Tea Party Paul’s Stand For Civil Liberties

Rand Paul’s epic filibuster in the United States Senate last week wasn’t just an important moment in the debate over executive power and drone warfare. It’s an important moment in the history of the Tea Party, even the conservative movement.

Paul’s Tea Party credentials are impeccable. He wrote a book in 2011, The Tea Party Goes to Washington. The 54-member Tea Party Caucus – a congressional organisation for like-minded Tea-partiers – was apparently his idea. He gave the Tea Party’s response to Barack Obama’s latest State of the Union.

Our ideas of the Tea Party are pretty entrenched. Either you think that the Tea Party is a white, racist, gun-toting, revolt of the middle class, or… well… in Australia it’s not clear there is an alternative view.

The international press has been hopeless on the significance of the Tea Party. The same media outlets that romanticised the Occupy movement stereotyped and dismissed the Tea Party as some arch-conservative uprising.

So it’s a big deal that Tea Party Paul made international headlines by standing up to the Obama administration on a distinctly civil liberties issue.

Paul used the confirmation of John Brennan for Central Intelligence Agency director to demand a full explanation of the legal basis for using drones to kill citizens and non-combatants.

The complete transcript is here, if you feel like reading a lazy 68,000 words, but this Guardian piece has some of the highlights.

The most memorable hypothetical in his 13-hour filibuster was this: under the administration’s drone policy, Barack Obama could order that American citizens “be killed in a café in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky.”

Supporters of Obama have been quick to say this is an absurd scenario – there’s no way the president would do anything of the sort.

But Paul’s point was not that the hypothetical was likely, but that the administration does not appear to believe there is any legal impediment to sending a Hellfire missile into a San Francisco café.

Constitutional government should have strict limits on what it can and cannot do. Citizens shouldn’t have to count on their president being a good guy.

To see just how many people have wilfully missed Paul’s point, check out this self-satisfied “fact-check”, which has determined that the hypothetical is “False” but admits the White House hasn’t strictly ruled out that it has such power.

And the only reason this debate has been rekindled is because a Tea Party senator made a symbolic 13-hour stand.

The next day the Attorney General Eric Holder sent this sharp letter to Paul, saying the president does not have the authority to kill an American not engaged in combat on American soil. Paul quickly claimed victory. But Holder’s reply is more ambiguous than it first appears. And it doesn’t tackle the broader issue: there are few statutory checks on the drone program. Drones are the iconic example of the growth of executive power in the Obama age.

At the Atlantic, Conor Friedersdorf has an interesting piece about how the mainstream press got Rand Paul wrong from the start. They obsessed about his views on the 50-year-old Civil Rights Act while ignoring his civil libertarianism and foreign policy.

Compare Paul to the so-called “moderate” Republicans – those who stand against the wild-eyed Tea Party radicals holding the nation to ransom.

The doyen of moderation, John McCain, said Paul’s filibuster was merely a “stunt”. Lindsey Graham, another storied moderate in the Senate, addressed his colleagues mournfully: “to my party, I’m a bit disappointed that you no longer apparently think we’re at war.”

Graham later said Rand’s filibuster had persuaded him to support Brennan, as it had “become a referendum on the drone program”.

Yes, those moderates who are so admired in the Australian press used dissent against Obama’s war powers as a reason to support them. Just as a few years ago those moderates supported George W Bush’s extraordinary spending spree, foreign policy adventurism, and trouncing of civil liberties.

Yet we’re told it is the Tea Party which is dangerous.

Paul is not a prince of libertarian purity, by any means. He’s both more conservative and more mainstream than his father, Ron Paul. Nor is the Tea Party ideologically pure – it is part conservative and part libertarian.

Still, the rush of support from other congressional Republicans for Paul’s unambiguous stand on civil liberties is significant. He was even praised by the usually pro-war Rush Limbaugh for defending “the freedom and liberty of the people of the United States”. Limbaugh went on to mock John McCain.

