Right’s Rand Paul talks down data laws
Like Magellan making the first voyage around the world to show that it is indeed round, some politicians are demonstrating that if you go way out on the right you can end up on the left, or at least temporarily in leftish company.
Take Rand Paul, the US libertarian senator and Tea Party supporter who’s just declared his candidacy for the Republican presidential nomination next year. His splendid filibusters in the senate, including a 10-hour speech, saw the metadata collection by the National Security Agency halt at midnight on Sunday, or at least become illegal if it didn’t.
Standing against his Republican leadership, Paul opposed extension of the metadata powers enabled by the so-called Patriot Act, passed a month after the September 11, 2001 attacks by al-Qaeda followers and extended a couple of times since. “Little by little, we’ve allowed our freedom to slip away,” he declared, thereby putting himself in alignment with civil libertarians usually found on the Democrat side of US politics. They’ve been incensed by the level of NSA domestic espionage exposed two years ago by renegade agency contractor Edward Snowden. The electronic spy agency had been using a secret Foreign Intelligence Surveillance Court interpretation of a clause in the Patriot Act to justify its collection of domestic communication data without warrants or even particular suspicion. Despite a federal court ruling that this was unconstitutional, security hawks had been ready to extend it.
By Tuesday, mainstream Republicans and some Democrats filled the gap with the new Freedom Act, supported by President Barack Obama, which requires telephone companies and internet service providers, rather than the NSA, to store metadata for at least 18 months and provide it on warrant. There is a six-month switchover period, in which the NSA can get its vacuum-cleaners operating again if it wants.
Has the US been at greater risk during this hiatus? The NSA and its supporters haven’t been able to show the indiscriminate approach to call and browsing records has yielded any further protection than would normal searches on warrants that are usually provided promptly by judges when investigators get a lead on a planned act of terrorism or after an attack. Nor, to give the spooks some credit, has the metadata power been abused J. Edgar Hoover-style to collect dirt on citizens their chiefs don’t like. It’s been a worrying broadening of power without much need.
While the Americans are winding back these excessive powers enacted after the 9/11 panic, Australia is going in the other direction, after a deranged loner took hostages in a Sydney cafe and a knife attack in Melbourne by a teenager. Our new metadata regime approximates the US Freedom Act, though we don’t have anything like the American level of protection for journalists and other citizens investigating abuses, and the Abbott government has made it clear that whistleblowers and leakers will be among the targets.
But the NSA and its counterparts in the Five Eyes electronic intelligence network retain a nifty way around restrictions on domestic eavesdropping. They’re all still empowered to collect both metadata and content on communications by non-citizens outside their jurisdiction, so they can swap data with other countries on each other’s citizens.
Let’s hear it too for Australia’s Senator Cory Bernardi, usually on the right of our political spectrum. A claque of 37 Coalition backbenchers has come out in favour of Tony Abbott and Peter Dutton’s wizard scheme of removing Australian citizenship from people fighting with terrorist outfits such as the Islamic State, if they can conceivably belong to some other country, but Bernardi this week took a Rand Paulesque libertarian stand, beyond a certain point.
While he supports the citizenship-stripping move against dual nationals, he opposes it against those whose only citizenship is Australian. “The principle that someone with only Australian citizenship can be stripped of that citizenship, without a court of law, by ministerial directive, for an offence, I think is a very dangerous precedent because who’s to say the range of offences won’t be expanded in the future,” he said. “This is the sort of power creep that I think is very dangerous from any government.”
In the May 25 cabinet meeting, leaked to The Sydney Morning Herald’s Peter Hartcher, six ministers also took issue with the Abbott–Dutton plan, sprung on them without notice but thoughtfully briefed to Sydney’s Daily Telegraph as a fait accompli. Some of the objections were on legal or pragmatic grounds, but Education Minister Christopher Pyne, often irritatingly garrulous, pinpointed the moral flaw. “A sole Australian citizen, terrorist or not, is our responsibility,” he said in Hartcher’s account. “We can’t wash our hands of the fact. We can’t pretend they’re not Australian when they are. The best thing to do is get them home, arrest them and put them in jail.” His response to the question of enough evidence for a court: “Then get it.”
Still, it seems as though the move against dual citizens with IS will continue. The strong backbench support suggests the Coalition sees it as a vote-winner and wedge against Labor. One chilling advocate is Rodger Shanahan, a former army officer who is now a Middle East specialist at ANU’s National Security College. He says it makes it easier to kill them.
