Male Speaker: And it's now my pleasure to introduce
to you the Law Librarian of Congress, Dr. Rubens Medina.
[applause] Dr. Rubens Medina: Well I want to welcome you
to this very special event.
We have today the privilege of having the opportunity to listen
to an expert in the field of law that is very,
very close to our concern today.   We have with us Dr. James Renwick.
He's a barrister -- [break in audio] -- ask for something more essential
and fundamental than that.
Prior to coming to the New South Wales Bar in 1996,
he had been a solicitor since 1985, working in both private
and government practice with a particular emphasis on public law.
He was an elected member of the New South Wales Bar Council
in the years 2000, 2001, and of the Professional Conduct Committee
of the Bar Association in those years and in 2006.
From September 2001 to February 2003,
he was one of the counsels assisting the Commonwealth Royal Commission
into the Building and Construction Industry, and was resident
in Melbourne, in performing those duties.
He holds a commission in the Royal Australian Naval Reserve,
where he has experience in appearing at criminal trials and boards
of inquiry, and providing legal advice.
In September 2002 he gave an address in the Banco Court
of the New South Wales Supreme Court on the topic,
"The War Against Terrorism, National Security, and the Constitution."
The commentary on his address was provided
by the Commonwealth Attorney General,
and in 2003 at the University of Sydney, he devised
and was a principal lecturer
in the first national security law course taught in Australia.
The course is now taught principally by him in the LLM Program
at the Universities of Sydney and Melbourne.
He has been a Senior Fellow in the Graduate Program
of the University of Melbourne Law School.
He is an adjunct international lecturer at the University
of Sydney Law School, where he gave one of the keynote addresses
to the Judicial Conference of Australia in the year 2005.
He has a general, commercial, and public law practice.
He regularly appears in the Federal and Supreme Courts,
and before a wide range of tribunals and inquiries.
He has appeared in the High Court in several constitutional cases,
and has appeared in a number of terrorism prosecutions.
In late 2004, he represented Australia at the trial
of David Hicks at Guantanamo Bay.
I think that we heard a lot about this, in Cuba, that is, of course.
And in late 2005, he gave an opinion on International Law
to the Australian Oil for Food Inquiry.
He is the 2007 Fulbright Professional Award Scholar
in Australian United States Alliance Studies,
sponsored by the Australian Department
of Foreign Affairs and Trade.
Ladies and Gentlemen, distinguished colleagues,
help me to welcome Dr. Renwick with us today.
[applause] Dr. James Renwick: Well, Ladies and Gentlemen,
it's a great honor for me, and for my family, to be here today.
For the last six weeks or so, we've been lucky enough to live
in this superb city of yours.
And we've enjoyed it very much, indeed.
Now, can I ask, firstly, can everyone hear me up at the back?
Is that loud enough?   Yes? Good.
What I wanted to talk to today is really the issue, the legal issue
at the forefront here, and in the United Kingdom, and in Australia,
two of your close allies.
And I don't need to tell you how enormously controversial the
response by those nations have been to the so-called 'war on terror'.
I don't like that term, I have to say.
It's not really a war.
It's more like a long struggle, it seems to me.
But the U.K. Home Secretary summed up what is
at stake very powerfully -- you can't hear me?
Yeah. I'll speak up a bit -- summed up very powerfully what is at stake
in 2004 in this quote, and I won't read it out.
But there's no doubt that he summed it up well when he said,
"The challenge, therefore, is how to retain long held
and hard won freedoms and protections from the arbitrary use
of power, which, of course,
I interpolate the common law has always jealously protected,
or wrongful conviction, whilst insuring that democracy and the role
of law itself are not used as a cover by those
You're all intimately familiar with what's happened here
in the United States, so I'm not going to tell you
so much what's been happening in your own country.
But I thought it might be very useful for you to know something,
perhaps a little more than you do already, about what two
of your closest allies, Australia
and the United Kingdom, have been doing.
Logically, I'll deal with the reasonably technical legal issues
first, and then move into the policy questions after that.
Before 9/11, Australia had no national laws
criminalizing terrorism.
Cases involving classified information were very rare,
as were cases of intelligence officers having
to give evidence in court.
And there were very few examples of homegrown terrorists.
The domestic intelligence service, like your CIA, had contracted
after the end of the Cold War.
And then all of a sudden, there was 9/11.
Our Prime Minister happened to be here on 9/11.
He was here because the day before 9/11 he
and President Bush had celebrated the 50th anniversary
of the ANZUS Security Alliance between our two countries.