Like everything that happens in politics we could dismiss this as partisan opportunism.

But since the Tea Party burst onto the scene to reject the bank bailouts, it has threatened a more general outbreak of libertarianism within the GOP.

Every Republican now believes Federal spending needs to be cut. Big government conservatism is completely discredited. That is in no small part because of the Tea Party. It’s easy to forget that more government spending at home was as much a part of the neo-conservative agenda as foreign interventionism was. Remember “compassionate conservatism”?

We know there is a Republican constituency for civil liberties and limiting executive power, even after a decade of anti-terror abuses. There were some promising hints of foreign policy modesty during the last Republican primary campaign. Rand Paul’s filibuster is an important moment. Let’s hope it is also a turning point too.

The Biggest Vested Interest of All: How Government Lobbies to Restrict Individual Rights and Freedom

Introduction: The Federal Treasurer Wayne Swan wrote in The Monthly in March 2012 that:

Australia’s fair go is today under threat from a new source. To be blunt, the rising power of vested interests is undermining our equality and threatening our democracy.

But not all vested interests are private corporations. This paper draws attention to two statutory agencies of the Commonwealth Government that have an explicit, legislatively-defined functions to lobby and advocate for public policy change – the Australian National Preventive Health Agency and the Australian Human Rights Commission.

Available in PDF here.

Lincoln Sheds Little Light On Some Of History’s Dark Deeds

Sometimes the reaction to a movie is more interesting than the movie itself. In Zero Dark Thirty, director Kathryn Bigelow controversially suggests torture played a necessary role in the hunt for Osama bin Laden.

Given that this suggestion is both untrue and politically provocative, Zero Dark Thirty has been widely condemned. Bigelow’s film seems to implicitly approve of human rights abuses in the name of the ‘War on Terror’.

Another recent film is similarly coy about civil liberties and human rights. Yet there has been no outcry about Steven Spielberg’s Lincoln, released in Australia last week.

Spielberg’s tale of the constitutional amendment to end slavery shrouds Abraham Lincoln’s legacy in myth. The Civil War is the ultimate “just” war. It was fought to end the vile institution of slavery. Hard to think of a more noble cause than that.

But Spielberg whitewashes some of the great stains on the Lincoln presidency. The film obscures, even ridicules, any suggestion Lincoln reduced American liberties during the Civil War.
Take one memorable scene. In Congress, a fiery New York Democrat, Fernando Wood, accuses the president of being a tyrant. Lincoln, Wood shouts, is a “violator of habeas corpus and freedom of the press, abuser of states’ rights, radical republican autocrat ruling by fiat and martial law”.

The film skates quickly over the accusation. Wood seems ridiculous. He describes the president as “our Great Usurping Caesar”. He supports slavery, a much greater tyranny. But many of his claims were correct.

The Lincoln administration declared martial law. It suspended the writ of habeas corpus, allowing the government to detain civilians without charge and without trial. And Lincoln didn’t ask permission from Congress first – a major increase in the power of the executive branch of government.

At first the administration simply wanted to enforce military conscription. But very quickly people were being jailed for doing perfectly legal things. Many civilians were locked up for selling alcohol to soldiers, even though there was no law against it. Others were locked up for “disloyalty” or using “treasonable language”. Local authorities found that incarceration without charge was convenient. They could arrest first and ask questions later.

At least 14,000 people were locked up as political prisoners during the war, according to the historian Mark E. Neely, jnr. The real figure could be twice that.

The suspension of habeas corpus was controversial. The Republican Party was supposed to be the party of individual liberty. Many Republicans were uncomfortable with Lincoln’s heavy hand. Democrats filled the gap and restyled themselves as the ”habeas-corpus party” – obvious hypocrisy from supporters of slavery.

For a long time historians believed there was a militant underground within the North that justified a clampdown on civil liberties. It is now clear that there was no such mass resistance. There is no reason to believe the elimination of legal rights helped win the war.

