In 1942 Australia was fighting the Japanese for its very existence as a nation. In that war, all the values and institutions that Australians hold dear were under threat.
The terrorist attacks on London transport, in Bali nightclubs, the New York World Trade Centre and the Pentagon were horrific, but they were not nation-threatening.
In that year Robert Menzies, later Prime Minister, gave a series of broadcast essays called the Forgotten People. The one that Prime Minister John Howard likes is the one in which Menzies extols the virtues of the middle class – “salary earners, shopkeepers, skilled artisans, professional men and women, farmers, and so on”.
But, in the light of this week’s revelations about Guantanamo Bay, Howard and his Attorney-General Philip Ruddock should read the other essays.
In one, Menzies wrote, “At this moment our men are fighting for our hearths and homes. Yes, but also for a free Parliament, for open and incorruptible courts of justice, for the even administration of laws freely enacted and honourably obeyed.
“If we think with horror and repugnance of Nazi tyranny it is because, under the brutish practices of the Putsch and the Gestapo, the law is no man’s protector, and the judges, ceasing to be his defenders, become the agents of oppression.
“Do not let us begin to think lightly of the law. Its rule, its power, its authority, are at the centre of our civilisation.”
Menzies was arguing that even in the midst of a nation-threatening struggle, the rule of law must prevail – in that instant that the High Court should determine whether the Federal Parliament had acted within the Constitution, but also more broadly.
What is the rule of law?
It applies to everyone, including the rulers. It is not arbitrary. It applies to everyone in the same way. Power can only be exercised within its bounds. Its corollary is freedom. As long as you obey the law you are free to do as you please and those with power cannot stop you without lawful reason.
In a society ruled by law people are free from arbitrary detention; they cannot be detained without charge. When charged they have a right to be presumed innocent; to know what the charge is; to have an opportunity to meet the charge before an impartial court with legal representation, their own witnesses and an opportunity to test the witnesses against them.
These values, for Menzies, as a lawyer and democrat, were fundamental. He hoped – alas it now seems in vain – that the party he founded, the Liberal Party, would take them as axiomatic.
Three US military prosecutors of the Guantanamo Bay suspects obviously did. Major Rob Preston, Captain John Carr and Captain Carrie Wolf all asked to be moved to other duties because they could not stomach the unfairness of the proposed military commissions which will try the detainees, including Australian David Hicks.
They damned the process as being skewed to ensure convictions, irrespective of the evidence, and being contrary to the traditions of US military justice.
Their walk-out is more significant because they would have had to overcome their natural military training to obey orders. That others in the US military gave them transfers shows some wider sympathy for their views.
Yet our Prime Minister and Attorney-General are content with the process. This process has kept an Australian national in appalling conditions of detention without charge for four years. He will be tried partially in secret without a jury and without the rules of evidence.
He may be accused of terrible crimes – such as conspiring to murder. That is all the more reason for a proper open trial, according to the normal standards of Australian and US law. Our Government should be demanding it.
The Australian Government’s acquiescence in the travesty of the rule of law and its own draconian proposals for more police and intelligence powers are contributing to us losing the war against terror. The more democracy, the rule of law and liberty are eroded, the more the terrorists win. And there is no excuse for it. The treat is nowhere near as great as in 1942.
Those unintentionally playing into the terrorists’ hands are the modern-day appeasers.
The 1942 Menzies essays are important for another reason in the light of a recent opinion poll. The poll this week showed that 56 per cent of people would support detention for up to three months without charge for suspected terrorists and majorities for other “security” measures.
The Howard Government would be encouraged in its quest for more draconian laws.
But Menzies wrote, “There have been political elections in Australia won by . . . an appeal to fear. . . . Nothing can be worse for democracy than to adopt the practice of permitting knowledge to be overthrown by ignorance. If I [as an MP] have honestly and thoughtfully arrived at a certain conclusion on a public question and my electors disagree with me, my first duty is to endeavour to persuade them that my view is right. If I fail in this, my second duty will be to accept the electoral consequences and not to run away from them.”
That is precisely what this Government and the Opposition has done – so fearful of the electoral consequences of principle that they have made fear itself their prime electoral lesson.
The other great wartime leader Franklin Roosevelt once said, “The only thing we have to fear is fear itself.”