And he happened to be in the Embassy on Massachusetts Avenue
when the first attacks started.
As it happened, he was also in the United Kingdom
for the London bombings on 7/7/2005,
and he and the Australian Cabinet invoked the ANZUS Treaty
for the first time in view of what was described as an armed attack
on the U.S. And we joined the U.S. operations
in Afghanistan, as you know.
And there's been a great deal of mutual cooperation and joint action
with the U.S. and other allies and partners since then.
Apart from the ANZUS Alliance itself,
which says that each party recognizes
that an armed attack would be dangerous to its own peace
and safety, and declares it would act to meet the common danger
in accordance with its constitutional processes.
And we invoked that for the first time after 9/11.
We took the view there had been an armed attack
on the United States on 9/11.   But another powerful treaty
or International Law obligation was U.N. Security Council Resolution
1373, passed unanimously by the Security Council on 28, September,
2001, and which we consider binding in international law.
And that had three particular focuses,
criminalizing terrorist acts, suppressing the financing
of terrorism, and denying safe havens to them.
And the text is here, sits that out.
Notably, you'll see that there was a requirement
that terrorist acts are established as serious criminal offenses
in domestic laws and there's appropriate punishment.
And that has been an important international law impetus
in Australia and also in the United Kingdom.
So what we did in Australia is we really did four things,
four very noticeable things although, in fact,
we have passed about 30 new statutes.
First, we created new offenses around the dual concepts
of a terrorist act -- and we drew from the definition
in your Patriot Act and also in U.K. legislation --
and a terrorist organization.
The next thing we did was we passed laws permitting the freezing
of terrorist funds, which is something done here,
or at least then it was under the Executive Order referred to.
Third and very controversially,
we gave power to our internal intelligence organization called
ASIO -- the same as MI5 in England --
we gave power to issue questioning warrants and to make them effective,
power to detain people, as well, for up to seven days
in order to question them.
And, finally and perhaps most controversially, powers were given
to issue control orders of which more later,
and also 48 hours detention without trial --
that's the national law and state laws.
We, too, have a Federation -- permit state police to extend that up
to two weeks in an emergency.
Pausing there, we defined a terrorist organization as one
which was directly involved in some way or other with the doing
of a terrorist act whether or not it occurs,
or one which had been prescribed by regulation.
And typically we pick up the U.N. definitions.
The terrorist act around which a whole series
of criminal offenses are created is interesting, and is worth looking
at in a little bit of detail; it's in four parts.
First there's the physical act which causes death, serious damage
to property, serious risk to health and safety of the public,
and in each case was intended to do so.
Then there was a carve-out; it was thought very important
that you couldn't describe as terrorist action something
which was advocacy, protest, dissent, or industrial action.
And we thought that was very important
in a Democratic society to have that there.
Notice the words "lawful" are not in there.
And the reason for that was that in a union strike, for example,
or demonstration, a strike can go from or a protest can go
from being lawful to unlawful simply
because you accidentally nudge a police officer
or put your toe one inch over into someone else's property,
trespass to the person or to property, and, therefore, illegal.
Third, and this is what sets terrorism apart --
one of the factors -- from other criminal offenses,
you've got to do it with the intention of advancing a political,
religious, or ideological cause.
And, finally, you do it with the intention of coercing or influencing
by intimidation an Australian or foreign government,
or with the intention of intimidating the public
or a section of the public.
Note, it picks up intimidating a foreign government.
So if someone tries to bomb the U.S. Embassy in Sydney with the intention
of affecting U.S. policy and the other elements are met,
that also will be a crime.   And so, around that notion
of a terrorist act we created a whole series of criminal offenses.
It's an offense to perpetrate a terrorist act, or plan for it,
or possess things connected with it, or make documents likely
to facilitate it, just as in relation
to terrorist organizations it's an offense to be a member,
or direct the activities, or knowingly recruit, or raise funds
for it, or provide support for it.
So you've got those two key notions, terrorist act,
terrorist organization, and a whole series
of criminal offenses hang off those.
And these are national criminal laws.
Now, every time there has been another terrorist incident --
and, of course, a very important one as far
as Australia was concerned was the Bali bombing
where 81 Australians died.
We haven't yet had a terrorist act since 9/11 in Australia.
But every time there is another terrorist act in a country
like ours, people in government, people in politics say,
"Well, what more can be done?
Is there a new law which can be passed?"
And one of the things, of course, the common law is most concerned
about is protecting encroachments on liberty.
