Australian Civil Liberties Union

Your Rights 2004

Chapter 27


Extended Victorian Police powers - A permit to snoop
The West is restricting freedom in response to terror - Is this the end of democracy?


A permit to snoop Ian Haberfield,  Sunday Herald Sun, April 11, 2004,5478,9242382%255E2862,00.html

VICTORIAN police will be given unprecedented powers to use electronic bugs and false identities to infiltrate the criminal underworld and terror groups.

Attorney-General Rob Hulls said that new laws, expected to be passed in the current session of State Parliament, would allow undercover police to use fake Commonwealth documents including passports, tax-file numbers, Medicare numbers and birth certificates.

Mr Hulls said that under the new laws, police officers and informants would be indemnified for offences committed while taking part in controlled operations against members of crime gangs and terrorists.

He said police powers would be extended, for the first time, to allow police to operate in other jurisdictions and pursue criminals across borders. The Surveillance Devices Act would also be amended to allow police increased use of listening devices, even if it was not possible to identify suspects.

Mr Hulls said the Crimes (Controlled Operations) Bill, Crimes (Assumed Identities) Bill, and Surveillance Devices (Amendment) Bill would strengthen undercover operations and the use of surveillance devices in cross-border operations.

"The aim of these new laws is to make it easier for police to carry out major crime investigations across multiple jurisdictions," he said.

"And we are currently working with Victoria Police to make the laws even easier for enforcement officers to use. We want to remove the obstacles and inefficiencies police can encounter when investigating serious organised crime and terrorism, because major crime knows no boundaries.

"This legislation is part of a package of reforms by the Bracks Government to keep our streets safe from organised crime and terrorism."

Mr Hulls said the legislation had been agreed to at a recent meeting of representatives from the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council.

He said the Crimes (Controlled Operations) Bill would regulate undercover investigations in which an operative concealed his or her identity to get close to people suspected of being involved in organised crime or terrorism.

"Victoria's current regime for handling controlled operations is piecemeal. We can experience delays and loss of evidence when an operation crosses over state boundaries because of the need to obtain authority to carry out a controlled operation in each jurisdiction," he said.

"The Controlled Operations Bill gives the Deputy Commissioner of Victoria Police the new power to authorise cross-border controlled operations."

Mr Hulls said the Assumed Identities Bill would regulate investigations where police acquire and use false identities and identity documentation during an operation.

"Assumed identities give protection to undercover operatives engaged in investigating crimes and gathering evidence," he said.

"For their own safety, undercover operatives need to be able to substantiate their identity with proper identification documents.

"Currently, there is no legislative framework for assumed identities and they carry no weight in other jurisdictions. This new legislation sets up a regime to guard against the illegal use of assumed identities and allows for assumed identities to be valid in other jurisdictions."

Mr Hulls said the Surveillance Devices (Amendment) Bill would allow police to track criminals across state borders.

"Currently, all a crook or terrorist has to do to render useless a Victorian surveillance device placed on, say, a car, is drive across the border," he said. "The Surveillance Devices (Amendment) Bill will put an end to that bureaucratic anomaly.

"The Bill creates a regime for the use of cross-border surveillance device warrants, reducing the delays and inefficiencies that occur when an investigation unexpectedly crosses into another state or territory."




Is this the end of democracy? Richard Rorty, 27 April, 2004, The Age

The West is restricting freedom in response to terror. We must not acquiesce, writes Richard Rorty.

Europe is coming to grips with the fact that al-Qaeda's opponent is the West, not just America. The interior ministers of the EU nations have been holding meetings to co-ordinate anti-terrorist measures. The outcome of these meetings is likely to determine how many of their civil liberties Europeans will have to sacrifice.

We can be grateful that the recent terrorist attack in Madrid involved only conventional explosives. Within a year or two, suitcase-sized nuclear weapons may be commercially available. Eager customers will include not only rich playboys like Osama bin Laden but the leaders of various irredentist movements that have metamorphosed into well-financed criminal gangs. Once such weapons are used in Europe, whatever measures the interior ministers have previously agreed to propose will seem inadequate. They will hold another meeting, at which they will agree on more draconian measures.