Lincoln’s administration suppressed at least 300 newspapers. Most of the suppressed papers were Democrat ones. Nineteenth-century journalism was proudly partisan.

Lincoln authorised torture, too. The technique, also used against civilians, is eerily familiar. It is described in historical record as a “violent cold water shower bath”. Essentially, a high-powered hose was sprayed against a person’s body until skin broke. This “shower” could last for hours. There was no attempt to cover up this torture. The president didn’t seem fazed by it at all. We only know it happened because of formal protests made by the British ambassador when British citizens were victims.

Certainly, in the American Civil War the North were the good guys. There can be no question about that. The country had been torn apart. Many of those whose liberties were eliminated supported the slave trade. They’re not sympathetic characters.

But that’s the thing about legal rights. Even bad people deserve the protection of the law. There’s no question that modern Islamic terrorists are bad. But their sheer badness doesn’t make indefinite detention or torture justified. The justice of a war says nothing about whether rights should be protected.

Lincoln’s choices during the Civil War had long-term consequences. Memory of Lincoln helped justify Woodrow Wilson’s even more considerable rights abuses during the First World War. And Lincoln’s legacy has been regularly used to defend depravities in the War on Terror – if the greatest president did it, then surely so can George W. Bush and Barack Obama. Lincoln’s memory should be a sensitive issue.

Both Zero Dark Thirty and Lincoln are up for best picture Oscars in a few weeks. The storm over torture makes Bigelow’s chances small. Lincoln is just the sort of film the academy likes. It is pure Americana, at times cloyingly so. Yes, Daniel Day-Lewis deserves every Oscar he can get. But Spielberg grants little room for moral ambiguity in his hero-president.

Some people have seen the Zero Dark Thirty debate as America starting to deal with the civil liberties incidents of the last decade. The silence on Lincoln suggests there is a long way to go.

Privacy To Be Sacrificed As Roxon Takes Liberties With Our Freedoms

Last week Attorney-General Nicola Roxon argued for one of the most significant attacks on civil liberty in Australian history – internet data retention.

There aren’t many details yet. From what we can tell, the government wants to force all internet service providers to record details about every email their customers send, every website they visit, and every communication they make.

The providers will have to store those records for up to two years, just in case the police or the Commonwealth spy agency ASIO want to look at them later.

This data retention scheme would be an institutionalised, systematic invasion of our privacy – at least as bad as the Hawke government’s proposed Australia Card was in the 1980s. And it is certainly scarier than any of John Howard’s post-September 11 security laws.

Admittedly, data retention is not an original Australian idea. Similar policies have been implemented across Europe. But their record is not flattering. Germany’s parliamentary research unit surveyed European crime statistics between 2005 and 2010 and could not find any evidence to suggest data retention was helping solve crimes. And several European countries have even found data retention unconstitutional. In 2009 the Constitutional Court of Romania found that “continuous limitation of the privacy right … makes the essence of the right disappear”. In other words, data retention is so pervasive that it eliminates privacy. You can understand why Romanians would be sensitive. They suffered under communist police state surveillance for nearly half a century.

The idea behind data retention is to try to replicate for the internet what police have enjoyed with telephone calls for decades – access to records of who we called and when. Yet there’s a big difference between phones and the internet. Telephone companies keep those records in order to bill us. So phone records already exist. Internet data retention would require companies to create a giant new database of what their customers were doing online.

This database would be many times larger and much more revealing. Most Australians make a couple of calls a day. But we send and receive dozens of emails. We visit hundreds of websites. In 2012 we do everything from banking, to researching health concerns online. The internet is nothing like a telephone.

On top of this, the government wants internet providers to take responsibility for keeping these vast new information archives secure. But there are hundreds of internet companies in Australia. Many of them are tiny. Few of them are security specialists.

The Attorney-General argued on Tuesday last week that the police needed all this new surveillance to tackle identity theft. This is clever: we need to destroy privacy in order to save it. But it is nonsense.

