Julian Burnside

2006 marks a few interesting centenary anniversaries. In July 1906, Alfred Dreyfus was finally pardoned. The affair which bears his name had lasted 12 years until Dreyfus was finally vindicated.

In 1906, Paul Cezanne died. Cezanne’s portrait is probably the best known image of Emile Zola, whose campaigning significantly altered the direction of the Dreyfus Affair. It is perhaps a significant symbol of the passions aroused by the affair that Cezanne and Zola took different positions on the matter and their friendship was irretrievably damaged as a result.

1906 was also the year in which Dmitri Shostakovich was born. Shostakovich, like Zola and Dreyfus, understood the sting of State oppression and the cost of resistance.

On 26 September 1894, the French Intelligence Service intercepted a message which had been sent to Lieutenant-Colonel von Schwartzkoppen. This document – later known universally as the Bordereau – demonstrated 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 any further possible suspects. He reported to the Minister of War, General Mercier, that the spy in the army ranks was Captain Dreyfus.

A handwriting expert from the Bank of Paris was asked to examine the Bordereau to see whether it had been written by Captain Dreyfus. He said it had not. 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 noted 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 in this peculiar way, was shown to a self-styled handwriting expert, one Bertillon. Bertillon had devised a method of handwriting analysis based on statistics and, knowing in advance that the army wanted Dreyfus’s writing to correspond with that in the Bordereau, he found it to be so. He later explained in his evidence to the court martial that the obvious differences between handwriting in the Bordereau and Dreyfus’s own handwriting, could be explained by the fact that Dreyfus had cunningly developed the skill to imitate the handwriting of others. Thus, the greater the difference between Dreyfus’s handwriting and the writing in the Bordereau, the greater the evidence of Dreyfus’s deceit and dissimulation.

Even General Mercier could see the weakness of the case against Dreyfus. He equivocated, realizing that to charge Dreyfus and fail would be a disaster for the army. The proceeding would reveal that there was a spy in the army, and a failed prosecution would reveal the inability of the army to hunt out the spy and bring him to justice. But his hand was forced. On 31 October 1894, word was leaked to Edouard Drumont of La Libre Parole that a Jewish officer had been arrested on a charge of espionage. La Libre Parole was a fiercely anti-Semitic newspaper and it published the allegation and Dreyfus’s name. It then pursued a virulent campaign of public vilification against Dreyfus, which formed the backdrop against which the court martial took place, from 19to 22 December, 1894.

Dreyfus was well represented. His counsel asked that the court martial be held in public. That request was refused. Colonel Picquart attended the hearings of the court martial on the instructions of General Mercier. He reported that the prosecution was not going well and that the judges appeared to be hesitant about Dreyfus’s guilt. Accordingly, General Mercier instructed Major Henry to provide a secret dossier to the judges of the court martial. Major Henry told the judges that it was essential for national security that the existence of the documents not be disclosed either to Dreyfus or his counsel. The secret dossier included documents forged by Major Henry himself.

The documents in the dossier convinced the judges that Dreyfus was guilty. 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.

In March 1896 another document was intercepted by the statistical section. That document, later known as le Petit Bleu identified the spy in the French Army as being Major Walsin-Esterhazy. Colonel Picquart, who had been instructed to investigate the background of the Dreyfus Affair, was thus able to compare Esterhazy’s writing with the handwriting of the Bordereau. Having previously been convinced that Dreyfus was guilty, Picquart was soon convinced that Dreyfus was innocent.

By September 1896, Picquart was trying to convince the senior officers of the general staff that Dreyfus was innocent. Unfortunately for Picquart, and for Dreyfus, the officer who worked most closely with Picquart in his investigation was Major Henry. Major Henry realized that, the closer Picquart got to the truth, the more exposed was Henry himself, as it was Henry who had forged the documents in the secret dossier. Consequently, Henry set to work falsifying further documents to incriminate Dreyfus, and he kept Esterhazy informed of the progress of Picquart’s investigation.

In late October 1897, Picquart was transferred from his position and was sent on a series of missions to increasingly remote parts. It was some time before he realised that he had been removed from the investigation without being told.

With Picquart safely out of the way, Major Henry then produced a letter allegedly written by the Italian Embassy to the German attaché, identifying Dreyfus by name as the spy in the French Army.

In the meantime, Dreyfus’s wife Lucie and his brother Mathieu had been actively trying to have an inquiry into Dreyfus’s guilt convened. Largely because of Mathieu’s efforts, the original Bordereau was published in a newspaper on the 11th November, 1897. Thus it was that it was seen by Monsieur de Castro, a South American stockbroker. Remarkably, M. de Castro recognized the handwriting of the Bordereau as that of one of his clients, Major Esterhazy. He contacted Mathieu Dreyfus and the campaign then developed a head of steam. Esterhazy was tried by court martial but – astonishingly – he was acquitted, despite all the evidence against him.