And Blackstone writing in the 1770s summed it up pretty well,
"If you can give power to a magistrate,"
and he was referring there to a member of the executive,
"to imprison arbitrarily, then it's all over," in effect.
But a couple of years ago, after the London bombings,
we decided to pass a law permitting a control order to be passed
and to be placed on an individual in Australia.
And the essential idea of a control order is that,
although a person has not been convicted of an offense and, indeed,
they may never even have been charged with it,
that person because one of these two preconditions is met can be the
subject of conditions affecting their liberty.
Let me explain a bit more.
So the preconditions are making the order would substantially assist
in preventing a terrorist act, or there are good grounds
for thinking the person's been involved
in providing or receiving training.
And in our country as in your country, quite a few young men
after 9/11 and before went off to Pakistan and Afghanistan
to get involved in terrorist training camps.
So that is not a theoretical issue at all.
The idea about point A is that if you have intelligence
that an attack is imminent or one has just occurred,
and you're worried about a follow-up attack, that would be a basis
under point A. The types of control orders are very broad:
it can prevent the person leaving the country or going
to a particular place, for example, anywhere near a military facility;
it stops them communicating with particular individuals, for example,
any member of al-Qaeda; you can be limited to using the phone
or the Internet, altogether, or you can be limited to using,
for example, a particular phone which the authorities know about
and can therefore get a telephone interception warrant for;
there can be a requirement pretty much like house arrest
that you remain at, for example,
your home at specified times each day, and in the couple
of cases we have so far in Australia where we've got control orders,
typically it requires you to be at your own home between,
sort of, midnight and 5 a.m.
; wearing a tracking device; reporting to the police,
for example, being photographed and fingerprinted.
And you can get short-term orders.   But you can get orders up to a year.
And you can renew them.
Now the High Court, in a case I was involved
in involving a fellow called Jack Thomas,
said there was no constitutional flaw in this law.
And the law has been used a couple of times.
I should say that we have fewer constitutional limitations
on legislative power than you do.   We don't have a bill of rights.
We have a small number of individual rights
in the Constitution, but only one or two.
The feeling in Australia when we drafted our Constitution
in the 1890s is that the Common Law could be relied upon
to give the protections we needed.
And perhaps that's the difference between a country forged
in a revolution like yours, and a country which had a peaceful parting
of the ways with Great Britain as was the case for Australia.
Preventative detention orders, the idea here is that where there is
about to be a terrorist act, or you would need to preserve evidence
of a recent terrorist act, then you can detain someone without charge.
And the concept here is, let's say, for example, you had surveillance
on 200 people of interest in a particular area,
the police can just come in and arrest them all.
And they're held for 48 hours because the theory is that one
or more of those people may have been directing a terrorist act
which has just happened.   And there might be a follow-up one,
and the London bombings is a good example of that.
Or, alternatively, you want to preserve evidence and you fear one
of them may tip off somebody or may destroy evidence.
I should say that in Australia we do have other sorts
of detention without trial.
Like you, we have quarantine detention.
We have detention for mental health, which I think you also do.
But we also have extensive migration detention.
And so, people who come to Australia illegally, typically,
are put in migration detention unless they can get some sort
of visa pending determination of their immigration status.
I know that the view has been expressed in America
that the migration laws were used quite widely after 9/11
to pick people up and to hold them in circumstances
where there wasn't sufficient evidence to charge people.
And also, of course, your Material Witness Statute was used
to hold people for quite long periods of time in some cases.
Back to Australia, the other thing we did, which may be of interest,
is we introduced this idea of questioning warrants for ASIO.
It's our domestic intelligence agency like MI5 in Britain.
Of course, famously, you don't have anything like this.
The CIA is intended to have only an overseas [unintelligible],
although I understand that there is consideration being given now
in Washington to having something like a domestic intelligence agency.
ASIO has extensive information gathering powers in relation
to security which is widely defined to cover things like espionage,
and sabotage, politically motivated violence,
attacks on our defense system, acts of foreign interference,
and carrying out Australia's responsibility usually
under agreement with our allies, so ASIO can investigate in relation
to security someone of interest to an ally.
But ASIO had never had power
to detain people before it was a purely information-gathering body.
It had and has wide powers to tap telephones, and log into computers
and SMS messages, and all that sort of thing, [unintelligible].
But it had never had power and, indeed, to enter people's homes,
although it did that covertly, generally.
But for the first time, in 2002, ASIO was given power
to question for up to seven days.
And solely for making that effective, in other words,
a fear that a person might not turn up if they were served
with a warrant to be questioned,
they could be detained for up to seven days.
