There is a concerted push to have ASD (Australian Signals Directorate) help in tracking paedophile suspects. Are there implications for law enforcement accountability, FOI, journalism, human rights and democracy? Take a look at some issues that have arisen in other countries.
“Securitisation” is a term used in political studies to mean the elevation of issues into “national security threat” status. Such elevation may be undeserved, but it can lead to some quite unpleasant consequences.
First, securitisation means government and agencies are given more draconian, anti-democratic, powers, all shrouded in secrecy.
Second, the freedom of information regimes that are the foundation of democracy – deriving from human rights, the right to know – are done away with. The ASD, which engages in foreign intelligence, is one of the highest security agencies, and therefore exempted from FOI by law. Everything it does is secret.
Domestic and foreign intelligence operations have customarily been separated because domestic agencies have been held to higher standards of transparency and accountability. Domestic agency whistleblowers are also treated much more lightly. Mixing foreign and domestic operations will carry significant implications for Australian democracy in future.
There is a view that issues that become “securitised” may not really be essential to the survival of a state, but rather represent issues where someone was successful in constructing an issue into an existential problem.
Online paedophiles are clearly a domestic policing problem which does not amount to a national security issue. The proposal for ASD to help in catching online paedophiles carries many risks. Take some issues that have arisen in the US and Europe.
Right to a fair trial may be compromised
European academic Jessica Almqvist cautioned that securitisation meant that suspects may be denied a fair trial because much of the evidence, by reason of secrecy of method of collection, would be kept secret from the accused and therefore not challengeable.
“Litigation involving individuals and entities whose financial assets have been frozen and whose names have been blacklisted in the fight against terrorism is on the rise around the world. However, the global ‘securitisation’ of terrorism has rendered court performance of judicial review and the provision of remedies in these cases more difficult,” she wrote (“A human rights critique of European Judicial Review: Counter-terrorism sanctions”, The International and Comparative Law Quarterly, 2008).
Lack of will for intelligence accountability and oversight
Loch Johnson, in his book “National Security Intelligence” (Polity Press, 2017) criticised the accountability regime in the US. He called the Director of National Intelligence (DNI) “weak”, the intelligence infrastructure “splintered into separate baronies”, all of which according to him had led to “warrantless wiretapping, metadata collection, and torture techniques adopted by the second Bush Administration”.
Steps towards “genuine intelligence accountability may prove quixotic”, he wrote. “Perhaps there is just not enough gumption on Capitol Hill to make the necessary changes. Perhaps money has such a grip on the American system of government that fundraising for re-election, along with lobbying by the military-industrial-intelligence complex, will keep lawmakers frozen in the posture of an ‘ostrich’ or uncritical ‘cheerleader’,” he wrote.
Johnson divided lawmakers with oversight responsibilities as falling into one of four categories: “ostriches”, “cheerleaders”, “skeptics” and “guardians”. His point was that the congressional oversight regime, which is similar to Australia’s, does not provide effective oversight.
Australian National University academic Hitoshi Nasu wrote of dangers to whistleblowers who make unauthorised disclosures in the public interest. Securitisation of issues means much harsher penalties for such whistleblowers.
He wrote that national security requires a “specific administrative and criminal sanctions regime”.
“With the emergence of the modern ‘national security state’ and the rapidly increasing sophistication of intelligence gathering methods it is critical to understand the extent to which the amorphous notion of national security, particularly with its intrusion into many different aspects of our society, controls the legal regime regarding public access to government information.
“Does the existing legal regime effectively delimit the scope and extent of State secrets protection on ever expanding national security grounds? Or is the role of freedom of information in the current and future society eviscerated whenever national security is invoked?” he asked (“State secrets law and national security”, The International and Comparative Law Quarterly, Oxford, 2015).
What exactly is “homeland security” and “national security”?
Christopher Bellavita of the Naval Postgraduate School, US Center for Homeland Defense and Security, was so concerned that he complained that the term “homeland security” was undefined, as is the case in Australia with “national security”.
He offered seven possible meanings:
1. Terrorism. Homeland security is a concerted national effort by federal, state and local governments, by the private sector, and by individuals to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimise the damage and recover from attacks that do occur.
2. All Hazards. Homeland security is a concerted national effort to prevent and disrupt terrorist attacks, protect against man-made and natural hazards, and respond to and recover from incidents that do occur.
3. Terrorism and Catastrophes. Homeland security is what the Department of Homeland Security, supported by other federal agencies, does to prevent, respond to, and recover from terrorist and catastrophic events that affect the security of the United States.
4. Jurisdictional Hazards. Homeland security means something different in each jurisdiction. It is a locally-directed effort to prevent and prepare for incidents most likely to threaten the safety and security of its citizens.
5. Meta Hazards. Homeland security is a national effort to prevent or mitigate any social trend or threat that can disrupt the long-term stability of the American way of life.
6. National Security. Homeland security is an element of national security that works with the other instruments of national power to protect the sovereignty, territory, domestic population, and critical infrastructure of the United States against threats and aggression.
7. Security Über Alles. Homeland security is a symbol used to justify government efforts to curtail civil liberties.
Bellavita referred to one author warning of the potential for “The End of America.” That author identified ten steps required to transform an open society into a dictatorship; the steps are based, she argued, on how this has been done in the past:
1. Invoke an external and internal threat
2. Establish secret prisons
3. Develop a paramilitary force
4. Surveil ordinary citizens
5. Infiltrate citizens’ groups
6. Arbitrarily detain and release citizens
7. Target key individuals
8. Restrict the press
9. Cast criticism as “espionage” and dissent as “treason”
10. Subvert the rule of law.
(“Changing Homeland Security: What is Homeland Security?”, Homeland Security Affairs, Monterey, Jun 2008).
Implications for journalism
Pete Weitzel, freedom of information coordinator for the Coalition of Journalists for Open Government (CJOG) based in Washington, D.C. wrote in 2004:
“The Patriot Act, which became law just six weeks after the terrorist attacks, expands the FBI’s investigatory powers. Among these powers is the ability to obtain secret court orders to seize personal and private business records and to eavesdrop on telephone and e-mail conversations.
“It permits secret court hearings of alleged terrorists. Little is known – not even the names – of more than 1,200 presumably terrorist-related arrests and the deportation of at least 750 people.
“Nor does anyone outside the government know how many court docket entries have been erased or simply not entered. Secret federal court hearings have been held with no public record of when or where or who is being tried. Everyone involved is gagged.
“The Supreme Court even allowed the Justice Department to file a sealed brief in one case. Such is the level of paranoia about secrecy in the government that when the ACLU (American Civil Liberties Union) filed a suit challenging Patriot Act provisions, it was prohibited from going public with the details of the suit. Its press release announcing the in-court protest was censored.”
Weitzel continued: “It’s worth considering another historic parallel. When victory in World War II was in sight, if still a long way off, President Franklin D. Roosevelt challenged the nation in his 11th State of the Union address to think beyond the war to issues of ‘economic security, social security, and moral security’.
“Only when we establish each of these, he said, will we have gained true national security. Today the federal government treats security as having only one dimension and demands that we, as a people, sacrifice other freedoms to achieve freedom from fear.
“If we as journalists allow this to happen, we will not only have forsaken our mission but our country. The strength of our nation is protection of its many freedoms – the first of which must be the freedom to have access to information about the decisions our government leaders make. Without that, all other freedoms are less secure,” he wrote (“The Steady March of Government Secrecy”, Nieman Reports, 2004).
(John Tan was a deputy editor in the Straits Times newspaper in Singapore. He has been foreign editor and business editor.)