Intelligence design
David Marr, in his SMH comment today, hits the nail on the head. (http://www.smh.com.au/news/opinion/the-agenda-lurking-in-the-shadows/2005/10/23/1130006000096.html) Excerpts follow, with added emphasis, comment, etc.:
"I can't say I know every corner of every James Bond movie, but I'm sure I've never seen him in court swearing to tell the truth, the whole truth and nothing but the truth [let alone get a warrant or show a badge]. With its budget already tripled since September 11, 2001, ASIO is now to have its staff doubled again. It will have all the resources it needs, said John Howard. "It remains the very strong view of the Government - it's a view I believe that is very strongly supported in the community - that the best weapon in the fight against terrorism is good intelligence."
"He's absolutely right. And the 900 fresh staff ASIO recruits over the next five years will be trained to gather that intelligence. Note: intelligence not evidence. The two aren't the same. They have different disciplines, different weight and different purposes.
"Intelligence lives in the shadows. It's used to warn. Evidence must survive court scrutiny in the ordinary light of day - because it is used to punish. Howard's Anti-Terrorism Bill 2005 is designed to blur the distinction between the two and sidestep the old and embarrassing problem that even highly touted intelligence so often turns out to be useless when it's brought into court. [And so often wrong when it's brought to scrutiny; think weapons of mass destruction, babies thrown overboard.]
"The faults of Howard's bill have been fiercely condemned, yet there's been little focus on its underlying purpose. It has nothing to do with gathering good intelligence. It's essentially about punishment - not on evidence tested before a court, but on intelligence in the hands of police and ASIO officers.
"Howard is selling his bill as if it were designed just to keep an eye on troublemakers. But a fortnight's "preventive" detention in the slammer is punishment in anyone's language. And the control orders Howard has in mind have a precedent in NSW where home detention and electronic shackles exist as an alternative punishment to prison - but only after trial and conviction.
"I can't say I know every corner of every James Bond movie, but I'm sure I've never seen him in court swearing to tell the truth, the whole truth and nothing but the truth [let alone get a warrant or show a badge]. With its budget already tripled since September 11, 2001, ASIO is now to have its staff doubled again. It will have all the resources it needs, said John Howard. "It remains the very strong view of the Government - it's a view I believe that is very strongly supported in the community - that the best weapon in the fight against terrorism is good intelligence.""He's absolutely right. And the 900 fresh staff ASIO recruits over the next five years will be trained to gather that intelligence. Note: intelligence not evidence. The two aren't the same. They have different disciplines, different weight and different purposes.
"Intelligence lives in the shadows. It's used to warn. Evidence must survive court scrutiny in the ordinary light of day - because it is used to punish. Howard's Anti-Terrorism Bill 2005 is designed to blur the distinction between the two and sidestep the old and embarrassing problem that even highly touted intelligence so often turns out to be useless when it's brought into court. [And so often wrong when it's brought to scrutiny; think weapons of mass destruction, babies thrown overboard.]
"The faults of Howard's bill have been fiercely condemned, yet there's been little focus on its underlying purpose. It has nothing to do with gathering good intelligence. It's essentially about punishment - not on evidence tested before a court, but on intelligence in the hands of police and ASIO officers.
"Howard is selling his bill as if it were designed just to keep an eye on troublemakers. But a fortnight's "preventive" detention in the slammer is punishment in anyone's language. And the control orders Howard has in mind have a precedent in NSW where home detention and electronic shackles exist as an alternative punishment to prison - but only after trial and conviction.
"Howard's anti-terrorism laws provide no such old-fashioned formalities. Home detention - perhaps indefinitely - will be imposed without any trial at all. And because they will never necessarily know why their lives have been turned upside down, the detainees will never be able to contest their punishment effectively. Everything [from the first decsion to surveil to the decision to detain] will be decided behind their backs [and the backs of the courts and press and the parliament].
