Don Chipp Colloquium

A Bill of Rights in an Age of Fear

Session 1: The politics of human rights protection in the counter-terrorism context'

Presentation by Ted Lapkin, Director, Policy Analysis, Australia/Israel and Jewish Affairs Council

SLIDE 1 – A ROUGHER SET OF RULES

I would first like to thank Patrick Emerton and the Castan Centre for their kind invitation to speak here today.

I am a political essayist rather than a lawyer but I am also a former army officer who spent several years fighting against the same Jihadist enemies who face us today and in light of my personal experience and professional expertise, I shall focus on what I regard as the defining challenge of our time – the fight against jihadist Islam, and the balance between civil liberties and national security in time of war.

I especially appreciate this opportunity in light of the fact that I am about to make an argument whose moral correctness will be construed by some as inversely proportional to its political correctness.

In other words while I believe that my cause is right ethically, dare I say it is right politically, as well.

“The men in power are attempting to establish a despotism in this country more cruel and oppressive than ever existed before!”

This rancorous jeremiad was not heard at a protest rally against the policies of George Bush or John Howard. This harsh denunciation was not uttered by supporters of David Hicks or “Jihad” Jack Thomas.  These are not the words of Major Michael Mori, or Rob Starry.

In fact, this fulmination against executive tyranny was not made during the present century, much less the one that preceded it.

SLIDE 2 – CLEMENT VALLANDINGHAM

The tongue-lashing in question was delivered during the American Civil War by a former US congressman named Clement Vallandingham.

Vallandingham was a member of a political faction called “Peace Democrats“  by its supporters, and “Copperheads” by its detractors.  He opposed the Union war effort, a stance that brought about his defeat In the mid-term elections of 1862.  

But that night in April 1863, the ex-Congressman’s wrath was directed against the wholesale infringement on civil liberties imposed by President Abraham Lincoln. You see, in pursuit of military victory over the south, Lincoln didn't mess around. With the outbreak of war, Lincoln invoked a clause of the US Constitution to suspend habeas corpus. He then imprisoned 13,000 confederate sympathizers without charge.

SLIDE 3 – SUPREME COURT CHIEF JUSTICE TANEY

And when Supreme Court Justice Roger Taney protested against those extrajudicial detentions, Lincoln threatened to lock him up as well. Never mind that the Constitution invested the authority to suspend Habeus Corpus in the Legislative branch rather than the Executive. And never mind that Congress had to scramble to authorize, ex post facto, Lincoln’s arrogation of legislative power.

For his part, Clement Vallandingham paid dearly for his opinions. Two months after his provocative speech he was arrested and tried before a military commission. Vallandingham was found guilty of making "treasonable utterances" and deported at bayonet-point to Confederate territory.

SLIDE 4 – THE PECULIAR INSTITUTION

But lest there be too much sympathy for the former Congressman’s predicament, I should note the reasons why he sought conciliation over conflict with the South.

Vallandingham opposed the war because he had no objection to the “peculiar institution," as slavery was euphemistically known by its supporters. In fact, he considered blacks to be an irredeemably inferior race suited only to servitude.

Thus it turns out that Clement Laird Vallandingham was hardly the poster-boy for civil liberties that he might originally have seemed.

SLIDE 5 – ABRAHAM LINCOLN

And what are we to make of Abraham Lincoln? Lincoln authored The Gettysburg Address, that extolled the virtues of

“government of the people, By the people, for the people."

He issued the emancipation proclamation. And he prosecuted the war that eradicated slavery in the United States.

But Abraham Lincoln was also a real-world statesman who realised that an ill-defended democracy would be a short-lived democracy. He understood that, in times of dire crisis, severity is sometimes needed to preserve self-determination.

And when the unity of the United States was in peril, Lincoln demonstrated the will to do what was necessary to win the war.

SLIDE 6 – COMPARATIVE THREAT ANALYSIS

The Confederates fought to perpetuate slavery, a noxious cause indeed. But troops from Texas and Alabama never menaced the physical security of the United States in the manner of al-Qaeda.

The Confederates merely wanted to withdraw from the Union in order to practice slavery in peace.

Now, its one of the milestones of human progress that the South met with defeat. But it also must be admitted that southern general Robert E. Lee never deliberately slaughtered

northern civilians to advance his cause.

Yet the wartime security measures adopted by Lincoln were far harsher than any action adopted in the wake of the 9/11 terrorist attacks. The policies of George Bush and John Howard are pale imitations of Lincoln's decree that anyone:

"in any way giving aid and comfortto the enemy"

would be

"subject to arrest and trial before a military commission."