These new databases would be attractive targets for those very identity thieves. Criminals could just crack the security of a small internet provider. We’ve seen in the past few years how insecure corporate data can be. Even big firms struggle with security.

Making their case, Roxon and her A-G’s Department say they need to “modernise” their powers to deal with cybercrime. Yet the urgent need to modernise this law would be more convincing if it wasn’t for the fact that the 1979 Telecommunications Interception Act has been “modernised” 64 separate times since then. It has been changed on average twice a year for three decades. Indeed, the last modernisation was as recently as August.

Roxon is talking about more surveillance powers literally a fortnight after she has been granted new ones. Our Attorney-General must know this. So when will enough be enough?

Anyway, the August reform gave law enforcement agencies exactly what Roxon claims they need: the flexibility to investigate crime online. Now if police identify a suspect, they can order internet companies to log the data of specific individuals. Such targeted data preservation is reasonable. It’s like traditional phone tapping. Police get investigative powers, but don’t treat every Australian as a criminal.

Internet data retention isn’t the only new weapon the government wants. A parliamentary committee is currently considering a government discussion paper with dozens of complex proposals to extend security power over the internet. The discussion paper makes some stunning claims. Apparently, some limits on ASIO and the police merely “reflect historical concerns about corruption and the misuse of covert powers”.

Are those concerns really out of date? Politicians like to talk about balancing the need for security and the need for liberty, as if they are shouldering a heavy philosophical burden. Yet it seems new laws only ever satisfy the former. Liberty loses, inevitably, every time.

Opening statement to Parliamentary Joint Committee on Intelligence and Security Potential reforms of national security legislation

With Simon Breheny

The suite of policies proposed in the Attorney-General’s discussion paper add up to one of the most significant attacks on civil liberties in Australian history. Many of the proposals breach the rule of law, severely curb civil liberties and threaten freedom of speech. Our submission focused on the data retention proposal. We were disturbed to see the Attorney-General support this proposal yesterday. In our view, the data retention proposal is a much greater threat to privacy than even the proposed Australia Card was in the 1980s. The complexity of these discussion papers’ proposals is significant. Many of them interact with multiple pieces of legislation. Few have been elaborated or justified. They should be dealt with separately, with separate legislation and separate inquiries. The burden of proof rests on the government to prove to the public that after 10 years of continuous, unrelenting increases in national security power—the last major change was as recently as August this year—there is still a clear need for such extraordinary changes. Almost every single proposal in the discussion paper has serious problems. For instance, the proposal to establish an offence for failure to assist in the decryption of communications is a clear abrogation of the government’s responsibility to uphold the privilege against self-incrimination and the right to silence—vital features of our criminal justice system. We call on this committee to reject this proposal.

We also oppose the default extended period for warrants from 90 days to six months, the lowering of thresholds for obtaining warrants, the power of the Attorney-General to unilaterally vary warrants and the power of ASIO to move, alter or delete data. But the most extraordinary proposal we would like to talk about is that of data retention. This draconian proposal for mandated and indiscriminate retention of the online data of all Australians is completely lacking in proportionality, undermines basic freedoms and is in fundamental conflict with the right to privacy. Extraordinary claims require extraordinary evidence, yet no evidence has been presented to justify one of the world’s most onerous data retention regimes. Abstract references to emerging threats and cybercrime are patronisingly insufficient as justification for such an extreme example of state power.

The collection and storage of data by internet service providers also creates a considerable data security problem. Rather than dispersing information, data retention creates silos of information begging to be attacked by the very criminals this proposal seeks to limit. Many European nations have had data retention regimes in place for a number of years. A study conducted over a five-year period, from 2005 to 2010, found no statistically significant increase in crime clearance rates in countries that had adopted data retention. ‘Australians should not allow themselves to be bullied into accepting a proposal which has ominous implications and particularly a grave temptation for abuse by the government.’ That was said by the IPA in 1986 in relation to the proposed Australia card, and the same holds true for the proposals being considered here today.

Sent To Prison For Making An Ebook

In 2003, a man made an ebook. It was not a complex task.