"The subterranean argument here is that in this changed, post-September 11, 2001 world, the courts should step aside [more like be shoved aside] and let the intelligence services get on with their work [which would have the expanded role from being collectors of information to being arbitors of it and judge, jury and hangman]. But the question has to be asked: how much protection do we really get from intelligence that doesn't come up to scratch in court?
"Take Faheem Lodhi's case. He faces a number of serious terrorist [that word "terrorist" again; why not charges of conspiracy to commit murder, arson, etc.?] charges after being caught downloading maps of the electricity grid, collecting aerial photographs of military installations in Sydney, inquiring after chemicals and hoarding a huge quantity of toilet paper which the prosecution claims is capable of producing nitrocellulose. To prove terrorism was afoot, the prosecution produced four overseas witnesses linking Lodhi to the training camps of Lashkar-e-Toiba in Pakistan. One of the witnesses giving evidence by video link from the United States revealed under cross-examination that he had only confessed [?] his own involvement with Lashkar-e-Toiba after being held without charge for four weeks in solitary confinement in Saudi Arabia, where he was regularly interrogated before being handed over to the FBI, who stripped him, photographed his genitals, put him in irons and dark goggles and flew him to Washington. He confessed [sic] on the flight.
"Lodhi still faces a power of trouble when his trial opens in the NSW Supreme Court in February. But the witnesses provided by foreign intelligence services have not lived up to expectations. One of them, being held without charge in Singapore under the island's draconian national security legislation, has been dropped entirely by the prosecution after Boulten savaged his credibility. Is the problem here, the finicky and old-fashioned requirements of our courts or the low standards of intelligence services, especially foreign intelligence services, in our region?
"Our courts won't use evidence extracted by torture [in more technical parlance, the fruit of torture is not evidentiary at all -- it is simply not reliable, otherwise it would be "evidence"]. Hearsay is the lifeblood of intelligence services all over the world, but that sort of second- or third-hand testimony is almost useless in court.
"None of these rules prevent intelligence - foreign and local - being used to protect Australia from terrorism. But they do protect Australians from unjust punishment. The parallel punishment regime in Howard's Anti-Terrorism Bill is designed to lower the bar. No one who has read a little history can happily face the prospect of the dictator's favourite - house arrest - becoming part of life here."
"We may think all lawyers are venal old windbags but it says something that the only lawyers defending Howard's plans are those employed by the Government. And where are Labor's lawyers? Pathetically silent, left quibbling over 007's licence to kill."
And it is the idea that we can dispense with judgment and move straight and secretively to punishment that turns our democractic ideal of presumption of innocence, our ancient right of habeas corpus, on its head. At the very least, any such fundamental reversal of long held beliefs should be tested by transparent, open and fair debate, and a specific vote of the entire electorate.
As an aside, I note Moir's opinion cartoon today puts John Howard atop a guard tower, on alert for signs of terrorists, not unlike my analogy in my last post. (http://guambatstew.blogspot.com/2005/10/as-i-see-it-john-howard-is-terrorist.html). I have used for the watchtower imagery above a picture of the tower at Port Arthur, in Tasmania. Port Arthur was where a deranged man slaughtered over 30 people just a few years back. More than all the Australian's killed in the last Bali bombing. In the aftermath of that shooting, a hue and cry arose, but John Howared enacted no serious gun control or other new laws to deal with such an outrage. Instead, they got the gunman and locked him up. And we moved on.
Having done that last post, bye the way, I mentioned to my wonderfully apolitical wife what I had said. She lives sublimely in her world of art, beauty, home, pets, family and magic. She was honestly shocked and concerned I would say such a thing. She asked me, in all innocence, "can you say such a thing. Do they let you have such thoughts?" In her world it has already sunk in that the government does not want us to go there and it is dangerous for us to even contemplate doing so. Now that's very scary. Holey moley!
