Pearls and Irritations

Pillar 2 is a thing that AUKUS created: it appears at different times and with different meanings and possibilities and yet is not entirely, or even at all, predictable because the initial conditions and predicate logic on which it depends are themselves illusions or fabrications of the collective mind of those who constructed it in a national security strongroom to which only they have the keys.

In a background paper for the US Congress on Pillar 2 of AUKUS, the Congressional Research Service has provided the sort of detail and context which hint at what it is and, paradoxically, why it might not turn out to be the worthy object of cargo-cult veneration that AUKUS promotional materials hold it to be.

It details that Pillar 2 activities have been coordinated among the US, British, and Australian Governments by several means, including working groups of which at least eight are currently active: six address particular technological areas (undersea capabilities, quantum technologies, artificial intelligence and autonomy, advanced cyber, hypersonic and counter-hypersonic capabilities, and electronic warfare); two address broader functional areas such as innovation and information sharing.

Given the diversity of technological and functional areas encompassed by AUKUS Pillar 2, and the fact that many of the activities undertaken within them are security classified, they are referred to by the US Department of Defence as international armaments cooperation; the CRS advises that the amount of information available on them is expected to be limited.

When, in the course of a recent interview with Breaking Defence Indo-Pacific, Defence Minister Richard Marles was asked how, at a fundamental level, he would define the success of Pillar 2, his reply appeared to go beyond beneath even the low expectations and the forewarning implied in the CRS paper.

Indeed, the more he elaborated, the less confidence could be taken from his assurances; in truth, they were hardly reassurances, but they were consistent with the CRS.

Thus: “Success means . . . that at some point we need to be looking at new, cutting-edge innovative capabilities that have gone into service more quickly because of Pillar 2 cooperation. That’s the test . .”

Marles then conceded that, though confident of successes in various fields, the “foundational” and “fundamentally important” administrative and legal systems in the member states were insufficiently harmonised to progress them; even then, he noted that, overall, security classifications impeded communicating them to the public.

When asked whether anything more was needed from the US Congress to make that happen Marles was vague, circuitous, and question-begging:

I don’t think it’s at that point yet. And to be honest, I probably need to take advice on terms of the system here, around what changes require Congressional pressure. But I certainly think there is more work to be done. The power of the idea of Pillar 2 is profound. And you can see that by virtue of the number of other countries who are keen to be a part of it. So, it’s not done yet, there is work to be done . . . we all acknowledge that. But I’m confident we’ll get there, because we’ll get what the benefit will be if we can achieve it.

There is a need, therefore, to understand what Pillar 2 is, or more specifically, what it involves beyond its anodyne treatment by the CRS. Such a clarification is possible when it is understood that Pillar 2 is to be understood as a series of transactions between the interconnected parties to the National Security Establishment — military-industrial-academic-congressional — involving intellectual property.

For the US constituents of the NSE, Francis Bacon’s adage, ipsa scientia potestas est (knowledge itself is power) is foundational, as is its corollary, knowledge is profit.

On the basis that Australia brings relatively little to the table in these transactions, and that the US parties are in any case predisposed against genuine sharing and integration with Australian partners, Professor Hugh White in his comprehensive critique of AUKUS, is right to dismiss claims that the benefits of Pillar 2 will be substantial.

In light of the fact that eight working groups are active, however, it is appropriate to extend the scepticism and even to adopt an entirely suspicious outlook as to what is, and is likely to be at hand – an enterprise dangerous to Australia’s national interest.

Where IP is concerned the historical record of the US is ugly: in times of threat, and that would certainly cover the present, researchers looking for avarice, perfidy, and egregious intellectual larceny, will be rewarded in abundance.