There were two preconditions.
Were there reasonable grounds for believing that the fruits
of the warrant would substantially assist in the collection
of intelligence important in relation to a terrorism offense?
And you'll recall the terrorism offenses are created
around the notion of a terrorist act.
And, relying on other methods would be ineffective.
And that power, I don't say it's used every day.
But it's been used quite often.
So what I've just done in the last 10 minutes is just take you
through the key things Australia has done, the new criminal offenses.
I've mentioned briefly the freezing of terrorist assets,
there's ASIO's questioning powers, and there's the control orders.
And I now turn to give you a brief snapshot
as to what the United Kingdom has been doing?
Note that, although we've recently had a change of federal government
in Australia, and we're starting to think
about whether we should have a bill of rights, perhaps on your model
or perhaps on the model the United Kingdom has got,
and the United Kingdom had no entrenched constitutional rights
at all, but it now has a Human Rights Act
against which statutes can be measured.
And famously, in 2005, the Antiterrorism Crime
and Security Act was found to be incompatible
with the Human Rights Act.
Prior to 2005, there was a law which permitted the indefinite detention
of people who were not British citizens or permanent residents,
whom the Home Secretary considered were international terrorists,
not purely focused on crime in the United Kingdom.
And these were people who couldn't be deported because, for example,
they were stateless, or, more often, because they couldn't be deported
because the U.K. couldn't be satisfied they wouldn't be tortured
or mistreated in their country of origin.
And so, what happened was that the Home Secretary could make an
application for a detention order.
And there was a very interesting process which was involved.
And I might just explain that for a minute.
One of the big issues in terrorism cases, or dealing with terrorism,
obviously, is dealing with classified information.
It's not just old-fashioned sources and methods.
Another complicating factor is that information, of course,
is pooled between countries.
And when one country gives information to another country,
they often put conditions upon its use.
"This is for intelligence use only.
You may not use it in any court case."
That's a typical restriction one might find.
So the same issue arose in England.   The other problem, of course,
is that if you genuinely think an individual is a serious
international terrorist that is perhaps the last person you'd want
to tell a secret of that sort.
You don't want to tell them how much you've got on them.
So an interesting method was created to deal with this
because one didn't want a Kafkaesque situation
where someone would never know or would never be able to respond
to the allegations made against them, when, in theory,
they might have had a simple answer.   And so, what they did was this.
They had two briefs, a classified brief, and the unclassified brief.
The unclassified brief went to the individual and their normal lawyers.
They could see everything.
They could discuss it without limitation.
It could be challenged in court generally against a standard
of reasonableness, I should say.
It's not like a criminal trail, just standard of judicial review.
But with the classified information, what they did was this.
They would only give it to a specially security-cleared lawyer.
That security-cleared lawyer could test that information
in closed court, but without their client
or the uncleared lawyers being present.
Now, "how were they to get instructions?"
you might ask.   Well, the way it worked was
that before the classified brief was served,
the cleared lawyer could have conferences with the client
and the other lawyers, discuss whatever they wanted.
And often they'd have some idea about why they were being detained.
But once the classified brief was served,
the cleared lawyer couldn't ask questions of their client for fear
that the nature of the questions would give away the
classified information.
The client could still pass instructions
over to the cleared lawyer.
But remember they wouldn't be there in court.
And I've taken a minute or two to explain that because it seems
to me that's not such a bad compromise,
if the alternative is the individual never being able
to challenge the information which leads to their detention.
It's not perfect, of course.   It's not easy.
But perhaps it's not a bad compromise.
And that specially cleared counsel was called a special counsel.
Well, I mentioned that this act
for detaining non-citizens was struck down.
And that was done really on the basis of Article 5
of the European Convention, which says,
"Everyone has a right to liberty."
It is true that there was the capacity to derogate from that right
in time of public emergency, not a war in this case,
threatening the life of the nation.
And, interestingly, the United Kingdom has derogated continuously
on the basis that there is a public emergency threatening the life
of the nation since 2001.
And they're almost the only country in the world to have done so.
And once you make that derogation, you may take measures derogating
from certain sorts of obligations,
and the Article 5 right was one of them.
What happened, though, is the House of Lords,
sitting as a judicial body, decided, 8 votes to 1, that Section 23
of the Terrorism Act, which is the one
which said you could detain non-nationals,
was incompatible because, essentially, it was illogical
and irrational to only detain non-citizens.
They said, basically, if this is such a big threat,
this law should apply to citizens and non-citizens, alike.
