Human Rights in an age of terror
Image: A Rally during 2003 in protest of the Iraq War in Sydney NSW. Click the image for a larger version.
"This idea that we should be protected from bad law and bad government shapes my thinking about the Australian response to the threat of terrorist attack. As governments search to protect the nation from evildoers, they are liable to inflict damage on human rights, which we generally take as given."
"And perhaps this is a problem. If, as Australians, we are careless and sloppy and indifferent, the rights we take as a given will be filched, bit by bit, by governments that are, sometimes, motivated by good intentions."
Chas Savage addresses the 2005 Amnesty International Australia AGM
By Chas Savage
Amnesty International Australia
28 May 2005
Chas Savage is a Canberra writer. This is his speech to the annual general meeting of Amnesty International Australia. This is a copy of the transcript from Margo Kingston's Web Diary. The embedded links are also by Web Diary.
I want you to call to your mind the film Seven Samurai, Akira Kurosawa's masterful depiction of a Japan rent to pieces. Remember how, in response to the depredations of bandits, the villagers hired as protectors seven itinerant warriors. Hold in your imagination the wind, which before our eyes tore at trees, at branches, which plucked at the cloth and bones and minds of men.
In its breath, this wind carried a key message: in the absence of law and the authority of the law, only force, devastation, madness and death prevails.
Kurosawa's villagers were fortunate that their samurai protectors embodied the ideals of nobility and sacrifice. The samurai epresented what was right: stability, security, an obligation shared between rulers and the ruled encapsulated in just law.
Yet these same villagers could equally have been 'saved' by a gang that hesitated not to impose malevolent rule. The rule of law, yes, but bad law and bad government.
Let me give one example of why we need to insist on the rule of good law. Last year, the High Court brought down its judgement in Al-Kateb vs. Goodwin. At issue was whether or not the law required that a stateless man be held in detention for an undefined, ndefinite period. The facts were the appellant wanted to leave the country; the government would issue him with no protection visa; no country was prepared to offer him sanctuary or home. Not able to run, unable to hide, he lived in a maximum security limbo.
Read this judgement (the High Court's press release summary is here). The majority decision is the cold voice of cruelty. Our law now demands that a man, a human being guilty of no crime, be kept - forever if needs be - behind razor wire and electric fences.
This idea that we should be protected from bad law and bad government shapes my thinking about the Australian response to the threat of terrorist attack. As governments search to protect the nation from evildoers, they are liable to inflict damage on human rights, which we generally take as given.
And perhaps this is a problem. If, as Australians, we are careless and sloppy and indifferent, the rights we take as a given will be filched, bit by bit, by governments that are, sometimes, motivated by good intentions.
I want to frame my comments in this way. First, I want to outline the tension that exists between those - I suspect many are members of Amnesty International - who believe that, in the phrase of Ronald Dworkin, 'Rights are trumps' and those who think human rights contingent on the circumstances of the day.
Secondly, I'd like to spy out our Australian character a little better. We can choose to believe that the government is the sole cause of this nation's ills, but we would be wrong to do so. As citizens, we shoulder responsibility for the health of our democracy. If human rights are threatened by government action, or inaction, then citizens need to rise to their defence.
Finally, I would like to offer suggestions as to what this all means for an organisation like Amnesty International. There it is then, gratuitous advice - just what you need.
The events of this week - and the issues of how and why we treat those who seek protection as refugees - are so significant that I will touch on them in my remarks. My thinking is that the protections afforded by human rights are not for Australians alone, but also extend to those we like to class as the unAustralians.
Human rights: fixed or fluid?
Are human rights fixed or are they fluid? We need to understand the basis for making a distinction, because the consequences of taking one side or the other are profound.
If we follow Robert Nozick, a libertarian thinker, then we would understand rights as imposing a side constraint on the acts and policies of governments. The demands of governments are made subservient to individual liberty.
Or, following John Rawls, we would think of basic liberties being accorded a lexical priority; in which case, no trade-off between security and liberty would be permitted. (See Rawls-v-Nozick: Liberty for all, or just the rich?) For the purposes of this discussion, I'll stick to the concept of rights as a side constraint.
