Traditional laws no safeguard against fanatical terrorism

Eminent lawyers and law-conscious commentators and scribes, being unconscious of the imperative lessons of history and psychology, claim the anti-terror laws proposed by the Howard Government and accepted by all the premiers and chief ministers, will undermine our human rights, and will strike a devastating blow to the foundations of our civil liberties: by “lowering the standard of proof” and “undermining the presumption of innocence”; by monitoring people “for prolonged periods merely on suspicion about their intentions”; and by setting a standard of proof “on the ‘balance of probabilities’ not on the stricter criminal law test of ‘beyond reasonable doubt’” (Mike Steketee, The Australian, September 29). These laws are “simply not in our tradition” (Peter Webb, of the Law Council), and will seriously erode the principles upon which a just society functions.

Also, former foreign minister, and presently the CEO of The International Crisis Group based in Brussels, Gareth Evans, in his interview with Tony Jones on Lateline on September 28, argued, although “the danger [of terror] is real” it's “basically moderate”. The adoption of “intrusive new powers” therefore, should entail that the danger “has to be extreme and immediate before you embrace” such encroaching laws. And the enactment of these anti-terror laws is “going down a track which is much further than we are accustomed to”. Moreover, one should underline “the temporariness of these laws”, and the sunset clause of ten years is far too long.

He furthermore contends, that it would be wrong “to conflate the Islamist radical sentiments with the potential of violent terrorism”. And, he continuous quixotically, “it's in the nature of democracies that you do have sometimes to fight these battles with one hand behind your back”. He finalises his disquisition, by saying, “that terrorism is a phenomenon that is transmuting, changing, mutating all the time having avenues of pursuit that are unexpected and alarming”. And adding to this last sentence, what he said in his speech at the University of NSW, is what keeps policymakers awake at night is the threat of nuclear terrorism. He stated that by some estimates, 240,000 small nuclear weapons could be constructed from fissile material lying in poorly guarded nuclear sites around the world by competent professionals.

By these two final statements of a logical lapse however, which despite the blunder in logic, are brimming with reality, and decal-like clarity, he blunts and nullifies all the previous points of his argument which are premised on moderation. And by this ending of his discourse, one can only conclude, that Gareth Evans himself doesn't believe in the seriousness of his own plea, as it is inconceivable to imagine that a thoughtful person could have made such a faux pas in the logic of his own argument. Was it perhaps more important for him to present himself to the ABC viewers as a liberal progressive, that he would be willing to sacrifice on the altar of this left-wing Fabianism, the logic of his argument? But the preference to be loved by the crowd, the hoi polloi, by paying the price of losing one's amour propre, reveals a lot about his personality.

It's precisely because the landscape of terrorism is in a permanent state of evolution and mutation, and because “its avenues of pursuit” are so variable, and indeed limitless, that even the most competent and to the highest possible degree, error-free, intelligence organisation, would not be able to foresee and pre-identify, in time a terrorist attack, that traditional and conventional laws would be totally inutile against this ever-changing, nature of fanatic terrorism. And who would be in possession of that crystal ball, with the exception of Gareth Evans, who would promptly see in it that a danger is “immediate”, before one could “embrace” these “intrusive new laws”? The fact is that Islamic terrorism already menacingly and ceaselessly is orbiting around, and has indeed landed within, the metropolises of Western civilisation, and poses a continuous external and internal threat to their peoples. Therefore, the danger is omnipresent and always immediate.

Does Mr Evans really believe, that we can defend ourselves effectively against this permanent and “alarming” (his word) threat by not “going down a track which is much further than we are accustomed to” or by the chivalric conduct of the knights of King Arthur, when he pontificates, “that it's in the nature of democracies ... to fight sometimes ... with one hand behind your back”.

The great German political scientist, Karl Loewenstein argued, “that democracies were incapable of defending themselves against fascist movements if they continued to subscribe to ‘democratic fundamentalism’, ‘legalistic blindness’ and an ‘exaggerated formalism of the rule of law’”. As he put it, “fire should be fought with fire through a new ‘disciplined’ or even ‘authoritarian democracy’”. And the Islamo-fascist movement is, by far, more dangerous than any secular fascist movement, as its existence is decreed by God hmself, in the eyes of these zealots.

Furthermore, how credible is his claim, that any danger of an attack against Australia issuing from Jemaah Islamiah, which he considers to be “a spent force”, is “basically moderate”? (Only to be resoundingly and tragically contradicted few days later by the deadly attack in Bali on October 1. This clearly demonstrates the fact of how difficult and foolish it is to make prognostications about the labyrinthine world of the terrorists and predict when or “when not” the minotaur will strike. The reward of such a wanton folly is to finish with a lot of egg on one's face.)

