Those of us old enough to remember “Cracker Night” will associate it with the name of Guy Fawkes. Some might remember that Guy Fawkes’ name is synonymous with the Gunpowder Plot. Very few indeed will recognise that the Gunpowder Plot was the 17th Century equivalent of September 11; and they will have no reason to remember that November 5th 2005 marked its 400th Anniversary.
It is a pity that the Gunpowder Plot has slipped from popular memory. It has striking parallels with contemporary events, both in its origins and in its consequences. Just a few years before the Gunpowder Plot, Francis Bacon wrote that “[h]istories make men wise …”. Our response to September 11 might have been wiser if only we had read history more carefully.
The last years of the reign of Elizabeth I were marked by increased persecution of Roman Catholics in England. Recusants were fined for not attending the Protestant churches, and the recusant fines had become a significant source of revenue. Catholic priests – especially Jesuits – were persecuted terribly, and many were put to death for their faith.
As Elizabeth’s health failed the question of succession had not been settled. Among the several possible candidates to succeed her was James VI of Scotland. He was Protestant, but the son of Mary Queen of Scots, the Catholic daughter of James V of Scotland. Mary had been put to death by Elizabeth in 1587. James was married to Anne of Denmark. She was born a Lutheran but had converted to Catholicism. This made James’ position on religion decidedly ambiguous.
Many high-placed Englishmen established contact with James in advance of Elizabeth’s death, in order to test the ground. Among these was Thomas Percy, a recusant and protégé of the Earl of Northumberland. He returned from Scotland with enthusiastic accounts of the religious toleration James would introduce. Sir Robert Cecil, the Queen’s trusted adviser, also ascertained that James was not inclined to persecute the Catholics so long as they “lived quietly”. Thus it was that, when James VI of Scotland succeeded as James I of England there was real hope that the time of religious persecution would end.
The hopes engendered by Thomas Percy’s account and James’ ambivalent correspondence were not realised. By 1605, things had become markedly worse and more anti-Catholic legislation was expected.
The Gunpowder Plot
Robert Catesby was the son of a rich Warwickshire family. He was 30 years old at the time of James’ coronation. His father had been persecuted under Elizabeth. He was intelligent, pious, conscientious and (by all accounts) charismatic. Frustrated by the absence of real reform, he conceived the idea of destroying at a single stroke the Royal family and the Parliament which had passed the harsh, anti-papist laws. For this purpose he proposed to blow-up the Parliament at its opening, when the Royal family would be present. In March 1604, he recruited Thomas Winter and John Wright. Others were drawn into the conspiracy. In May, Thomas Percy and Guido Fawkes joined.
In July 1604, new anti-Catholic legislation was passed by Parliament. In January 1605 John Grant, Robert Winter and Thomas Bates joined the plot; in September Sir Everard Digby, Ambrose Rookwood and Francis Tresham joined.
Apart from the folly of the entire enterprise, it was probably the introduction of Francis Tresham which brought the plot down. The conspirators had arranged to store 36 barrels of gunpowder in an apartment adjacent to the Hall of Parliament. The recall of Parliament had been postponed several times, but was eventually fixed for Tuesday, 5 November. Someone – apparently Francis Tresham – wrote a cryptic letter to Lord Monteagle, advising him to absent himself from the opening of Parliament. Monteagle was a Roman Catholic, married to Tresham’s sister. But instead of heeding the warning, Monteagle took it to Robert Cecil. In due time, the Parliament building was searched, Guido Fawkes was discovered and the plot was undone.
Fawkes was taken into custody as the other conspirators fled from London. Under the law of the time, torture was illegal. However in exercise of the royal prerogative King James personally authorised the use of torture to discover the identity of the other conspirators. His letter of authority, dated 6 November 1605 reads in part:
“The gentler tortours are to be first used unto him et sic per gradus ad majora tenditur [and thus by degrees to the worst] and so God speed your goode worke”.
The gentler torture was the manacles: Fawkes was hung from a wall by iron manacles tightly bound around his wrist, with his feet above the ground. This has a physiological effect similar to crucifixion. The worst torture was the rack. This involved lying the victim on a horizontal frame and binding cords around his wrists and ankles. These cords were wound around rollers at each end of the frame. By use of winches, the rollers slowly wound in the cords, thus stretching the victim until the major joints came apart. It is accounted the most excruciating form of non-lethal treatment yet devised.
