political Rights (ICCPR) 66, 70, 72, 110, 154 derogation of human rights under 131–2 Human Rights Committee 70, 110 International Criminal Court 24, 68, 73–4 International Criminal Tribunal for the Former Yugoslavia (ICTY) 32, 68 interrogation techniques 66, 67, 71, 74 interrogational torture see torture Iqbal, A. 60–61 IRA (Irish Republican Army) 1, 2, 3, 12–13, 72, 73, 106, 127 Iraq, US/UK invasion 4, 20, 21, 63, 68–9, 172 Al Qaeda see Al Qaeda Australia and 168, 182 impact of 15, 184, 192, 196 Israel and 123 justification of 28, 192 media coverage 11, 172, 182–6, 195, 196 opposition to 9, 182, 183, 195, 196–8 as pre-emptive 196–7 public opinion on 20, 191, 192 support for 11 UN and 182 Islam/Islamic beliefs 3–4, 5, 48, 63 Islamic communities, in democratic states 14, 132 in Australia 140, 147 in Canada 81–98 money transfers by (hawalas) 86 public suspicion of 83–4 Israel 3, 37, 123, 124 torture, use of 38, 40 Italy 8, 9, 11, 15, 23 media in 11, 16 terrorism in 12, 25 US and 22, 26, 63 Jacoby, Susan 158 Japan 12, 20, 202, 206, 209 Johns, Fleur 118

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Index Johnson, Lyndon Baines 178, 208 Jordon 108 journalism/journalists see embedded journalists; the media Kamaleddine, Ahmad 147 Kant, Immanuel 37 Keelty, Mick 168 Kelly, De-Anne 156–7 Kennedy, Duncan 118 Kennedy, Helena: Just Law 18 Kerruish, V. 166 Kirby, Justice 162, 164, 165, 166 Knightley, Phillip: The First Casualty 178 Koh, Harold 117 Kosovo 125, 189 Kristoff, Nicholas 195 Landau Commission (Israel) 38, 40 Laurence, John 194 Law Council of Australia 48, 51–2, 55 law and order see crime control League of Nations 103 Lebanese Muslim Association (Australia) 147 Lee Kwan Yu 8 legal framework, on counter-terrorism measures 116–37 legal framework, on use of torture 29–34, 65–80 under Geneva Conventions 18, 52, 53, 57, 58, 67–8, 69, 70, 71, 75, 76 see also human rights legislation Levin, M. 36 Levine, Justice 162 Lippmann, Walter 193–4, 197 The Phantom Public 193 Lloyd, John 16, 197 London terrorist attacks, July 2005 2, 14–15, 20, 23 Lunn, Hugh 173 Major, John 13 Marguiles, Joe 58 Mason, Sir Anthony 154, 166 Matheson, Michael 70 McHugh, Justice 162–3, 165 McKinnon, Justice 160–61

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the media anti-government 196–8 in Australia 168–9, 173, 180, 192 broadcasting see broadcast media embedded journalism see embedded journalists external pressures on 189–93 law and order debate and 157 newspapers/journals 11–12, 15, 16, 17, 173, 174, 179–80 see also individual titles narrative breaking by 191, 192 political debate and 11, 15–17, 139, 157, 173–4 as pre-emptive 196–7 privately owned 11–12, 168, 181, 192, 196 pro-government 168–9, 181, 192 responsible journalism 191, 193–5, 198–9 role of, in democratic states 193–5 television see broadcast media in UK 191, 192, 196 in US 16–17, 172–88, 191–3 war reporting 172–88, 189–99 importance of 190–91 military control of 172, 173, 174–6, 177–8, 180–82, 183–7, 188–99 on world wide web 196–7 Merkel, Angela 9 migrants in Australia 156, 157, 195 in Canada 96 protection of, under international law 103–6 as time limited 104 see also refugees/asylum seekers Migration Act (Australia) 165 military authority in demographic states 155, 157, 167, 208 war reporting, military control of 172, 173, 174–6, 177–8, 180–82, 183–7, 188–91 censoring of reports 180, 183 military law/justice (US Army) 48–55, 58 court martial procedure (UCMJ) 54 as flawed 49–55

