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Monday message board

October 24th, 2005

It’s time, once again for the Monday Message Board. As usual, civilised discussion and no coarse language, please.

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  1. Katz
    October 24th, 2005 at 10:41 | #1

    Interesting story here:

    http://www.theaustralian.news.com.au/common/story_page/0,5744,17010297%255E31477,00.html

    about a British RAF office facing a court martial for refusing to return to Iraq because of his belief that the invasion of the Middle Eastern country was illegal.

    The defence has based its argument on the so-called “Nuremberg Defence.” This arises from the post WWII verdict that German officers had a duty to disobey orders that flauted international law.

    Moreover, the defence will argue that the declaration of Britain’s Attorney-General that the Iraq war was legal is insufficient in light of the necessity for this legality to be tested by judicial action, not asserted by executive fiat. One test for legality is whether the war was authorised by Security Council resolution.

    ‘Flight Lieutenant Kendall-Smith’s lawyer, Justin Hugheston-Roberts, said the case “is possibly the biggest case to come before any British court in living memory”, as he believed the court could rule that the war in Iraq was illegal.’

    There are two issues here:

    1. Whether the British invasion of Iraq was legal, absent Security Council authorisation.

    2. Whether, regardless of the legality of the Iraq War, executive government is subject to judicial authority in relation to its decisions of whether to fight a war, and how that war is fought.

    Does anyone know whether British Courts Martial decisions may be appealed to the House of Lords?

  2. Katz
    October 24th, 2005 at 10:58 | #2

    I’ve found the answer to my own question:

    “In criminal and courts-martial cases there is an additional, statutory requirement that leave cannot be granted either by the court below or by the House itself unless the court below has certified that a point of law of general public importance is involved in its decision. So when the appeal arrives, the point of law at issue is formulated precisely in the form of a question.”

    The answer is a qualified “yes”.

    This could get interesting.

  3. Homer Paxton
    October 24th, 2005 at 11:33 | #3

    Call me cynical Katz but it seems to me that the British government will pull out all stops to keep this case from going to court.

  4. Katz
    October 24th, 2005 at 13:27 | #4

    The case is beginning on Thursday.

    The most likely outcome is conviction on the charge of refusal to obey a lawful order.

    Then it is likely that the defence will appeal to the Court Martial Appeals Court. Again it is likely that they will confirm the conviction. But it is up to that court to decide whether “a point of law of general public importance is involved in its decision.” If they so decide, “the point of law at issue is formulated precisely in the form of a questionâ€? to be answered by the House of Lords.

    This process can be circumvented by:

    1. An acquittal, which might well open the floodgates of refusal to obey orders on the basis that they may be illegal.

    2. A refusal by the Appeal Court to refer the case to the House of Lords. This is a likely course of action, which raises serious questions about natural justice.

    3. The Appeals Court asks whether the Security Council resolutions represent a legitimate cassus belli. The House of Lords declares that the Resolutions passed in the Security Council represented a legitimate cassus belli. This seems to me to be the most likely outcome. In this way, the substance of the Nuremberg verdicts is sidestepped.

    4. The Appeals Court asks whether the judiciary has authority over determining whether a cassus belli is legitimate. The House of Lords can either uphold the ultimate right of the State to assert the legality of its actions, or it can deny that right. The Nuremberg verdicts deny that ultimate right.

  5. Christo
    October 24th, 2005 at 15:45 | #5

    Interesting article here from Harpers & Queen on the US as a fascist state. He quotes Umberto Eco on the qualities shared by past fascist states which sound uncomfortably familiar to Howard’s Australia:

    * The truth is revealed once and only once.

    * Parliamentary democracy is by definition rotten because it doesn’t represent the voice of the people, which is that of the sublime leader.

    * Doctrine outpoints reason, and science is always suspect.

    * Critical thought is the province of degenerate intellectuals, who betray the culture and subvert traditional values.

    * The national identity is provided by the nation’s enemies.

    * Argument is tantamount to treason.

    * Perpetually at war, the state must govern with the instruments of fear.
    * Citizens do not act; they play the supporting role of “the people” in the grand opera that is the state.

    http://organicconsumers.org/Politics/harpers101205.cfm

  6. Roberto
    October 24th, 2005 at 17:02 | #6

    Ok – here we go again, about the Iraq war. And the usual bleeting.