Under this treatment, Guido Fawkes made three confessions. The third bears a signature which hardly looks to be the work of a human hand: mute testimony to the effects of the rack.
Fawkes’ third confession led to the capture of the other conspirators. Catesby, Percy and Jack and Kit Wright were killed whilst being taken. Francis Tresham was badly wounded and died before he could be tried.
The Gunpowder Plot was the work of over-zealous extremists, isolated from their co-religionists. The Roman Catholic hierarchy in England had tried to dissuade any violence against the State. Nevertheless, when the conspirators were charged, the first name on the indictment was Father Henry Garnet, the Jesuit Superior of England. He was unquestionably innocent of the plot. But it was deemed important to pitch the Plot as a Catholic attack on England.
Those conspirators who had survived were tried on 27 January 1606 and were sentenced to be hung, drawn and quartered. Henry Garnet, who was not captured until later, was also brought to trial. His conviction was certainly unjustified, but reflects the public frenzy of anti-Catholicism which the plot had released. He was executed on 3rd May, 1606.
Divine right of kings
A key feature of the reign of James I was his belief in the divine right of Kings, and with it the unlimited scope of the sovereign prerogative. In his speech to Parliament on 21 March 1610 he said:
“Kings are justly called Gods for that they exercise a manner or resemblance of divine power upon earth. For if you will consider the attributes of God you shall see how they agree in the person of a King. God hath power to create or destroy; make or unmake at his pleasure; to give life or send death; to judge all and to be judged nor accountable to none; to raise low things and to make high things low at his pleasure. And the like power have Kings.”
(Note the echo of King Lear, written in 1605: “as flies to wanton boys are we to the Gods, they kill us for their sport”).
Even though torture was illegal in 1605, the King could order it in the exercise of the royal prerogative. Furthermore James I, and after him Charles I, insisted that the Royal prerogative entitled them to rule without Parliament and to act beyond the laws made by Parliament or to suspend those laws in particular cases as they chose. As the notion of parliamentary democracy took shape, two questions became an increasing source of tension: did the King rule under the law, or did he stand outside it; and if Parliament made a law, was the King free to dispense with it? This was one of the great constitutional questions which dominated 17th century England.
The Gunpowder conspirators had been prosecuted by Sir Edward Coke, the then Attorney-General. In his capacity as Attorney-General, Coke had been an advocate of the right of the King to dispense with the law as he saw fit. When Coke was appointed Chief Justice of the Court of Common Pleas, his views changed. He insisted that the King ruled under the law: in a famous confrontation with James I, Coke declared that “the King cannot change any part of the common law nor create any offence by proclamation which was not an offence before”.
Judicial independence was unknown in the time of James I. After many manoeuverings, James I dismissed Coke from his judicial office and Coke subsequently entered Parliament in 1620. In 1627 (the second year of the reign of Charles I) the King ordered the arrest of Sir Thomas Darnel and four others who had refused to advance a compulsory “loan” to the King. They sought habeas corpus. The jailer answered the suit by saying the five were held “per speciale mandatum Regis” [by special order of the King].
Darnel’s case in 1627 prompted Coke to draft for Parliament the Petition of Right (1628). The Petition raised, with exquisite politeness, the following complaints about the King’s conduct:
he had been ordering people, like Darnel, to be jailed for failing to lend him money;
he had been billeting soldiers in private houses throughout the country against the wishes of the owners;
he had circumvented the common law by appointing commissioners to enforce martial laws and those commissioners had been summarily trying and executing “such soldiers or mariners or other desolate persons joining with them as should commit … (any) outrage or misdemeanour whatsoever …”;
he had been exempting some from the operation of the common law.
The Parliament prayed that the King “would be graciously pleased for the further comfort and safety of your people, to declare … that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm …”.
The emergence of the Rule of Law
The Petition of Right was the opening shot in the battle for the Rule of Law. The principle of the Rule of Law in a parliamentary democracy insists that the Parliament is the supreme lawmaker and that all people, including every member of the Government and the head of state, are subject to the law; it requires that the laws be enforced by independent judges appropriately skilled, enjoying security of tenure so as to free them from extraneous pressures.
