30 October 2010

Israel: tough-minded commentary from within

The 29 October 2010 edition of the moderate (some say left-leaning) Israeli newspaper Ha’aretz carried two opinion pieces that make some very direct and tough minded commentary about Israel and where it is heading.

The first, by Ha’aretz commentator and columnist Yossi Sarid, who served as a Knesset Member for 32 years, including service as Education Minister, Environment Minister and Leader of the Opposition, appears under the headline Why did Peres advocate for Netanyahu’s deceit?

The President’s disappointment is not surprising, writes Sarid, what was surprising was the earlier hope:

On what basis did Peres have faith in Netanyahu and help him deceive the entire world? On the basis of his character, his past, or the camaraderie of people traveling together in an Audi A8?

You can put your trust in solid ground, but not in shifting sands. And Peres is no naif, to be taken in by anything Netanyahu tells him. So what happened here? Why did he decide to serve as an advocate for dishonesty?

There is more, much more – read the full piece here.

In the second piece, Three Cheers for Israel’s Right, Carlo Strenger, Chair of the Clinical Graduate Program of the Department of Psychology at Tel Aviv University, writes of three great achievements of Israel’s right:

It is the great achievement of Israel's right to have made Israel's fears utterly unbelievable to the world. Its other great achievement is that it has managed to confuse a large part of Israel's constituency. It is therefore of the essence to celebrate this immortal achievement, because Israel's right is about to score a further, valuable victory: After 62 years, Israel may soon cease to be a democracy, and finally be a Jewish state without excuses.

Strenger goes on to unpack these three propositions in some detail – read the full piece here.

MDB Guide: how not to handle public policy

There is bound to be near-universal agreement that establishing a comprehensive plan for the management of the Murray Darling Basin is a very complex and challenging piece of public policy, the implementation of which would require political leadership of a high order.  The Murray Darling Basin is the third largest river basin in the world, and by far the driest. Its waters have been substantially over-allocated, a fact that has been recognised since the early 1990s, and it has outstanding conservation values, some of which we have international obligations to protect.  It plays a central role in Australian production of food and fibre, and some townships depend to an important extent upon irrigated agriculture and the maintenance and management of irrigation assets.

On a matter of such complexity and importance one might expect the responsible Minister, who at the end of the day has to take the Basin Plan to Parliament, to take a leading role in managing the politics of the issue.

Au contraire, the Murray Darling Basin Authority unveils it to a startled world late one Friday afternoon, all hell breaks loose, and The Weekend Australian for 23-24 October, under the headline Minister distances himself from Murray-Darling Basin report, quotes the Minister for Water etc., Tony Burke, as saying (see report here):

The guide is not government policy, it is not my document, I have deliberately made sure I did not launch it.

And just in case you were still in any doubt as to whether the Minister was up to the task he rushed off and sought legal advice from the Solicitor-General as to whether the Authority was giving effect to its onerous duties on a sound legal basis or whether he might have grounds to instruct the Authority to listen harder to the people making the most noise.

A Minister made of sterner stuff might have seen handling an issue of such pith and moment as a wonderful opportunity – the best opportunity he will ever get to demonstrate that he is able to deliver major reform.  As it is, Tony Burke has made the Commission’s task immeasurably more difficult and signaled to the opponents of reform that the Government does not have the stomach for this fight, thereby encouraging them to mount an even more vociferous campaign, confident that it will work.

Had I been advising the Minister, I would have advised him, far from disowning the Authority’s Guide, to launch it at the opening of the business day and to set the rules of engagement for the consultation process that it is designed to set up.  I would have suggested that he use the following talking points at the launch:

-  We are here today to launch the Murray Darling Basin Authority’s Guide to the Murray Darling Basin Plan.

-  This Guide has been developed by the Murray Darling Basin Authority pursuant to the Water Act 2007, legislation which was introduced into Federal Parliament by the Howard Government and passed with the support of the Australian Labor Party.

-  It has been developed to expose for public comment the Authority’s thinking about how it should go about its task of balancing environmental, economic and social requirements, subject to making certain necessary provision for the health of the river and its ecosystems.

