The fight against terrorism should make the case for open government stronger, not weaker.
A former US court of Appeals judge and now lecturer at the University of Chicago, Richard Posner, argued this week that people in the US would happily trade some civil liberties and privacy in the pursuit of safety and national security.
If people could be confident that the government would not misuse the intelligence it gathered in the fight on terror they would be more likely to accept intelligence gathering in return for greater safety.
He compared it to people allowing Amazon to gather information about their book choices in return for the convenience of having book suggestions tailored for them. But they would be alarmed if that same information were passed on to the Government to be used to gather political profiles.
Posner said that in the US people could be fairly confident that intelligence information would not be used politically because it would ultimately come out.
“The US Government can no longer keep secrets,” he said. It might be able to keep something secret for a short time or keep material that the public is not interested in secret, but everything else comes out because the US has an aggressive media and a large complex government with many employees who are often willing to talk to the press.
“There is no evidence that since nine-eleven that national security measures have been used domestically against political opponents,” Posner said.
He was talking to a largely Australian audience – the conference of the Australian Bar Association in Chicago.
Posner said that Americans had fallen into a misplaced complacency about terrorism because there have been no attacks on American soil since 11 September 2001. But plots had been foiled.
The Iraq war had increased hostility to the US (and presumably Australia). He thought home-grown terrorism was possible and terrorists gaining nuclear weapons required only a modest level of scientific knowledge.
In that environment intelligence gathering is crucial. Posner may well be right that Americans might be confident that any misuse of intelligence would be quickly uncovered because American society is so open. But it is a much longer bow to say that about Australia, particularly in the past five years.
The Australian Government has gone to great lengths to keep secrets and to use whatever information it can lay its hands on for domestic political advantage.
It has brow-beaten, prosecuted and threatened employees who dare put anything embarrassing into the public domain, even over innocuous things that should be in the public domain like spending on verterans, housing policy, environment science and so on.
It ignores the spirit of Freedom of Information legislation. It makes government as closed as it can get away with – which is quite a lot.
How could anyone be confident that the Australian Government does not or would not misuse intelligence for domestic political purposes?
Closed, secretive government therefore threatens national security and safety because a secretive government cannot be trusted with more intelligence gathering power. The social compact breaks down.
Civil libertarians could well be under-estimating the threat of terrorism. And it may well be that greater intelligence gathering is much of the answer. But wouldn’t it be nice to be confident that the intelligence would not be misused?
On the other hand, Civil libertarians have correctly argued that the fight against terror is not a “war” requiring the wartime emergency powers and the suspension of traditional liberties needed when a nation is invaded. But Posner pointed out that terrorism cannot be dealt with purely through the standard criminal-justice system.
Posner argued that both camps have got it wrong by trying to slot terrorism into an established legal hole. Terrorism was not like crime, he said. Societies copuld function with a fairly high level of crime that would never be eliminated. The criminal-justice system just hosed it down to an acceptable level by catching a punishing a portion of criminals.
But a society could not function with repeated acts of terror. The aim of the fight against terror was preventative, not punitive. With greater intelligence the changes of detecting a plot were higher. Once detected, it could be foiled without using the criminal justice system, by bribing the suspects to be double agents, but feeding them false information and so on.
So the trade off might be to allow much more intelligence gathering even if it is not admissible in later the criminal-justice system.
On the other hand, classifying the fight against terrorism as a war, has got the US into a lot of strife. Treating people as prisoners or war or enemy combatants and moving them out of the jurisdiction for questioning or indefinitely imprisoning has caused the US to loose the high moral ground and a lot of public-relations grief – probably more than the intelligence value gained because the whole “war on terror” approach has just created a recruiting ground for more terrorists.
But the lateral thinking and middle ground is going to be harder to achieve while governments misuse the fight against terrorism by calling it a “war” and creating politically charged scare campaigns. It is also going to be harder to achieve while governments behave unnecessarily secretively in areas unrelated to the fight against terror.
It is a shame the Australian Government has not shown the good faith and credentials of openness that would enable us to be more confident in accepting that wider intelligence gathering is worth the greater safety.