Civil Liberties: Have We Reached The Right Balance?

Heather Roy Speech to Anti-Terrorism Laws and Civil Liberties Forum; Victoria University of Wellington; 5:30pm, Wednesday October 10 2007.

Mention the word 'terrorism' and the image that springs to mind will invariably be that of the World Trade Centre collapsing on September 11 2001, struck by the 747s hijacked by Osama Bin Laden's Al Qaeda operatives.

There's no denying that the world became a much scarier place that day. So too did the skies, with the world being forcibly shown that - aside from being a popular and efficient mode of transport - planes have the potential to be used as weapons.

It can be said that Osama Bin Laden achieved something that day: the purpose of terrorism - and, of course, the terrorist - is to spread terror; to undermine reason with fear; to change society, not with the power of ideas but, through violence. September 11 certainly did that.

Two months after that fateful day, US President George W Bush said: "Time is passing. Yet, for the United States of America, there will be no forgetting September the 11th..."

How right he was; time HAS passed and the US remembers - so does the rest of the world.

For a small modicum of proof of this, just look at what you have to go through to travel by plane nowadays: airlines require passengers to check-in 30 minutes before take-off to undergo security measures; and items like tweezers, knitting needles and pocket knives are barred from being with you during the flight. For international flights there are more measures - including a requirement that shampoos and deodorants are re-packaged in 100ml bottles and tidied away in a clear plastic bag.

Just recently, there has been debate over whether airlines should employ armed guards on flights and even a proposal that passengers first go through a pre-flight X-Ray machine that allows them to be seen naked to ensure they have no concealed weapons - possibly entertaining for airport security, but a gross invasion of privacy for passengers.

While we must remain alert and vigilant, the fact is that - partly due to being located far from the world's trouble spots - there has been no terrorist threat to New Zealand ... yet we are all now subject to such 'over the top' security measures every time we are required to travel by air.

Given the number of pieces of anti-terrorist legislation that have been passed throughout the world and which reduce individual rights, one could be forgiven for thinking that the Muslim extremists have won - and for wondering, when the effect of these anti-terrorism laws on civil liberties is taken into account, whether the right balance has been struck.

This is, of course, no easy question to answer. Some people feel we have gone too far and again need to address the old question of where the correct balance lies between the rights of the individual and the needs of the State.

Let me just take a moment to stress that individual rights have held little sway in most societies throughout history - something that is still the case in many countries today.

When discussing this issue, my mind always turns to the example of Catherine Howard and two of her lovers. Better known as the fifth wife of Henry VIII, Catherine was beheaded for treason. Her real crime was having an affair with Thomas Culpepper - which was hardly treason. Even less sporting was King Henry's execution of Francis Dereham, Catherine's lover before it was ever anticipated that she would be Queen. Dereham was no traitor; he simply bore the King's fury that his bride had not been a virgin. While a matter of supreme importance to Henry, this was of no consequence to England as a whole. The King was unwilling - or unable - to draw a distinction between what mattered to him personally, and loyalty to the country. Such are the injustices when there are no individual rights.

And yet there are occasions when the large scale suspension of individual rights can be justified. The introduction of mass conscription during World War II was, at one level, a major intrusion on the rights of the individual; at another, it was a necessary step to save Europe - and, possibly, the world - from tyranny.

So how does the legislation passed since September 11 2001 compare? Is the fact that there has been no further attack on a Western city on that scale due to chance, the success of the 'War on Terror', or strengthened anti-terror laws?

While most debate within New Zealand centres around the actions of President Bush, it is more logical to start at home.

New Zealand, despite being spared any great tragedy, has followed our western allies in adopting counter-terrorist measures. Virtually everyone will have noticed the presence of airport security that had previously been confined to International flights - as aircraft flying from smaller centres like Timaru or New Plymouth lack the range to reach another country, it is unnecessary; but on the main Auckland-Wellington-Christchurch routes security checks add significantly to waiting times. There is now a Bill going through Parliament that, if fully enacted, would allow airlines to carry armed Air Marshals. In the years since 9/11 our own Secret Intelligence Service has been accused of surveillance on the public, paying special attention to home-grown radical groups. The Terrorism Suppression Act 2002 stipulates that: "The Prime Minister may designate an entity as a terrorist entity if the Prime Minister has good cause to suspect that the entity has knowingly carried out, or has knowingly participated in the carrying out of one or more terrorist acts."