-  This is a very ambitious and challenging exercise.  No-one has ever attempted anything like it on this scale. The Murray Darling Basin is the third largest river basin in the world, and by far the driest.  It is host to unique, world class ecosystems, some of which we have international obligations to protect.  At the same time, it is the source of the livelihood of many enterprises, industries and communities built around irrigated agriculture.

-  It has been recognised since the early 1990s, and by many commentators before that, that the waters of the rivers in the Basin have been substantially over-allocated and that these allocations must be wound back. Winding these over-allocations back will take time  and will need to be handled with sensitivity because the over-allocations have themselves been in existence for long enough to become embedded in the social and economic fabric of the Basin, and to an extent the wider Australian community.

-  The Government recognises these issues but none of them can be allowed to distract the Government or the Australian public from the fact that we have to make the changes that will protect the health of the river systems upon which everyone in the Basin relies. Without healthy rivers no-one in the Basin has a long-term future.

-  The Authority estimates that in order to protect the health of the river and its high value ecosystems it is necessary to reduce diversions from the river by between 3,000 and 7,600GL per annum.

-  On the basis of the social and economic analysis that has already been undertaken, the Authority has assessed that any reduction of diversions greater than 4,000GL per annum would involve social and economic costs that would outweigh the additional environmental gains, and so the real focus of our attention is where in the range 3,000-4,000GL per annum the line should be drawn, the trajectory by which we get ourselves to the desired point, and the adjustment mechanisms which need to be brought into play.

-  The Guide makes clear that as well as the global cuts to diversions it is necessary to distribute the reductions geographically so that additional water is available for the environmental assets at the places where it is needed. Much of this additional water has a cumulative environmental effect – the waters of the Basin have done a lot of work by the time they reach the Murray Mouth and the Coorong.

-  The Authority itself recognises in the Guide that further work on the social and economic impacts needs to be undertaken, and it has already commissioned some of this. The consultation process will lead to further information and insights.

-  For its part, the Government has guaranteed, and I reaffirm today, that there will be no cuts to anyone’s water entitlements – the Government will achieve the necessary reductions only by purchasing water from willing sellers.  The purchases that have already taken place represent a good start on what is required.

-  It is important for all participants in the consultation process to recognise that this Guide I am releasing today is not the Basin Plan, nor is it a draft of the Basin Plan. It simply sets out for public comment the current state of the Authority’s thinking about how it should go about framing the Draft Plan.

-  In framing your comments, I would ask all participants to work on the basis that the feedback that will be of most interest to both the Authority and to me will be the potential impacts on the respondent of what is set out here. We want to hear from irrigators and irrigation managers how the proposals will affect them, from local government and community organizations how the proposals will affect their communities, and from other regional business people how the proposals might affect their businesses.

-  If you think we have got the science wrong or the socio-economic analysis is deficient or incomplete, we will welcome your comments and take your concerns seriously, but in the interests of a constructive and civilised debate I would ask you in making your comments to bring forward the scientific evidence or socio-economic data or analysis that you find more compelling.

-  I would also ask participants to remember that at the end of the day we must achieve a substantial reduction in allocations, with an appropriate geographic distribution, so please bear in mind that if you seek a lesser reduction for your enterprise or community, that may come at the cost of a greater reduction elsewhere.

-  I now ask the Chairman of the Murray Darling Basin Authority to make a few remarks about the consultation processes that the Authority proposes to undertake over the weeks and months ahead.

My guess is that if the Minister had adopted something like the above approach he would now be running a manageable political process, one from which he would have prospects of emerging looking like someone who can get things done.

He chose not to go that way, and sadly my current expectation is that the failure of Murray Darling Basin reform will take its place alongside the Carbon Pollution Reduction Scheme, the Mineral Resource Super Profits Tax and the Home Insulation Program as a case study in how not to do public policy.  

23 October 2010

John Hewson on Defence

In his regular op-ed column in the Australian Financial Review on Friday 22 October former Opposition Leader John Hewson takes a substantial swipe at the Department of Defence.