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military commission instructions (MCIs) 49 rules of evidence 49, 51, 53–4, 130 trials, conduct of 49, 52, 130 military technology 178–9, 183, 204 Mill, James 203, 205 Mohammed, Binyam 62 moral absolutism 3–5 Murdoch, Rupert 11, 168, 192 Murphy, Justice Lionel 148 Muslim religion/Muslims see Islam/ Islamic beliefs Myers, Gen. Richard B. 21 Nasr, Hassan Mustafa Osama (Abu Omar) 22, 26, 63 National Security Information (Criminal and Civil Proceedings) Act 2004 (Australia) 139–40 national sovereignty 101, 125, 156–7 Nationality, Immigration and Asylum Act 2002 (UK) 104–5 NATO (North Atlantic Treaty Organisation) 125, 189 neo-liberalism 6, 8–9, 11–12 New York Times 179, 180, 192, 195 New Zealand Broadcasting Corporation (NZBC) 174 newspapers/journals 15, 177, 186–7 journalistic independence 174–6, 177, 180–82 political debate in 11–12, 15, 16, 17 war reporting 173, 174, 179–80 see also individual titles; the media Nicaragua 122 Nicholson, Alister 154 nuclear weapons, legality of 37 Nureddin, Muayyed 97 O’Connor, Justice Dennis 84, 89, 90, 91, 95–6 Odom, Gen. William 21 Organisation for Security and Cooperation in Europe (OSCE) 26 Panama 206 Pape, Robert 14 Patriot Act 2001 (US) 22–3, 130–31 Paye, J.-C. 145 Philippines 206

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Pictet, Jean 69 Pinochet Ugarte, Augusto 32 Pitt, William (Pitt the Younger) 201 Police Federation of Australia 147 police forces in Australia 139, 140–42, 144, 146–8, 168 in Canada 87, 90, 91 misuse of power 144, 147–8 special powers 146 stop and search 146–7, 148, 166 see also crime control police states 154 political debate/dissent 28–31, 139 in the media 11–12, 15–17, 139, 157, 173–4 on law and order 157 Powell, Colin 91, 181 preventative detention 145, 146, 161 in Australia 155, 159–66 case law on 161–3, 164–6 see also detention without charge/ trial prisoners of war 126–7, 128 Al Qaeda/Taliban fighters as 128–30 definition 128, 130 see also Geneva Conventions on … public emergencies 131–2 punishment 155, 157–9 see also crime control Rasul, S. 58–9, 60–61 Ratner, Michael 55, 58 Rawls, J. 30, 36–7 The Law of Peoples 37 Reagan, Ronald 6, 8, 14 Red Army Faction 12 Red Brigades 12 Red Cross see International Committee of the Red Cross refugees/asylum seekers 92, 102–3 in Australia 156 definition 103 protection of, under international law 101, 103–6 in UK 104–6 failed asylum seekers 106 deportation of 104 social security payments to 104–5 see also migrants

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Index regime change 206 religion 5 Islam 3–4, 5, 48, 63 see also Islamic communities Repubblica (Italian newspaper) 15 Reuters 174, 175 revenge motives 155, 157–9 Rhiannon, Lee 141 Rifi, Jamal 147 Roberts, Judge John 63 Rousseau, Jean Jacques 28, 29 Royal Canadian Mounted Police (RCMP) 87, 90, 91 Ruddock, Philip 131, 146, 169 Rumsfeld, Donald 21, 120–21, 192–3, 195 Russell, William Howard 186–7 Russia (pre-1939) 167 Russian Revolution (1917) 7, 12 Rwanda 198, 202 Ryan, Peter 143 Sampson, William 88 Sands, Philippe: Lawless World 117 Saudi Arabia 14, 88, 180 Schachter, Oscar 119 Schengen Agreement, 1985 23 Scheppele, Kim Lane 119 Schlesinger Report (US) 76 Schmitt, Carl 42, 117, 119 Schonfeld, Reece 181 search warrants 141, 143–4 Second World War (1939–45) 20, 31, 42, 119, 206, 209 Allied bombing raids 37 German refugees 103 media coverage 172, 183 Nazi use of torture 41, 42 US in 81, 132 security issues 101–2, 130–32 see also counter-terrorism measures Security Legislation Amendment Act 2002 (Australia) 139 Sentencing Act 1991 (Victoria, Australia) 164 Sentencing Act 1995 (Western Australia) 164 September 11 terrorist attacks 4, 6, 14–15, 182 effects of/responses to 1, 2, 12, 13, 16, 20, 33, 48, 66, 81, 82, 84, 106, 153, 182

