In view of the siege in Sydney by an Islamist terrorist and its tragic end by the killing of two hostages, I’m republishing the following paper that was written on September, 2005.
By Con George-Kotzabasis
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 more gentle with their claims, and attempt to examine them historically and rationally as they stand. They claim that 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 – by ASIO and other security agencies against suspect terrorists and without the latter having recourse to the normal judicial processes that are part and parcel of a just state. They also claim, that 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 akin to wartime than peacetime”. John North, the President of the Law Council says that “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 that there is no certainty that these laws will be effective in preventing a terrorist attack in Australia.
(The quotes above are from Cameron Stewart, The Australian, 17 September 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.
IN TIMES OF WAR LAWS MUST CHANGE
All democratic nations in times of war in the past 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 in some cases mistakes and errors of judgment. 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 only angelic ones, 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 other option but to take these less than perfect hard measures that have a high probability of protecting its 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. For example, if there is a spate of housebreaking, parliament has to legislate the appropriate, but not too-harsh laws that could deter this criminal activity from occurring – by jailing the culprits for a short time. If on the other hand, like New York few years ago, when a spate of robberies and murders were occurring which posed a greater threat to the residents of a city than housebreaking, the government would have to pass harsher laws, if it seriously wanted to prevent these ‘deadly muggings’ from happening, such as those with the ‘zero tolerance’ passed by the former mayor of New York, Guiliani. 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 that is 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. (A clear example of this were the zero tolerance laws that were enforced in New York. At the time there was a volcanic eruption of protests from civil libertarians that these laws were inhumane, unjust, and ignoble, and that they would be totally ineffective as a deterrent to crime. Their success however, in substantially diminishing crime within a short time, proved its critics to be totally wrong.)
This indeterminacy and unpredictability of all human laws, unlike the physical laws of gravity, in regards to their success against lawbreakers, is moreover augmented, to the highest degree when a government has to legislate laws against a ‘consortium’ of religious fanatics whose mode of operation has the speed and randomness of quicksilver and whose goal is the destruction of civilised society by the barbaric and ruthless use of weapons of mass destruction, including nuclear ones, against it. The legislators of these laws that could forestall such lethal terrorist attacks must be aware that all such attacks in the eyes of these fanatics are ‘pushed’ by the breath of Allah. Hence, the most impossible action(s) fantastically imagined, in the context of such apocalyptic fanaticism, becomes an alarming reality. Muslim fanatic terrorism, has no rational concrete political or social goals, despite its propagandistic pronouncements to the contrary, which are merely a fig-leaf of their real intentions, but only the eschatological goal of destroying decadent Western civilisation. In such circumstances, laws that could be effective against criminal activity would be totally ineffective against zealots who are guided solely by the laws of God. Hence, one of the most fundamental elements of law, the deterring factor, is completely useless against these fanatics. And this is the reason why the government has to legislate a new generation of laws that would have a chance to be effective against god’s outlaws.
In the passing of such legislation however, one has to make a distinction between hardcore terrorists and would-be terrorists. The latter have not reached the point of no return of the fanatics. And either because of fear of what would happen to themselves or to their families, they could be constrained by laws, from entering the gates of hell of active terrorism. This is why the anti-terror laws must be composed of both a ‘safe-haven’ and a ‘purgatory’: a safe-haven for those Muslim fundamentalists that can be promptly rehabilitated, and a purgatory for those inveterate and pathological fanatics, whose ‘rehabilitation’ can only be accomplished, if ever, inside the gates of Infinite Paradise.
To the raw suspect recruits of would-be terrorists, the applied laws must have provisions that they are not going to be treated too harshly, thus leaving them an opening, a safe-haven, to rescue themselves from the relentless squeeze of the vice of the law that would apply to the hardcore fanatics, either as suspects of being active terrorists or as suspects who propagate and incite terrorism – as some of the fundamentalist imams and teachers in Islamic schools do among their followers. To these imams and mentors who actively or by intent engage in seditious activities and the incitement of a holy war against ourselves and our allies, who are also waging war on global terror, the purgatory of deportation, detention, and imprisonment should remorselessly apply. This is where the deterring factor of the law lies against these votaries of fanaticism -in the concrete rigorous harsh application of the laws against them and not in their abstract state as a threat.
This clear distinction of how to deal with the hardcore fanatics in contrast to their greenhorn recruits, has the great potential to sever the association of the latter from the former, and hence ‘dry’ the pool from which the fundamentalist mentors of a holy war against the West get their recruits. And by ‘deporting’ and ‘clinking’ their perfidious activities the government will effectively disable them from continuing to be the incubators of terror in this country.
The government must not be constrained by any ‘legal-niceties’ or illusions in the enactment of the anti-terror laws. The latter must correspond to the great threat that external and home-grown terrorism pose to the country. And the curtain has fallen on all discussions, deliberations, and debates about the causes and ideological roots of terrorism. When someone is ready to stab you to death, you don’t restrain his action by parleying with him about the causes that made him an assassin. This is the time for action. The government must take no heed of the animadversions and subterfuges of the civil libertarians. All their assertions are no more than a marivaudage, a sophisticated banter, about this grave and deadly serious issue. In its enactment of these anti-terror laws, it must be solely governed by its historical duty to ordain this imperative legislation to protect Australia.