So much of his commentary is ill-informed, unjustified or attacking the wrong target that it cannot be allowed to pass without comment.

To start with a point on which we are agreed, Hewson criticises Chief of the Defence Force Air Chief Marshall Angus Houston for expressing a view about the appointment of Stephen Smith as Defence Minister. I don’t know exactly what he said, but my position is that no serving military officer should express an opinion about the Minister for Defence. The role of the Australian Defence Force is to conduct military operations as directed by the government of the day, and the only appropriate comment for a CDF, service chief or other military officer should make about the Minister or the Government is that he has no comment.

Mutatis mutandis, the same goes for public servants.

To turn now to the key points of disagreement, the core of Hewson’s attack is his assertion that:

... the Department of Defence, and the defence forces, have been increasingly seen as “different” or “special”, and not subjected to the same degree of scrutiny, transparency and accountability as other departments.

To deal with the second part of this proposition first, it is, not to put too fine a point on it, arrant nonsense. What is the evidence for Hewson's claim? The departmental functions of the Department of Defence (as distinct from military training and operational functions of the armed forces) are the responsibility of the Secretary, Department of Defence in exactly the same way as those of any other department head. The Secretary is employed under, and exercises powers and functions under, the Public Service Act, and is bound by the Financial Management and Accountability Act, in exactly the same way as all other Department Secretaries. The Secretary is the custodian of, and is accountable for, the Department’s funds and all of its assets including the military equipment used by the Defence Force. The Secretary and other senior Departmental officers attend Senate Estimates hearings in exactly the same way as officers of other departments.  Its accounts and performance are audited by the Australian National Audit Office in exactly the same manner as those of other Departments, and because of the amounts of money involved it comes in for a great deal of ANAO, Parliamentary and media attention.

Aside from these standard accountability provisions, I would argue that Defence is subject to more scrutiny than other Departments. To take just one example, Department of Finance and Administration officers work inside the Defence Materiel Organisation, and Defence’s expenditure proposals cannot even get onto the Cabinet agenda unless the Finance Department has been through its costings with a fine tooth comb and agreed with them.

And the Department is always crawling with business improvement consultants imposed upon it by governments of whatever persuasion. It is actually the statutory function of the Secretary to make the place run smoothly, but there are always politicians who want to impose management initiatives on the hapless Secretary – and then make him accountable for the debacles that follow.  If we could actually leave the place alone for long enough to let the Secretary get on with his statutory responsibilities, then we be in a position to hold him to account.

As for regarding Defence as “different” or “special”, it is.  Defence is the only organisation that expects its employees to face death or injury as an intrinsic part of going about their duties. That makes it pretty special. 

There are other organisations (police, fire brigade, emergency services, rescue services) whose employees take risks, and come to harm, in the course of their duties, but if you ask any one of those organisations they will tell you that the safety of their employees is paramount and that their employees are not expected to put their lives at risk.

This unique characteristic of the ADF imposes a high duty upon the government to ensure that those it asks to go into harm’s way have the best possible chance of winning, and it imposes a duty upon both the Department and the military specialists to advise the government on what equipment meets the necessary criteria. This is the context in which to view Mr Hewson’s comment that:

...”more is always preferred to less” when you seek the advice of the defence heavies on expenditure, be they bureaucrats or in the forces.

 As an old supervisor of mine, who had been a bomber pilot in New Guinea, used to say, “I have been to war in the second best aircraft in the sky, and it is not a lot of fun”.

The need to ensure that when we fight we win makes Defence special in other ways. It means that for front line equipment it is always looking to acquire next generation materiel – equipment that has not yet been designed, built and tested, equipment that performs in ways that have never been achieved before. This means that the technical, schedule and cost risks are high, and the lead-times are long. Introduction of complex equipment into service can easily take twenty years from the time the proposal first goes to Cabinet. In order to commit to (i.e. sign contracts for) such projects, Defence needs a certain predictability of funding – predictability which some commentators seem to see as conferring some kind of privileged status on the Department.

As for John Hewson’s allegation that the military leadership would redefine the objectives of our involvement in war in order “to ensure the continuity of our involvement”, that is both unworthy and at variance with the facts of our recent wars.