If terrorists do get their hands on nuclear weapons, the most momentous result will not be the deaths of hundreds of thousands of innocent people. It will be the fact that all the democracies will have to place themselves on a permanent war footing.

The measures their governments will consider it necessary to impose are likely to bring about the end of many of the socio-political institutions that emerged in Europe and North America in the past two centuries. They may return the West to something like feudalism.

The actions of the Bush Administration since September 11 have caused many Americans to think of the war on terrorism as potentially more dangerous than terrorism itself, even if it entailed nuclear explosions in many Western cities. If the direct effects of terrorism were all we had to worry about, their thinking goes, there would be no reason to fear that democratic institutions would not survive. After all, equivalent amounts of death and destruction caused by natural disasters would not threaten those institutions. If there were a sudden shift of tectonic plates that caused skyscrapers to collapse all around the Pacific Rim, hundreds of thousands of people would die within minutes. But the emergency powers claimed by governments would be temporary and local.

It is only in the US that the Government has proclaimed a permanent state of war, and had that claim taken seriously. In a worst-case scenario, historians will have to explain why the golden age of democracy lasted only about 200 years.Yet if much less severe damage occurred as a result of terrorism, the officials charged with national security, those who bear the responsibility for preventing further attacks, will probably think it necessary to end the rule of law, as well as the responsiveness of governments to public opinion. Politicians and bureaucrats will strive to outdo one another in proposing outrageous measures. The rage felt when immense suffering is caused by human agency rather than by forces of nature will probably lead the public to accept these measures.

The result would not be a fascist putsch, but rather a cascade of government actions that would, in the course of a few years, bring about a fundamental change in the conditions of social life in the West.

The courts would be brushed aside, and the judiciary would lose its independence. Regional military commanders would be given the kind of authority that once belonged to locally elected officials. The media would be coerced into leaving protests against government decisions unreported.

Fear of such developments is, of course, more common among Americans like me than among Europeans. For it is only in the US that the Government has proclaimed a permanent state of war, and had that claim taken seriously by the citizens. Christopher Hitchens has jeeringly said that many American leftists are more afraid of Attorney-General John Ashcroft than they are of Osama bin Laden. I am exactly the sort of person Hitchens has in mind. Ever since the White House rammed the USA Patriot Act through Congress, I have spent more time worrying about what my Government will do than about what the terrorists will do.

The Patriot Act was a very complex omnium gatherum, hundreds of pages long. Like its British analogue, the Anti-Terrorism, Crime and Security Act, it was rushed through after September 11. Both pieces of legislation were probably drawn up simply by asking the security agencies to list the restrictions they found most inconvenient. We shall soon learn whether the Madrid bombings trigger the same sort of reaction by all or most of the governments of the EU.

I don't think the Bush Administration is filled with power-hungry crypto-fascists. Neither are the German or Spanish or British governments. But I do think the end of the rule of law could come about almost inadvertently through the sheer momentum of the institutional changes that are likely to be made in the name of the war on terrorism.

If there were a dozen successful terrorist attacks on European capitals, and if some of them used nuclear, biological or chemical weapons, the military and the national security bureaucracies in all the European countries would, almost inevitably, be granted powers that they had not previously wielded.

The public would find this fitting and proper. Local police forces would probably start working on instructions from the national capital. Any criticism by the media would be seen by the government as a source of aid and comfort to terrorism. European ministers of justice would echo Ashcroft's reply to critics of the Patriot Act. "To those who scare peace-loving people with phantoms of lost liberty," Ashcroft said, "my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve."

Such developments would gradually reduce the effectiveness of the various institutions that have made it possible for public opinion to influence the actions of democratic governments. At the end of this process of erosion, democracy would have been replaced by something quite different. This would probably be neither military dictatorship nor Orwellian totalitarianism, but rather a relatively benevolent despotism.

That sort of power structure survived the end of the Soviet Union and is now resolidifying under Vladimir Putin and his fellow KGB alumni. The same structure seems to be taking shape in China and in South-East Asia.

