Advance Australia Fair - Building Sustainability, Justice and Peace
Workshop - The 'War on Terror'
Sunday 31st July 2005

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Dr Jude McCulloch

Department of Criminology and Criminal Justice, Monash Uni

I’m going to talk about the changing nature of state power that is occurring under the banner of the ‘war on terror’. The ‘war on terror’ is partially a Trojan horse because it was a change that was taking place before September 11, 2001. There’s no doubt that this change between the state and individuals was well underway prior to 9/11 and that the ‘war on terror’ is really just a vehicle for accelerated neo-liberal globalisation.

I want to start with Guantanamo Bay. You might remember that the first camp at Guantanamo was called Camp X-Ray. In doing some research I found that the US military base outside of Guantanamo Bay was called Freedom Heights. Here we have an example of American irony, not something they are renowned for. This juxtaposition of Camp X-Ray next to Freedom Heights represents exactly the changing relationship of state with subject in neo-liberal globalisation, particularly in the terms of the ‘war on terror’. Here we have a subject, an individual, who is completely stripped, literally and metaphorically, of all dignity, rights, boundaries, juxtaposed to a state represented by the military camp which is at the height of freedom, there are no limits to what it can do. To me this captured the idea of a transparent subject, completely vulnerable and open to penetrations and intrusions by the state, and a state that is protected by seemingly impenetrable walls of secrecy.

One of the things happening under neo-liberal globalisation is a dissolving of the boundaries between things foreign and domestic. We can see many of the aspects of Guantanamo Bay reflected in our own system. Patrick has talked about the radical and unprecedented changes to the powers of ASIO, which are at the epicentre of the shifts between the relations of state and subject in Australia. Many of these other laws reflect these changes also, but they are most intensely and obviously captured in the way ASIOs’ powers have changed.

Prior to amendments to the legislation in 2002, ASIO was a covert security agency, but it didn’t have coercive powers. We know from the history of ASIO that it’s had a big role in spying on political activists in Australia, but it has never had any coercive powers. It could spy but it couldn’t capture. But with the 2002 amendments ASIO got powers to coercively interrogate and detain incommunicado people who it thought might know something about terrorism. At the time these changes and laws where criticised on the basis that this would, for the first time in Australia, lead to a secret police force, with all the negative connotations that that phrase suggests.

A significant criticsm of these changes is that as an intelligence agency it is not subject to the same level of accountability as a regular law enforcement agency, be it often inadequate. Despite this concern, in December 2003, with very little fanfare or opposition, ASIO got some more powers, which solidified this secret state status of this organisation. In 2003 legislation was passed which said no-body could talk about an ASIO detention or questioning warrant for 28 days and no-one could talk about the operational information related to that questioning warrant for two years. For example, ASIO might think that I know something about terrorism, which actually I probably do given that it’s what I study, and takes me away for seven days or possibly longer. When I return home and my partner or my son asks me where I’ve been, I can’t actually say. When my workplace asks me why I didn’t turn up and give the lectures I was supposed to, I’ve got to say, “I can’t tell you where I’ve been”. When I was first looking at this legislation I thought that I must be getting this wrong, I must just be paranoid. But Joo-Choeng, who’s a much better lawyer than me confirmed that I was right. Here we have in our own domestic state, an agency that can penetrate into very private spaces, can ask us questions, we can’t stop them from asking questions, and they can compel us to answer. It is arguable that these changes to ASIO laws set up a context in which torture is very likely, or it could possibly occur. On the other side, we have the secret state, with an incredibly thick veil of secrecy over the operations of an agency that has the most incredible coercive powers.

In our critique of the war on terror you’ve got to understand that what’s happening domestically is also happening internationally. To a certain extent the international critique is better developed. We are reasonably clear that the invasion of Iraq had to do with oil, but we don’t have a well enough developed critique of the expansion of these domestic laws.

There is a real blending of foreign and domestic, there’s no doubt about that. This pre-emption that we’ve seen, the idea that suspicion leads to intelligence, leads to making things up, as a Trojan horse for another agenda is also embedded in the new domestic laws. Patrick talked about the erosion of the presumption of innocence. This means that the state is saying, “we are going to decide who is dangerous before they’ve done anything” and this is a recipe for racially based ways of viewing things. Whether security based agencies say they are not doing racial profiling it is clear that the prediction of dangerousness has to do with race, national origin and ethnic background. And that suspicion can be no more then gossip or innuendo. At the moment ASIO is using the powers to compulsorily detain and question people rather conservatively. In a different emotional climate the potential is there for mass internments, on the basis they they’re predicting who will be dangerous. Patrick also talked about the great increase in discretion to law enforcement and security agencies. It means cart-blanche to put into practice these racially, politically, or ethnically based ways of seeing ‘dangerousness’.

We’ve had unilateralism talked about on the international stage quite a lot in relation to the unilateral use of US power, the rejection of the UN and multilateralism, but we’re also seeing that domestically. We’re seeing it in the way these laws actually ouster judicial oversight. One of the fundamental principals of a democratic legal system is a legislature that makes laws with the judiciary over-sighting and making sure the laws are implemented properly. Whereas many of the laws that are being implemented do away with judicial oversight. We are reducing the boundaries between crime and politics so it’s very clear that when these laws, with the great discretion available to the agencies, with their definition of terrorism and all the ancillary offenses, that politics can be interpreted as a crime.

Internationally and domestically we are moving away from the rule of law to the rule of force. On the domestic stage we are seeing a move away from the rule of law, away from due process and judicial oversight, and moving away from the presumption of innocence towards the rule of force. Generally I see the law as two-sided, a double-edged sword. One is protection of people and the other is punishment and coercion. What we are seeing is that the side that is protecting people is being blunted or removed and we are being left with the coercive side. The law now can chop your head off, but it doesn’t protect you.

I said at the beginning that a way of interpreting and understanding this is neo-liberal globalisation. You’re probably aware of the arguments around globalisation that said the nation state will wither away, the nation state is being eclipsed by multinational arrangements, and in particular multinational companies. But what we are seeing is not the erosion or withering away of the nation state but the emergence of the garrison-state. States are no longer interested in the welfare of their citizens. They are moving away from welfare to more repressive functions.

Militarisation is taking root at the heart of politics. Visually we can see this with Johnny Howard going around dressing up as a soldier. It reflects something broader about the shift of our country, that militarism is taking root at the heart of politics, which can only mean the death of democracy or the move to a post-democratic state.

One more comment I want to make is about this notion that we can balance security with civil liberties. This is a false dichotomy, it’s not a zero sum game, and the one critique I want to put forward is – when we say we’ve got to sacrifice some of our civil liberties for our security, the people who are saying that are never talking about themselves. They would never give up their fundamental human rights if they thought it related to them, if they thought it was about their children or people they cared about. It’s a discourse related to ‘us and them’. They’re talking about others giving up their liberites for our securities. It is basically a false notion that won’t give us security, it’s a divisive strategy to turn us into ‘us and them’.

Liberty Victoria website

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