Belal Khazaal downloaded some articles from the internet, excerpted his favourite bits, threw them all together, and wrote a 155 word introduction. In those brief comments, he prayed the ebook “would be of benefit to everyone working to support” Islam.

Khazaal called the book Provision in the Rules of Jihad. He uploaded it to a website that is either (depending on whose expert witnesses you prefer) a repository of texts on Islamic philosophy, or a repository of texts on Islamic philosophy including some written by terrorists.

For his efforts, Australian courts sentenced Khazaal to 12 years in prison. Late last week, the High Court affirmed Khazaal’s conviction.

Described like that, Khazaal’s actions are comically banal and his punishment bizarrely disproportionate.

Does that comic banality disappear if we add that according to the Australian law his ebook had “an obvious and direct connection with assistance” for terrorism? This form of written work was made illegal in 2002.

Or that one chapter was titled “Reasons for assassination”? It included recommended targets (“diplomats, ambassadors” and “holders of key positions” in “atheistic countries” like Australia) and recommended techniques (“wireless detonation, letter bombing, booby trapping”, “cake throwing” and “hitting with a hammer”).

Yes, “hitting with a hammer”.

Even with these extra details, Khazaal’s editing job doesn’t come across as a great threat to the Commonwealth. He took things he found on the internet and packaged them up as his own.
Khazaal complains and apologises throughout his short introduction, saying the ebook would be better if he had more time, if he was fully settled in his residence (sure it would be, Belal). No question, his professed beliefs about violent jihad are distasteful and hateful. But more than anything, he comes across as a bit pathetic.

The courts may have been correct to say that compiling this ebook constituted an offence under the Commonwealth’s Criminal Code. That does not mean these offences are good law.

Between September 11, 2001 and September 11, 2011 the federal government passed 54 new pieces of anti-terror law. The legislative output was extraordinary.

As George Williams notes, during the Howard years, the government was passing one new anti-terror law every 6.7 weeks. As soon as one bill was through the Parliament, it was onto the next.
Another commentator has called this “hyper-legislation”. By volume and impact, the new Australian anti-terror laws greatly exceeded those passed in the United Kingdom, Canada and even the United States.

The 2002 changes to the Criminal Code are, in fact, some of the more benign changes made in that decade of frenzied activity. More aggressive reforms in 2005 even reintroduced the long-dormant concept of sedition. (To its credit, the Rudd government relaxed those sedition laws in 2010.)

Yet that decade of hyper-activity has damaged our legal system. The boundaries between legal and illegal activity have dangerously faded.

And with all that new law, it has still taken nine years of police work, anti-terror intelligence, and legal argument to get to the Khazaal High Court decision last week. Are we safer? Khazaal’s source material is still online.

In a long and important paper from 2005, the American constitutional scholar Eugene Volokh asked whether “crime-facilitating” speech should be considered free speech. That category includes everything from the Anarchist Cookbook, which describes in detail how to make drugs and bombs, to a lookout yelling “run!” when police arrive to arrest his criminal friend.

Volokh concluded that much crime-facilitating speech is “dual-use”. Speech which can facilitate crime can also inform non-criminals about risks, about issues of public importance (such as the vulnerability of key Australians to hammers), or even just entertain.

A government should not ban speech that has a lawful and valuable use simply because it may also be used by criminals. Volokh argued that to the extent crime-facilitating speech has such value, it should be considered to be within the bounds of free speech.

Khazaal’s ebook would fall easily within those bounds. Does Islamic theology demand violent jihad, and against whom? Khazaal has published his view. Know your enemy.

And it’s hard to say there has been any great, compelling harm caused by his compilation. Words are cheap. The Anarchist Cookbook provides more technical detail than Khazaal offered, and is free to read across the internet.

Belal Khazaal may be a bad guy. He may deserve to be in prison. Australian courts decided he could not be regarded as “a person of good character” at sentencing because of convictions in Lebanon for donating to alleged terrorist organisations.