In countries run in this way, public opinion does not greatly matter. Elections may still be held, but opposition parties are not allowed to pose any serious threat to the powers that be. Careers are less open to talent, and more dependent on connections with powerful persons. Since the courts and the police review boards are relatively powerless, it is often necessary for shopkeepers to pay protection money to the police, or to criminals tolerated by the police, to stay in business. It is dangerous for citizens to complain about corruption or abuse of power by public officials. High culture is restricted to areas that are irrelevant to politics (as it was in the Soviet Union, and still is in China). No more uncensored media. No more student demonstrations. Not much in the way of civil society.

Life for much of the world would not be greatly changed if the dismal scenario I have just outlined were to play out in the West. For in the poor countries most of society has always been, and still is, organised along feudal lines. In north-east Brazil, as in the villages of equatorial Africa and Central Asia, nobody would notice that the world had changed, that a light had gone out. But in the countries in which the greatest moral progress has been made, that progress would cease. After a few generations, utopian fantasies of an open society might be cherished only by a few readers of old books.

Is there anything the citizens of the West can do to make it less likely that their grandchildren will live under the sort of neo-feudalism I have described? The only thing I can think of that might make a difference is a willingness to challenge the culture of government secrecy.

Demands for government openness should start in the areas of nuclear weaponry and of intelligence-gathering - the places where the post-World War II obsession with secrecy began.

As a first step, the citizenry could demand that their governments publish the facts about their stockpiles of weapons of mass destruction. Then they might insist that these governments make public the details of two sets of planned responses: one to the use of such weapons by other governments, and another for their use by criminal gangs such as al-Qaeda.

They could also demand that their governments join in efforts to update the laws of war, and to create something like a code of international criminal justice. As many legal scholars have been pointing out since September 11, the laws of war were designed to cover the acts of national governments. Criminal law was intended to deal with acts committed within a nation's borders by its own citizens.

There are plenty of grey areas where neither sort of law applies. In these areas, governments are now pretty much free to do as they please: to parachute hit squads into Third World countries in which terrorists are thought to be holding meetings, to bring about regime change in nations suspected of supporting terrorists, and so on. There is not much point in saying that such actions are against international law: they may prove to be the only way of preventing, for example, nerve gas in the London Underground.

Updated laws, openly agreed on by international bodies and adopted, after debate, by national governments, would specify when such actions were legitimate. Such updating would provide a good occasion to draw up new multilateral agreements, and to think about using the United Nations for new purposes.

If Western governments were made to disclose and discuss what they plan to do in various sorts of emergency, it would at least be slightly harder for demagogic leaders to argue that the most recent attack justifies their doing whatever they like. Crises are less likely to produce institutional change, and to have unpredictable results, if they have been foreseen and discussed.

Open discussion of needed changes in international law should be accompanied by a new openness about many other topics. There is no good reason why the governments of France, Britain, the US and Israel should not inform their citizens about the nuclear devices they have in stock. Nor is there any reason not to disclose the full history of the development of chemical and biological weapons. It is time for the public to be shown the texts of the agreements between governments that have made it possible to girdle the globe with more than 700 US military bases. There was little enough reason for refusing to make this sort of information public even when the Cold War was at its height. It is hard to imagine what help its disclosure could give to the terrorists.

The progress humanity made in the 19th and 20th centuries was largely due to the increased role of public opinion in determining government policies. But the lack of public concern about government secrecy has, in the past 60 years, created a new political culture in each of the democracies. In the US and in many EU countries an elite has come to believe it cannot carry out its mission of providing national security if its preparations are carried out in public. The events of September 11 greatly strengthened this conviction. Further attacks are likely to persuade those elites they must destroy democracy in order to save it.

In a worst-case scenario, historians will someday have to explain why the golden age of Western democracy lasted only about 200 years. The saddest pages in their books are likely to be those in which they describe how the citizens of the democracies, by their craven acquiescence in government secrecy, helped bring the disaster on themselves.

Professor Richard Rorty teaches philosophy at Stanford. A longer version of this essay appeared in The London Review of Books.

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