Fighting Tyranny with Tyranny

In her column for The Australian last week, Janet Albrechtsen identified the three main changes in Western thinking after September 11.

One of those changes is ‘how we view human rights.’ No doubt the constraints of a newspaper column prevent her from developing a nuanced argument, but the thrust of the argument seems to be that civil libertarians are ‘useful idiots’ who approach the law with a ‘Pollyanna mindset.’

The point is too important to pass without comment.

Anyone who works in the area of human rights is accustomed, these days, to being vilified or derided. No problem there: I am sure we make easy targets for pot shots. However, Albrechtsen fires her shots on the false assumption that civil libertarians do not like laws aimed at preventing terrorism. The truth is far more subtle.

Self-evidently, it is important to prevent crime and preserve public safety: it is a principal function of law and the legal system.

Equally, human rights are important. The modern push for human rights was a direct response to the atrocities of the Holocaust it is not a trivial idea. In the aftermath of World War II, the nations of the world began to take seriously the ideal of protecting human rights.

The real problem post-September 11, as always, is how to strike a balance between the competing demands of those two important ideals. To what extent should human rights be sacrificed in order to increase public safety? It is not an easy question.

The nature of the problem can be illustrated by stepping away from terrorism for a moment. Child abuse and domestic violence are two real and terrible forms of criminal conduct. They are relatively common in Australia, as in other countries. They are offences usually committed in the home, and there is a very powerful and effective way of protecting society from those crimes. If closed circuit TV (CCTV) cameras were installed in every room of every home in Australia and monitored centrally, child abuse and domestic violence would reduce dramatically.

The real question is: are we prepared to sacrifice our privacy (one of the standards in any modern list of human rights) in order to achieve a real advance in crime prevention? I suspect that most people would answer, ‘No.’

To reject universal CCTV is not to approve of child abuse and domestic violence. It is a result of balancing two important, competing interests.

Thanks to Sharyn Raggett

A little closer to the immediate problem is Guantánamo Bay. President George W Bush defended the use of Guantánamo Bay with the adventurous generalisation that the people there were ‘terrorists and killers and people who hate freedom.’

Let us be clear about Guantánamo: people held there have been denied all of the basic rights of criminal suspects or prisoners of war; they have been subject to treatment that is not lawful even in the case of convicted criminals.

We do not know if they are terrorists or killers, because they have not been tried. If they are truly terrorists and killers, some people might think that their rights can be sacrificed in order to secure our own safety. I think it is a poor argument, but it looks much less convincing when it is revealed that more than half of the people held there were innocent after all and have now been released.

One of the people released from Guantánamo Bay because his capture had been a mistake was a 99-year-old Afghani shepherd. He was blind, lame and incontinent. Because of his age and frailty, he could barely hobble around the camp. He spent two years in Guantánamo shackled to his walking frame. Other inmates reported that he spent most of his time weeping in distress and confusion.

How is the treatment of this man to be justified? Some people are not convinced that the treatment he received was a reasonable price to pay, ostensibly for our security. If Janet Albrechtsen had the misfortune to be locked up, by mistake, without trial, for a couple of years, she may not think it a reasonable price to pay either. And locking up innocent people does nothing to improve our safety.

In another case, in 2002, Syrian-born Canadian citizen Maher Arar was detained by US immigration officials during a stopover in New York, on suspicion of connections to al-Qaeda. Arar was deported to Syria and held in solitary confinement in a Syrian prison for 10 and a half months where he was regularly tortured . He was eventually released and returned to Canada in October 2003 . A Canadian Inquiry into the Arar case, which concluded this week, absolved Arar of any suspicion of terrorist activity.

To be concerned about these things should not be dismissed as a Pollyanna view of the world.

Unfortunately, Albrechtsen’s view seems to be this: we will sacrifice the rights of others to make ourselves safer. This involves the unstated middle step that my human rights are more important than yours; or that human rights are only for us and our friends, not for people we do not know or like. This kind of thinking has been used to justify the worst human rights abuses in history.

The recent Australian laws permitting Control Orders and Preventative Detention raise the same difficulty. Both have the worthwhile aim of minimising the risk of a terrorist attack. But both involve the making of secret orders on secret evidence. Until we eliminate the capacity for human error, this is a recipe for serious abuses of human rights, including the wrongful jailing of innocent people.

The hard-won principles of the justice system should not be sacrificed lightly. They are the principles that emerged over centuries as we freed ourselves from tyranny; they should not be thrown away in the fight against tyranny.

Similarly, ASIO has been given power to hold people incommunicado for up to a week at a time, and require them to answer questions on pain of five years jail. They face two years jail if they disclose that they have been held and interrogated by ASIO. This law applies to people who are not suspected of any offence. To be concerned that innocent people can be legally ‘disappeared’ for a week at a time is not a sign of idiocy.

It is a pity that Janet Albrechtsen squanders her intelligence by dealing only with the easy parts of the problem, while leaving the real difficulties untouched and unnoticed. She avoids the central questions, which are difficult and important, and takes cheap shots at those of us who would examine more closely the price we are paying in the ‘war against terrorism.’

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