SLIDE 7 – DELUSIONS OF POLITICAL GRANDEUR

If President Bush had implemented anything remotely approaching the severity of Lincoln's edicts, half of Hollywood would be in military detention right now.

SLIDE 8 – WIRETAPPING OUTRAGE

The much-maligned USA Patriot Act did little more than harmonise law enforcement methods to reflect current threats and technologies. US law enforcement agencies have long enjoyed the ability to employ "roving wire taps" that follow criminal suspects from telephone to telephone.

The Patriot Act simply extended that capability to foreign intelligence cases, if investigators can obtain appropriate warrants. And while the Act allowed for the detention of non-U.S. citizen terrorist suspects, it explicitly subjected such incarceration to habeas corpus review.

Yet these procedural safeguards did not dissuade critics of the Bush administration from issuing forth with lamentations of truly Chicken Little proportions. And here in Australia, the passage of the ASIO bill was greeted with a similar spate of hysterical hyperbole.

SLIDE 9 – A BETTER WAY TO DEAL WITH TERRORISM?

Professor George Williams of the University of New South Wales described the ASIO legislation, even in its diluted form, as “draconian.”  Writing in the Sydney Morning Herald Professor Williams suggested that:

“the better  way to deal with terrorism is through the ordinary criminal process and the existing powers of the police”

But I believe that this view is predicated on a dangerous misconception of both the enemy we face, and the circumstances in which we face him.

The “ordinary criminal process” to which Professor Williams refers, is designed to  accommodate a society at peace.

Yet ladies and gentlemen, as I stated in my introduction, I argue that we are at war. Make no mistake about it: we are every bit as much in a state of armed conflict today as Abraham Lincoln was in 1862, and John Curtin was in 1942.

The events of 9/11 upped the ante on terror. The collapse of the twin towers elevated the threat of jihadist Islam from an ordinary question of criminal justice, to an extraordinary question of national security.

And I am not alone in this determination. On 14 September 2001, both Houses of the US Congress passed a joint resolution that essentially declared war against jihadist Islam.

SLIDE 10 – PRESIDENT BUSH GOES TO WAR

And that Congressional “Authorisation of Military Force” resolution was soon complemented by a Presidential Military Order declaring that the 9/11 attacks:

“created a state of armed conflict that requires the use of the United States Armed Forces”

SLIDE 11 – CONCEDING THE SELF-EVIDENT

Even the recent Supreme Court decision in Hamdan v Rumsfeld, which I thought was a very bad ruling, concedes:

“We do not question the Government’s position that the war commenced with the events of September 11, 2001.”

Ladies and gentlemen, at our peril we continue to treat jihadist terror as a run-of-the-mill policing issue. This is a fair dinkum shooting war and it is absurd to contend otherwise.

And as Lincoln taught us, in times of armed conflict the defence of democratic principles requires play by a rougher set of rules.

The sharp end of war is governed by principles that are antithetical to normal peacetime reality. Once the dogs of war are let slip, people solve their differences by blowing things up, rather than talking things out.

The battlefield is an arena where killing is lauded rather than lamented; it is a universe where death and destruction are pursued rather than prevented.

SLIDE 12 – WE FEW, WE HAPPY FEW

With typical grace and insight Shakespeare’s Henry V captured the essence of this difference in an oratory speech to his men before the walls of a besieged Harfleur:

In peace there’s nothing so becomes a man
As modest stillness and humility,
But when the blast of war blows in our ears,
Then imitate the action of the tiger;
Stiffen the sinews, summon up the blood,
Disguise fair nature with hard-favoured rage,
Then lend thy eye a terrible aspect.

The Bard informs us that, by its very nature, war violates the most fundamental principles of civil society.And for this reason, war is an enterprise governed by standards and statutes that differ from those that govern normal life.

Soldiers who slay their foes receive promotions rather than prison terms.

In the chaos of combat, there is no requirement to read the enemy his rights before shooting him from ambush. In the hurly burly of a firefight, there is no need to warn the enemy before you call for an artillery fire mission.

The pre-battle exhortation of Shakespeare’s Henry exemplifies the brutal reality that sets war and peace at opposite poles of the human experience. And this unbridgeable chasm that separates the states of war and peace, makes it unmitigated folly to import the rules of the solicitor into to the realm of the soldier.