Our commitments to Afghanistan and Iraq were not occasioned by the urgings of bellicose military chiefs, who as Hewson observes at the start of his article simply work for the government of the day.  We became, and remained, involved in these wars because John Winston Howard wanted us to be fighting shoulder to shoulder with our glorious ally. As far as I am aware the service chiefs were never asked whether these wars were a good idea; as John Howard comments in his memoir which is previewed in The Weekend Australian today, he regarded it as “inconceivable” that Australia would not join the United States in its invasion of Iraq.

None of the CDFs and service chiefs with whom I was privileged to serve would have adopted such a cavalier approach to the nation’s security interests or the lives of their people as to seek to prolong our involvement for the fun of it. Regarding warfare as a game seems to be the specialty of people who have never been near one and are never likely to.

One of the service chiefs in my time was then Chief of Air Force Air Marshall Errol McCormack, who is now Chairman of the Board of the Williams Foundation (www.williamsfoundation.org.au), an independent defence and national security think tank named for Sir Richard Williams, who in 1921 became the first chief of the newly formed Royal Australian Air Force following distinguished combat  service in World War I.

In its paper “A Defence Strategy for the 21st Century” (downloadable from here), the Williams Foundation begins:

For more than one hundred years Australian defence strategy has been based on so-called ‘expeditionary’ operations – that is, on wars of invasion. If we are going to learn anything from the disasters of the last fifty years in Vietnam, Iraq, and Afghanistan, it should be that that model has become untenable. It has failed politically, socially, and militarily; and it has become ethically unacceptable.

Simply put, the era has gone in which predominantly white, predominantly European, predominantly Christian armies could stampede around the world invading countries their governments either don’t like or want to change.

Australia needs a new national defence strategy that recognises those realities, and that reflects the changing nature of international relations in the 21st century.

The Board of the Foundation contains a number of very senior military officers who have been in the ADF during the time of our involvement in Afghanistan and Iraq, some of whom certainly saw service in Vietnam. They don’t sound like a particularly belligerent lot to judge by the views they express here.

20 October 2010

Talks with the Taliban getting serious

The opening paragraphs of Taliban’s Elite, Aided by NATO, Join Talks for Afghan Peace, an article in the 19 October edition of The New York Times, sets an interesting context for the declarations by our Prime Minister and Opposition Leader that Australia is definitely in Afghanistan for the long haul:

KABUL, Afghanistan — Talks to end the war in Afghanistan involve extensive, face-to-face discussions with Taliban commanders from the highest levels of the group’s leadership, who are secretly leaving their sanctuaries in Pakistan with the help of NATO troops, officials here say.  

The discussions, some of which have taken place in Kabul, are unfolding between the inner circle of President Hamid Karzai and members of the Quetta shura, the leadership group that oversees the Taliban war effort inside Afghanistan. Afghan leaders have also held discussions with leaders of the Haqqani network, considered to be one of the most hard-line guerrilla factions fighting here; and members of the Peshawar shura, whose fighters are based in eastern Afghanistan.

The Taliban leaders coming into Afghanistan for talks have left their havens in Pakistan on the explicit assurance that they will not be attacked or arrested by NATO forces, Afghans familiar with the talks say. Many top Taliban leaders reside in Pakistan, where they are believed to enjoy at least some official protection.

It is amazing how evil incarnate – the end of civilization as we know it – can become an acceptable negotiating proposition once the public begins to tire of the war. A war of choice indeed.

Interesting too how the Prime Minister was silent on this aspect – apart from a reference to political reconciliation – in her statement to Parliament yesterday. Is the Australian Government not quite up with the game, or is this one area where the sunlight of the new paradigm has not yet been allowed to shine?

