War Powers: Why not Parliamentary control?

In Syria: Feelings of déjà vu I noted that we were once again in a position where the US is poised to undertake a military strike without awaiting the report of the UN weapons inspectors and without UN authority.

Meanwhile, in Australia the nature and extent of our involvement, if any, will be in the hands of just three men – Prime Minister Kevin Rudd, Foreign Minister Bob Carr, and Minister for Defence Materiel Mike Kelly, tipped to be Defence Minister in the event of an ALP victory on 7 September. As two of these gents are appointed on the recommendation of the third, it is reasonable to suppose that the Prime Minister will get his way, so effectively whatever we do in relation to Syria will come down to what one man decides.

This is a precarious way of making such an important decision, and as such is a problem for the Australian body politic and especially for the members of the Australian Defence Force who might be put in harm’s way.

An important part of the solution to this problem is to involve the Parliament in any future decision to deploy the Australian Defence Force into international armed conflict. The right of the Executive, rather than the Parliament, to decide to send troops to war is in the Australian constitutional context a legacy of the Royal Prerogative, which in turn has its roots in the pre-democratic notion that the power to make war is an attribute of the sovereign rather than of the people.  In any society founded on the belief that power flows from the people to the state rather than from the state to the people, it is both an anachronism and an anomaly.

A Private Member’s Bill to this effect, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], was introduced into the Senate in 2009 by Senator Scott Ludlam, but it was treated with scant respect by the major parties, and the reply from the ALP National Secretariat to the Campaign for an Iraq War Inquiry’s letter of 13 August 2013 indicates that there is no mood for change in a Labor Party led by Kevin Rudd.

Four principal arguments against Parliamentary involvement are raised by those who wish to preserve the status quo.

The first of these is the argument that minor parties might block the necessary resolution in the Senate.  For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant. As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time that the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.

Another argument is that the Parliamentary process will all take too long. This reveals a lack of understanding of the readiness levels at which most of the Australian Defence Force is held. Apart from the Ready Reaction Force at Townsville (essentially the 3^rd Brigade, consisting of the 1^st, 2^nd and 3^rd Battalions, Royal Australian Regiment, in aggregate about 4,000 civilian and military personnel), most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard.

A third argument – one often regarded as the supreme card to play – is that the Government might have access to information or intelligence which it cannot reveal.

This is an argument that simply cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House – as happened in 1975.

This being the case, it is fundamental to our national security that at the very least relevant leading members of the opposition not only be cleared to deal with national security classified information, but that at times of looming threat they be made privy to the available intelligence so that both government and opposition can conduct themselves in relation to the matter in an informed way.

The truth of this assertion is borne out by the fact that as soon as the Prime Minister decided last weekend to break of election campaigning and return to Canberra for an intelligence briefing about Syria, the Opposition was offered a briefing as well, an invitation that was taken up for the Opposition by Shadow Foreign Minister Julie Bishop.

There is a more subtle point to be made here. While secret intelligence can be very valuable in giving early warning of and filling out the detail of an emerging threat, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.

A further argument in support of this approach is the doctrine held by many in the intelligence community that any intelligence assessment which depends entirely upon classified information should be regarded as suspect – an astute analyst would want to know why there is no sign of this picture in publicly available information. Some argue for an 80/20 rule – 80% of the information in a sound intelligence picture should be open source information, with only 20% coming from classified sources.

Finally, there is the argument that the process would be nugatory because everyone would simply vote on party lines. This may be so, but cannot be assumed to be so. Certainly the history shows that on the occasions when deployments have been debated in Parliament, members have voted on party lines. Historically, however, these debates have taken place against the backdrop of a decision already taken. This brings into play two dynamics. First, there is the feeling of obligation towards the members of the ADF who are being put into harm’s way, the feeling that we should not undermine the morale of the troops by suggesting that they should not be participating in the conflict.

Second, there is the defensive shield: “It doesn’t matter what I think, the decision has already been taken by Cabinet and my job now is to support it and to support the young men and women of the ADF”.

I believe, however, that if Parliament itself were to be the place where the matter is decided, quite a different dynamic would come into play. If the matter is to be put to a vote in both houses, each and every member of Parliament would have to participate in that process knowing that their vote would be recorded and would be a matter of history for all time, no matter how the matter turned out. People who felt strongly about it could not absolve their consciences with the thought that the matter has been taken out of their hands; the matter is very much in their hands, and we may see what looks very much like a conscience vote.

If it turns out that the matter is decided on party lines and the government of the day wins the day, one can hardly complain that there has been a failure of the democratic process.

If we persist with the current system in which the Executive clings to the ancient prerogative of the sovereign, we will continue to face the risks of this small group decision making set out so eloquently by distinguished military historian Robert O’Neill in the final paragraph of his submission to the Senate Foreign Affairs, Defence and Trade Committee on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]:

In the past, especially in the cases of the Vietnam, Iraq and Afghanistan wars, the decision to commit forces was taken by a small group of ministers, in which the Prime Minister played a dominant role. In such a small group, inhibitions based on concerns about the major ally’s capacity to fight effectively and win within a period of a year or two (if perceived at all) can be easily swept aside by the desire of the Prime Minister, Foreign Minister or the Cabinet at large to remain close to whoever is the US President at the time of deciding. Also in this system of decision-making, broader issues such as the morality of the commitment, which was clearly a major public issue in the cases of Vietnam and Iraq, are relatively easy for the Government to ignore or set to one side. The small group setting also makes it easier to believe faulty intelligence reports, or even to dismiss them where they are inconvenient for the government’s preferred policy. Australia’s decisions on commitment to any of these three conflicts would almost certainly have been improved had the proposal been debated in both Houses of the Parliament.

The Australian public needs to be much more vigilant about the circumstances in which the Australian Government deploys the Australian Defence Force and for what purpose. This vigilance is unlikely to become habitual while a decision to send troops remains the prerogative of the executive — that is, Cabinet, meaning in practice the Prime Minister and a very small group of key ministers — an arrangement which means that a decision, once taken, can be acted upon without significant debate. Vigilance is much more likely to develop if we embrace the republican notion, one which seems fitting also for a constitutional monarchy, that the power to make war should be vested in the legislature. In any polity founded on the principle that power flows from the people to the state, rather than from the state to the people, the spectacle of the executive clinging to the ancient privileges of the sovereign is both an anachronism and an anomaly.