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see also counter-terrorism measures; war on terror Sham-Ho, Helen 141–2 Shaw, Martin 190–91 Simmons, Don 175 Simpson, John 184–5 Small, William 178 Smith, Gen. Rupert 189 The Utility of Force 189–90 sovereignty see national sovereignty Spain 8, 15, 20, 202 Stack, John 184 Stanhope, Jon 164 Stanislaw, J. see Yergin, Daniel and J. Stanislaw Stary, Rob 146 Steyn, Lord J. 117 suicide terrorism 14, 18 Sussman, D. 41 Sweden 107–8 Syria Abdullah Al Malki in prison in 94 torture of 95, 96 Maher Arar in prison in 85–6, 88, 89–91 torture of 86, 90–91, 95 Taguba, Major Gen. Antonio M: Report [on the] Investigation of the 800th Military Police Brigade 76 Taliban 57, 126–7 as ‘unlawful combatants’ 68–9 status as prisoners 128–9 see also Afghanistan television see broadcast media terrorism causes of 3–5, 14–15, 17, 18, 23 counter-terrorism see counter-terrorism measures as a criminal act 24–5, 120 definition 21, 23, 120, 122 effects of/response to 2, 17–19, 22–3, 28–30 see also counter-terrorism measures encouragement of, as an offence 102, 112 funding 86 as global 1–5, 23–4, 25–6 probability of attack 2

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September 11 attacks see September 11 suicide terrorism 14, 18 in UK 2, 14–15, 20, 23 see also IRA in US see September 11 war on terror see war on terror Terrorism (Community Protection) Act 2003 (Victoria, Australia) 140, 142–4, 146–7 Amendment Act 2006 144 Terrorism (Police Powers) Act 2002 (NSW, Australia) 140–42 Terrorism Multi-Jurisdictional Crime Force (Victoria, Australia) 142 terrorist suspects, extraordinary rendition of see extraordinary renditions, by US terrorist suspects, listing of in Australia 145, 146 in Canada 88, 94–5, 96–7 in US 84, 85, 86, 87, 89, 91 terrorists classification of 126–30 as criminals 24–5, 120, 127 as enemy combatants 129–30 unilateral attacks on 121, 122 unilateral humanitarian intervention in states harbouring 121, 124–6 unilateral pre-emptive self-defence against 121, 123–4 as unlawful combatants 68–9 use of force against 120–26 Terzani, Tiziano 198–9 Letters Against the War 199 Thatcher, Margaret 1, 6, 8, 14 Thomas, Lord 127 Thomas, Jack 145–6 Thompson, E. P. 154 Thompson, Geoff 184 Thürer, Daniel 70 Times 186–7 torture at Abu Ghraib 22, 34, 58, 63, 66, 67, 76 compensation for 71 definition 32, 34, 44, 53 in democratic states 28–47 deportation to states allowing torture see non-refoulement principle

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Egyptian use of (alleged) 97 ERFING 61 freedom from, as a right 92–3 at Guantanamo Bay 67 alleged 52–3, 61–2 as illegal see prohibition of below information obtained by 36, 40, 68, 89, 90, 93 Israeli use of 38, 40 justification of 18, 28–9, 33–5, 42, 53 moral case for 35–8 legal position on 29–34, 65–80 case law 30, 38 mens rea concept and 34 under international law 67–80 medical personnel involved in 39 non-refoulement principle 92, 101, 107 personal experience of 41 prohibition of 18, 31–3, 41–2, 65–80, 92–3 moral case for 38–41 public opinion on 28–9, 34–5, 41–2, 44 regulation/control of legal torture 36, 41–2, 67 secret abductions in order to torture suspects see extraordinary renditions Syrian use of 86, 90–91, 95, 96 UK condemnation of 108–9 US use of 22, 33–5, 58, 63, 65–7, 76, 86, 90–91, 208 alleged 52–3, 62 see also cruel, inhuman and degrading treatment ‘torture memos’ (US) 33–4, 35, 38, 53, 65, 74 torturers/interrogators 39–40, 41, 66, 67, 71, 74 Truman, Harry 210–11 Twain, Mark 197–8 United Kingdom (UK) 2, 13–14 Afghanistan, US/UK invasion see Afghanistan Conservative Party 9–10 counter-terrorism measures 2, 17–19, 102, 106–9, 110–11, 131 case law on 107, 108, 111, 131

