Paul Buchanan: Law change a recipe for abuse of power

Debate about the expansion of anti-terrorist legislation in Britain and Australia demonstrates the problem that arises when democratic governments attempt to separate politically motivated crimes from the main body of criminal law. In giving political crime (that is, felonies that are ideologically motivated) a special status above standard criminal violations, such offences are elevated in exactly the way that perpetrators hoped them to be.

They become the lifeblood of martyrdom, mythology and uncompromising political belief, demonstrating loyalty to the cause in spite of the gravest of consequences and harshest of treatment. This makes political crimes a source of inspiration to some, even as the many are revolted by the acts committed.

Whether witches, Moors, ethnic nationalists or anti-monarchists, in bygone days heretics and non-believers were reserved special forms of torture and death not given to the most heinous of common criminals.

The idea behind the cruelty was to teach the lesson that political dissent was the ultimate crime and would suffer the most horrid of fates, in public, to no advancement of the cause being espoused. In many cases, it worked as a deterrent, but in others it did not. Therein lies the problem.

Special categorisation of political crimes often plays into the hands of those who commit them. They and their cause get more attention than they deserve, at least if the cause is truly lacking in popular support. As opposed to dictatorial regimes, legitimate democratic government has little to fear from ideological extremists, since the majority adhere to rules of political moderation that allow for diversity of opinion and voice. Thus, creating special categories of political crimes (such as sedition) raises the profile of views that otherwise would have no popular appeal. Instead, it serves as a forum and rallying point for those who passively support the ideological objectives under-riding the illegal approaches to politics.

Criminal acts of political violence are no more than that: politically motivated behaviour that is not sanctioned by the state. In democracies the rules of political behaviour require that players act non-violently and institutionally. That is, they must adhere to legally sanctioned channels for individual and collective voice (and redress), and they must not cause physical harm to people or property.

Violations of this code of conduct are criminal offences, no matter what the specific belief behind the transgression.

If there is a deterrent for ideological extremists, it is in being caught, not the severity of the sanction applied or the code of justice under which the sanction is authorised. Thus, creating a separate body of counter-terrorism legislation offers no greater disincentive structure for political outlaws, and in fact, by its very separation from "normal" criminal justice provides a perverse incentive.

Security agencies use bureaucratic rationales of self-justification to take advantage of political climates of fear in which expanded counter-terrorism legislation is passed, but the people most affected by increased limitations on personal and collective rights are common citizens.

Loosening of the rules of evidence and denial of natural justice to terrorist suspects and defendants, such as the case at Guantanamo Bay, give authorities vague and flexible powers of detention, surveillance and use of force. This is a recipe for abuse of power. Basic rights to legal defence under normal criminal law balance the rights of defendants, security agencies and prosecutors, which places the onus of truth on the quality of police and intelligence evidence deemed admissible in court. Loosening normal standards of evidence will only encourage shoddy and politically expedient detective work.

The Blair and Howard governments propose to change laws governing the rights of suspects (and defendants) when it comes to "political crimes" involving violence. This may or may not involve "terrorism," depending on how "terroristic" acts are defined. Racial or ethnic profiling of political dissidents is bound to expand, and mere suspicion will replace concrete evidence as a basis for detention. "Extremist" speech will be added to the list of reasons for detention of suspects.

But talk is not an indication of real motive or intent, much less the capacity to act upon the rhetoric. What constitutes "extremist" as opposed to "normal" speech becomes a matter of (political) definition. For example, white supremacists and neo-nazis regularly preach hate in Australia, Britain, New Zealand and the United States, and all have records of committing violent acts in pursuit of their ideological goals, yet virtually all attention since September 11 has been directed at purported Islamicists and their calls for jihad (who in countries such as New Zealand have no record of activity).

The bottom line is that making ideologically motivated violence a separate category of political crimes subject to more severe forms of counter-measures that violate basic principles of civil liberties and natural justice is a bad idea for democracies. It elevates the stature of ideological extremists while denying rights to the law-abiding majority.

Counter-terrorism measures can be enhanced through better inter-agency and international co-operation, increased security professionalism and improved human and technical intelligence gathering. There is little need to dramatically revamp counter-terrorism legislation, especially if it offers the potential for abuse and denies the basic liberties that are a cornerstone of democratic judicial systems.

The issue is also contextual. New Zealand's geopolitical and strategic position is far different from that of the frontline triad in the "coalition of the willing" (Australia, Britain and the US), which makes for significant differences in the threat environment confronted by each. Hence, there are ethical, legal and practical dangers in following the calls of those who wish that New Zealand would emulate its larger neighbour when it comes to counter-terrorism measures.

Assuming they are competent, existing legislation allows New Zealand's security agencies ample room to counter ideological extremists without resorting to the type of authoritarian measures that make certain types of violent political dissent a special category of crime. New Zealand is not Australia, nor it can or should be when it comes to national security. We should feel comforted rather than discomfited in knowledge of that fact.

* Paul G. Buchanan is director of the Working Group on Alternative Perspectives at the University of Auckland. His latest book, With Distance Comes Perspective, focuses on issues of international and domestic security, terrorism and unconventional conflict.