They will find that:

• Post-1945, the US had no qualms accommodating more than 1,600 former Nazi academics, scientists and technicians within various intelligence programmes – in some cases insisting that university appointments be their cover – under Operation Paperclip.
• The success of the early US space program was accelerated by the performance-enhancing presence of Werner von Braun, designer and co-developer of the V-2 rocket program which, inter alia, utilised slave labour from the death camps.
• Annie Jacobsen’s study of the project also reports that another 120 German scientists, engineers, and technicians developed the Saturn V launch vehicle, or that the Launch Operations Centre at Cape Canaveral, Florida, was headed by Kurt Debus, an ardent Nazi. The Vertical Assembly Building – bigger in volume than the Pentagon and almost as tall as the Washington Monument — was designed by Bernhard Tessmann, former facilities designer at the German missile launch facility at Peenemuende.
• General Reinhard Gehlen, former head of Nazi intelligence operations against the Soviets, was hired by the US Army and later by the CIA to operate 600 ex-Nazi agents in the Soviet zone of occupied Germany. Field Manuals for the US Army are routinely and brazenly plagiarised, from the works of American academics.
• Even within the legal system there is evidence that a US Government agency – the Department of Justice no less – stole legal management software developed by a US company, Inslaw, to illegally traffic everything from weapons to class-A drugs.

As noted, these are indicative only but the mindset they point to is what is so arresting: it is the very concept of intellectual property itself that is most urgent. Specifically, the focus should be on how it is regulated under international legal agreements and the ways in which this demonstrates the utter contempt that the US has for knowledge-sharing.

[Note: although the discursive economy of blogs discourages standard academic citation practice, it cannot discount the imperatives of intellectual integrity which arise at this point.

Accordingly, as regard to the legal regime known as TRIPS – Trade-Related Aspects of Intellectual Property Rights – which I want to expose below, I need to acknowledge the published works of ANU Professors Peter Drahos and John Braithwaite, Greenpeace Australia News, Professor Brian Martin of Wollongong University, Lincoln Wright, and Vandana Shiva and Radha Holla-Bhar. I will provide full citations on request.]

TRIPS, in the first instance, are to be understood as almost exclusively an American, imposition in direct line of strategic pedigree from Bretton Woods.

At its heart was a US quest to have its intellectual property asserted, accepted by the global membership of, first, the GATT, and then the WTO, and thus entrenched within a global legal framework.

This was in contradistinction to Third World countries with which the concept found little, or no, sympathy, or even Europe, which, according to the US, was guilty of “an excessively cultural perception” of it.

The objective was threefold: to create an intellectual property rights order, which would effectively render permanent the existing monopoly privileges of the US, the world’s only net exporter of global property by, as Peter Drahos frames it, ‘the control of material objects [such as are produced in manufacturing processes] … through the control of abstract objects [such as algorithms implemented in computer software].’

The US succeeded. Information became propertied by law; by law; also, it became the subject of newly created rights, and thus regulated, and thus more expensive; and by extension national and international legal and administrative structures were established which mandated the domestic policing of compliance with a global privilege enjoyed primarily by the US.

In the process, the US, as patent hegemon, even succeeded in claiming that life forms freely found in nature and, in some cases, accessed for centuries by Third World peoples, could be patented “so long as some artificial means are involved in isolating them”.

As a result, traditional methods which are less technologically intense are defined as unpatentable. As Brian Martin observed, this led companies to race to take out patents on numerous genetic codes.

Given that the US objective in the matter of TRIPS was to preserve US dominance by protectionist means, and dominance in general is a US strategic meme, what might be the realistic status of Australia in Pillar 2? The question is unavoidable if we take the US mindset seriously.

If the US Department of Commerce can hold World Patent No. 9208784, or “human t-lymphotropic virus type 2 from Guyami Indians in Panama”, and the US National Institutes of Health can hold patent No. 5.397.696, comprising genetic information contained in cells which once belonged to a 20-year-old Hagahia man from Papua New Guinea, and if both patents endow their holders – US Government agencies – with exclusive ownership of the respective information, the question of appropriation is surely to be answered.

Short of conquest, or feudal prerogative, is it possible to claim invention of that which already exists, discovery of that which is already known, and ownership of that which is held in common, especially if invention and discovery were made possible only with the help and guidance of those whose contributions will be unacknowledged?

The answer is clear: the outcome is one resulting from arbitrary deprivation and dispossession, otherwise known generically as expropriation, and “biopiracy” in these specific cases. And it is buttressed by punitive legal and economic measures relentlessly pursued in all spheres.

The question, then, is by what logic does Australia assert that it is an exception to imperial American contempt? When intellectual property is being transacted, are Australians somehow not Hagahia people, or Guyami Indians whose primary use is extractive and exploitative?

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