Kirby's dissent under fire from The Australian for pre-9/11 thinking

News Ltd legal journalist Chris Merritt has criticised High Court Justice Michael Kirby in The Australian today, over his dissenting remarks against the Government's anti-terror control-order regime. He attacks Kirby for having his "eyes closed" to the post-9/11 world, and the extraordinary efforts we must take to be safe.

Merritt's remarks here deserve due consideration because he isn't just a fire-breathing imbecile, like many of those right these days, who are completely indifferent to the importance of maintaining checks against executive power. For example, his comments in support of the Haneef "leak" and the shift in the constitutional balance advanced by Howard's WorkChoices legislation reveal a mind which is not a selective proponent of federalism or centralism, simply echoing the latest talking points of the current government.

But is he right? Possibly. I am a fan of Justice Kirby, but it is certainly arguable that the control-order mechanism is an appropriate extension of executive power, which has arisen from the inadequacy of the ordinary criminal justice system to detain, review and prosectute terror suspects in the face of crimes which don't fit the books. While some crimes would be adequately dealt with under the normal system, I can't dispute that others wouldn't, and lawmakers are tasked to ensure that our system is as robust as possible, with adequate precautionary powers of detention and review for all situations.

However, where Merritt is on less firm ground is in justifying his stance by repeating the old candard of the right: that our entire civilisation is under existential threat from terrorism. Here, I've got to say he receives marks off for using an inherently discrediting phrase like "Islamic fascism." Whatever defects he alleges in Kirby's assessment of the threat of terrorism, it can't possibly be remedied by retreating into such pointless hyperbole. This wiki page does an adequate job of summarising the main criticisms of how "fascism" is an inappropriate label for any species of Islamism, so I won't retread that ground here.

Terrorism is certainly real, but it isn't by any stretch of the imagination an existential threat to our civilisation. We are far more likely to do irreparable damage to our civil institutions, liberal order, and thus "Western civilisation," by listening to the demagogic rhetoric of the right, and proceeding to throw our rule of law tradition out the window in the name of fighting terrorism.

Whilst conservatives are fond of trying to conjure the consensus moral certainty of WWII as some kind of blueprint for the struggle against terrorism, this has always been a ridiculous analogy. WWII was a global conflict against a modern industrialised state which had the ability to implement its belligerent goal of world conquest. Whilst terrorists may have similarly diabolical goals in their own right, they have nowhere near the capacity of any modern state to achieve this, let alone the might of the Third Reich. Terrorists are fragmented non-state actors. They don't have uniformity of resolve, purpose or organisation, and nor are they aligned together or even neutral towards each other. Even when you only count Islamists, many groups are mutually antagostic towards each other - either along Sunni or Shia lines, or some other ideological axis like Qutbism. As a group, they are certainly nothing like 1930s Germany - a homogenous and nationalistic state, capable of backing its unified resolve through a corporatist authoritarian government, and one of the best industrial war machines in the world.

If there are any lessons from WWII which must be recalled in the current conflict, more important than the familar Churchill v Chamberlain dichotomy, is the lesson that ultimate evil and tragedy can be born of a flawed legal regime, because such a regime is vulnerable to populist politicians lawfully enhancing executive power beyond review. Afterall, the Weimar Republic could never have turned into Nazi Germany without its defective constitutional arrangements, and we wouldn't have needed the non-appeasing vigilence of Churchill and FDR to save the day in the first place. So, even if we had reason to believe Kirby's disagreement over control orders is an analogue for Chamberlain's appeasement, and we don't, that wouldn't mean there isn't powerful historical weight behind his posture against government power.

Notwithstanding the appropriateness of control orders, in at least the rhetorical aspect of his criticism, we can now see Merritt has indulged the Mussolini fallacy by uncritically accepting the propaganda and self-assurance of the enemy, while downplaying the danger we pose to ourselves in ceding too much power to the executive.