This gives the Prime Minister enormous power and we MPs must ask ourselves, as legislators, whether these measures unnecessarily impinge on the rights of the population.

One problem in New Zealand has been the tendency to confuse terrorism, refugee policy and immigration. I think we can safely assume that if someone is intent on a suicide bombing they would be content to enter the country on a tourist visa. Whatever the rights and wrongs of someone's request for refugee status, they are at least thinking about their lives in the long term. The same can be said for immigration candidates.

We currently have an Immigration Bill before Parliament. One part of the Bill I support is the introduction of new technologies to uniquely identify each person. It may seem like a poke in the eye to endure retinal scanning, but the simple fact is that English-speaking people struggle with foreign names, find Arabic ones particularly difficult, and there is no gold standard in the way of transliterating Arabic letters - meaning someone could be travelling under two names through no fault of their own. As such, we clearly need a biological marker to identify people.

So the question arises as to what action we should be taking. Seriousness of action depends on seriousness of threat, and it is here that we're lucky in that New Zealand has a low silhouette on the horizon - we simply do not feature in strategic thinking. While it's true the Danes probably thought the same until the controversy arose over the infamous cartoons depicting Mohammed but, so far, nothing has happened to justify any serious infringement of personal liberties.

We may also be asked by our allies - who don't want New Zealand to become a safehouse for fugitive terrorists - to watch suspects as they will. Here, we should co-operate as much as we can - but even with something as passive as eavesdropping we must be careful: listen to any group long enough and you'll hear someone say something that incriminates or disgraces them. With selective release of such information having the potential to be very damaging, those who have access to it have the power to protect themselves - and to harm their opponents. In my view, New Zealand needs a different constitutional structure to deal with this situation but that is beyond today's brief.

Anti-terrorism experts generally agree that terrorist organisations like Al-Qaeda are defeated when informants penetrate their upper ranks. It's hard to imagine many New Zealanders comfortably blending into al-Qaeda, so this is a job for America's Moslem allies.

There is also a tendency for terrorist groups to engage in vicious fraternal battles: Abu Nidal - the once feared leader of the People's Front for the Liberation of Palestine - became a paranoid fugitive on the run from the Israelis, the US, a number of Arab governments and rival Palestinian factions. He couldn't bring himself to trust anyone, suspected his wife of spying for the CIA and had the bad habit of ordering the torture and murder of his own supporters. In the end, only Saddam Hussein would have him - and in 2002 Abu Nidal became too much of a liability even for him and died during a shoot-out with Iraqi police.

In my view the Islamic terrorism we're currently seeing worldwide cannot ever overthrow democracy. That would take a regular army, which the terrorists do not have - even if they rose to power in a country, as they did in collaboration with Afghanistan's Taleban, they would almost certainly devastate the economy and lose the power to project force. Terrorists can only succeed by attacking civilian targets and hiding amongst a sympathetic population. The problem then becomes one of differentiating the terrorist from the local public - more suited to police than the military.

Further, there are some places we should never go as experience - both ancient and modern - has shown.

We should never allow the use of torture. Besides being immoral, torture produces unreliable results: inflict enough pain and the suspect will tell the interrogator whatever they think the torturer wants to know.

The second policy we must avoid is detention without trial. While easy to understand as an emergency measure, the arbitrary arrest of innocent people and their detention without trial will inflame a terrorist movement rather than destroy it. We might take it for granted, but it is fundamental to the rule of law that when arrested a person should know the charges that they face and be given a chance to answer them.

Finally, I would like to say that throughout history the majority of the world's population lived in poverty and under tyranny. We in New Zealand may not, but that is no accident. The freedoms we enjoy today were argued and fought for over many generations. Many people faced huge dangers to defend them, and we have an obligation - a duty - not to throw them away lightly.

ENDS

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