Howard and Downer pulling a swiftie. : Melbourne Indymedia

Is there blood in the water? All weasels on deck!

EIGHTEEN months ago John Howard told the Australian people that asylum-seekers had thrown their children overboard.

In justifying his claim, Howard publicly and selectively drew from Australian intelligence information – becoming our first Prime Minister to use intelligence assessments to argue a domestic political position for electoral gain. Eighteen months later the Australian people fear Howard may have done it again – this time on whether he has exaggerated intelligence reports on Iraqi weapons of mass destruction.

Howard advanced one central reason for going to war: eliminating Iraqi WMD because of the threat they posed to security. This was the argument advanced in Howard's formal statement to the parliament on March 18; his formal resolution to the parliament on the same date; and the formal legal opinion Howard tabled in the parliament.

Howard now says our troops were sent abroad to "liberate an oppressed people". Eliminating WMD rather than humanitarian intervention was Howard's sole legal basis for going to war.

In assessing the credibility of Howard's legal argument for war, the benchmark is not whether Iraq possessed WMD. Plainly it used them against Kurds and Iranians. Nor is the benchmark whether Iraq possessed chemical and biological "programs", "capabilities", "agents", or "materials". Twenty-seven countries possess chem- ical weapons programs and 18 biological programs.

No, the real benchmark is Howard's argument that Iraq possessed chemical and biological weapons in completed form, ready for use and which represented a real and present threat to security. But against this benchmark:

1. Iraqi WMD were not used during the war, thereby putting paid to the 45 minutes deployability argument.

2. It will soon be three months since the end of hostilities and no WMD have yet been found. Howard calls for patience for US weapons inspectors. Fair enough. Pity he didn't exhibit the same sort of patience for UN weapons inspectors prior to the war.

3. With many sites still to inspect, Howard refuses (as one of the Occupying Powers) to push for the readmission of UN weapons inspectors capable of providing independent verification of future US discoveries.

4. A US Defence Intelligence Agency report of September 2002 has been released which reportedly states: "There is no reliable information on whether Iraq is producing and stockpiling chemical weapons". But Howard and Downer, with full access to US intelligence reports, maintained there was no doubt about the status of chemical weapons in Iraq's possession.

5. Then there are the British dossiers. The British Government has apologised for not subjecting its February 2003 dossier on Iraq to MI6 for scrutiny prior to release. Another dossier is now under investigation. Howard quoted extensively from this material in his parliamentary statement of February 4, 2003 in which he said that evidence of Iraq's nuclear weapons program was that it had sought to import uranium from Niger. Foreign Minister Alexander Downer admitted last week this was erroneous.

Some of the doubts may be disproven by the four investigations currently under way in London and Washington. But here in Canberra, Howard is doing his damnedest to prevent any investigation getting under way at all. The two core questions which demand an answer: did our intelligence community get it wrong on the magnitude and immediacy of the Iraqi WMD threat; second, did Howard in any way exaggerate the intelligence material he'd been provided?

The Government is also objecting to any independent investigation of the adequacy of Downer's pre-Bali bombing travel warnings – despite the fact that Howard could have included this in the terms of reference given to the Inspector General of Intelligence last year in his report on Australia's intelligence performance pre-Bali. And despite the fact that the British Parliament reviewed both Britain's intelligence performance and the adequacy of its travel warnings – concluding there'd been major deficiencies in both.

Howard and Downer's continued argument on Bali is they had "no specific intelligence" on the Bali bombings on October 12, 2002.

But nobody in this entire debate has ever accused the Government of having prior knowledge of what occurred then. That's a preposterous suggestion. Had any government known this, they would have done everything to prevent the carnage that occurred.

Howard knows, however, this is the classical "straw man" argument. In the absence of specific intelligence of a specific attack in a specific loc- ation at a specific time, then there was absolutely nothing the Government could have done better in informing the Australian travelling public.

The real question is quite different: what Downer had been told by ASIO, ONA and others in the 12 months from September 11, 2001 to October 12 2002, about terrorist threats to Australians in Indonesia and any particular terrorist targeting of Bali. The senate inquiry has so far revealed that Downer in that period received at least five ONA and ASIO reports dealing with the nature of these threats.

The second question Australians would like answered is what did Downer then do with this information and why he chose not to incorporate it explicitly into travel warnings for Indonesia and Bali. Here is where Howard and Downer inject the second "straw man" argument into the debate, suggesting that there was insufficient information to warrant a warning for Australians not to travel to Bali. But that doesn't mean the content of travel warnings could not have been otherwise changed to reflect much more the combined concerns of ONA and ASIO – rather than simply telling people that Bali was "calm" and "operating normally".

EXTRACT FROM...

http://www.theaustralian.news.com.au/common/story_page/0,5744,6636787%255E7583,00.html

ASIO admits failure,what happens?

Subject: CDR: Our civil rights are being flushed down the septic.

How the ASIO bill ravages your civil rights
June 23 2003
By Claire Mahon and Karyn Palmer

What would you do if government agents burst into your home at two in the morning and interrogated you for seven days? Or if Federal Police removed you from your workplace in the middle of the day and took you to a place where ASIO officers questioned you against your will for a week?