Nozick's concept of liberty is a shield that protects individuals from the wilder behaviour of governments. A side constraint admits no compromise - the rights to life, liberty and individual freedoms are not to be diluted by circumstances.
Thus, human rights are not to be diminished by a declaration of war on terror, by the geo-political manoeuvrings of great powers, or by the desire of governments to win elections. More than that, however, war and geo-political manoeuvrers and the winning of elections are acts constrained by the idea that human beings have rights.
To give a few examples, those who believe that rights constraint government action would view the mandatory detention of refugees to be anathema; the confinement of children in detention camps to be abuse; and the dumping of David Hicks at Guantanamo Bay, and the debauched process of his trial, as unacceptable. Such people hold that torture is never justified by circumstances; nor is it to be allowed by proxy or tolerated in other places.
I think it's important to give credit where it's due. There have been individuals who have worked tirelessly to make more decent the policies of this federal government. To do so, some would have jeopardised their own prospects. For these reasons, parliamentarians Petro Georgiou, Bruce Baird, Judy Moylan and Russell Broadbent should be praised and supported. In the media, Michelle Grattan, Richard Ackland and Michael Gordon deserve honourable mention and our thanks.
The counter to the ideas championed by these people is to be found in the idea that we shape our policy and our prisons to serve the greater good. Statements of principle - like, torture is forbidden - are thereby rendered meaningless; what is important is the good results of particular actions.
Principle is made contingent on consequence. Human rights are thereby made relative. And to justify bad acts, all we have to do is make an appeal to good consequences.
Not surprisingly, the sophistication of such an appeal varies. At one end of the scale we have comments by people like Robert Cornall, secretary of the Attorney-General's department. Further down the evolutionary ladder we have someone like the foreign minister, Alexander Downer. In his rush to pre-empt jury and judge, the foreign minister suggested that it was possible that Hicks would return to Australia and sit next to decent Australians in cinemas and that this should be a matter of concern.
Now, it remains a disturbing and open question as to how concerned decent Australians would be if they found themselves sitting next to Alexander Downer in a cinema - in the dark, the lights off. Of the two, Cornall represents a slightly more nuanced view and so we should examine what he has to say.
In canvassing 'a strategic approach to national security', Cornall conjured into being a creature he labelled 'community rights'. Because Australia is now a target of terrorists, 'we have to take all steps necessary to protect the safety of our community as a whole and, in the process, protect the rights of individuals... (to) life, liberty and security.'
Two particular elements of this passage should give us pause.
The first is the vagueness of this idea, community rights. As long as a piece of string, it seems to constitute the idea that a community should be made immune from attack. That is, notion of community rights is conjoined wholly and solely to the security of the nation. If the issue is national security, then Cornall should have said so, and not confused the issue by suborning to his argument the language of rights. It's the sort of verbal slight of hand that Orwell warned us against in his wonderful 1946 essay, Politics and the English Language.
My second concern is the primacy accorded to security itself. Because the need of the hour is great, and, because the consequences of not acting are dire, security is made trumps. In the words of Cornall, 'we have to take all steps necessary to protect...'
I don't want to be misunderstood here. The protection of the lives of citizens by government is government's first responsibility. In this, I shock myself by agreeing with the prime minister who, during the 2004 election, argued a similar line. However, in acting to protect citizens, even the best of prime ministers should not be given free rein. A perfect authoritarianism - however efficient and unconstrained - will never guarantee perfect security. The idea of perfect security is illusionary.
If we are to assess possible risks to national security then, simultaneously, we need to measure the threat posed by increased security to individual rights. In a democracy, one cannot be considered without the other: they are Siamese. If we were to abandon our individual rights for the nebulous concept of community rights, we would hand victory to extremists who conflate God with the beheading of innocents. All methods, 'all steps necessary', is not an option open to Australian governments.
Democratic governments have high responsibilities. These were well described by President Barak of the High Court of Justice of Israel (in Public Committee against Torture in Israel v. State of Israel). Barak held that the destiny of a democracy was that she did not see all means as being acceptable:
... the ways of her enemies were not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties... strengthen(s) her spirit and this strength allows her to overcome her difficulties.