SLIDE 13 – 7th CENTURY FAMILY VALUES

And what sort of enemy are we fighting in this war?Our foes go by such names as al-Qaeda, Jamaah Islamiyah, Hamas and Hezbollah.

They are theocratic fanatics whose idea of modernity comes straight from the 7th century. They are zealots who don’t mind dying if they can prevent the hated infidel from living.

They are myrmidons who see the construction of their own culture as dependent upon the destruction of ours.

SLIDE 14 – THE MULLAHS AT WORK

They are fighting to drag the world back into a medieval darkness at the point of a gun. Bin Laden's global caliphate would relegate women to a sequestered existence of illiteracy and servility. And if Christians and Jews were allowed to survive at all, they would be forced into the subservience of 'dihimmitude.’

Our jihadist enemies are fighting to recreate the Taliban’s Afghanistan on a worldwide scale.

Sorry folks, But that’s not my idea of a good time.

SLIDE 15 – NEW YORK 11 September 2001

And the means by which they prosecute their holy war are even more repugnant than their ultimate objective.

In New York, London, Bali and Madrid, the jihadists have demonstrated no compunction about deliberately targeting women, children and the elderly. They have flown airliners into office buildings;

SLIDE 16 – BALI – OCTOBER 2002

They have blown up commuter trains, night clubs and synagogues.

SLIDE 17 – MADRID 2004

Two weeks ago the British police uncovered a plot to bring down ten airliners over the Atlantic. Two of the conspirators, a husband and wife, planned to use their infant daughteras a mule to smuggle explosives on board one of those aircraft.

SLIDE 18 – LONDON 2005

These people are barbarians who, with malice aforethought, are willing to slaughterthe most innocent members of society for the sake of their apocalyptic vision.

Ladies and gentlemen, this jihadist Islam is an absolute evil, that must opposed, not appeased.

Yet, despite all this, there are many - including some in this audience I’m sure -who tend to see terrorism in a de minimis light.

There are those who regard my perspective as alarmist and hyperbolic.

SLIDE 19 – WAGING WAR THE CIVIL LIBERTARIAN WAY

Case in point - Julian Burnside, whom I debated some months ago on the question of David Hicks. During the course of that discussion, Mr. Burnside argued that we need not take terrorism so seriously. After all, he said, many more people die from tobacco than from terrorist bombs or bullets.

But I beg to differ.

I see this as a full scale war that we did not start, but that we dare not leave unfinished. We dare not leave it unfinished because our enemies are not disposed to compromise.

In the world of Mahmoud Ahmadinajad, Osama bin Laden and Sheik Hassan Nasrallah, it’s the jihadist way, or the highway to jehenum – Islamic hell.

And like it or not, we Australians are part of this war. We are part of it because we appeared on the al-Qaeda hit list well before 9/11.

It seems the jihadists took umbrage at our intervention in East Timor, which they regard as part of the Islamic Waqf – that inalienable territorial endowment that must always remain under Muslim suzerainty.

And we are part of this war because hundreds of Aussie troops are engaged in combat operations against al-Qaeda throughout southwest Asia.

We should not be lured into a sense of false complacency by the fact that homeland Australia has heretofore been spared from attack.

Our apparent immunity has not stemmed from any want of effort on the part of our enemies.

SLIDE 20 – AT LEAST 15 YEARS

In Melbourne, 13 jihadist conspirators are facing prosecution for terrorism offences.

And earlier this week, Faheem Khalid Lodhi will serve at least 15 years for planning to blow up the national electricity grid.

In terms of domestic terrorism, we have indeed been the lucky country.

So far.

SLIDE 21 – THE WRONG MINDSET

But I wonder how long this combination of good fortune and good policing will last. Surely our lucky streak won’t be lengthened by hobbling our intelligence and law enforcement agencies with operational and evidentiary requirements that are unduly burdensome to a nation at war.

And lest one might be inclined to believe that propitiating our enemies might bring shelter from the jihadist storm – think again.

We are currently engaged in the sort of conflict that is known in French as “en guerre a l’outrance” - a war of absolutes.

Winston Churchill once said:

"an appeaser is someone who feeds the crocodile in the hopes of being eaten last."

And the 10-or-so terrorist bomb plots that have been discovered in Madrid after Spain's withdrawal from Iraq demonstrate the futility of temporizint with jihadist Islam.

There is reason for this, of course.

SLIDE 22 – FROM THE PYRENEES TO BEYOND PERSIA

Prior to the year 1492, Spain was also a province of the Islamic Waqf known as Andalusia.