You didn't do anything wrong, but ASIO argues you could have information that would help them. If you refuse to co-operate or surrender information, you could be jailed for up to five years.

You ask to see a lawyer, but are told that unless you can name the lawyer they can't tell you whether they'd approve. You tell the agents you don't know the names of any lawyers off the top of your head because you have not been in trouble with the law before.

They begin questioning you, and when the lawyer finally does get there, hours later, she isn't able to help much. As soon as she tries to advise you or ask why you are being detained, she is asked to leave the room.

You are not allowed to contact family or friends during the seven days you are kept in detention. The inquisitors say that although they are not permitted to hurt you, even if they did you wouldn't be able to tell anyone who they were because their identity is top secret.

Is this allowed? Under the sweeping changes to ASIO's powers in the Federal Government's anti-terrorism legislation, the answer is yes. Under the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill [No. 2] 2002 ("the ASIO bill"), this scenario is entirely possible.

Since the shocking terrorist attacks in New York and Bali, countries around the world have taken steps to beef up their counter-terrorism laws. Australia is no exception. The ASIO bill is one result, and its passage through the Senate this week is guaranteed, because the Opposition has agreed to key "concessions" from the Government.

So what will ASIO now have the power to do? With the Attorney-General's approval, it will be able to obtain a warrant from a federal magistrate or a judge, as long as it has reasonable grounds for believing that detaining and questioning someone will substantially assist in the collection of intelligence regarding a terrorism offence.

That person will then be able to be questioned in the presence of a prescribed authority (who can be a current or former judge, or president or deputy president of the Administrative Appeals Tribunal). The detained person will be able to be questioned for up to 24 hours (in a maximum of three eight-hour blocks), and this questioning will be able to be spread over seven days.
"While this legislation is not directed at terrorist suspects, it hinges on the definition of terrorism."

For the legal profession the ASIO bill has enormous implications. First, it fundamentally alters some of the core elements of our criminal justice system by removing many key rights, such as the right to silence and the presumption of innocence. And while this legislation is not directed at terrorist suspects, it hinges on the definition of terrorism recently inserted into the Criminal Code. This broad definition of "terrorism offence" is a major concern.

Second, for lawyers this legislation is offensive because it significantly changes the role we can play in assisting our clients.

Under the bill there is access to a lawyer, but the choice of lawyer and the role of the lawyer during the questioning process is severely restricted.

When representing a client detained for questioning under the bill, it is first of all not assured that a lawyer will even get in the door. ASIO has the right to veto any lawyer. And even before that stage, the detained person must ask for the lawyer by name. The lawyer is prohibited from being given any information relating to "national security".

During the questioning itself, the lawyer cannot interject or object to questioning, nor can he or she actively advise the client during the questioning process, but rather must wait until after the eight-hour questioning block has finished.

If the lawyer "disrupts proceedings" by doing anything other than requesting clarification of a question, he or she can be ejected. Further, if a lawyer communicates any information about the client's detention or questioning to any entity other than the Federal Court, the lawyer has committed an offence punishable by up to five years' imprisonment.

Both the Government and the Opposition have assured us that the bill contains various safeguards to protect rights. However, many of these safeguards will be hard to enforce in practice.

For example, while it is an offence for an ASIO officer to treat a detained person in a cruel, inhuman or degrading way, it will be difficult to enforce this when it is illegal to identify the officer.

The bill has come under scathing criticism from community groups and lawyers for the way in which it undermines our legal system and offends basic human rights principles.

The Law Institute of Victoria in particular has been concerned with the bill's impact on children. We have maintained that children should not be covered by this legislation. Now only those from 16 years of age will be subjected to the provisions of the legislation - which still enables ASIO officers to strip search young people.

High Court judge Michael Kirby said in a recent speech that the Federal Government's planned anti-terror laws would never undermine Australian civil rights. He noted that section 75 of the constitution provides Australians with the right of appeal to the High Court - a protection no government can legislate against.

It will remain to be seen whether the constitution can uphold the fundamental tenets of our criminal justice system ravaged by the ASIO bill.

Claire Mahon and Karyn Palmer are members of the young lawyers' section of the Law Institute of Victoria.
http://theage.com.au/articles/2003/06/22/1056220477057.html

Subject: CDR: Lack of Intelligence.

Iraq war inquiry hits snag
By John Kerin
June 23, 2003

TWO key intelligence agencies could escape appearing before the parliamentary inquiry into whether pre-war intelligence on Iraq was exaggerated.

The chairman of the investigating committee, Queensland Liberal David Jull, said last night he did not have the power to compel representatives of the Office of National Assessments and the Defence Intelligence Organisation to appear before his inquiry.

The Jull committee can compel ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate to appear before it. But Opposition parties also want it to examine the ONA, which advises John Howard, and the DIO.

A spokesman for Defence Minister Robert Hill said yesterday the matter was still to be decided, and that Senator Hill would be holding discussions with Mr Jull this week.

