There is nothing like a good war, of whatever sort, to test and highlight the importance of legal and constitutional values.
In the past week we have seen the acknowledgement by the United States that there were no weapons of mass destruction in Iraq and that there are no grounds to prosecute Mamdouh Habib who had been held without charge or trial at the US Guantanamo Bay military base in Cuba for three years.
The acknowledgement that there were no weapons of mass destruction came through the simple withdrawal of the US weapons inspection team from Iraq after it found nothing. As for Mr Habib, the US simply said there would be no charges and asked Australia to take him back. On both occasions, we are told, the intelligence was wrong. Or more likely its interpretation was wrong.
To misinterpret intelligence once is unfortunate; to misinterpret it twice looks like carelessness – indeed recklessness.
The two events are part of a shocking erosion of values in the US and Australia.
For get all the rabbitting on about so-called “core values” of family, “reading, writing and arithmetic”, extra marital sex, abortion, pornography, homosexuality, the gay mardi gras and the like.
There are much more important values – values that the United States was founded upon and values which liberal democratic societies like Australia have fought for. Essentially they are about the liberty of citizens which can only be assured through the rule of law.
The French and American Revolutions asserted that the people should not be ruled arbitrarily by a monarch who claimed sovereignty by divine right. Rather, people should govern themselves. And even then, the government should not be able to arbitrarily exercise power over citizens. People had rights. As the US Bill of Rights says, “No person shall be . . . deprived of life, liberty, or property, without due process of law.”
It meant that citizens would not have to live in fear of imprisonment, torture or death by the hand of a ruling power. That is the core value of liberty.
It was ignored for three years in the case of Mamdouh Habib. The Australian Government did virtually nothing to protest against the US Government’s breach of core values. Prime Minister John Howard, Attorney-General Phillip Ruddock and his predecessor Daryl Williams are all legally qualified and have been admitted as barristers and/or solicitors know what those values are and should have asserted them more strongly: presumption of innocence; no extended imprisonment without charge and trial; a right to legal representation; protection against self-incrimination (which can amount to forced confession); to know the case against you and have a chance to rebut it; to be held in reasonable conditions pending trial or be given bail.
The desertion of core values happened not only in the Habib case, but also in the Government’s “counter-terrorism” legislation that allows the imprisonment of witnesses (not only suspects).
It is too easy to turn a blind eye: so what if a man with a funny foreign name is locked up in horrific conditions for three years without charge by a Government that stands for freedom and liberty? But who is next?
The danger here is that the war on terror could result in the erosion or destruction of the very things we are supposed to be fighting for and those things which we have fought for in the past.
At the end of both World War I and World War II, the victors attempted to institute international rules and dispute mediation to prevent war. After World War II the precedent was set that waging an aggressive war was a punishable crime in international law. The United Nations had rules about dealing with rogue states. Those rules did not include the most powerful states doing whatever they liked.
Again, the US action in going to war without applying the rules of international law threatens the things fought for in the past – particularly by President Woodrow Wilson after World War I and Harry Truman after World War II. You go to war as a last resort in self-defence – not on ill-founded suspicion of a threat. The decision to go to war was thought by the US Founding Fathers to be so important that it should not reside in one person. The US Constitution provides “the Congress [not the President] shall have power to … declare war.” If Vietnam and Iraq have one lesson it is that the decision to go to war should not lie with the one person who heads the executive.
Events in the past week should bring a grim realisation that we can so easily revert to self-defeating atavistic jingoism. We are playing right into the hands of the enemies of liberty and freedom.
We must get back to core values in the US and Australia, but let’s first understand what they are.