The above reference to the Haqqani network is particularly interesting, as it has had much to do with assassination attempts within Kabul. In a post on 25 August 2009 I explained how  Jalaluddin Haqqani was once the golden-haired boy of the Americans and the Pakistani ISI, but turned against the Americans after a few months of fence-sitting following the US-led invasion, following a series of US bombing raids that killed members of his family, after which he threw his lot in with the Taliban. While allied with the Taliban, he is not of the Taliban, and has substantial financial backing from Arab and other non-Afghan jihadist groups. While Prime Minister Gillard says we are in partnership with Pakistan against Islamic extremism, the Pakistani Inters-Services Intelligence Directorate(ISI) still assists him and he operates with impunity out of Pakistan; the Pakistanis are not sure whether they can handle him in any case.  For a more detailed story on this, with some interesting links, see New York Times on Afghanistan.

17 October 2010

Afghanistan: Another reason the deck is stacked against us

An article from the 16 October 2010 edition of The New York Times presents another graphic example of why it is so difficult to win a war in which the goodwill of the local people is of fundamental importance: when you are fighting amongst the locals, you will almost inevitably bound to cause crippling resentment.

Consider the opening paragraphs of In Afghan South, U.S. Faces Frustrated Residents (full story here):

KANDAHAR, Afghanistan — As American troops mount a critical operation this weekend in the campaign to regain control in Kandahar, they face not only the Taliban but also a frustrated and disillusioned population whose land has been devastated by five years of fighting.

While most villagers have fled the area, those who remain complain that they are trapped between insurgents and the foreign forces, often suffering damages for which they remain uncompensated.

One of those who left is Abdul Hamid, once a prosperous grape farmer and the owner of two houses, a raisin barn and 900 vines. He lived in a hamlet called Lora in Panjwai, a fertile farming district southwest of Kandahar where others who recently left say there has been heavy shooting and bombardment.

Three years ago, Canadian troops built a temporary post near Lora. When they immediately came under fire from insurgents, they bulldozed much of the hamlet, flattening houses, water pumps and surrounding orchards, the villagers and local elders say ...

The article goes on to describe other miseries, and how difficult it is for local farmers to make a case for compensation (available in principle) and how unlikely it is that they will ever see the money even if compensation is awarded.

When will they ever learn?

The opening paragraphs of an article in the 7 October edition of The New York Times (see Afghans Linked to the Taliban Guard U.S. Bases, accessible here) make interesting reading on the eve of our first Parliamentary debate about what we are doing in Afghanistan, and our prospects of achieving an acceptable outcome.  They beg the question of whether our major ally is conducting this war in a manner conducive to success:

WASHINGTON — Afghan private security forces with ties to the Taliban, criminal networks and Iranian intelligence have been hired to guard American military bases in Afghanistan, exposing United States soldiers to surprise attack and confounding the fight against insurgents, according to a Senate investigation.

The Pentagon’s oversight of the Afghan guards is virtually nonexistent, allowing local security deals among American military commanders, Western contracting companies and Afghan warlords who are closely connected to the violent insurgency, according to the report by investigators on the staff of the Senate Armed Services Committee.

The United States military has almost no independent information on the Afghans guarding the bases, who are employees of Afghan groups hired as subcontractors by Western firms awarded security contracts by the Pentagon. At one large American airbase in western Afghanistan, military personnel did not even know the names of the leaders of the Afghan groups providing base security, the investigators found...

It gets worse – read the full article here.

This is yet further evidence of the problems with using military contractors to do the work of soldiers – of which there is abundant evidence from the Iraq experience. Contractors do not have the same motivations, they are not under military command, they are often operating in a legal limbo –indemnified against local law but somehow not subject to US law. Military units are supposedly in the area of operations to fight and win; contractors are explicitly in the area of operations to make a profit.

The extensive use of contractors is driven by cost considerations – soldiers are expensive. But can a nation that wishes to deal effectively with the sensitivities of counter-insurgency operations, where having the locals on side is of fundamental importance, afford to employ contractors?  There is nothing quite so expensive as losing a war.

16 October 2010

Parliamentary debate on Afghanistan

At last we are to have a Parliamentary debate about what we are doing in Afghanistan. Hopefully this will go to the desired end-state (what we are hoping to achieve), how Australia’s roles (all of them, Special Forces as well as mentoring teams) contribute to the objective, how we will measure success, and the criteria by which we will judge when it is time to withdraw.