Our enemies in this conflict have long memories. They think, not in months, or even years, but in centuries.

Perhaps Arab-studies scholar, Martin Kramer, put it best. Professor Kramer explained that the jihadists hate the West, not because of who we are, or even because of what we do. But the real reason why we Westerners are despised and resented is because of what we have.

The jihadist worldview is drawn from a time of unchallenged Islamic pre-eminence. From the Pyrenees to beyond Persia the Muslim world reigned supreme. Muslim science was the envy of Europe. Muslim armies reached the gates of Tours, Rome and Vienna

But 21st century reality conflicts with their 7th century sense of what is right and proper. The jihadists simply covet the West’s economic, cultural and military superiority over the Arab world, and they are fighting to reverse that balance.

For this reason I think that Peter Costello was being a tad optimistic when he predicted that the current conflict with jihadist Islam could last 50 years.

But for however long it rages, this is not a warin which negotiation is possible.You can’t talk peace with someone who thinks that should be a slave, Or worse.

SLIDE 23 – REAL WORLD CONSEQUENCES

Yet there are those who still insist on applying the rules of the barrister to the realm of the battlefield.

I would like to relate a real-life story on the real-life consequences of using conventional legal rules to deal with the unconventional problem of jihadist terrorism.

Roughly a month after 9/11, the Washington Post ran a front page story that related how President Clinton spurned the perfect opportunity to nab Osama bin Laden in 1996.

At the time, bin Laden was living in the Sudan. And the U.S. had solid intelligence data implicating al-Qaeda in the 1993 World Trade Centre bombing.

For their part, the Sudanese wanted off the US State Department terrorism list. So Sudan offered the Americans a deal – bin Laden in exchange for a clean bill of diplomatic health.

Yet strangely, the Clinton administration declined this Sudanese proposal.They declined it because Clinton’s Attorney General,  didn't think she had enough Admissible evidence to convict bin Laden in a court of law.

But imagine, for a moment, how different things might be had Bill Clinton dealt with radical Islamic terrorism in 1996 as an issue of national security, rather than a criminal justice issue.

SLIDE 24 – THE A-TEAM OR THE DREAM TEAM?

Imagine, for a moment how different things might be had Bill Clinton called in a team of  Navy SEALs instead of a team of Justice Department lawyers.

One possibility immediately comes to mind. There are two skyscrapers in Lower Manhattan that might still be standing today

SLIDE 25 – “JIHAD JACK”

So you will excuse me if I don’t break out in a rousing round of applause for the legal team of “Jihad” Jack Thomas.

Here we have a man who freely admits to having trained with al-Qaeda in the use of automatic weapons and explosives.

Here we have a man who freely admits to meeting with some of bin Laden’s senior lieutenants at those Afghan training camps.

Here we have a man whose explanations for his willingness to take jihadist money should be incredible to all but the most politically purblind or naïve.

And yet here we have a man who is walking the streets of Melbourne.

In our current circumstance I think that we need to take care that the ‘fruit of the poison tree’ doctrine doesn’t prove a lethal brew to us all.

SLIDE 26 – THE MARQUIS OF QUEENSBURY VS…

US Supreme Court justice Robert Jackson once wrote that the Constitution and Rill of Rights were not a "suicide pact." And Jackson would know, he served as the chief Allied prosecutor At the Nuremburg war crimes tribunal.

If a temporary infringement upon peacetime civil liberties is necessary to prevent the next mass-casualty terrorist attack, is that a greater offence against morality than allowing the slaughter of innocents to proceed unhindered?

Earlier this year in the Age I criticised novelist Salman Rushdie for seeking to apply :

Marquess of Queensberry rules to a war against a global jihadist movement that exults in the massacre of civilians.

But shouldn't the right of innocent people to life stand for something too?

The sooner we accept the unpleasant fact that this is a war, the sooner we can get on with the unpleasant task of winning it.

SLIDE 27 – AMPLE PRECEDENT

Despite the apocalyptic prognostications of our civil libertarians, the sky has not fallen on American or Australian democracy.

The ASIO bill and the USA Patriot Act are quite tame by comparison with our past wartime regimes.

Abraham Lincoln is hailed as a hero of democracy by many of the same people who revile Howard and Bush as tyrants.

But if Lincoln's example teaches us anything, it demonstrates that freedom is never free, and that liberty must sometimes be protected by less than liberal means.

SLIDE 21 – THE REASON WHY.

Thank you very much