And it's discriminatory on the ground of nationality
or immigration status to do otherwise.
It's a breach of the Act.   The derogation doesn't work.
And in a sense, on a political level, what the House
of Lords was saying, is if you really think, Parliament,
this is so important, you need to be prepared
to take the political consequences of applying this law,
not just to people who don't vote, but to people who do.
And there were some powerful statements by the law lords.
Lord Hope made the point that the first responsibility
of government is to safeguard the lives of its citizens,
but the court has a duty to protect the rights
of the individual including the individual's right to liberty.
You may remember that there was a huge furor about this at the time.
Tony Blair, who was then Prime Minister, said, "Well,
it's got to be overruled."
But in the end they decided not to do it.
They didn't replace the law with one
which covered citizens and non-citizens.
But they gave control orders.
Even though it was controversial, one of the persons
who had been detained managed to escape in the period
between when the law was overturned and when the control orders came in.
There's a new U.K. proposal, you may have heard about it on the press
in December, to extend -- this is now a separate point --
the pre-charge post arrest detention period, so it's different
from control orders, from 28 days to 42 days.
There's been a great drama about this
because the prosecutors have said, "Well, in fact,
we've never needed more than 28 days."
And it's likely to be rejected in the upper house,
assuming it's passed in the House of Commons.
Well, here's all these new laws.   What have they led to?
In Australia, which, of course, only has 21 million people,
one conviction, one set aside with a retrial, 27 presently charged,
22 of whom will face trials, a number of people questioned by ASIO.
The U.K., on the other hand, the contrast is stunning.
The number of arrests is enormous, 132 people charged
with pure terrorism offenses, 109 charged with mixed offenses,
and an enormous number of convictions,
41 terrorist act convictions, 114 people awaiting trial.
And the rate of conviction is high.   It's about 80 percent.
Well, you know better than I do that,
that's not been the picture here.
There has been convictions of a couple of people.
There have been convictions of people like John Walker Lynde
for providing material support to terrorism,
although I read a very interesting report by the Department
of Justice Inspector General criticizing Department of Justice
and FBI statistics, which he said tended to lump together things
which were not truly terrorist convictions with things which were.
The Military Commission process, of course, has moved very slowly.
There's been a plea bargain involving the Australian David
Hicks, and his ongoing controversy about the Commission process.
Terrorist investigations, are they different
from other criminal investigations?   People often ask this question.
And the U.K. have published a lot of material about this.
They have said, as recently as last year, it was written last year,
recently as last year, 39 plots, and they're presently surveilling
about 2,000 people, and 30 individuals convicted
of terrorist offenses in 9 cases.
So there's a great deal happening in the United Kingdom.
People say, "Well, look, why can't we just throw more money
at this problem?"
The answer is, according to the United Kingdom,
that the complexity is quite different from a normal trial.
There's a lot of material.
There's a great use of encrypted computers and multiple mobile phones
because one thing al-Qaeda is very good
at is compartmentalizing information,
very good at that, indeed.
People say, well, just additional resources, but the fact is
that a lot of these investigations are front-end loaded.
You've got to start by going through a huge amount of material --
I'll tell you how much in a minute --
synthesizing all of that before you can move things forward.
Another problem has been the use of false identities.
And this statistic was given.
Only one of the 21, July suspects actually gave his real identity
at the trial.
And other people have had as many as 10 identities.
And the other thing is the international links,
very often people have typically trained in other countries,
not just Pakistan but many have trained in Pakistan or Afghanistan.
And often then you have got to deal
with other countries and their practices.
If I can give you an example, when evidence was being given
in a particular case in Australia by video link, a question was asked
and all that the people in court could see was an individual sitting
in a room in Washington answering questions.
And all of a sudden, a large gentleman got up --
we didn't even know he was in the room -- and said, "I'm from the FBI.
And I'm sorry.
That question can't be answered because it's outside the scope
of the mutual assistance under which this person is giving evidence."
So that's a practical example of the problems which can be created.
So those are three things: complexity, false identities,
international links, which make things different.
Let's get down to tintacks.
The attempted bombings in July 2005, just have a look
at how much material people had to go through.
It is phenomenal.
In the U.K. there's a lot of closed circuit TV.
We have a little bit in Australia, but in the U.K. it's everywhere.
And 28,000 of those tapes were seized.
And it's not just a matter of sitting and watching them
like a video, you know, a movie.
I mean, there's obviously a huge amount of work to be done going
through that, 18,000 hours of viewing of tapes,
16,000 telephone records, 10,000 statements,
25,000 forensic exhibits.