On 13th 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 General Billot (Mercier’s successor as Minister of War) of having in his hands decisive proof of the innocence of Dreyfus and of having concealed them …

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 identified the field of battle: protect the army, or uphold individual rights; the dominance of the republic or the dominance of the church; Christianity versus “the Jewish conspiracy”. It provoked anti-Semitic rioting throughout France. It also provoked a growing 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. During that trial, General Mercier swore confidently that Dreyfus was guilty and asserted that the security of France was at stake. The press published the names and addresses of the jurors in Zola’s case and reiterated the General’s message. Not surprisingly, in these circumstances, Zola was convicted and heavily fined.

On the 30th August, 1898, Major Henry confessed his perjury against Dreyfus and his falsification of the documents. He was imprisoned, but committed suicide while awaiting trial.

A year later, Dreyfus’s second trial took place. It was held at the Rennes in Brittany, in order to avoid the passionate atmosphere of a trial in Paris. It is a measure of the level of anti-Semitism still prevalent in France at the time, that Dreyfus was again convicted, by a five to two majority. But he was found guilty of treason “with extenuating circumstances”. Just 10 days later, on 19th September, 1899, the President of France signed Dreyfus’s pardon. Dreyfus accepted the pardon, but only on condition that he was entitled to continue to pursue a campaign to demonstrate his innocence – a pardon, after all, proceeds from an assumption of guilt.

Six years later, 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. Notwithstanding all that had gone before, the parliamentary vote on the question of Dreyfus’s reinstatement was not unanimous: the Chamber of Deputies voted 432 to 32 and in the Senate the vote was 182 to 30. 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.

Thirty years after the death of Alfred Dreyfus, on 28 October 1965, the Second Vatican Council released its “declaration on the relation of the church to non-Christian religion”, familiarly known as Nostra Aetate. In that document, the Roman Catholic Church declared that the death of Jesus Christ cannot be charged against the Jews of today and it actively denounced anti-Semitism. In 1973, the French Republic passed a law prohibiting any demonstration of anti-Semitism. In 1990, Prime Minister Michel Rocard declared:

“In France, anti-Semitism is not a matter of opinion, it is a crime.”

Notwithstanding these developments, it was not until September 1995 that the French Army first admitted publicly that Dreyfus had been wrongly convicted. It had earlier refused a gift of a statue of Dreyfus offered to it by Prime Minister Pompidou.

On the 100th anniversary of J’Accuse, the French Parliament honoured Emile Zola’s role in the Dreyfus affair. The President, Jacques Chirac, apologized on behalf of France to the families of Dreyfus and Zola.

* * * * *

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 here 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 no longer exists in any significant measure in Australia, at least not in the virulent form which characterized 19th Century France and the first half of the 20th Century in Western Europe generally. However there are other groups who are sufficiently unpopular that, for practical purposes, most members of the community do not regard the rights of those people as mattering. Those unpopular groups include alleged paedophiles, alleged terrorists, aborigines, people with mental disorders and Muslims. This is not to say that the feeling against each of those groups runs as deep and as strong as anti-Semitism at the time of Dreyfus’s trial. But it is strong enough that a large majority of people in our society do not regard the rights of those groups as being important enough to deserve recognition or protection.

The possibility of secret trials and trials in which evidence is concealed from the accused and their counsel already exist in Australia as a matter of law. There are several different pieces of legislation which achieve that lamentable result.

Division 105 of the Commonwealth Criminal Code provides that a member of the Federal Police may 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 in circumstances where they have not been charged with much less convicted of any offence. The order is obtained in the absence of the subject and authorizes that the person be taken into custody. When the person is taken into custody pursuant to the order, they will be given a copy of the order and a summary of the grounds on which the order was made. The summary need not include any information which is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act (2004)) (the NSI Act).

Thus a preventative detention order can be made not only without a trial of any sort, but in circumstances where the subject of the order will not be allowed to know the evidence which was used to secure the order.

Division 104 of the Commonwealth Criminal Code allows a senior member of the Federal Police to obtain a control order against a person. A control order can include an order confining a person to a single address for up to 12 months, without access to telephone or the internet. When the subject of the control order is served with the order, they are to be given a summary of the grounds on which the order was made, but not the evidence. Thus, a person’s freedom of movement can be grossly interfered with for up to 12 months in circumstances where they have no opportunity to know the evidence on which the order was obtained much less to challenge it. The summary of the grounds on which the order was obtained need not include any information disclosure of which is likely to prejudice national security within the meaning of the NSI Act

That brings me to the provisions of the NSI Act. It is perhaps the most draconian piece of legislation ever passed by an Australian Parliament in time of peace. The Act as originally passed was confined in its operation to criminal proceedings. In early 2005 it was amended so as to extend to civil proceedings as well. It provides that if a party to a proceeding knows or believes that they will disclose in the proceeding information that relates to national security, or the party intends to call a witness and that witness would, by their presence in court or by the evidence they could give, disclose information that relates to national security, then the party must notify the Commonwealth Attorney-General of the fact. The party must also notify the opposite party and the court. The court is then required to adjourn the proceeding until the Attorney-General acts on the matter. If the Attorney-General chooses, he may sign a conclusive certificate to the effect that the evidence proposed to be called, or the proposed calling of the witness, would be likely to prejudice Australia’s national security interests. The certificate must then be provided to the court and the court must hold a hearing to decide whether or not to make an order preventing the evidence or witness from being called.