The struggle for the Rule of Law was waged in various forms over the balance of the 17th Century. Charles I prorogued the Parliament which had presented the Petition of Right. He ruled without Parliament until 1640 and then called the Short Parliament which refused to grant supply and was dissolved. He called the Long Parliament in November 1640 which confronted the King and declared it illegal to levy tax without the authority of Parliament.
The power struggle between Charles I and Parliament led to the Civil War (1642-1649) which ended with the surrender and execution of Charles I. It was followed by the Commonwealth period under Cromwell. That experiment collapsed after increasing mismanagement, and Charles II was restored to the throne, but only after issuing a promise (the Declaration of Breda) that he would meet the demands articulated in the Petition of Right 22 years earlier.
After Charles II came the truncated reign of James II and then in 1688 William of Orange and his wife Mary (daughter of King James) were offered the English crown and with it they were offered a Declaration of Rights prepared by the Parliament. This required regular, fair elections, protection of Parliamentary debates, no tax without Parliamentary consent, and the King was not to suspend or dispense with laws properly passed by the Parliament. They agreed.
Later, the Act of Settlement declared the sovereign to reign subject to the law. In the meantime, the Habeas Corpus Act had been passed, which ensured that no person could be held except by the authority of laws duly passed by the Parliament.
Thus were all the central principles of the Rule of Law put in place: the monarch is subject to the law and cannot set aside the common law or the laws passed by the Parliament; Judges are independent of the executive; no-one can be detained except as provided by law and the legality of their detention can be tested by the writ of habeas corpus.
These principles were won in the great constitutional struggles of 17th Century England. The chain of events which led to these momentous changes can be traced back to 1605 when those perceived as dangerous religious fanatics could be put to the torture on the authority of the King acting outside the law.
This tectonic shift was reflected in John Locke’s Second Treatise on Government. Published in 1689, it demolished the theory of the divine right of kings, and proposed that the only true authority of the government came from the consent of the governed. In addition, Locke reasoned that the obligation to obey the laws of the state was conditional on the state protecting person and property, and that if the sovereign breached the terms of the Social Contract, he could be overthrown.
America and the Rule of Law
Echoes of the Petition of Right and the Act of Settlement can be found in the constitutional documents of the United States. The American colonists expressly adopted Locke’s reasoning in their preamble to the Declaration of Independence:
In Congress, July 4, 1776
The Unanimous Declaration of the Thirteen United States of America
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.–We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …
The US Constitution (1789), especially the Bill of Rights, adopts the principles first demanded in the Petition of Right 160 years earlier. From the beginning, the United States of America adopted the Rule of Law as fundamental and unchangeable. But in the aftermath of September 11, it all went badly wrong.
The attack on America created, or brought into sharp focus, another form of religious animosity: not between Protestants and Catholics, but between Christians and Muslims. Like the Gunpowder Plot, September 11 was an attack of unprecedented horror, the likes of which could not have been imagined. Like the Gunpowder Plot, it was the work of a small group of religious fanatics striking at the very heart of a group seen as a religious oppressor. But there are two obvious differences: the Gunpowder Plot failed, but it set in train the events which ultimately laid the foundations of the Rule of Law in a parliamentary democracy; September 11 succeeded, and set in train events which are undermining those very foundations.
In the aftermath of September 11, America raided Afghanistan in pursuit of al Quaeda. With the help of Northern Alliance troops, they swept up tens of thousands of supposed al Quaeda operatives and sympathizers. Suspects were captured in Afghanistan, Pakistan, Saudi Arabia, Iraq and other places.
As a matter of legal principle, combatants captured in Afghanistan during the hostilities there are Prisoners of War. Otherwise they are criminal suspects. Domestic and international laws deal comprehensively with both cases. There is no ground between the two possibilities.
The regime for treatment of Prisoners of War is clear: it is established by the Geneva Convention in relation to Prisoners of War, to which USA is a party. Relevantly, it provides for:
(a) humane treatment;
(b) no interrogation beyond name, rank and serial number;
(c) release at the end of hostilities
The regime for treatment of criminal suspects is also clear:
(a) humane treatment;
(b) no obligation to answer questions;
(c) no detention without charge;
(d) prima facie entitlement to bail when charged;
(e) (importantly in these circumstances) criminal charges are generally to be dealt with in the country where the offences occurred.