Cornall gives us his assurance that, in this new age of terror, citizens are protected in their dealings with the police and security forces. But it was Aristotle who urged us to adopt the rule of law - the rule of God and of reason. This was because the rule of man: "adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men."
History shows us that passionate rulers abuse the power vested in security agencies. And security agencies abuse the citizens they are charged to protect:
Sejanus, as the beast of Tiberius, ran a campaign of terror;
Robespierre, as his own man, just ran the Terror;
The Stasi kept files on one third of the citizens of East Germany;
Despite denials by J. Edgar Hoover, the Federal Bureau of Investigation kept files on members of the American Civil Liberties Union. Helen Keller and Clarence Darrow, who acted for the defence in the Tennessee Monkey Trial, were both investigated;
In Victoria, the special branch of the Victoria Police virtually ran radio station, 3CR. Officers ran programs and were members of the management committee;
By its wilfulness, ASIO provoked a raid by the then Attorney General, Lionel Murphy.
To all this, reasonable people will surely respond: Not here. And not now. And our answer must be: that is exactly what we as citizens must guarantee.
The behaviour of servants of the government during Tampa and Children Overboard and the ruthlessness and cruelty and incompetence of the Department of Immigration warn us that, in Australia, the abuse of human rights is neither fiction nor distant, irrelevant fact.
An audit of the Australian soul
I want now to turn to the question of how we actually guarantee not here and not now. To do this we need to conduct an audit of the Australian soul.
Our leaders like to talk about the unique Australian spirit. Thus, Australians are uniquely good at sport, uniquely tolerant, uniquely egalitarian and generous. As proof, we need look no further than our Olympic record, the welcome we offer tourists, the absence of a titled gentry and our response to the tsunami disaster.
Undoubtedly, these are all good things, but they are not the full measure of us. Despite the tumult of the past week, we have long let men and women and children rot in detention centres and have viewed the systemic disadvantage visited on Indigenous Australians as being a natural part of our national life.
This is wrong. Somewhere, something is missing.
I am not happy to say this, but as well as something being missing in the hearts of Howard and Ruddock and Downer, and Beazley and Ferguson, there is something missing in us. Howard and Ruddock and Downer, and Beazley and Ferguson, behave as they do because they think that is what we want.
Howard and Ruddock and Downer and Beazley and Ferguson behave as they do because they believe generous, tolerant Australians are most interested in interest rates and renovations and a harbour view and state of origin football games.
Three factors explain how we have come to such a pass.
The first is that we have now talked about economic reform and economics and economic growth and economics for over twenty years. Economics is the dominant discourse. And only these matters are considered legitimate as subjects for public debate. In the words of the prime minister we typically 'move on' from other concerns.
Secondly, the individualism of the sixties, which emphasised spiritual or emotional or psychological growth - has been combined with a high disposable income to produce a mutant and virulent form. Nirvana is now the name of a shopping centre or a housing development. An individual's worth is defined by consumption, and those who do not consume are those who do not matter.
Thirdly, there is a dark seam that runs through the Australian soul. It stretches back to our convict origins and the rough treatment that was standard in their time. There is something in us still that views roughness as being normal and desirable.
Of course, this seam that has been exploited by politicians, both state and federal. As a matter of disgusting policy, Howard and Ruddock set out to make the men and women and children who came to this country in search of refuge less than human. But we also see state politicians and premiers bang the law and order drum for their own political advantage.
Australians have come to view the punitive treatment of wrongdoers as being no more than what we should do. From 1984 to 2003, the imprisonment rate in this country almost doubled from 86 to 153 per 100,000. The prison population has grown by around 5 per cent each year.
Being now habituated, we call louder yet for harsher and longer sentences.
What on earth is to be done?
Given these issues, and given our own Australian character, I turn now to the practical and essential question of what is to be done.
We have to acknowledge that, in this country, the argument that human rights should be given greater prominence is not an easy one to win. We need to change both attitudes and behaviour and I think we will be in the trenches for a long time.