I mean the scale of the problem is enormous.
And, you know, unless you get a lucky break, until you've got
through all that sort of stuff, you're not really making progress.
Another aspect is the searches of premises and things.
Well, 34 premises, houses and so on, that's one thing.
But look at the computers, the mobile phones,
the analysis of individual calls,
and [unintelligible] Internet inquiries.
And all those things take a lot of time.
And we all know how much information we've got on our own computers.
But assume you've got a huge amount and it's encrypted.
It's going to take an awfully long time to go through it, and,
of course, often in another language than English,
Terrorist trials do differ from normal trials.
The most obvious way in which they differ is the use
of classified information.
Now, it is true, and you've had some example of it here,
that in espionage trials, for example,
you have classified information, as well.
But compared to most criminal trials, there's an unusual amount
of classified information.
I should also say sometimes in drug cases you're dealing
with an informer and their identity has to remain secret, for example.
But that isn't the scale of the problem in a terrorism trial.
Overseas evidence, I've mentioned.
And an overseas government may take a view, as I've mentioned earlier,
that, that information is only for intelligence purposes,
not for police purposes, you can't use it.
There are many appeals.
And that's the right of the accused, of course.
But also, when governments and prosecutors lose,
particularly on legal points, they're going to appeal, as well,
because the issues are important
and you could have an unattractive precedent either way.
They [unintelligible] complex, particularly in a conspiracy case.
And, of course, this is all done under the maximum glare
of media scrutiny, who are all saying, "Well, look, you know,
why is all this taking so long?"
People say, "Well, why do we need specific laws for terrorists?"
Well, I've mentioned one.   It's the classified information.
And you have CIPA, the Classified Information Procedure Act.
And the great advantage of that Act compared to the equivalent we have,
is that CIPA requires that all the classified information issues are
got out of the way before trial.
We, unfortunately, have a system where a lot of these issues continue
to arise during the trial, and have the tendency
to disrupt it enormously.
Although CIPA can be very difficult, seems to me it's better
to get them out of the way early.
This also causes the special council idea I mentioned to you earlier,
which we are having a flirtation with in Australia at the minute.
Should we have that?
Doesn't it offend the general principle that is much possible
of justice be done in public, and that an accused be entitled
to confront his or her accusers?
So those are some sort of nuts and bolts problems.
Philosophically, the answer is more complex.
There are very different views.
Many prosecutors, particularly in the United Kingdom and Australia,
say, "Look, the only thing which is different is the
classified information.
It's important that terrorists aren't given the cachet
of being freedom fighters.   They're just criminals.
That's how you prosecute them in the normal way."
As you know, in the United States, there is an ongoing
and very ferocious debate on this topic.
And many people have expressed the view that,
"The military commissions, which are continually evolving,
are the only way to deal with people
who have been picked up on a battlefield."
Other people say, "No.
Let's stick with the ordinary criminal trial process."
And as a visitor here, I, although I'm not going to be here
for much longer, I'm going to watch with great interest what happens
when you have a new president next year,
and see how the new president copes with some of those challenges.
Can I finish with a little bit of policy or philosophy,
some from here, some from not.
One of your founding fathers, Alexander Hamilton,
summed it up pretty well.   And I won't read it out.
But it's a terrific quote.
And his point is that once you start feeling threatened,
it compels nations the most attracted to liberty to resort
to institutions which have a tendency to destroy rights.
To be more safe, they at length become willing
to run the risk of becoming less free.
I emphasize the word, "risk."
It isn't a certainty, but it's a risk.
The nature of the threat, what is it?
I don't pretend to be an expert on terrorism.
There are, in my view, very few real experts on terrorism.
But a lawyer, who has thought about these issues a lot,
he's your Judge Richard Posner who's up in Chicago, and he described it
in the way set out in the first doc point, very powerfully.
It seems to me, though, that 21st centuries have mutated
into something new and dangerous because of their mobility,
because of the asymmetry," a term I'm sure you're familiar with,
that a couple of people who don't possess very advanced weapons can
cause enormous damage, and 9/11 itself is a paradigm example.
Just very quickly, so we've got time for questions, the motivation --
let's not forget about the pressure on governments.
They're real.   And they are enormous.
The pressure to prevent terrorist act is immense.
And that pressure is obviously felt at the top and passed down.
And the press have an important role here, as well.
The theme's then, are we more safe but less free?
Another important point, as we have discovered and you have discovered
in the last five years, constitutional protections
where typically [spelled phonetically] written at the time,
were [spelled phonetically] they applied to citizens,
the rights were not regarded as universal.