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Index as a democracy 109–12 extraordinary renditions, attitude to 108 Guantanamo Bay camp, concerns over 54, 60 indefinite detention without charge in 106–7, 113 IRA and 1, 2, 3, 12–13, 72, 73, 106, 127 Iraq, US/UK invasion see Iraq London terrorist attacks, July 2005 2, 14–15, 20, 23 media 184–5, 186–7, 191, 192, 196 MI5 61 migrants in 104, 109–10 refugees/asylum seekers in 104–6 case law on 105–6, 109–10 torture, condemnation of 108–9 under Blair 2, 3, 9–10, 13, 15–16, 18, 108, 142 under Major 13 under Thatcher 6, 8, 14 see also British Empire United Nations (UN) 110, 156 Definition of Aggression 122 terrorism, definition of 25 UN Charter 102, 120, 121–3, 124, 125 UN Commission on Human Rights 110, 156 UN Committee against Torture 107–8 UN Convention Against Torture (CAT) 32, 33, 34, 53, 71, 72, 76 provisions of 71–2, 73–4, 75 torture, definition of 72–4 UN Convention on the Elimination of … Discrimination against Women 156 UN Convention [on refugees] 103 UN Declaration against Torture 72, 73 UN High Commissioner for Refugees 101 UN Human Rights Council 149, 156 UN Security Council 87, 120, 123, 125 Iraq, US/UK invasion and 182 United States (US) 1, 2, 42 Afghanistan, US/UK invasion see Afghanistan American empire concept 204–7, 209, 210–11 Australia and 182

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counter-terrorism measures 17–19, 22–3, 192 extraordinary renditions 22, 26, 63, 67, 71, 89, 92–3, 107–8 ‘ghost’ detainees see extraordinary renditions above Guantanamo Bay see Guantanamo Bay camp Iraq, US/UK invasion see Iraq Italy and 22, 26, 63 media 16–17, 172–88, 191–3, 196 military law/justice 48–55, 58 military technology 178–9, 183, 204 minority groups 83, 167–8 political structure 7–8, 10, 167–8 September 11 attacks see September 11 in Second World War 81, 132 terrorist suspects, listing of 84, 85, 86, 87, 89, 91 torture, use of 22, 33–5, 63, 65–7, 76, 86, 90–91, 108, 208 alleged 52–3, 62 ‘torture memos’ 33–4, 35, 38, 53, 63, 65, 74 under George Bush Snr 181 under George W. Bush 1, 2, 3, 4, 20–27, 33, 48, 57, 58, 81, 126, 191–2, 208, 210 under Johnson 178 under Reagan 6, 8, 14 under Truman 210–11 war on terror see war on terror US Department of Justice, Office of Legal Counsel (OLC) 65, 68–9, 70, 72, 73–4, 75–7 US Judge Advocate: Operational Law Handbook 69–70 US Naval Criminal Investigation Service (NCIS) 52–3 US White House Fighting a Global War on Terror 21 National security strategy of the United States of America 121, 124, 125 Universal Declaration of Human Rights 32, 70, 109 unlawful combatants, terrorists as 68–9 Vidal, Gore 204

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Vietnam war 177, 182, 208 impact of 173, 175, 176, 177–8 media coverage 172, 173, 174–8, 179, 194–5 Visnews 174–5 von Doussa, Judge 154 von Hayek, Friedrich 6, 11 Waldron, J. 41 Walzer, M. 37, 38 war 22, 68–9, 127–8, 208 global surveillance warfare 190–91 laws of 127–8, 130 media coverage 172–88, 189–99 prisoners of war 126–7, 128–30 see also Geneva Conventions on … as a spectacle 179, 180, 181, 182, 186 war correspondents 186–7 see also embedded journalists war crimes 68 war on terror 20–27, 48, 121, 126–7 in Canada 81, 82, 98 civil liberties and 22–4, 25–6 definition 21, 22, 24, 25 as a military undertaking 21, 23 as permanent/long lasting 22, 23, 24, 25 as pre-emptive 196–7

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public opinion on 20, 22, 191 US government shift in attitude to 21 as unsuccessful 21 see also counter-terrorism measures; Iraq; terrorism Warner, Denis 173 Washington Post 192, 195 Webster, Daniel 124 Wedgwood, R. 69 Whitlam, Gough 154 Wilesmith, Greg 180 Williams, Daryl 58, 169 Williams, George 145 Williams, Pete 181 Wolin, Sheldon 6–7, 9 women’s rights 7, 156 Wood, J. R. T: Final Report for the Royal Commission into the New South Wales Police Service 148 Woolsey, R. James 69 World Trade Center, attack on see September 11 Yergin, Daniel and J. Stanislaw The Commanding Heights 6 Yoo, John 127 Zizek, S. 42

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