Hopefully our Parliamentarians will consider the ethical issues associated with withdrawal of NATO forces including our own. Packing up and leaving the locals to it is vastly different from not having invaded the country in the first place, so deciding that we shouldn’t be there does not absolve anyone of the responsibility to think about the trajectory by which we leave, and the consequences for the locals. I am not just thinking of the consequences for Hamid Karzai and the government he leads. I am thinking also of the village elders who have taken huge risks, for example, in permitting girls’ schools to be opened, the people who teach in those schools, the parents, the girls themselves, and all the other Afghans at the local level who by cooperating with NATO forces have exposed themselves to a charge of having collaborated with the invaders.

This is of course the kind of debate that should have been had before we became involved in military operations in Afghanistan (and indeed in Iraq). On 13 February 2008 Greens Senator Scott Ludlam introduced in the Senate a Private Members’ Bill to limit the prerogative power of the Executive to commit Australian forces to overseas service without the consent of the Parliament (see War Powers Bill). Unfortunately neither side of politics as it was then took the matter seriously  and this worthy attempt to involve our Parliament in decisions about war and peace got nowhere (see War Powers Bill crushed by major parties).

In War Powers: what the PM said I commented in detail on a disappointing response from  former Prime Minister Rudd’s Foreign Policy Adviser to a letter from Dr Kristine Klugman on behalf of Civil Liberties Australia.  In War Powers Bill: Pre-emptive self-defence I outlined the Caroline case, the precedent that established the international law regarding acts of pre-emptive self defence. In War Powers Submission, I noted that my colleagues and I had lodged a submission to the inquiry and provided a link to the relevant page of the Parliament House website.

I think that the time is ripe for Senator Ludlam’s Bill to get another Parliamentary airing.

14 October 2010

Defence Minister on Military Justice System

The following is a transcript, issued by the Department of Defence, of an interview by the ABC’s Sabra Lane of Defence Minister Stephen Smith. The interview was broadcast this afternoon by ABC Radio National’s PM program.

I cannot understand for the life of me why the Opposition will not let go of this issue. They are not doing the soldiers any good, they are not doing the Military Justice System any good, and if they had their way on this they would not be doing anything for Australia’s standing as a nation bound by international humanitarian law and the laws of armed conflict.

One of the attributes of a government in waiting, as the Opposition considers itself to be, is the judgement to know when to let something go. Clearly that attribute is lacking in this case.

For a previous post on this issue see Abbott irresponsible on military justice.


MARK COLVIN:  The Opposition is not letting up over the charging of three Australian soldiers over the deaths of six civilians in Afghanistan last year.

The Opposition Defence spokesman, Senator David Johnston, said on AM today that he thought the soldiers in question have been betrayed by the Government and he was disappointed that they had been charged in the first place.  The soldiers were charged last month after an 18 month investigation by the Director of Military Prosecutions. Senator Johnston says that he’s not convinced that the Department did all it could to retain senior and experienced counsel to defend the soldiers before they were charged.

The Defence Minister, Stephen Smith, has now responded to the claims.  He spoke to Sabra Lane.

STEPHEN SMITH:  I think on this matter there has been too much ill informed, inflamed language.  I think we need to just very calmly understand what has occurred here.

Australia has always had a system of military justice.  It is very important that out Defence Force operates within our domestic and international law.  We’ve prided ourselves on our higher standards and we have a well regarded international reputation about so doing.  And when, for example, there are incidents involving civilians we always investigate those.

From time to time, those investigations historically and recently have led to charges being laid.  The only change we’ve seen in the current circumstance is the charges on this occasion were laid by the independent Director of Military Prosecutions who was established by the Howard Government under legislation they introduced and we, when we were in Opposition, supported that process.  So historically Australia has confronted these issues before.  The only change we’re dealing with now is we have an independent Director of Military Prosecutions who has made the decision to press charges and historically of course that decision has been made by military chiefs.  Under the Howard Government, the Parliament believed having that independence was a sensible thing to do and I agree with that. 