In either case, and in all circumstances, there is an absolute prohibition on the use of torture. This is recognised as a universal norm of international law, and is the subject of the Convention Against Torture to which most countries, including the USA and Afghanistan, are parties.
Unfortunately, there comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which call for extraordinary responses. Faced with very clear legal limits, President Bush stepped back to the 17th Century and acted, in substance, as James I did. He acted as if he could set aside the law and implement his own conception of right. He did so with obliging help from Department of Justice employees.
Suspects who had been rounded up during the war in Afghanistan were taken to the US naval base at Guantanamo Bay, Cuba. There they are held in cages, and are interrogated, humiliated and tortured. They are denied proper legal help. The Bush administration has argued that the American Constitution, and the American courts, have no authority in Guantanamo: that it is a legal black hole.
The basic features of the regime at Guantanamo were founded on an enabling memo from Alberto Gonzales. He advised that President Bush could declare prisoners held at Guantanamo not to be amenable to the protections of the Geneva Convention relating to Treatment of Prisoners of War (the GPW). He identified several points in favour of this position:
· Preserves flexibility:
As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors …
Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
That statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban. …”
The author of the memo is unmistakably urging a path which would facilitate torture of prisoners and protect the torturers from the inconvenience of criminal charges. The author of the memo is now US Attorney-General.
Six months later Mr Jay Bybee wrote another memo to President Bush, which in substances authorises mistreatment of al Quaeda suspects. This memorandum, the existence of which was denied for several years, contains the most startling and convoluted justification of torture imaginable. Its legal reasoning is profoundly flawed. The memo says:
“it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.”
It identifies seven techniques recognised as torture, including severe beatings, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a person to watch the torture of another. It then observes that:
“While we cannot say with certainty that acts falling short of these seven would not constitute torture, . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law…For purely mental pain or suffering to amount to torture, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
Here are some first hand accounts of what has been happening at Guantanamo:
“every day we were stuck in a cage of 2 meters by 2 meters. We were allowed out for 2 minutes a week to have a shower and then returned to the cage. Given the extreme heat, we sweated a lot and the area obviously began to smell. During the day we were forced to sit in the cell (we couldn’t lie down) in total silence. We couldn’t lean on the wire fence or stand up and walk around the cage.”
“very often the guards would refuse to take us to the portaloo outside and therefore people started to use the buckets in the cells. Many of the people [were] … suffering from dysentery … and simply couldn’t wait until the guards decided they would take them to the toilet. … The smell in the cell block was terrible.”
“We had the impression that at the beginning things were not carefully planned but a point came at which you could notice things changing. That appeared to be after General Miller around the end of 2002. That is when short-shackling started, loud music playing in interrogation, shaving beards and hair, putting people in cells naked, taking away people’s ‘comfort’ items, … moving some people every two hours depriving them of sleep, the use of (air conditioning). … After [General Miller] came, people would be kept [in solitary] for months and months and months. We didn’t hear anybody talking about being sexually humiliated or subjected to sexual provocation before General Miller came. After that we did.”
“… This time I was short shackled. I was left squatting for about an hour and then this Bashir came back again and he started questioning me again about the photographs and trying to get me to admit that I was in the photographs. I was telling him that if you check you will find out that I was in England during this time. After a while he left the room and I was left again in the short shackle position for several hours (I think for about 4 hours) before I was eventually taken back to the cells.”
“I was interrogated repeatedly about my presence at this meeting. … I said it wasn’t me but she kept pressing that I should admit it. She was very adamant. She said to me “I’ve put detainees here in isolation for 12 months and eventually they’ve broken. You might as well admit it now so that you don’t have to stay in isolation”.
These statements are all from the Tipton Three: three English boys who went to Afghanistan to give humanitarian aid after the Americans attacked that country. They were eventually released and sent back to Britain: they were never charged with any offence. They were there simply by mistake.
Another person later released because his capture had been “a mistake” was a 99 year old shepherd. He was incontinent. Because of his age and frailty, he could barely hobble around the camp; he was chained to a walking frame. Other inmates reported that he spent much of his time weeping.
Values at risk
It is impossible to reconcile these events with the values which are basic to our democratic system: no arrest without lawful authority (enforced by the ancient writ of habeas corpus); no arbitrary search and seizure; no prision except by authority of law; the presumption of innocence; criminal charges to be proved beyond reasonable doubt; no torture; an assumption (although not a legal right) of privacy. These values can all be traced to the events in 17th century England and equivalent events elsewhere in Europe. It is interesting to remember that most of those excesses arose from the supposed threat presented by unpopular religious beliefs.