But if he deserves to be in prison in Australia, he deserves to be there for a greater crime than making an ebook.

Submission to Parliamentary Joint Committee on Intelligence and Security on ‘Equipping Australia against Emerging and Evolving Threats’

With Simon Breheny

Introduction: The Institute of Public Affairs believes many of the national security proposals contained in the Attorney-General’s Department’s Equipping Australia against Emerging and Evolving Threats Discussion Paper are unnecessary and excessive. Many of the proposals:

  • Curb civil liberties;
  • Systematically breach Australians’ right to privacy, and;
  • Breach basic rule of law principles.

The Discussion Paper offers at least 45 distinct proposals. This submission does not attempt to address each one. Instead, we focus on one particular proposal that the government is seeking views upon: the data retention policy that would require internet service providers to retain data on all users for up to two years.

The data retention proposal, along with a number of other proposals listed in the Discussion Paper,would be a significant increase in the power of security agencies and the Attorney-General’s Department.

Available in PDF here.

Be Sceptical Of Vague New ‘National Security’ Powers

Any proposal by the government to increase its own power should be treated with scepticism.

Double that scepticism when the government is vague about why it needs that extra power. Double again when those powers are in the area of law and order. And double again every time the words “national security” are used.

So scepticism – aggressive, hostile scepticism, bordering on kneejerk reaction – should be our default position when evaluating the long list of new security powers the Federal Government would like to deal with “emerging and evolving threats”.

The Attorney-General’s Department released a discussion paper last week detailing security reform it wants Parliament to consider.

The major proposal – although explored little in the department’s paper – is the Gillard Government’s proposed data retention laws. These laws would require all internet service providers to store data about their users’ online activity for two years. They have been on the table for some time.

But there are many other proposals. The department wants the power to unilaterally change telecommunications intercept warrants. It wants the threshold for those warrants to be significantly lowered. It wants the ability for security agencies to force us to hand over information like passwords to be expanded. There’s much more.

These reforms add up to a radical revamping of security power. They raise troubling questions about our right to privacy, our freedom of speech, and the overreach of regulatory agencies. And they suggest one of the most substantial attacks on civil liberties since John Howard’s post-September 11 anti-terror law reform.

Public policy is like comedy – timing is everything. The lack of timing here is revealing.

These proposals come nearly a decade after the first flurry of anti-terror activity, and long after most analysts have concluded that the serious threat of terrorism – keenly and rashly felt at the turn of the century – has subsided.

The government claims that a new environment of cybercrime and cyber-espionage necessitate wholesale reform of the law. These claims are massively overstated. Cybercrime exists more in the advertising of security companies than it does in reality, as I argued in the Sunday Age earlier this year.

Cyber-espionage too is worse in theory than reality. In their recent paper Loving the Cyber Bomb?, two American scholars, Jerry Brito and Tate Watkins, point out that these claims have all the hallmarks of threat inflation driven by self-interested security agencies.

As they write in the American context, “The rhetoric of ‘cyber doom’ employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public.”

Certainly, our Attorney-General’s Department offers no such clear evidence. Perhaps there is evidence. But most of the Government’s case is presented as innuendo and hypotheticals.

Brito and Watkins suggest this hyperbole has a parallel with the sort of threat inflation that led up to the Iraq War. The conclusion – more power – leads directly from the premise – an evolving threat. But we’re a long way from the realm of evidence-based policy here.

Yet even if we took the government at its word about the dark and dangerous online environment, there would still be much to be concerned with.

Fairfax papers reported in April that ASIO now privately believes environmentalist groups are more dangerous than terrorists. This surely says more about the diminished status of terrorism than the rise of green activism. But it also underlines the often political nature of national security enforcement.

The line between lawful and unlawful political dissent is less clear at the margins than we like to admit. Enthusiastic agencies and thin-skinned governments can easily forget there is any difference at all. (During the Second World War, John Curtin’s Labor government even directed ASIO’s predecessor agency to investigate the Institute of Public Affairs – its ideological opponent, and an organisation that was urging the formation of a non-left political party.)

