OCKHAM’S RAZOR - The Dreyfus Affair

Julian Burnside

13 July 2006 marked the centenary of the final exoneration of Captain Alfred Dreyfus.

On 26 September 1894, the French Intelligence Service intercepted a message which had been sent to the German embassy in Paris. This document – later known universally as the Bordereau – showed that someone on the general staff of the French Army had leaked important military secrets to the Germans. An analysis of the contents of the Bordereau suggested that the author must have been an artillery officer and must also have spent time in four other sections of the army.

Colonel Sandherr was asked to investigate the matter and examined a list of artillery officers to see whether any of them fitted the profile of the probable author. He lighted on the name of Alfred Dreyfus, an artillery officer and a member of the general staff. Sandherr was openly anti-Semitic. He noted that Dreyfus was a Jew and did not pursue his investigation any further. He reported to the Minister of War, General Mercier, that the spy in the army ranks was Captain Dreyfus.

Commandant du Paty de Clam called Dreyfus in and asked him to take some dictation, on the pretext that he, du Paty, had injured his hand. On this feeble pretext, he dictated a note which included a number of the key words from the Bordereau. At one point during this minor farce, du Paty waited until Dreyfus crossed one leg over the opposite knee and then asked some pointed questions. His theory, as he explained later to the court martial, was that any increase in Dreyfus’s heartbeat would be reflected by corresponding movement of the leg draped over the opposite knee. As he saw no such response to his pointed questions, he inferred that Dreyfus was not only a spy but also dangerously able to disguise his own emotional reactions.

The sample of Dreyfus’s handwriting obtained this way was shown to a handwriting expert from the Bank of Paris. He was asked to examine the Bordereau to see whether it had been written by Captain Dreyfus. He said it had not.

So the army called in a self-styled handwriting expert, one Bertillon. Bertillon knew that the army wanted an opinion that Dreyfus had written the Bordereau. He obliged. He later explained in his evidence to the court martial that the obvious differences between the handwriting in the Bordereau and Dreyfus’s own handwriting, could be explained by the fact that Dreyfus had taught himself to imitate the handwriting of others. So the greater the difference between Dreyfus’s handwriting and the writing in the Bordereau, the greater the evidence of Dreyfus’s deceit and dissimulation.

The case against Dreyfus was weak. The Minister for War, General Mercier, was reluctant to lay charges. To charge Dreyfus and fail would be a disaster. A failed prosecution would show that there was a spy in the ranks and that the army had failed to find him. But Mercier’s hand was forced. On 31 October 1894, word was leaked that a Jewish officer had been arrested on a charge of espionage. La Libre Parole was a fiercely anti-Semitic newspaper. It published the allegation and named Dreyfus. It then pursued a virulent campaign of public vilification against Dreyfus, which formed the backdrop against which the court martial took place, in December, 1894.

Dreyfus was well represented. His counsel asked that the court martial be held in public. That request was refused. Even so, the prosecution was not going well, and the judges appeared to be doubtful about Dreyfus’s guilt. So General Mercier authorised Major Henry to provide a secret dossier to the judges. Major Henry told the judges that the documents could not be disclosed to Dreyfus or his counsel, on the grounds of national security.

The documents convinced the judges that Dreyfus was guilty. The problem is that they were forgeries.

After being stripped of his rank and publicly humiliated, Dreyfus was sent to Devil’s Island. There he was held in solitary confinement. His only company was the guards, who were forbidden to speak to him.

For the next few years, Dreyfus’s wife Lucie and his brother Mathieu campaigned for his freedom. Largely because of Mathieu’s efforts, the original Bordereau was published in a newspaper in November, 1897. Thus it was that it was seen by Monsieur de Castro, a South American stockbroker, who recognized the handwriting of the Bordereau as that of one of his clients, Major Esterhazy. He contacted Mathieu Dreyfus and the campaign began to gather support.

On 13^th January, 1898, the journal L’Aurore published a “letter to the President of the Republic”. It was written by Emile Zola. The banner headline read “J’Accuse …!”. In the article, which has ever since been famous under that name, Zola wrote:

“I accuse General Mercier of having made himself an accomplice in one of the greatest crimes of history …

I accuse the judges of the (Dreyfus) court martial of having violated all human rights in condemning a prisoner on testimony kept secret from him ...”

“J’Accuse” was published on 13 January 1898. It provoked public concern about Dreyfus’s trial, which ultimately led to a retrial.

Together with George Clemenceau, the political editor of L’Aurore, Zola forced France to face the fraud which had been worked in Dreyfus’s court martial. For his troubles, Zola was charged with criminal libel and was convicted.

But on the 30^th August, 1898, Major Henry confessed that he had forged the documents in the secret dossier. He was arrested, but committed suicide while awaiting trial.

On 12 July, 1906, after a further inquiry, all three chambers of the Supreme Court of Appeal sat jointly and anulled the verdict of the second trial. The court proclaimed Dreyfus innocent.

Dreyfus was subsequently reinstated in the French Army. He saw active service in the First World War and died in 1935.

In 1943 one of his granddaughters, Madeleine, was deported to Auschwitz where she died. Lucy Dreyfus followed her husband to the grave in December 1945.

* * * * *

It is all too easy to look back on the Dreyfus Affair with an air of superiority, and imagine that what happened 100 years ago in France could not happen in Australia today. Two matters made the Dreyfus Affair possible:

(a) a secret trial and the use of evidence concealed from the accused and his counsel, and

(b) racial or religious prejudice which ran so deep as to blind people to any concern about the quality of justice accorded to Dreyfus.

Anti-Semitism has been largely eradicated in Australia. However there are other groups who are sufficiently unpopular that, for practical purposes, their rights are disregarded. The case of David Hicks is a clear example.

The possibility of secret trials, and trials in which evidence is concealed from one party and their counsel, already exist in Australian legislation.

In late 2005, the Commonwealth Parliament passed draconian anti-terrorist legislation. One provision allows a member of the Federal Police to apply for a preventative detention order in relation to a person. A preventative detention order will result in a person being jailed for up to 14 days because it is thought that they might otherwise commit an offence. A preventative detention order is obtained in secret, without a trial of any sort. The person gaoled is not allowed to know the evidence which was used against them.

People can now be legally ‘disappeared’ in Australia, and you can be gaoled for publishing the fact.

Another provision allows the Federal Police to obtain a control order, which can include house arrest for up to 12 months, without access to telephone or the internet. Control orders are obtained without any trial, and on secret evidence.

Any challenge to orders like these may be frustrated by the Attorney-General, who has power to prevent a party from hearing the evidence against him, or even from hearing the government’s submissions in his case. In addition, the Attorney-General can prevent a party from producing exculpatory evidence in legal proceedings if that evidence might adversely affect our national security interests. Unfortunately, our ‘national security interests’ is a defined term, and the definition is very wide. Revealing the CIA’s activities in Baghdad or Guantanamo Bay is deemed to affect our national security interests.

Secret trials on secret evidence are a real possibility in Australia right now. The legislation which makes it possible is a betrayal of basic democratic principles. It is a supreme irony that the legislation which makes it possible has been justified as part of the war which is supposed to save our democracy from terrorism.

One hundred years after Dreyfus was exonerated we have re-created the conditions which convicted him.