Untangling the Laws of Terror

It’s rare to hear the phrase “war on terror” these days — it has been seemingly purged from the official lexicon as the superficial certainty of the Bush/Howard years gives way to darker and more ambiguous terrain.
Australia is still a nation at war: one and a half thousand troops on the ground in Afghanistan, backing NATO’s installation of a brittle democracy in a violent failed state where the distinctions between friend and terrorist change by the day.

But something is going on at home as well: a determined, coordinated expansion of the internal security estate that is permanently blurring the boundaries between institutions of defence, intelligence and policing. Some of the thinking is laid bare in the most recent defence white paper: a highly militarised Australia stepping up to meet the threats of nameless Asian aggressors, while an expanded web of domestic security agencies wage an unseen war against the enemy within.

The forthcoming counter-terrorism white paper will no doubt provide a discrete glimpse into the workings of this secret war on terror that no longer has a name. But we have some flesh on the bones already. We know that spy agency ASIO will have doubled in size over four years and has a half-billion dollar headquarters under construction next to the defence complex in Canberra. We know that Australians are, per capita, 23 times more likely to have their phone calls intercepted than United States citizens.

We know that a tight feedback loop of mutual self interest binds Ministers, law enforcement agencies and favoured media outlets who somehow manage to have photographers and journalists in place as raids are occurring, or in a recent celebrated example have the story rolling off the presses before the doors have even been kicked in.

The most telling sign of the Rudd Government’s intentions are that every word of the Howard Government’s complex and unwieldy terror laws are still in place, nearly four years after they were forced through the Senate in one fevered afternoon. It has taken two years to get a look at the Governments’ proposed “reforms”, which arrived last week in the form of a 400 page discussion paper that looks very much as though it was rushed out the door in time to catch the aftershocks of the raids in Melbourne.

The debate since then has had a peculiarly unfocused character. The Australian editorialised that the Attorney General was softening the laws. The Fairfax media reported that the laws were being toughened up. The Coalition accuses the Government of being “soft on terror” and “draconian” at the same time.

In reality, the laws are being refined, tuned, the sharp edges knocked off and the subtle underpinnings embedded more deeply in the legal architecture that guides the work of the intelligence and law enforcement communities. The Australian Federal Police will be able to declare an emergency and then enter premises without a warrant and conduct searches essentially free of judicial oversight.

Terror offences will quietly expand to encompass racial violence and “psychological harm”. The provisions in the Crimes Act that were used to detain Dr Mohammed Haneef for 11 days while the Government frantically worked out whether to prosecute or deport him will remain, although suspects will only be allowed to be held and interrogated without charge for an eight day week.

The Government has said that this is about “achieving the right balance between strong laws that protect our safety whilst preserving the democratic rights that protect our freedoms.” It is here that the argument rests most uneasily.

If these “strong laws” really were protecting our safety, they would be hard to argue with. The Australian Greens are a party founded on nonviolence. We condemn acts and threats of politically motivated violence without reservation. The question is whether the continued ratcheting up of the security state actually makes us safer, or whether we should be looking elsewhere for the kind of “security” that seems so fragile in this complicated age.

Because they operate behind a firewall of operational secrecy, the Australian public has very little idea to what degree the rapidly proliferating acronym soup of intelligence, defence and law enforcement agencies are actually making us safer. When mistakes do spill into the public domain — as they did with Dr Haneef, Izhar Ul-Haque or Jack Thomas, they shake public confidence not just in the agencies concerned but in the whole assumption that larger and better resourced secret police are the key to a secure Australia.

No doubt these agencies are staffed with talented and motivated individuals, some of them doing dangerous work to pre-empt violent crimes, their only reward the absence of some half-formed horror. But this is no reason for centuries of hard-fought legal protections drawn up to protect each of us from abuse of state power to be so casually eroded.

The long-awaited reviewer of the terror laws looks like it will be a well qualified part-timer supported by two staffers in the PM’s office. I wish them well — they will barely have time to come to grips with the tangled legacy of Prime Minister Howard’s war on terror before the next tranche from Prime Minister Rudd hits the table. Who or what we’re at war with now is an open question.