Protecting the freedoms of the dead

The anti-terror laws proposed by the Howard Government have brought in their wake the civil libertarians' nightmares - that these laws will destroy civil liberties, freedom of speech and assembly, and eventually and irreparably erode the values of our democratic state. The nightmarish shadow of ASIO and its spooks will forebodingly spread and pervade all parts of our society, and no institution or person will be safe from the horrid intrusions of its ghostly agents. Hence, according to the libertarians' “apparitional” thinking, the offspring of these laws will be a police state.

But how real are these ugly images - read as concerns of the civil libertarians - beyond the tarot cards of their predictions, and what is the probability that they could change the democratic fabric of our society so drastically, resulting in people losing their civil liberties? It's in the adversarial response of the critics to these proposed anti-terror laws that the answer to the above question lies.

The point d'appui upon which the critics of these laws rest their case is fear. But a one-sided fear - the fear that these laws will deprive us of our freedoms - that totally disregards the other greater fear posed by the terrorists, which will deprive us of our lives. Thus, the libertarians' protection of freedom, is the protection of the freedom of the dead.

Let us however be gentler with their claims, and attempt to examine them historically and rationally as they stand. They claim the anti-terror laws will be implemented in an unfettered and shadowy way - without oversight or legal scrutiny by parliament or any other relevant authority. ASIO and other security agencies will move against suspect terrorists without the latter having recourse to the normal judicial processes that are part and parcel of a just state.

They also claim these laws "can be used to deal with a range of issues beyond terrorism" and hence open the backdoor to a police state. Furthermore, they are unprecedented in their sweep, such as "preventative detention of suspects" - stripping them of their citizenship and deporting them, "legal powers (more) akin to wartime than peacetime".

John North, the president of the Law Council says, "these laws may bring us in danger of capitulating to terrorists, because they would have achieved their objective". Maybe we should capitulate to weakness and not pass these laws and hence get bombed, which is the ultimate objective of the terrorists. This seems to be less of a danger to Mr North. And they assert there is no certainty that these laws will be effective in preventing a terrorist attack in Australia. (These quotes are from Cameron Stewart in The Australian, September 17, 2005.)

This is no more than an ardent attempt by the civil libertarians to demolish the rationale and effectiveness of these laws by employing, as above, subterfuge, legal and philosophical abstractions and scarecrows to make their case. They are unwilling to use concrete historical evidence to make their argument (maybe because such evidence would have been detrimental to their claims) or reason, since the premise of their position is founded on the emotion of fear.

All democratic nations in times of war in the past have had to pass legislation that enforced censorship and the detention of suspects propagating and promoting seditious action. And the laws issuing from such legislation had to be applied rigorously against any suspects who could organise themselves into a fifth column within a country at war. But the historically conclusive evidence is that in democratic societies as soon as the war ended, these laws ceased to apply and once again society returned to its former normal state.

Undoubtedly, during the application of these laws, mistakes and indeed, abuses, were made and some individuals apprehended or incarcerated were entirely innocent. But the scale of the operation and application of these injunctions were so great that it would have been impossible to execute them without making mistakes and errors of judgment in some cases. No human action on any gigantic scale, as for example in war, can ever be error-free. To expect that one could achieve one's goals on such a wide range without human fallibility playing an acting role, both in the mental and moral spheres, is to expect a play about the Fall of Man without any human actors, but with only angels in it.

The human condition is a state of irremediable imperfection. But despite this grim fact, the evolution of human nature has not stopped at its amoebic stage. In the irreversible Darwinian process of the survival of the fittest, the human species had to continuously develop new and more perfect means for its survival. Although these means were far from perfect in a divine sense, they were good enough for its earthly existence. The anti-terrorist laws are in this category of “good enough”.

Australia, being at war, has no option but to take these less than perfect hard measures that have a high probability of protecting citizens from a home-grown terrorist attack. However, the premise upon which any wise legislation or enactment of laws rest, is that these laws must be commensurate to the threat(s) that emanates from illegal action.

Furthermore, because of haphazardness and uncertainty, which is the shadow of all human action, one can never be sure that any laws passed will be completely effective in deterring people from engaging in illegal activities. Nonetheless, despite this ineradicable element of chance implanted in all laws, no government can eschew or excuse itself from the responsibility of taking the appropriate punitive measures that have a high probability of being successful against criminal conduct.