And that's something which has come out in a lot
of the terrorism cases here.
There is a link between terrorism and organized crime,
not always, but there can be.
International cooperation is enormous.
You may have your own views about whether we're in a situation
where there's a war of national survival, and obviously,
there have been excesses around the world.
And the final point which links in with that is
if it's a war, is it a war without end?
So there's a few general remarks about the experience in Australia
and the United Kingdom, and I'd now be delighted to take some questions,
if anyone would like to ask any.
The man with the microphone's at the back.
Male Speaker: Two questions, one, a control order was directed
at individuals training with a terrorist organization.
Dr. James Renwick: Yes.
Male Speaker: That raises the question what is a
terrorist organization.
This country has often had Attorney General's list,
where some -- Dr. James Renwick: Yeah.
Male Speaker: -- organizations go on,
you don't know how he [spelled phonetically] got on,
but it's -- it's very damaging.
And training for the terrorist organization may be people
who object to conditions in China, certainly you're no threat
to Australia, so is there the assumption that as someone working
with a terrorist organization, even though not at all directed
to your country, still a target?
And then, I was looking at Posner's definition of terrorism,
using words like "fanatical" and "alien."
Course, we did that in 1798.
We regarded anyone connected with France
as fanatical, a [inaudible] alien.
And I think it's generally been said that he would have been one
of the great mistakes in U.S. history.
Thank you.   Dr. James Renwick: Thank you, sir.
Well, I think, I don't know a great deal about the French situation
and the early part of this country.
But in terms of Australian law it is a precondition
for the government even applying for the order,
that either there's been the terrorist act or there's evidence
that the person's been training.
That does not mean that a control order will be granted.
And it would certainly be open to an individual who was the subject
of an order to seek to prove
that the training they had been doing was benign.
I mean, I can think of an example.
It may be a theoretical example, sometimes said that a lot
of terrorist organizations may have an educational wing.
They build schools or the like.
If an individual could generally show that their sole interest was
in learning how to build schools or hospitals, well,
one imagines if a judge accepted that,
then a control order would not be granted.
Your other point about, "Well, what is a terrorist organization?"
And does it have the capacity, I think you were inferring,
to be misused, to be used too widely, there's no doubt.
It has the capacity to be misused.
What we've done in Australia is we started off saying, "Well,
the government would need to prove on a case-by-case basis
that an organization - [break in audio] --
from we now prescribe them by law.
So there's a rebuttable presumption that if you're prescribed,
you are a terrorist organization, and you'd have to come in and say,
"Well, look, in fact, we're not."
Very difficult to prove that, of course.
Thank you.
Yes. Dr. Rubens Medina: There was a point where you referred
to the measures to be promoted or taken to prevent terrorism.
Dr. James Renwick: Yes.
Dr. Rubens Medina: I'm curious about the scope of the prevention effort
because it seems to me that there's a lot of investment made
of resources, particularly intelligence resources,
in trying to learn and frustrate -- Dr. James Renwick: Yeah.
Dr. Rubens Medina: -- rather than prevent, because when I think
of prevention, I want to know what triggers terrorism, and attack that.
Dr. James Renwick: Sure.
Dr. Rubens Medina: So, can we hear a little bit
about -- Dr. James Renwick: Yes.
Dr. Rubens Medina: -- what the scope of prevention is?
Dr. James Renwick: Yes.   Well, of course, so you've touched
on the great dilemma for governments.
When they discover a terrorist group
and discover it might be plotting something,
how long do they let the plot run?
Do they let it run up until the instant before the bomb goes off
in the hope that they can tear out the organization root and branch?
Or do they stop it much earlier
on the basis this is far too dangerous to let run at all?
And that's a classic dilemma.
And intelligence and police agencies often have different views
about that because, after all, a police agency
like your FBI will typically want obviously to prevent
but also to get people convicted.   Intelligence organizations,
their role is not trying to convict people.
In relation to prevention, of course,
the stakes are very high because, although many officials say,
"We are bound to have another attack one day," and I think
that must be right, the consequence
for governments of attacks is enormous.
It's completely unacceptable to have future terrorist attacks at least
of any scale, whereas we accept that there'll be a certain number
of murders and armed robberies and so on in our society.
We take a very different view,
really because of the asymmetric consequences,
the number of people killed and damage caused.
So, for prevention then, what we've tried to do with Australian laws is
to increase surveillance powers so we know what's going on.
That's step one.
We have the capacity to pull people in for questioning.