"The subterranean argument here is that in this changed, post-September 11, 2001 world, the courts should step aside [more like be shoved aside] and let the intelligence services get on with their work [which would have the expanded role from being collectors of information to being arbitors of it and judge, jury and hangman]. But the question has to be asked: how much protection do we really get from intelligence that doesn't come up to scratch in court?
"Take Faheem Lodhi's case. He faces a number of serious terrorist [that word "terrorist" again; why not charges of conspiracy to commit murder, arson, etc.?] charges after being caught downloading maps of the electricity grid, collecting aerial photographs of military installations in Sydney, inquiring after chemicals and hoarding a huge quantity of toilet paper which the prosecution claims is capable of producing nitrocellulose. To prove terrorism was afoot, the prosecution produced four overseas witnesses linking Lodhi to the training camps of Lashkar-e-Toiba in Pakistan. One of the witnesses giving evidence by video link from the United States revealed under cross-examination that he had only confessed [?] his own involvement with Lashkar-e-Toiba after being held without charge for four weeks in solitary confinement in Saudi Arabia, where he was regularly interrogated before being handed over to the FBI, who stripped him, photographed his genitals, put him in irons and dark goggles and flew him to Washington. He confessed [sic] on the flight.
"Lodhi still faces a power of trouble when his trial opens in the NSW Supreme Court in February. But the witnesses provided by foreign intelligence services have not lived up to expectations. One of them, being held without charge in Singapore under the island's draconian national security legislation, has been dropped entirely by the prosecution after Boulten savaged his credibility. Is the problem here, the finicky and old-fashioned requirements of our courts or the low standards of intelligence services, especially foreign intelligence services, in our region?
"Our courts won't use evidence extracted by torture [in more technical parlance, the fruit of torture is not evidentiary at all -- it is simply not reliable, otherwise it would be "evidence"]. Hearsay is the lifeblood of intelligence services all over the world, but that sort of second- or third-hand testimony is almost useless in court.
"None of these rules prevent intelligence - foreign and local - being used to protect Australia from terrorism. But they do protect Australians from unjust punishment. The parallel punishment regime in Howard's Anti-Terrorism Bill is designed to lower the bar. No one who has read a little history can happily face the prospect of the dictator's favourite - house arrest - becoming part of life here."
"We may think all lawyers are venal old windbags but it says something that the only lawyers defending Howard's plans are those employed by the Government. And where are Labor's lawyers? Pathetically silent, left quibbling over 007's licence to kill."
And it is the idea that we can dispense with judgment and move straight and secretively to punishment that turns our democractic ideal of presumption of innocence, our ancient right of habeas corpus, on its head. At the very least, any such fundamental reversal of long held beliefs should be tested by transparent, open and fair debate, and a specific vote of the entire electorate.
As an aside, I note Moir's opinion cartoon today puts John Howard atop a guard tower, on alert for signs of terrorists, not unlike my analogy in my last post. (http://guambatstew.blogspot.com/2005/10/as-i-see-it-john-howard-is-terrorist.html). I have used for the watchtower imagery above a picture of the tower at Port Arthur, in Tasmania. Port Arthur was where a deranged man slaughtered over 30 people just a few years back. More than all the Australian's killed in the last Bali bombing. In the aftermath of that shooting, a hue and cry arose, but John Howared enacted no serious gun control or other new laws to deal with such an outrage. Instead, they got the gunman and locked him up. And we moved on.
Having done that last post, bye the way, I mentioned to my wonderfully apolitical wife what I had said. She lives sublimely in her world of art, beauty, home, pets, family and magic. She was honestly shocked and concerned I would say such a thing. She asked me, in all innocence, "can you say such a thing. Do they let you have such thoughts?" In her world it has already sunk in that the government does not want us to go there and it is dangerous for us to even contemplate doing so. Now that's very scary. Holey moley!
Labels: Civil liberties, Legal, Politics of fear
posted by Guambat Stew at Monday, October 24, 2005
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