Liberalism: a luxury in this time of war?

If we are to credit her latest effort, Janet Albrechtsen believes Islamic terrorism is an enemy almost as deadly as the 20th-century totalitarians, if a little less conventional. On this premise she assembles an argument of sorts that liberalism, with its concern for legal niceties, individual liberty and justice, is a luxury we can no longer afford.

Her first port of call is an episode of West Wing in which the president is troubled by whether he should authorise the assassination of a minister of the government of Qumar (a fictional Arab nation) who in turn moonlights as a terrorist mastermind involved in a foiled attempt to blow up the Golden Gate Bridge. Bartlet suggests they bring him to court. Can’t happen, responds Leo McGarry, the tough-minded chief of staff. He tells the president: “This is the most devastating part of your liberalism. There are no absolutes.”

Albrechtsen clearly doesn’t see the irony in this accusation. It is, after all, precisely Bartlet’s belief in the vital importance of impartial justice and the rule of law that drives his qualms. The true conflict here is between his principled stance and McGarry’s whatever-it-takes pragmatism. The shoddiness of this little line of argument is shown all too clearly a few paragraphs later when she laments the “endless fury” the world has to endure “from those who talk of moral absolutes, refusing to acknowledge the true nature of terrorism and trying to stoke our liberal unease.”

In any case (pursuing her fictional example just a moment longer), were the evidence of guilt so clearcut surely it wouldn’t have been unduly difficult to swing world and UN opinion behind a concerted effort to bring this character to justice. Or at least neutralise him. After all, in those far off days before America managed to so polarise public opinion, even a Le Monde editorial proclaimed “Nous sommes tous Americains”. Our fictional minister could in fact have served as another promotional icon for the west’s cause, a bookend to Bin Laden.

Post 9/11, we live in a world, writes Ms Albrechtsen, where we have no choice but to accept “Interrogations, Guantanamo Bay, military commissions and new anti-terrorism laws aimed at home-grown jihadists . . . “. And, what’s more:

Whichever way you cut it, the civil libertarians do the bidding of terrorists when they cling to the halcyon days of peace without threats. Close down Guantanamo Bay? Excellent news for the infidel killers. Junk the military commission? Even better. Overturn anti-terrorism laws? Great news for those in our suburbs plotting our destruction. Claiming the high moral ground, the Law Council of Australia and its confreres say it’s all done in the name of individual liberty and justice, of course.

There is an unfortunate inference here that the Law Council of Australia and its confreres (which to judge by the submissions to the Senate Inquiry on the Anti-Terrorism Bill 2005 means much of the legal profession in Australia) is hiding some deeper and more nefarious goal beneath its protestations that it’s all about individual liberty and justice. Best we assume that was unintentional, I think. To do otherwise is to put Ms Albrechtsen truly beyond the pale.

As for the anti-terrorism laws, at a Review of ASIO’s Questioning and Detention Powers on May 19, 2005 before the Joint Committee on ASIO, ASIS and DSD, the representatives of ASIO and the Attorney General’s department said when asked that the existing powers were satisfactory, that they were not requesting any additional powers. Indeed, Mr McDonald from the AG’s department went further: “With us, the answer is no as well. In fact, the amendments we included in our submission are about clarifying the powers probably in the direction of the rights of the individual.” Unfortunately, in the wake of the July bombings in London, what drove the proponents of the Anti-Terrorism Bill 2005 was fear and politics. Not a conducive pairing if it’s sound judgement we seek.

What then of Guantanamo Bay and the military commissions? Well, much is made by Albrechtsen of two Supreme Court decisions in the US. Examined in any detail, their import is much less clear than she implies. Indeed, in the case of Hamdan v Rumsfeld, her interpretation borders on misleading. While the court in Hamdi v Rumsfeld did affirm the Executive’s right to detain citizens who qualify as enemy combatants, it did so on a relatively narrow basis. It also expressed concern that in the changed circumstances of a war on terror, the accepted convention that enemy combatants could only be held until hostilities ceased could come to mean indefinite detention, which they agreed was unacceptable. In practice, it deferred any decision on that matter by noting that hostilities were still ongoing with the Taliban. (As an aside, it is the indefiniteness of the detention, the frequent arbitrariness of the means by which the detainees are first acquired and the black hole into which they subsequently sink that so troubles much of the civilised world. Not the age-old notion that enemy combatants can be held for the duration of a specified and definable conflict).