    I guess JOSE RAMOS-HORTA is a fascist as well. His recent article on the matter is provided in full below.

    U.S. Soldiers Are the Real Heroes in Iraq
    By JOSE RAMOS-HORTA
    Wall Street Journal, October 17, 2005

    Time and again as I watch the barbarity inflicted on innocent Iraqi civilians, often women and children, pass with seeming silence and indifference from the rest of the world, I ask where are those who are so quick to take to the streets to protest every alleged U.S. sin — be it real or imaginary? If they are so appalled at the graphic photos showing the depraved acts committed by a small number of American servicemen — photos that, never let it be forgotten, were unearthed as a result of the U.S. Army’s own investigation — surely they should be even more appalled by the daily carnage inflicted on the Shia majority in Iraq. Instead, those who hate the U.S. seem to believe that every wrong committed by an American serviceman must not only be loudly condemned but portrayed as a deliberate act by the U.S. government, while the systematic and daily barbarities perpetrated predominantly by Sunni Muslims upon their fellow Muslims pass without comment.

    Such hypocrisy and unwarranted attacks increase the pressure on the U.S. to cut and run from Iraq. In the face of a mounting death toll and growing financial burden, it’s understandable that some have begun to have doubts about whether America should continue to send its brave young soldiers to die in a battle so far away.

    To those who harbour such doubts, I say remember the lessons of history. In Lebanon in the 1980s under a Republic Administration and Somalia in the 1990s under a Democratic Administration, the U.S. retreated in the face of American casualties. As a result, both countries fell into the grip of terrorists — a state from which it took Lebanon many long years to emerge, while Somalia still remains mired in lawlessness. Any such instance of the superpower vacillation emboldens its sworn enemies, while causing anxiety among its friends. And Lebanon and Somalia are but small dots when compared with the vital strategic importance of Iraq.

    Retreat is not a viable option for the costs would be far too high for U.S. vital interests in the Middle East and the world as a whole. Iraq would inevitably descend into a Somalia-like failed state with dire implications for its neighbours. Oil prices would skyrocket, bankrupting many non-oil producing countries, and triggering recessions in industrialized economies.

    In addition to such strategic considerations, there is the moral and ethical dimension of betraying the Shia majority and all those, Kurdish and Sunni democrats who have put so much faith in the U.S. and in the international community to stand with them in their struggle for a secular and democratic Iraq. The Shia leadership, in particular, have shown enormous restraint in the face of daily provocations and attacks, as they struggle to grasp this historic opportunity to overcome many centuries of oppression by the Sunni minority.

    All these are reasons why it is in the world’s interests to see the U.S. stay the course. But other countries also have a part to play. In particular, Iraq’s neighbours need to do far more to prevent their territory from being used as a training ground, safe heaven and transit route for mercenaries and weapons. For all Syria and Iran’s denials of actively aiding the extremists in Iraq, at the very least they are not doing enough to assist the democratic government in Baghdad win the battle against the terrorists and the remnants of Saddam Hussein.

    Europe

    Europe too has a role to play. It is a great relief that the acrimonious trans-Atlantic tirades over Iraq have given way to a far healthier discussion on how best to assist the Iraqis. Many Europeans remain critical of U.S. policies, and there are some who are never prepared to accept that America can do anything good. But there are many more who are realistic enough to accept that there is no substitute for the U.S. as a guarantor of international peace. They understand full well that America provides a vital security umbrella and strategic balance, especially in areas of the world where regional rivalries could easily escalate into open conflict without the stability provided by a U.S. presence.

    For all the present violence, in a few years Iraq could easily evolve into a peaceful and democratic country. Whether that transpires ultimately rests in the hands of the millions of Iraqis who defied the terrorists by bravely turning out to vote earlier this year. But they cannot succeed if they are abandoned. And the brave, young American soldiers whom we today see cruising the treacherous streets of Iraq, sometimes battling the terrorists, sometimes conversing with ordinary Iraqis, will be remembered as the heroes who made this possible.

    Mr. Ramos-Horta is a Nobel Peace Prize laureate and East Timor’s senior minister for foreign affairs and cooperation.