ASIO isn’t the only agency we have to worry about. There are at least 16 Commonwealth and state bodies approved to intercept telecommunications right now. Even the scandal-ridden Office of Police Integrity in Victoria would benefit from these new powers.

Ministers in the Gillard Government have jumped to defend the Attorney-General’s proposals. And the Coalition is “examining the issues carefully”.

Yet given the bipartisan submission to the previous government’s expansion of the security state, it would not pay to be too optimistic.

This is largely because governments are usually passive recipients of the phenomenon of threat inflation, not the drivers of it. Security agencies are easily able to convince politicians they need more support and power, and that any scepticism about pressing national security matters is reckless, even negligent.

The scepticism, unfortunately, has to be left to the public whose civil liberties are at stake.

Obama Beats Bush In Assault On Civil Rights

It’s been fun for the left in Australia to fixate on the Republican candidates for the American presidency. It’s been fun to joke about their policy quirks and eccentricities. Fun to pronounce that nothing is scarier than the prospect of a Santorum or Romney administration. Yes, the Republican race has been a convenient distraction.

Because it would not do to dwell on an uncomfortable, undeniable reality – Barack Obama, the left’s man in the White House, who was supposed to restore America’s standing in the world and end George Bush’s assault on civil liberties, has been much worse than his Republican predecessor.

Obama has undermined more individual rights, and hoarded more presidential power, than Bush ever did. It’s not that he has simply failed to roll back Bush’s anti-terror excesses. Although that is true, as well. It’s that Obama has trumped them. More than 10 years after the September 11 attacks, the White House is still amassing extra security powers. On December 31, Obama signed the National Defence Authorisation Act.

This act allows the military, without judicial authorisation, to arrest and indefinitely detain anybody within American borders.

This power is quite an increase. Under the Bush administration, the military could legally arrest and detain people only in other countries.

American citizens were protected by an 1878 act banning domestic military deployment. Obama no longer observes this legal nicety.

And Obama has claimed the right to assassinate any American citizen he deems a terrorist threat, at any time, according to nothing but his judgment, anywhere in the world. As a former CIA chief recently pointed out, while the President needs a court order to eavesdrop on Americans abroad, he does not need a court order to kill them.

There’s more. George Bush’s once-controversial covert surveillance program has dramatically expanded under Obama. The President’s emergency powers have been boosted. An executive order Obama signed in March (number 13603) grants more to the president in an emergency than any order yet, allowing the government to take over all food, transport, water, energy and health resources and, if the President wants it, to reintroduce conscription.

Executive orders are used to bypass the usual checks and balances in Congress and the courts. As the Cato Institute’s Jim Powell pointed out last month, there is nothing in order 13603 about protecting constitutional rights.

No wonder the director of the American Civil Liberties Union is “disgusted” by the Obama administration’s record. Sure, Obama has withdrawn troops from Iraq. Mission accomplished, as they say. But, on the other hand, he has also personally pioneered an entirely new, more enduring form of global warfare. Drone attacks will remain long after the wars in Iraq and Afghanistan have faded into historical memory.

Because drone war is permanent war. It is limited by nothing more than the whims of the president. It is the first war run entirely by the CIA. It is conducted on the territory of countries to which America is not formally hostile. And it took until February for the administration to even admit the drone war existed.

George Bush’s wars of liberation, right or wrong, had their precedents. Barack Obama’s never-ending global bombing campaign by remote control is his innovation.

It’s a fair bet that no administration will ever shut down the drone program. A competent intelligence agency can always find new threats for a bombing into the Stone Age. So if we simply apply the criteria the left used to condemn Bush as one of the worst presidents in history, there is no ambiguity. Obama is far worse again. Not that you would know about it.