Far more troubling is Albrechtsen’s presentation of the Hamdan v Rumsfeld decision. To read her summary, you’d think the court found for Hamdan simply on the grounds of a minor technicality. She also says “The court held, unanimously, that military commissions are a lawful means of trying and punishing those captured during the war on terror.” It did nothing of the kind. Indeed, its judgement is hard to read as anything but a stinging rebuke to the Government. Consider these few quotes from the opinion delivered by Justice Stevens:

. . . . Recognizing, as we did over a half-century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U. S. 1, 19 (1942), we granted certiorari. 546 U. S. ___ (2005).
For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an âoffens¹ that by . . . the law of war may be tried by military commissions.❠10 U. S. C. §821. (p 2)

and

The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition – at least in the absence of specific congressional authorization – for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (KENNEDY, J., concurring injudgment) (observing that “Guantanamo Bay is . . . far removed from any hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001and the AUMF. That may well be a crime, but it is not an offense that “by the law of war may be tried by military commissio².” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by ExecutiveOrder under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment. (pp 48-49)

Congress did indeed subsequently pass the Military Commissions Act late last year, in response to administration entreaties to overcome by legislative means this Supreme Court judgement. Whether this ought to be regarded as a triumph, as I imagine Ms Albrechtsen would have it, or one of the all time low points of US political and legal history is another matter. As well as legislating for Military Commissions with questionable safeguards, it also did away with habeas corpus for aliens (which in practice means that even citizens could be caught in this Catch-22), provided blanket exemption for all those involved in prior “illegal” activities from any criminal sanction and limited the enforceability of the Geneva Convention. It’ll be fascinating to see whether this act survives the various challenges working their way towards the Supreme Court.

Albrechtsen devotes a remarkable number of words to Khalid Shaikh Mohammed (over a third of the entire piece by my rough estimate) detailing his confession last week, the evidence amassed by US authorities, his complaints, the likelihood that those insufferable liberals will no doubt soon be trotting out “a photo of KSM as an angelic nine-year-old” (I’m assuming this was meant in good fun) and, finally, the great sense of relief she feels that he (and David Hicks of course) are safely confined in Guantanomo Bay.

Quite why incarceration in a Federal prison pending a criminal trial for his no doubt horrendous misdeeds wouldn’t serve the purposes of security quite as well as Gitmo, while preserving some fine centuries old civilised traditions, remains a mystery. Her explanation seems to be some mixture of: “Those who continually cry ‘Too long’ have missed the problem here. There is a war on. Peacetime justice does not work in a time of war” and “Terrorists are not ad hoc robbers planning a bank heist. Their aim is to kill us. Lots of us. Taking them at their word means adjusting our liberalism. Failing that, our liberalism will be our downfall.” Unfortunately, these are assertions, not arguments, and help no more than the rest of the article in resolving this core issue.

Nor, of course, does the article at any point begin to address the even deeper underlying question of why this deserves to be called a war at all. How can one sensibly make war on a concept, a technique, or a way of life? That some thousands of disaffected fighters and radicals have managed (so far) to occasion the expenditure of some US$500 billion, the loss of 3200 killed and 24000 wounded by the US and God knows how many Iraqis, the radicalisation of a good deal of the world that was previously for the most part minding its own business and the jettisoning of not a few of our civil liberties must surely rank as the greatest trade of all time. Bin Laden, if he’s still alive, must be pinching himself.

Nevertheless, Albrechtsen (and her many fellow travellers) persist in the belief that we must wade deeper into this quagmire. Not only that, they feel free to berate those who actually foresaw many or most of the consequences and proposed a more prudent, practical and moral course. Namely extensive, relentless domestic and international policing and intelligence efforts to capture the wrong doers and prevent future terrorist acts, together with amelioration where possible of the ills which provide such fertile ground for the next generation of terrorists.

Not one of her better efforts, I fear.

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