  7. Razor
    October 24th, 2005 at 17:49 | #7

    Christo, who made you God?

    I mean, you crash and burn on the first point. The Federal Governmentwas elected by a majority of the population. The preferential voting system used in Australia elects the most popular candidates. The voice of the population is represented and thi sis supported by the current polling. Just because you don’t agree doesn’t mean it is bad.

    I couldn’t be bothered going through the other poitns but they simply do not apply to Australia.

    Strangely enough in this terrible fascists state you have the freedom to express your views and also to bugger off if you don’t like it.

  8. October 24th, 2005 at 18:39 | #8

    Katz, great research. Heard of that case,briefly,on radio.
    Could not pick it up on google, last week.

    Karl Rove,dubbya’s spin doctor, has a few probs, too.
    Might we expect a resignation,next week ? Valerie Plame, may well send this person to the obscurity, he deserves.

    Like responding to blogs.

  9. observa
    October 24th, 2005 at 19:45 | #9

    Perhaps the Brit RAF officer felt he was needed more urgently at home for the defence of the nation Katz
    http://finance.news.com.au/story/0,10166,17019370-31037,00.html

  10. Adam
    October 24th, 2005 at 22:17 | #10

    Anyone got any suggestions or opinions on the UQ Graduate Senator election? Liam Hogan had a good go at a ticket for the Sydney Uni elections, but I’m in need of some similar advice and/or inside information on the candidates for UQ.

  11. October 24th, 2005 at 23:44 | #11

    Christo has cited an odd article, which seems to me to be a badly written satire which fails to emulate Swift.

    But the citation of the notable parts of “the set of axioms on which all the fascisms agree”, seems to provide a handy list against which we can judge our own society. Do our leaders think like this?

    Personally I think Howard’s policies are reactionary and antidemocratic, with a disrespect for honesty which has become frighteningly common in many political parties around the world. That doesn’t make him a fascist.

    Bush, though, thinks in ways which are much closer to the axioms. Or perhaps we should say there is a movement – the Bush fedayeen – which has strong fascist tendencies.

  12. October 25th, 2005 at 08:51 | #12

    JQ,

    Your thoughts on Bernanke as prospective Chairman of the Fed?

    I mean, he has a good beard & all, but is that enough for these turbulent times?

  13. wilful
    October 25th, 2005 at 09:33 | #13
  14. Razor
    October 25th, 2005 at 11:27 | #14

    Nope.

  15. October 25th, 2005 at 11:34 | #15

    In that case, Razor, would you lend me some money to short the USD? About US$8 trillion would start me off with a decent margin position.

  16. October 25th, 2005 at 13:48 | #16

    Katz, you know what happens to bush lawyers (or barrack-room lawyers). Even if they get off on whatever specific thing they pull, the book gets thrown at them for something else. Probably with the help of Queen’s Regulations 989 or something like that.

  17. Katz
    October 25th, 2005 at 13:58 | #17

    PML,

    Not sure Lieutenant Kendall-Smith wants to “get off” in that sense. It’s more likely that he suspects that there’s a martyr’s crown with his name on it.

    I guess the British Army could withdraw the charge of refusal to obey an order to return to Iraq and replace it with a charge of lack of hygiene, to wit: “refusal to apply hot sand to soles of feet, cleanliness, for the promotion of.”

  18. Christo
    October 25th, 2005 at 15:49 | #18

    Razor Strangely enough in this terrible fascists state you have the freedom to express your views and also to bugger off if you don’t like it.

    But for how much longer if these absurd “terrorist” laws are enacted?

    And yes, Razor, and I’m sure Australia hasn’t symbolically bound a bunch of axes together and John Howard isn’t a bald little Italian with a bad temper (nearly though!).

    Did you read the article?? I thought it would provoke some discussion not present a thesis on the unique nature of Australian politics.

    I hope you’re not trying to say “it could never happen here”. Should I bugger off because I’m daring to question the good will of our elected leaders? Would this be treasonous?

    Although I’m not quite as pessimistic I thought the article and that list had some parallels with what’s in the news lately: if you don’t think it’s obvious, eg.