We have much more sharing of information
with our allies and partners.
So we know what's going on in the region, for example.
We also on a technical legal level have wound back the criminal law
focus from, for example, an attempt
to commit a terrorist act would have required
at one stage a specific target in mind.
Australian law now says that, and people are charged on this basis
at present, if you had a general idea that you might want
to blow something up, you haven't quite decided whether it's this
target or that target, but you go around the place and you collect,
get bomb-making equipment and know-how,
and you have a general intention to let off a bomb somewhere someday,
that's a crime in Australia now, which it wasn't before.
So that's another way the law can try and prevent things.
And, of course, I suppose the control orders are another way
of keeping an eye on people, preventing people
from associating with each other.
So person X may not have anything to do with person Y,
whom we suspect is planning something, or is a bad influence.
And, of course, detention without trial,
immediately before a terrorist act or in the immediate aftermath
where you fear a follow-up.
So those are some of the ways because there is
such a premium on prevention.   We try and prevent.
Male Speaker: It was reported this morning that the Chairman
of our Joint Chiefs of Staff is advocating the closure
of Guantanamo.
Not necessarily, and I just heard a snippet, but it wasn't necessarily
for ideological or perhaps even legal reasons,
but rather as it was reported on national public radio
that the Chairman believed that America's standing
and it's reputation in the world suffers as a result of perceptions
of what might be happening in Guantanamo.
Dr. James Renwick: Yes.   Yes. Male Speaker: As you know,
we're going through a national election next year.
I have not heard as much as I thought I would
about what you've described as perhaps the necessary conflict
between protecting classified information essential
for national security and basic human rights.
But when politicians have discussed it,
they've typically taken the middle approach,
which perhaps politically is the safest one.
We must protect national security at all costs while
at the same time preserving human rights.
I'm not sure how that's necessarily possible.
In Australia, and you just had a change
of government -- Dr. James Renwick: Yeah.
Male Speaker: Did it arise how the political figures treat that issue,
the popular press, and public?   Dr. James Renwick: All right.
As far as Australia goes, all of the laws which have been passed
which I have referred to, were ultimately passed
with bipartisan support between the two major parties.
That's not to say there wasn't considerable amendment
of the acts when they were bills.
But the ultimate acts had bipartisan support.
In relation to Guantanamo, we only ever had two people there.
One was let out before trial.
Another, Mr. Hicks, came back under a plea bargain.
And I think it's fair to say that there was a change in public opinion
in Australia to, "Well, we're happy to let the process continue
in Guantanamo," to "No, no, it's really gone on too far."
The, frankly, surprising decision by the Supreme Court in Hamdan,
and I say surprising in view of what the same court had said in Quirin,
you know, 70 years before, meant, of course,
that we were really on the back burner.
So that'd change things.
As I understand it, I think all of the Democrat candidates still
in the race would close Guantanamo.
Some of the Republican candidates would, but not all.
But the question for all of them, as they well know, is, "All right.
Let's say you do that.
Let's say that's the first act of the new president.
What do you do with the individuals?"
It's not just a matter of deporting
because the State Department tries very hard to insure
that people aren't deported to a country
where they might be tortured.
And that would be an issue for many of them.
Some of them, without doubt, are very serious hardcore terrorists.
And what is to be done with them?   What are they to be charged with?
So those are some of the complex issues.
Now, I see the time.
And I probably should finish on time.
Can I just finish with a terrific quote, which I rather like?
Let me tell you a story.
In the Second World War, the problem arose what to do
with all the Fifth Columnists.
And so Oswald Mosley was the leader of the Blackshirts in England.
And a law was passed that those people,
that whoever the Home Secretary thought was a risk
to national security could be detained without trial.
And so they were, on the Isle of Wight,
for a number of years in World War II.
But interestingly, Churchill, in the Cairo Conference,
where the War's not over, the War's still got, what,
18 months to go at least?
In his History of the Second World War, Volume 5, Appendix F,
if you're interested, he sets out two or three fascinating memos,
written in his usual superb language, where he was arguing
with his officials that this was to be brought to an end as it was.
And he said there, in very powerful language, that putting people
in jail without charge is a very challenging thing to do.
He puts it in stronger language than that.
And extraordinary powers assumed by the executive should be yielded
up when and as the emergency declines;
this is really the test of civilization.
And it seems to me, the issue for our countries and the United Kingdom
in a struggle which we are engaged in, which is real,
where there is significant danger, is how we react to this
because it really is a test of civilization.
So thank you very much.
[applause] [music playing] [end of transcript]