The task for Amnesty and others is to bring these issues to the forefront of the national debate. Perhaps, one way to do this would form a coalition comprising Amnesty, Australia Council for Civil Liberties, academics - I don't know, golfers who believe Rawls to be right - and launch a permanent, national campaign, call it, say, 'Human Rights: Not a Backward Step'.
Our second duty is to attack an Australian culture of government secrecy. In recent times this has become endemic. It is corrosive of a citizen's right to know and to challenge just what the hell is going on. For example, privacy laws are increasingly used to protect governments and ministers and bureaucrats; the classification of commercial in confidence protects the companies who run our detention camps; freedom of information laws are subverted.
You'll recall, perhaps, a meeting of judges, special agents and public servants held in March of this year. According to newspaper reports, this was a conference on national security, held in secret. Justice Michael Kirby has published his speech - he cautioned against exaggerating the risks of terrorism - but others have remained silent.
When I asked ASIO for a copy of the Director-General's address, I was told that it was 'classified'.
Thirdly, the oversight of our intelligence agencies and secret police is deficient. Not all agencies are required to appear before the relevant standing parliamentary committee. As well, the Intelligence Services Act 2001 limits the evidence that can be taken by the Parliamentary Joint Committee on ASIO, ASIS and DSD.
This committee is now reviewing ASIO's questioning and detention powers. The Australian Security Intelligence Organisation Act 1979 makes it unlawful, on penalty of five years imprisonment, for a person being investigated to disclose that a warrant was served, or that he or she was questioned or detained. The question arose as to whether or not the committee would be able to hear evidence without breaking the law.
The Inspector-General of Intelligence and Security is an independent statutory officer with extensive powers to scrutinise actions of the intelligence and security agencies. Currently, Ian Carnell has a staff of three and a total budget in 2003-04 of around $900,000.
By way of contrast, in 2004, the number of staff employed by ASIO alone totalled 805. By 2006, the number will be around 1000 officers. ASIO's budget has been doubled, more than doubled - from $62 million in 2000-01 to $153 million in 2004-05.
In response to the 11 September attack, the Australian Government has dedicated an additional $4.7 billion on national security. Roughly, this works out to be about one officer to supervise $1.2 billion in extra spending on intelligence. Imagine the overtime. Clearly, as the range and role and scope of intelligence agencies increases, then so should the role and resources provided to the officer charged with keeping them in line.
That oversight is so slight means much responsibility devolves to organisations like Amnesty.
I've talked a little bit of theory, a little bit about our Australian character and a bit about what we can practically do to protect our human rights. I'll finish by telling a story from the past and I'll give one possible version of our future.
Our oldest literature is the Iliad and Odyssey of Homer. The Iliad concludes with the sacking of Troy and an account of the war crimes committed as the city was burnt to the ground. The Odyssey finishes, almost, with a description of how dark-bearded Odysseus triumphed over his rivals, the men who laid siege to Penelope, his faithful wife. I say almost because there is one episode following, which is absolutely shocking.
Telemachus, the son of Odysseus, takes his revenge on the women in his mother's service. For their infidelity and for their insolence: 'God forbid that I should take these women's lives by a clean death, these that have poured dishonour on my head and on my mother, and have lain with the wooers.'
And so he made fast a great cable and fixed it so that the women held their heads all in a row, and about all their necks nooses were cast, that they might die by the most pitiful death. And they writhed with their feet for a little space, but for no long while.
This is a story and warning. Homer warns us of what passionate, good men can do. He warns us of what lives in our hearts.
Now, let me finish with another warning. This is a version of the future told to a journalist by a senior aide working for President Bush:
The aide said that guys like me [that is, reporters and commentators] were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernable reality."
I nodded and murmured something about enlightenment principles and empiricism. He cut me off.
"That's not the way the world really works anymore," he continued. "We're an empire now, and when we act we create our own reality. And while you're studying that reality - judiciously, as you will - we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors - and you, all of you, will be left to just study what we do."
More than I can say, I want both of these stories to be wrong, wrong, wrong.