A spokesman for the Prime Minister said the matter was still under consideration.

"My own feeling is that I hope we would have that sort of co-operation from those two agencies," Mr Jull told the ABC.

"I've not spoken to the PM himself about the inquiry."

The committee has oversight responsibilities for ASIO, ASIS and the DSD.

"We have got no legal capacity to enforce the appearance by agencies other than those three," Mr Jull said.

However, as the ONA and DIO were given intelligence rather than collecting it, he said, their non-attendance should not affect the outcome of the inquiry.

Mr Jull said the committee would allow a month for submissions to come in and he hoped these agencies would consider making submissions. He expected the hearings to begin late in August.

http://www.news.com.au/common/story_page/0,4057,6637906%255E27438,00.html

After the experience of the children-overboard affair, the onus these days must be on the Government to demonstrate that, indeed, "we didn't massage the intelligence", writes Michelle Grattan.

One of John Howard's political techniques is never to take a backward step, even when he's been caught out.
Another person (admittedly not George Bush or Tony Blair) might have felt a touch of political embarrassment, not to say moral doubt, if they'd justified invading a country on the ground it had horrendous weapons of mass destruction and then the weapons couldn't be found.
Not Howard. He's simply gone on the offensive against the Opposition and other critics.

Indeed, he's shamelessly tried to paint those who now raise questions as the ones in the wrong.

"This country did the right thing in joining the Americans in waging war against Saddam Hussein's regime. Those from the Opposition who now seek to denigrate what this Government and this country do are, in effect, calling for the restoration of Saddam Hussein as the ruler of Iraq," he said last week.
No, Mr Howard, they are not. They are, rather, reflecting what you said to a National Press Club lunch in March: "I would have to accept that, if Iraq had genuinely disarmed, I couldn't justify on its own a military invasion of Iraq to change the regime."

The PM can't escape two inconvenient facts. Even though solidarity with the US was why Howard took us to war, the weapons were the overriding reason that he provided. And he claimed to be absolutely certain they were there.
"The Australian Government knows that Iraq still has chemical and biological weapons and that Iraq wants to develop nuclear weapons. We share the view of many that, unless checked, Iraq could, even without outside help, develop nuclear weapons in about five years," he told Parliament in February.

Despite intensive searching, the chemical and biological weapons have not been found and theso-called evidence that uranium had been imported from Africa for a nuclear program turned out to be false.
Yet Howard last week claimed an inquiry into the intelligence Australia received was "premature" and that the Labor Party was being "opportunistic" in promoting one.

Naturally, Labor would be "opportunistic", but why is an inquiry into the adequacy of the intelligence premature?

When Howard was pressed on how long we should wait to have such an inquiry, he was vague.

You can just imagine what would happen. If an inquiry were held off until, say, the end of the year, and still no weapons had been found, Howard would say it was no use having an investigation. He'd claim the issue had become ancient history.

Undeterred, the Opposition and minor parties in the Senate last week referred the question of the "accuracy of intelligence" on Iraq's WMD to the parliamentary joint committee that oversees the intelligence-collection agencies: the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, and the Defence Signals Directorate.

The alternative was a Senate committee inquiry; there were some differences of opinion in the Opposition about which was the better route. The joint committee is set up by statute; it hasn't in the past leaked, and it operates in a somewhat less "political" way than Senate inquiries.

Intelligence agencies would have stonewalled in an open Senate inquiry. They are used to dealing with the joint committee, and much of its hearings will be behind closed doors.

There is a question mark over how much access the committee will get to the intelligence assessment agencies, the Office of National Assessments and the Defence Intelligence Organisation, because they do not fall under it.

But the Opposition points out that a lot of these organisations' material would have been circulated to the other bodies anyway, and so could be indirectly accessible. Also, the Opposition warns, if the Government tries to be obstructive there is always the option of setting up a Senate inquiry as well.

The committee, chaired by a former Liberal minister, David Jull, has two former Labor defence ministers on it, Kim Beazley and Robert Ray. This gives it considerable grunt; also, Beazley and Ray are quite conservative on security issues, which should increase the credibility of the inquiry. The committee doesn't report until December, providing reasonable time for its investigation.

Beazley won't talk about the committee's work, but makes the general point that Australia is "highly dependent" on the intelligence it receives from allies and "therefore it is a matter of the greatest importance that the intelligence we receive is seen as reliable and not tainted".

Howard said last week, "we didn't massage the intelligence, we didn't tell the agencies to tell us what we wanted to hear".
Most of the apparent faults of intelligence may well have been in what came in from allies. If so, exposure may lead to greater scepticism and care in future.

But also, after the experience of the children-overboard affair, in which Howard relied on a brief from ONA, which had in turn relied on ministerial statements, the onus these days must be on the Government to demonstrate that, indeed, "we didn't massage the intelligence". The trouble with pulling a swifty once is that people are suspicious ever after.

mgrattan@theage.com.au

http://theage.com.au/articles/2003/06/21/1056119519179.html