    * the libs pushing “intelligent design”,

    * our national identity as being against terrorists and bound up in our war-time efforts (viz. Howard’s obsession and desecration of Gallipoli),

    * you could be putting away for “stirring unrest” with these new “terrorism” laws (esp. if you’re a muslim).

    * our unquestioning acceptance of imperialism in signing up for the Iraq fiasco.

    etc.

  19. Razor
    October 25th, 2005 at 16:41 | #19

    Fyodor, while I am an avaricous RWDB I am unfortunately short myself. Fortunately for you there are plenty of others with both the means and the capacity to allow you to short the USD – go your hardest if you think there is a turn in it.

  20. Razor
    October 25th, 2005 at 16:55 | #20

    Christo, the proposed laws are not absurd. Terrorsists actually do want to harm us and current legislation does not allow swift and decisive actionto be taken to stop it. I didn’t read the article because the extract from it was enough of a load of crap to warn me off.

    “the libs pushing “intelligent design” is a load of crap, too. It is Christian fundamentalists who are pushing that load of guff and they are on all sides of the house.

    “our national identity as being against terrorists” – I certainly am against terrorists and the vast majority of Australians I know are, too. Why don’t you go to Bali and tell them that you support terrorists?

    “Howard’s obsession and desecration of Gallipoli” – If Howard is so obseessed with Gallipoli, why do tens of thousands of young Australians go every year – are they caught in the thrall of JWH?? No, I didn’t think so. You don’t think that Gallipoli is important, good luck to you – you are sadly out of touch with main stream Australia. Perhaps you should take your holidays with David Williamson – I’m sure you’d have lots to complain about together. And as for the desecration – exactly what desecration are you alleging that John Howard has done? The road business is a media beat up. (And I am spent 13 years in the ADF including 7 years in units that landed at Gallipoli.)

    You must fell very lonely and unhappy living in this wonderful country.

  21. Razor
    October 25th, 2005 at 17:23 | #21

    Fell – feel – same difference I suppose.

  22. Christo
    October 25th, 2005 at 17:30 | #22

    Oh puh-lease. I really don’t care how many foreigners you might have killed because that in no way improves your argument.

    And please don’t make any assumptions you about me. You haven’t met me and it’s rude.

    The laws are absurd because we already have laws and systems in place with which we might deal with “terrorists”. And don’t worry somehow I don’t think the Indonesian police are planning any operations anywhere in main-land Australia.

    So what exactly is a terrorist again? How many people have died in Iraq and on what grounds? How many people died in Indonesia in the 1960s and why? What happened to President Allende again?

    Of course this in no way exonerates what heppened in Bali, London or New York and the people behind those events absolutely must be brought to justice. But some perspective is also valuable. And I don’t think these laws will help bring the perpetrators to justice. I’m tempted to argue that they will have the opposite effect – but I won’t b/c I haven’t studied the provisions etc. Will we get that chance before they’re enacted?

    True the born agains are the ones pushing “intelligent design” but it is the Liberals who are making sure it stays in the papers and on the TV. It’s a great smoke-screen: the media equivalent of email spam. Peter Garrett’s a born again but I’ve yet to hear him spout an opinion on it.

    This is indeed a wonderful country. Unless you’re black, or muslim, or…

  23. Ian Gould
    October 25th, 2005 at 18:54 | #23

    More interesting that the US net debt (which has grown by around 25% in nominal terms since Bush took office) is what has happened to the servicing cost over that period:

    http://www.publicdebt.treas.gov/opd/opdint.htm

    In nominal terms the interest cost in the 2005 financial year was marginally LOWER than in 2001. In real terms that’s probably a decline of 15-20%.

    The US budget deficit ,as bad as it is, has benefited enormously from historically low interest rates. If the average interest rate on the US debt returns to the 2000 level, the interest cost will blow-out by around $80 billion per year.

  24. Stephen L
    October 25th, 2005 at 22:18 | #24

    The definitions of facism Christo points to are certainly interesting. I don’t think they are all yes/no points. All parliamentary democracies represent the will of the people some of the time and not others, and I don’t think they should always represent the views of the people on issues where there has not been a lot of debate and people are uninformed. However, consistent failure to represent the people is certainly a significant sign.