During that hearing, the court must be closed. The Act authorizes the court to exclude both the relevant party and his or her counsel from the closed hearing in which the question will be decided whether or not the evidence may be called or the witness brought to court.

In deciding the balance between the interests of a fair trial and the national security interests, the statute directs the court to give the greatest weight to the Attorney-General’s certificate that the evidence would present a risk of prejudice to national security.

These provisions are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when the real breadth of the provisions is understood. Their breadth comes from two things:

(a)                the notion “likely to prejudice national security” is defined as meaning that there is a “real, and not merely remote, possibility that the disclosure will prejudice national security”;

(b)        the definition of national security which means: “Australia’s defence, security, international relations or law enforcement interests”.

The apparently uncontroversial definition of national security is rendered astonishingly broad by the definition of “law enforcement interests”. That expression is defined as including interests in:

(a)                avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

(b)               protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

(c)                the protection and safety of informants and of persons associated with informants;

(d)               ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation’s government and government agencies.

By reference to this definition, Australia’s national security is affected by each of the following things:

(a)                evidence that a CIA operative extracted a confession by use of torture;

(b)               any evidence which tended to reveal operational details of the CIA, Interpol, the FBI, the Australian Federal Police, the Egyptian Police, the American authorities at Guantanamo Bay, etc.;

(c)                evidence which tended to show the use of torture or other inhumane interrogation techniques by any law enforcement agency.

These provisions are likely to have powerful effect in several types of case. First, in cases of people charged with terrorist offences. In such cases, confessional statements may be received but evidence that torture or other improper practices were used to obtain the confession may be excluded, in the name of national security. Second, where a person is the subject of a preventative detention order or a control order. Third, in cases where a person’s ordinary rights have been interfered with because of an adverse security assessment by ASIO. In those circumstances, it may prove impossible to have effective access to the material which provided the foundation of the interference.

There may be examples of the second type, but we are not allowed to know. The secrecy provisions surrounding control orders and preventative detention orders means that, in effect, the general public will not learn of them until many years have passed.

However examples of the third type can already be identified. An adverse security assessment from ASIO can result in a person’s passport being cancelled, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which provided the foundation for the adverse security assessment may prove difficult or impossible. Attempts to challenge the material can be met with the Attorney-General’s certificate.

Adverse security assessments from ASIO create another, related problem. An adverse security assessment will result in the cancellation of a visa or passport as the case may be. Cancellation of a passport may be challenged in the Administrative Appeals Tribunal. The Administrative Appeals Tribunal Act contains provisions enabling the Attorney-General to grant a certificate which, in substance, prevents the applicant and the applicant’s lawyer from being present in the Tribunal whilst certain evidence is given and submissions are made on behalf of the Government. Here is the text of one such certificate, issued early in 2006:

“I, Philip Maxwell Ruddock, the Attorney-General for the Commonwealth of Australia … hereby certify … that disclosure of the contents of the documents … described in the schedules hereto, and the schedules, would be contrary to the public interest because the disclosure would prejudice security.

I further certify … that evidence proposed to be adduced and submissions proposed to be made by or on behalf of the Director-General of Security concerning the documents … are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

As the responsible Minister … I do not consent to a person representing the applicant being present when evidence described … above is adduced and such submissions are made ….”

In those short paragraphs, by official certification, the Attorney-General produces the conditions which led to the false conviction of Alfred Dreyfus. Note that the paragraph which forbids a person representing the applicant being present when evidence is adduced and submissions are made does not depend on the identity of the applicant’s representative. It is a curious thing that the government’s lawyers are to be trusted with sensitive material, but no lawyer acting for the applicant is to be similarly trusted. Thus, the applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because he will not know the nature of the case against him either in advance or by the end of the hearing.

Fair trials are one of the basic promises of democracy. It seems a pity that we have abandonned the possibility of fair trials, ostensibly to help save democracy from terrorists. What we will achieve in fact by these measures is a growing concern that the real danger to democracy is our own government.

In December 2004, the House of Lords decided a case about English legislation which provided for detention of people supposed to present a terrorits risk if they could not be deported. In an 8:1 decision, the House of Lords determined that the laws did not comply with the Human Rights Act. Lord Hoffmann said “…the real threat to the life of the nation, in the sense of a people living in accordance with its tradition laws and political values, comes not from terrorism but from laws such as these.”

How much more forcefully could that be said of Australia’s “anti-terror” legislation.

Julian Burnside