What arcane or gnostic sources does he have that could inform him that the danger of an attack against Australia is moderate? And in his penultimate comment to Tony Jones, displaying his analytic depth, he states, it would be wrong “to conflate the Islamist radical sentiments with the potential of violent terrorism”. But one could also argue it would be wrong to compartmentalise ... radical sentiments and ... violent terrorism. So on which side of the scales does the weight lie? The answer limpidly lies in the reality that it is in these radical sentiments, as preached in the mosques and in the madrassas, that pull like a magnet the potential recruits of terrorism. But so much for the musings of Gareth Evans on the ABC.

Most lawyers - not all, an exception would be the profound German jurist philosopher Carl Schmitt, and closer at home the late Sir Harry Gibbs, the greatest of the chief justices of our High Court - as an outcome of their instrumental mechanistic training in precedents, cannot avoid overestimating the tradition of the law and thinking mechanistically about its function, completely ignoring its changing and evolutionary modal existence, often by leaps and bounds, throughout history. The legal order has its use and function for eons now, in protecting human societies from both civil and political illegal activities, so vouchsafing the comity of their citizens to pursue their goals and ambitions in a milieux of peace and amity. But the order of societies is under constant change as it is not unaffected by the disorder that frequently emanates from both external and internal foes. Hence, the legal order itself must radically change, if it is to effectively protect the citizens of a state from its enemies, especially when the latter are no longer appearing in the form of "traditional enemies", but in the unprecedented form of suicidal and fanatical terrorists.

It is therefore ludicrous and indeed fatuous to say, as Peter Webb, the secretary of the Law Council does - that the proposed anti-terror laws of the Howard Government are “simply not in our tradition”. The precedents of traditional law are totally effete and useless as deterrents to protect Australians from the suicidal forays of God's fanatics. These lethal actions of the terrorists that have no respect for life, not even their own, and equally no respect for the laws of infidels, since the law of Allah (to them) supercedes all other laws, have modified intrinsically and crucially, the political, judicial and military strategic responses of Western governments that are conscious of this ominous danger of historic dimensions.

No political leadership worth its salt could respond and act otherwise. As Nietzsche has remarked, it is in critical conditions that the worth of a person's character is shown. And it is in the countervailling of crises that governments demonstrate their strength and political acumen. In “states of exception”, to use Carl Schmitt's term, no Hamletinesque leadership, either in the realm of politics or in the realm of the judiciary, can pass the hard and rigorous test of Churchillian statesmanship. Global Islamic terror has ushered Western societies into a permanent state of exception. Political leaderships that are seriously confronting this grave danger have no other option but to take the hard and remorseless measures that have more than a chance to prevent external or internal terrorist attacks against their peoples.

In such measures, due legal process, i.e. the presumption of innocence, beyond reasonable doubt, and so on, is totally inadequate to deal with a fanatical enemy who would use weapons of mass destruction, including nuclear weapons, once they were in its possession, against Western societies. The most inconceivable terrorist action that could not be imagined by reasonable people is more than possible, since such an action is (perceived as) conceived in the mind of Allah, in the zany warped thinking of these religious fanatics. No traditional laws can protect Western societies from such a Luciferian inferno. The quintessence of the law - deterrence - is futile and totally unavailing against such votaries of fanaticism.

The gauntlet of fanatical terrorism has been thrown into the midst of Western civilisation. This is the challenge that political leaders have to pick up by the tip of their sword. No edifyingly just norms and conventional laws, as we know them, can shield their citizens from this mortal threat. Such legal norms apply only in normal circumstances, not in states of exception. To "deify" these legal norms, as civil libertarian predilections desire, in conditions where thousands of human lives are at risk and the foundations of civilised life are under the pulverising bulldozer of the terrorists, is an act of irremediable folly. According to Carl Schmitt, in states of exception, the legal order rests on a decision not on a norm. The exception could not be subsumed under legal concepts and all order is based on the sovereign's decision.

In democracies, the sovereign power lies in the elected government. The prime minister or president who heads the government, has the executive power to enact the appropriate legislation to protect the people, to the highest degree possible, from terrorist attacks. The long-term survival of our democratic values lies on decision, on decisive remorseless actionable judicial measures that can apply instantly on suspicion against our mortal foes, not on interminable legal processes and debates about human rights and civil liberties. In any existential conflict, sacrifices are inevitable both in blood and in our accustomed ways of life. But these sacrifices are temporal, unlike the other case; by being unwilling to make them would be terminal to our existence.

In these perilous and hazardous times, mechanistic thinkers, who wantonly place the tenets of traditional law above this existential threat that hovers like a spectre over Western, cosmopolitan civilisation, totally disqualify themselves from any kind of leadership. Only leaders that are endowed with prescience, prudence and determination have the right to hold the rudder of leadership in their firm hands and pass the necessary and harsh anti-terror laws that can save western civilisation from the maelstrom of fanatical terrorism. Only Iron Statesmen and Iron Ladies are cast in this role.