SABRA LANE:  Senator Johnston says he’s not convinced though that Defence retained very senior or experienced counsel to make full submissions to this Director of Military Prosecutions on behalf of these soldiers before they were charged.  Can you confirm, were these soldiers … did they get QC advice before they were charged?

STEPHEN SMITH:  Well again I think people have to be very clear about the thrust of the legislation.  It was Howard Government legislation.  Senator Johnston himself was a Senator at the time.  And provision of the legislation Section 5A of the Defence Force Discipline Act enables the Chief of the Defence Force or his representative – on this occasion it was the Vice Chief – to make representations to the Director of Military Prosecutions on general implications for the Force.

Now when the legislation went through the Parliament the legislation made it clear that any such representation was not to impact adversely on the independence of the Director of Military Prosecutions.  Some people including Senator Johnston are out there somehow suggesting that the representations made by the Chief of the Defence Force or the Vice Chief on his behalf went to the legal defence of the three concerned.   They don’t indeed.  When the Director of Military Prosecutions asked for the advice in accordance with the statute she expressly made clear that it should not go to those matters about guilt or innocence or whether charges should be preferred because that would impact upon her independence.  The second point goes to the legal defence of the three concerned and the Chief of the Army, the Chief of the Defence Force and I have made it absolutely crystal clear that they have been and will be provided with all the necessary resources to deal with this matter, both legal and other support; and the Chief of the Army has made it clear to the families concerned that he will spare no expense to make sure that they get the legal support and counsel that they require and they need.  

SABRA LANE:  The Senator says that he’s been told that people inside Defence that the pre-charge submission made on behalf of these soldiers was a bit of a doddle.  Is that your assessment?

STEPHEN SMITH:  I would be not making such pejorative remarks.  But again, that remark misunderstands either inadvertently or deliberately the nature of the representations that can be made under the Howard Government legislation. 

SABRA LANE: But it’s still not clear from what you’re saying Minister, did these soldiers get adequate legal advice before these charges were laid?

STEPHEN SMITH:  The Howard Government legislation provides for the Chief of the Defence Force to make representations to the Director of Military Prosecutions about the general interest of the Defence Force.  It does not go to whether charges should be preferred or not.  

SABRA LANE:  Isn’t it just a simple case of yes or no?

STEPHEN SMITH:  It is a simple case of carefully understanding the legislation that the Howard Government put through the Parliament which Senator Johnston supported and which the Labor Party supported.

SABRA LANE:  Given what you’re saying now then, after this case is heard and is finished is it a case that this legislation should be reviewed to allow a defence to be mounted on behalf of soldiers before they are charged?

STEPHEN SMITH:  A defence will be mounted on behalf of these soldiers and that defence will be mounted as they are given access to the prosecution brief by the Military Prosecutor and have access to all the necessary legal and other support that will be provided.

MARK COLVIN:  The Defence Minister Stephen Smith speaking to Sabra Lane.

13 October 2010

Abbott irresponsible on military justice

One of the key differences between the Australian Defence Force and the rag-bag of contractors, mercenaries and private militias that have been involved in the wars in Iraq and Afghanistan is that the ADF is a disciplined force, trained in and subject to the rule of law, including international humanitarian law and the international law of armed conflict.

The requirements of Australian military law and applicable international law are normally embodied in the rules of engagement under which our soldiers enter into military operations.

It is quite typical for our military personnel to be indemnified against local law while they are deployed into the relevant theatre of operations. This is the case with the ADF’s deployment in Afghanistan; the Status of Forces Agreement (SOFA) indemnifies our soldiers from prosecution under local law.  This means that the only law to which our soldiers are subject is Australian military law. If they commit a crime against Afghan citizens those people have no expectation of justice except through the Australian military justice system.

A corollary of the ADF being a disciplined force subject to the rule of law is that when there is reason to suppose that there has been a breach of law or of discipline, that alleged breach must be investigated, and if an investigation by the competent authority finds that there is a case to answer, then that matter must be referred to the Australian Military Prosecutor for consideration as to whether charges should be laid. The Australian Military Prosecutor is an independent prosecutorial authority for the Australian Defence Force, and makes her decisions outside the chain of command in order to remove any suggestion of command influence.

