Specific policy problems demand specific policy solutions.
So the Abbott Government has done us a favour by being very specific about the new terrorist threat: Australian residents fighting in Syria and Iraq who come home even more radical and potentially violent.
These “foreign fighters” are a specific threat that demand specific legislative change. It does not demand an overall increase in broad and adaptable police and national security powers.
Let’s start, as all policy discussion should, by being clear about the problem.
One in every nine jihadists who travel overseas to fight in foreign conflicts return to attempt terrorist attacks in the West, according to the best estimate we have.
Considering there could be more than 100 Australians fighting in Syria and Iraq, that ratio is worrying.
The one-in-nine figure was assembled by Thomas Hegghammer and published in the American Political Science Review in February 2013. It’s based on jihadists from the West between 1990 and 2010.
The Syrian conflict started in 2011, outside Hegghammer’s analysis. In an excellent piece in the Age in August, Andrew Zammit detailed some instances of Syrian returnees going on to plot domestic attacks.
One-in-nine is hardly an iron law of terrorism, of course.
Fighting in foreign wars is a very old phenomenon – think George Orwell in the Spanish Civil War – and the motivations for fighting in foreign wars and conducting domestic terrorist attacks differ enormously.
Terrorism remains an extremely low probability event.
But one thing we could say about foreign fighters is that they’ve done law enforcement agencies a huge favour – they’ve self-identified as security threats. As Hegghammer points out, experience in jihad overseas is the biggest predictor of future terrorist intent. So they’re good candidates for close monitoring.
Or good candidates for immediate prosecution. It is illegal under Australian law to engage, or intend to engage, in hostile activity in foreign states. An exception is joining the armed forces of a foreign state. (Australians can’t join Syria’s pro-Assad military, though – we have sanctions prohibiting that.)
Here’s where Parliament can get to work. This law was originally developed to prevent mercenary activity in Angola and Rhodesia in the 1970s. Today it is not particularly fit for purpose.
Bret Walker, until recently the Independent National Security Legislation Monitor, has repeatedly argued for reform of the law governing foreign fighters. Walker’s last annual reportexposes a number of inconsistencies and concerns that the Abbott Government needs to fix.
For instance, it’s hard to prosecute foreign fighters in Australian courts. Laws governing the collection of evidence overseas require the cooperation of foreign states, but what if the offence occurred in a region with no functioning or cooperative government? This is a problem in both Syria and Islamic State-controlled Iraq.
In these very limited circumstances it might be necessary to relax some of the restrictions on what evidence can be admitted into court.
One popular argument is that we should just let foreign fighters go – better they fight and die for jihad overseas than plot terror attacks in Australia. But not all do die.
This New York Times piece points out that many foreign fighters plan to stay in Syria and Iraq for good. Some show their dedication by symbolically burning their Western passports. Yet plans can change.
Anyway, why should we be any more tolerant of those who travel to train and fight in Syria or Iraq than we were of the previous generation of jihadists who joined training camps in Afghanistan? Zammit points out that many of them intended to fight in regional conflicts before being recruited by Al Qaeda to attack the West.
Regardless, it’s probably best that Australia does not act as a staging base for terrorist attacks on foreign civilians. There is no fundamental human right to wage sectarian war.
Walker has identified some serious inconsistencies between the criminal code and the foreign fighter laws.
In large part this is because successive governments have piled terrorism offense-upon-offense into the statute books, rather than systematically reviewing what sort of conduct is already criminalised. George Williams calculated that after the September 11 attack the Howard government introduced new anti-terror legislation every 6.7 weeks.
The Abbott Government is heading down the same path.
The Attorney-General George Brandis has proposed reversing the onus of proof for Australians who travel to dangerous parts of the world – the prove-you’re-not-a-terrorist proposal. Undermining the presumption of innocence is an incredibly ham-fisted way to tackle a genuine evidentiary issue.
The foreign fighter threat doesn’t justify the dangerously broad restrictions on reporting security operations contained in the legislation introduced to Parliament in July.
Nor do a few dozen Australians waging jihad in Syria go anywhere near justifying – for instance – a mandatory data retention scheme, which, by requiring internet service providers to create a database of information solely for the purpose of law enforcement, would treat all Australians as potential criminals.
Taking the foreign fighter threat seriously justifies some legislative change; minor change, yes, but important.
It is not the case that any legislative change will do.