    In terms of applying these points to Australia, I think that the current government is doing what the population wants about as often as most governments. I almost always disagree with Howard, but I accept that a lot of the time he has the people behind him, although often a different Prime Minister would shape popular opinion so it would be different.

    However, on the other points there is no question that this is what many, probably most, Lib MPs believe, as well as the rhertoric of significant opinion shapers such as Murdoch columnists. The willingness of key government supporters to deny scientific evidence on both global warming and evolution is appalling, but I hadn’t previously thought about it as one marker of facism.

    Overall Australia doesn’t meet the most important point, but we pretty much tick all the lesser boxes.

  25. October 26th, 2005 at 00:28 | #25

    “Christo, the proposed laws are not absurd.”

    “Seditious intention means an intention to bring the sovereign into hatred or contempt…”

    Most of it is vicious and dangerous, a way of passing the banning act we repudiated in 1953 when the people sensibly told Menzies to stuff his proposal to ban the Communist Party, but the above quote is surely absurd.

    Raises fizzing bomb above head.
    Adjusts fetching turban.
    Screams “Take that you stupid majesty person..”
    And runs towards the open car…

  26. Ros
    October 26th, 2005 at 10:26 | #26

    Meanwhile, the New South Wales Law Society says it has serious concerns about the shoot-to-kill provisions.
    Society president John McIntrye says an order could be obtained without a person having been reasonably suspected of committing a crime.
    “The police may knock on the door and they might leg it out the back door without even being told why the police are there, and under these provisions that can be called on to stop and if they don’t stop they can they can be shot,” he said.

    I may struggle to understand the law but it seems to me that the proposed Act says that the AFP may only act to possibly cause death or serious harm to a suspect if they believe reasonably (repeated again and again) that the person presents a considerable risk of danger to the life of others (including police) or of inflicting serious injury on others. AND that the police believe on reasonable grounds that if they don’t use force they will not be able to apprehend this individual. To take an extreme example (well why not the clamouring voices trot them out) if Zaqarwi is located in Sydney and when the police knock on the door and he legs it the Law Society would have the police do no more than chase him and tough luck if he can run faster than them.

    As for all the lawyers out there excited at the possibility of making a name for themselves by stopping the enactment of these laws to lock up the bad guys until the danger passes. The general population (sorry Mr, Mrs and Ms Moron) isn’t currently all that enamoured by the moral grandstanding and the use of technicalities in the law to get the bad guys off by lawyers and the courts. If they start to suspect that once again this is a game for the elite by lawyers and civil rights activists then the standing of the legal system could hit an all time low.

    And there is the persona designata for us all to deal with. Mr, Mrs and Ms Moron might think that if the law currently means that detention orders power fails in that authorising a judge to make a report which presented opinion and advice is incompatible with the concurrent holding of judicial office, then the law should be adjusted or the proposed Act should be amended so that the detention orders can be used. The message I am getting is ha ha we reckon we have found the means to stop you Howard, and stuff any thoughts that Mr Mrs and Ms Moron might have.
    But Ruddock says “(But) the point I’d make is that we are following what has in fact been established practice elsewhere in the Crimes Act dealing with other provisions (such as) issuing warrants.” If he is right what exactly is the game being played by the legal fraternity and the Premiers.

    And the Premier’s pious we never agreed to “shoot to kill� we can only hope that they are frantically looking at their own legislation to ensure that any necessary amendments will be made to their laws to ensure that they don’t leave their police up the creek by declaring that the current grounds for shooting an individual who is reasonably considered dangerous (well doing something to stop the baddy escaping, presumably running him down with a car would also be a no no as the act doesn’t refer to shooting) are non lawful.

    Where does the shoot to kill come from, the Act says “in the course of ….do anything that is likely to cause the death of, or grievous bodily harm unless etc.� it also says “must not…use more force, or subject the person to greater indignity, than is necessary and reasonable.�

    Indeed perhaps some one could explain to me about Division A and detention how many will get locked up when the grounds for a detention order re a terrorist act and as I understand the Act, being a supplier or planner for the same, must be for one that is imminent or (in any event) expected some time in the next 14 days, or after act has occurred.