“As part of [allied] military operations, individuals of sufficient importance are placed on a High Value Target List (HVTL), and when actionable intelligence becomes available they may be targeted,” he writes for the Lowy Institute. “Australia faces difficulties, however, because of constraints that prohibit the passage of information on Australian citizens to third parties. Given we are in a coalition, any Australian on a HVTL is therefore protected to a degree by their citizenship. It is reasonable to expect that if he has another citizenship available to him, then his Australian citizenship should be stripped so that Australia can provide intelligence on him to the coalition, thus allowing that individual to be targeted.”
Shanahan says ministerial decisions to remove citizenship should ideally follow judicial review. But “it is also appropriate, on rare occasions, that this be an executive decision without reference to the judiciary,” he said. “Intelligence has a limited shelf life and the coalition of which we are a part should be given the best opportunity [to] use intelligence against the enemy. Fighting a war only after a court’s verdict is arrived at just doesn’t work.”
Funny, this policy against helping target our nationals didn’t seem to be much protection when two Australian citizens, Christopher Havard and Daryl Jones (who also had New Zealand citizenship), were taken out in a US drone strike on a vehicle in Yemen in November 2013. The Australian government insisted it had no advance warning of the strike. It later came out that the federal police had been tracking the two men’s activities for some time.
But aside from some forlorn voices outside the government, the real objection to citizenship removal is the damage to the sense of belonging among recent migrants and their children. Abbott has made it clear he has them in mind when he talks of the citizenship oath and how it must mean something. Who else has taken the oath?
If there is a direct threat to Australia from IS or similar groups, it will come from new recruits raised locally through different kinds of propaganda. Returning jihadis will be well-known to security agencies. Abbott’s citizenship policy cuts directly across the counter-radicalisation programs that ASIO has been pursuing with some success.
But that kind of softly-softly approach is hard to play up in the tabloids. Better the mass police operations, such as the raids involving 800 police that yielded a replica sword, or the deepening of military involvement in Iraq being advocated by retired major-general Jim Molan, an Abbott favourite (who would have been ambassador to Indonesia had former general Prabowo Subianto been elected president last year) who will try for a Liberal seat in the senate next year.
Julie Bishop gave some impish smiles when first asked about the cabinet leak on citizenship, though she firmly denies being the source. But she is showing more and more creative thinking in foreign policy. Take her suggestion this week that Iran be included in the 20-nation consultative group about the IS threat.
With the Iraqi security forces so problematic and the stiffest fight to the Assad regime in Syria coming from the jihadists, Iran and its Shia allies – such as pro-government militias in Iraq and Hezbollah in Syria – are looming as ever more important players. However, Tehran’s acceptability to the West, and more reluctantly to the Sunni Arabs and Israelis, depends on the nuclear agreement it is now trying to finalise with the US and five other big powers by June 30.
One last-minute problem is that Iran’s stockpile of enriched uranium has grown 20 per cent during the past 18 months of negotiations. Whether this has been a deliberate move in case negotiations fail, or is due to technical problems converting it to fuel rods for nuclear power, is unclear. It will add to the complexity of implementing a deal to severely limit Iran’s uranium enrichment program well below a weaponisation threshold, but is not regarded as insurmountable.
Just how stubbornly governments like to nurse their enriched uranium is shown in an unlikely place: South Africa. The apartheid regime had pursued a covert nuclear weapons program, producing six bombs, before it was scrapped by the last white president, F. W. de Klerk, in 1989 ahead of the transition to majority rule. But 220 kilograms of highly enriched uranium, enough for several bombs, remain in a vault at the Pelindaba nuclear facility near Pretoria. Despite an attempted break-in by four armed men in 2007, which aroused fears of an al-Qaeda operation to acquire a mass-destruction weapon, the South African government still insists on keeping the stuff.
With Greece heading for default on the $US1.76 billion it owes the International Monetary Fund this month, the British government scheduling a referendum on European Union membership by 2017, Vladimir Putin massing his forces near Ukraine for a summer of fighting, and Finland testing a call-up of army reserves, the European experiment is looking a bit tattered at the edges.
All good for the Eurosceptics in British Prime Minister David Cameron’s team. Take former Tory cabinet minister Owen Paterson, who says a British exit from the EU would enable it to speak in world forums with its own voice, instead of as part of Europe. “But above all we would regalvanise the Anglosphere, at the international level working with allies, and regalvanise world free trade,” he says. Ah, the Anglosphere! Where have we heard that before?
This article was first published in the print edition of The Saturday Paper on Jun 6, 2015 as "Right’s Rand Paul talks down data laws". Subscribe here.