It has long been recognised that these basic values, so hard won, are always at risk. In a speech in Boston on 28 January 1852 Wendell Phillips said:
“Eternal vigilance is the price of liberty—power is ever stealing from the many to the few…. The hand entrusted with power becomes … the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity.”
In America, in Australia and elsewhere, there is a retreat from basic values. Pragmatism is emerging as a sufficient justification of measures which, until recently, would have been abhorrent. The dictates of pragmatism can be very appealing, especially to those (always the majority) who take the benefit. In the wake of September 11, Australia and other Western governments introduced draconian anti-terrorist laws. These laws, unprecedented in recent history except in time of war, betray the basic values on which democratic systems are established.
“Anti-terrorism” legislation in Australia
In 2002 the ASIO legislation was amended to permit the incommunicado detention, for a week at time, of people not suspected of any wrong-doing: it is enough if they are thought to have information about others who may have been involved in terrorist offences. The person may be taken into isolated custody, and will not have a free choice of legal help; they will not be permitted to tell friends or family where they are; they must answer questions, or face 5 years imprisonment. When released, they are not permitted to tell anyone where they were or what happened to them, on pain of imprisonment.
In 2005 further anti-terror legislation was introduced.
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 authorises that the person be taken into custody. When the person is taken into custody pursuant to the order, they will not be told the evidence on which the order was obtained: 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).
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 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.
Secrecy provisions prevent publication of the fact that people are held for incommunicado questioning, or held on preventative detention, or the subject of a control order.
Lying behind these draconian laws is something even more sinister: National Security Information (Criminal and Civil Proceedings) Act (2004)) (the NSI Act). It is perhaps the most alarming piece of legislation ever passed by an Australian Parliament in a 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 authorises 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 profound 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 they have a right to challenge the making of the order. However their challenge will be made difficult or impossible if they are prevented from knowing the evidence against them, or if they are prevented from calling other evidence which would qualify or explain the evidence against them.
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 first and 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 1894, Captain Alfred Dreyfus was falsely accused of treason, and wrongly convicted. The heart of the problem was that the trial was held in camera, and documkents were provided to the judges which were withheld from Dreyfus and his counsel, on grounds of national security. The documents were forgeries.
The campaign for Dreyfus’ freedom is still remembered, not least for Emile Zola’s famous newspaper article “J’accuse…” which exposed the appalling nature of the “trial” which convicted Dreyfus. It was many years before justice was finally done: 13 July 2006 marks the centenary of his ultimate exoneration.
It is all too easy to look back on the Dreyfus Affair and imagine that it 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.
In the certificate set out above however, the Attorney-General produces the conditions which led to the wrongful conviction of Alfred Dreyfus in 1894. The applicant who seeks to have his passport restored will face an impossible burden in knowing what evidence must be called, because neither he nor his counsel will be allowed to know the nature of the case against him. And he is a Muslim.
Anti-Semitism no longer exists in any significant measure in Australia, at least not in the virulent form which characterised 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, because of the NSI Act and related legislation.
Fair trials are one of the basic promises of democracy. It is a tragedy that we have abandonned the guarantee 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 concerning UK anti-terrorist laws which allow terror suspects to be held without trial indefinitely. By a majority of 8 to 1 they held that the law impermissibly breached the democratic right to liberty. Lord Hope said that “the right to liberty belongs to each and every individual”. Lord Bingham traced these rights to Magna Carta, and made the point that the struggle for democracy has long focused on the need to protect individual liberty against the might of executive government. Lord Nicholls said:
“Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.”
Lord Hoffman said:
“The real threat to the life of the nation … comes not from terrorism but from laws such as these.”
How much more forcefully could that be said of Australia’s “anti-terror” legislation.
By these laws, the Howard government has betrayed the rule of law in Australia. It has damaged Australian democracy more than any terrorist could. It is the new Terror.
 Julian Burnside QC is a barrister specialising in commercial litigation and human rights. He is the author of Wordwatching, Fieldnotes from an Amateur Philologist Scribe 2004
 Sir Francis Bacon, “Of Studies” in Essays (1625)
 Coke, Reports, XII, 74 f.