Partisanship has a habit of excusing anything, with 77 per cent of those who describe themselves as left-wing Democrats wholeheartedly approving of Obama’s drone program. Imagine if a Republican did the same thing. There would be anti-drone marches in Washington and candlelight vigils in Paris and Berlin. Now the left is more interested in complaining that Republicans are sceptical about climate change. They ignore, excuse, even – according to the polls – defend their President’s abominable record on war and individual rights. Because he isn’t a Republican.

Locking People Away Forever Because ASIO Reckons

It’s a scandal that administrative decisions which result in indefinite detention are made outside judicial scrutiny.

In his 1885 book An Introduction to the Study of the Law of the Constitution, the great English jurist AV Dicey said, “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary Courts of the land.”

This, he argued, was the first principle of the rule of law. With his book, Dicey shaped the English-speaking world’s legal philosophy. He formalised the ideals suggested in documents like the Magna Carta, but which can be traced back to Aristotle.

So compare Dicey’s high principles to a statement made by the head of ASIO, David Irvine, to a parliamentary committee in November last year.

Explaining why he wouldn’t even tell Parliament the grounds on which his organisation makes security assessments for refugees, the ASIO boss said, “Once the criteria for making assessments are known, then you will find very quickly that all the applicants will have methods of evading or avoiding demonstrating those characteristics.”

The Department of Immigration only refers asylum seekers to ASIO for security checks after it’s been determined they qualify for refugee status. It’s one of the last steps. By the time ASIO looks at them, the Australian Government already believes they have a well-founded fear of being persecuted.

So when a refugee receives an adverse security assessment, they’re thrown into administrative limbo. They are unable to return home (too dangerous for them) and they are unable to enter Australia (too dangerous for us). The result is indefinite detention. It’s a classically bureaucratic non-solution. Just lock them up forever and hope the problem goes away.

This is pretty bad, but no-one said national security wasn’t about tough choices.

What makes the situation fundamentally and egregiously illiberal is the fact that these refugees have no idea why they have been detained.

The refugees are not told why ASIO believes they are a security threat. They are not told what evidence the belief is based on. And they have no opportunity to challenge the assessment. There is no review process where the merits of their case can be scrutinised.

In the interminable debate about asylum seeker policy, much has been made of the distinction between incarceration – which happens to criminals – and immigration detention – an administrative process which all asylum seekers undergo. Temporary administrative detention is not punishment.

But when a person is detained indefinitely because the government believes they are a security threat, that distinction is nowhere near as clear. We should never be asked to take a government department on its word that someone must be locked up.

This makes the claims that there are heavy national security issues at stake quite hollow.

No doubt there are circumstances where security demands that some people not be let into the country. David Irvine assured the parliamentary committee that ASIO makes negative findings sparingly and hesitantly. In his words, “We do not take a decision to issue an adverse security assessment lightly and nor are we contemptuous of or blasé about the human rights of the individuals involved.”

That may be true. ASIO could be bureaucratic paragons. But with no checks, we cannot have any confidence they are. Ronald Reagan was fond of the phrase “trust, but verify”. It applies here. A liberal society trusts its bureaucratic and judicial administration because of safeguards built into that system – not because of the inherent honesty and virtue of the public service.

So the issue here is not simply about justice for the 50-odd refugees stuck in this administrative black hole. Without institutional safeguards, the Australian public should have no confidence in ASIO’s decisions. The ASIO chief may have meant his assurances to be comforting, but they only remind us that his assurances are all we’ve got.

In a story on Monday night, the ABC’s 7.30 spent time discussing the adverse assessments made about refugees with links to the Tamil Tigers. The program offered up academics with different views about the security risks they presented, and an interview with a former member now living in Australia.

All very interesting. But this debate is in many ways premature. It grants the system an institutional legitimacy which it does not have.

By not implementing a right for refugees (or their security-cleared advocates, or a tribunal) to question the merits of individual cases, we have, by accident, established a system where we literally lock people away forever just because somebody at ASIO “reckons”.

It’s hard to imagine anything more illiberal, anything more contrary to Dicey’s great principles, than that.