  27. Andrew Reynolds
    October 26th, 2005 at 11:20 | #27

    Just a quick question – does anyone know where I can get a copy of the following paper – “No Time to Govern? The Impact of Multiple Directorships on Director and Corporate Performance” by Geoffrey Kiel; Gavin Nicholson and Kevin Hendry of the University of Queensland? I believe it is unpublished – a synopsis was included in the Economist of this week and I would be interested to see it.

  28. Katz
    October 26th, 2005 at 11:27 | #28

    The shoot to kill provision is mostly a beat-up. The State Premiers grasped at it as an issue to cover their embarrassment at having been exposed as supine in their scrutiny of the draft Bill.

    There are far more important issues, such as the sedition law and secret detention orders, which are presently being discussed on other threads, but are not being discussed by State Premiers.

  29. October 26th, 2005 at 12:18 | #29

    For instance, Katz, as Terry Lane, pointed out….Under the proposed laws ,a husband would be under threat of 10 years jail for having told his wife that their son was in custody for 14 days, under the anti-terrorism laws.

    The N.S.W. Premier was quoted as thinking the penalty a bit stiff and that 5 years would be more appropriate. The devil is in the detail and such significant legislation should not be rammed through parliament.

  30. October 26th, 2005 at 13:43 | #30

    If you want to get an insight into the spirit of fascism, read Wiskemann and then Jack London’s “The Iron Heel”. The latter is on the internet somewhere, and it may be taken as primary evidence of the sort of paranoid conspiracy theory that was floating around among international socialists a century ago and which Mussolini would have had at the back of his mind. There’s similar stuff about what lefties contemplated getting from strike action in “News from Nowhere” that had obviously been taken on board by the British government by the time of the General Strike of 1926.

  31. October 26th, 2005 at 20:11 | #31

    Apology to Terry Lane and A.B.C.,we got his comments wrong. Worse………..

    Under the proposed Anti-terrorism law, police may hold a child under the age of 16, for up to two weeks, with a visit from one parent. If the parent tells the other parent where ,’Wayne’ ,is, the parent can be jailed for up to 6 years. When the NSW Premier was asked about the law, he said he thought it a bit hard and that 2 years would be enough.

    http://www.abc.net.au/rn/talks/natint/stories/s1488545.htm

  32. Ros
    October 27th, 2005 at 08:38 | #32

    I am assuming that the document Stanhope posted is as he received it. If so Katz’s comment
    “The State Premiers grasped at it as an issue to cover their embarrassment at having been exposed as supine in their scrutiny of the draft Bill.�
    is right on the ball.

    Eg Iemma, the draft Act says, that if a disclosure is made the penalty is 5 years.
    Terry Lane might like to check his facts as well. That is, 105.5 (1) “A preventative detention order cannot be applied for, or made in relation to a person who is under 16 years of age.”
    And if they have been incarcerated and this is recognised the AFP is required to release them as soon as they can.�
    If the detainee is under 18 the taking of identification material must be done in the presence of a parent guardian or if the detainee doesn’t want them an appropriate person.
    The Act also says that the detainee may contact, family/person they live with/employer/employees/business partners by telephone fax or email. It may be that it is an offence to disclose but by this stage it is hard to imagine who of the detainees acquaintance wouldn’t know. They can also contact the Commonwealth Ombudsman and a lawyer. Further they can have 2 hours contact every day with a family member or their representative. They may not be questioned while under the detention order, for that to occur they must be released from the detention order and arrested under the Crimes Act.

    Whether one agrees with the Act or not, the Premiers abysmal ignorance of what they have agreed to is concerning.

  33. November 9th, 2005 at 03:32 | #33

    Kado’s to our friends down under for OUTSTANDING performance in the face of terrorism!

    You may need something like this:

    Australia Bureau of Citizenship and Immigration Services

    Application for Duel Citizenship

    Name: ________________________________

    Age: ________________

    Current Country/Citizenship/Residency: ___________________________

    Reason for request:

    _____ * Desire to promote an Islamic State within your country. (Please see note below for next step)

    _____ I’m Proud as hell of Australian’s for telling the whining Islamo’s if they don’t like it there to get the hell out and would gladly stand right next to them in a field of battle against these fanatical lunatics any day!

    * If you have checked this box, please accept our appreciation for your honesty, now go to hell.

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