 The Third Geneva Convention outlines protections to be extended to prisoners of war. Art. 4 of the Third Geneva Convention defines who is a prisoner of war, and includes . In addition, Art. 5 of the Third Geneva Convention states that “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” The Fourth Geneva Convention outlines protections to be extended to civilians in time of war. Although Art. 5 of the Fourth Geneva Convention recognizes the need to protect state security, it also states that persons suspected of activities hostile to security “shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power” (emphasis added). See also Brief of Professors Ryan Goodman, Derek Jinks, and Anne-Marie Slaughter As Amicus Curiae Supporting Reversal relating to Hamdan v. Rumsfeld, 344 F. Supp. 2D 152 (D.D.C. 2004), rev’d, 415 F.3d 33 (D.C. Cir.), cert. granted, 126 S. Ct. 622 (Nov.
7, 2005), available at http://hamdanvrumsfeld.com/GoodmanJinksSlaughter-FINALHamdamAmicusBrief-Jan52006.pdf (arguing that petitioner Hamdan, a detainee at Guantanamo, is protected by the relevant Geneva Conventions).
 The Bush administration has taken the controversial position that the Third Geneva Convention does not apply to members of Al Qaeda, even those captured during U.S. military operations in Afghanistan. This position is explicated in the government’s brief in the Hamdan case, available at http://www.scotusblog.com/movabletype/archives/Hamdan%20SG%20merits%20brief.pdf
 Geneva Convention III, Articles 13, 17 and 118
 See, e.g. Articles 9, 10 and 14 of the International Covenant on Civil and Political Rights (ICCPR) on the rights of prisoners, detainees, and those accused of crimes. There is extensive domestic U.S. jurisprudence delineating Due Process guaranteed by the 5th and 14th Amendments to the U.S. Constitution, as well as the 6th and 8th Amendments’ specific protections for those accused of crimes. See, e.g. Miranda v. Arizona, 384 U.S. 436 (1966) (14th Amendment right not to answer questions); U.S. v. Cruikshank, 92 U.S. 542 (1875) (6th Amendment right to notice of charges); U.S. v. Salerno, 481 U.S. 739 (1987) (5th and 8th Amendments permit detention without bail only after adversarial hearing determining danger to community); Hutto v. Finney, 437 U.S. 678 (1978) (8th and 14th Amendment right to humane treatment in prisons).
 Article 2.2 of the Convention Against Torture states that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture”. The U.S. 2nd Circuit Court of Appeals has also recognised the prohibition against torture as a customary international norm. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
 The ECOSOC Report on the situation of detainees at Guantanamo bay is available at http://www.ohchr.org/english/bodies/chr/docs/62chr/E.CN.4.2006.120_.pdf
 The U.S. Supreme Court has rejected the administration’s position in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (vacating lower court’s dismissal of habeas with a plurality stating that the 5th Amendment guarantees U.S. citizens the opportunity to dispute “enemy combatant” status in front of a neutral decisionmaker) and Rasul v. Bush, 542 U.S. 466 (2004) (U.S. district courts have jurisdiction to hear habeas petitions from non-citizen prisoners in Guantanamo bay).
 Gonzales at the time was White House Counsel. A scanned copy of the memo dated January 25th, 2002 is available at http://news.lp.findlaw.com/hdocs/docs/torture/gnzls12502mem2gwb.html
 Bybee was Assistant Attorney General at the time. The memo dated August 1st, 2002 is available at http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/doj/bybee80102mem.pdf.
 For example, Bybee’s memo advances a theory of national necessity or self-defense as a justification for those who carry out a policy involving torture of detainees. Besides being contrary to the plain language of the Convention Against Torture, such a theory has been emphatically rejected as a basis for policy decisions by the Israeli Supreme Court in Public Committee Against Torture in Israel v. Israel, HCJ 5100/94; 4054/94; 6536/95; 5188/96; 7563/97; 7628/97; 1043/99, which distinguished such defenses from the defense of necessity in the case of an individual facing criminal charges for torture.
 A copy of the composite statements from Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed (the Tipton Three) was released by the Center For Constitutional Rights and is available at http://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf
 For example
 A (FC) and others (FC) v. Secretary of State for the Home Department  UKHL 56 16 December 2004