The charges against three Australian soldiers to which Opposition Leader Tony Abbott has referred in recent press commentary arise from a compound clearance undertaken by the Special Operations Task Group in Oruzgan Province on 12 February 2009. The matter, which involved the deaths of six Afghan civilians, including several children, was investigated by the ADF Investigative Service, which referred the matter to the Director of Military Prosecutions for consideration of charges. The Director of Military Prosecutions decided that three ADF members were to be charged in relation to the incident, with offences including failure to comply with a lawful general order, manslaughter and dangerous conduct.

This is of course an acutely sensitive matter – the soldiers concerned were undertaking a dangerous operation on active military service.  Nevertheless, the competent military authorities have found that there is a case to be answered, and there is no alternative to the matter being tested before a properly constituted military tribunal – otherwise our soldiers are in effect subject to no law when they are on military operations in Afghanistan.

What the soldiers are entitled to in these circumstances, and have been assured that they will receive, is a presumption of innocence, proper legal representation, and other forms of support. The Chief of the Defence Force, Air Chief Marshall Angus Houston, has stated, “Consistent with the presumption of innocence, these members will receive the full support of the Australian Defence Force”.  This support will include, but not be limited to, medical, psychological, legal, chaplaincy and welfare support.

The Chief of Army, Lieutenant General Ken Gillespie, has stated, “I give the members facing these charges a firm, personal undertaking that I will ensure that they are thoroughly supported throughout the legal process”.

Tony Abbott must know, or ought to know, all of the above. It is therefore the height of populist irresponsibility for him to be using inflammatory language like his suggestion to talk-back radio host Alan Jones that our soldiers are being “stabbed in the back by their own government” and that the Government is failing “to provide these soldiers with the defence that they are entitled to”. Jones of course was delighted to go along with this; he was beside himself to assert that the problem was the supposedly untrammelled powers conferred on “this woman” (the DMP) by the Rudd Government, whereas it was in fact the Howard Government in 2006, but Jones is clearly not going to let the facts get in the way of a good story.

Unfortunately this is yet another episode in which Tony Abbott seems neither to know nor to care how key systems in the Australian polity work, or the legal frameworks within which they operate, and is heedless of the potential consequences of his populist comments. His approach to asylum seekers is another obvious example.

For further informed commentary on this issue see opinion piece Soldiers’ work is life or death, but they are not above the law by Gideon Boas, former senior legal officer at the International Criminal Tribunal for the former Yugoslavia in today’s edition of The Age (accessible here),  and the contribution to today’s edition of Crikey by Angela Priestly, editor of Lawyers Weekly (accessible here).

06 October 2010

Why U.S.-Pakistan ties are disintegrating

The above is the title of a 5 October newswrap by The Atlantic Wire, which may be accessed here.

It says that the rapidly deteriorating situation in Pakistan has many re-evaluating basic U.S. assumptions, including the U.S. relationship with that country, and summarises what key opinion makers are saying:

-  The Afghan War is not making Pakistan safer (Time’s Robert Baer)

-  The U.S. should consider the possibility that Pakistan is a rogue state (Foreign Policy’s Simon Henderson)

-  The U.S. Military is moving off fossil fuel dependence (The New York Times’ Elizabeth Rosenthal)

-  The U.S. counter-terrorism strategy is making things worse (Salon’s Glenn Greenwald)

-  Many Pakistanis increasingly hate America (Foreign Policy’s Mosharraf Zaidi).

I would add another overarching problem. As is so often the case (Vietnam, Iraq) many of the key U.S. decision makers seem neither to know nor to care about the history of the country or region they are dealing with. The United States, over two Administrations (Bush and Obama) has been telling the Pakistanis that they must sort out what is going on in the Federally Administered Tribal Areas (FATA), and becoming exasperated to the point of incandescence that the Pakistanis fail to do so (not, it should be noted, that they haven’t carried out a number of major military operations, with great loss of life amongst their soldiers as well as great dislocation and loss of life amongst the tribals).

I would be one of the first to say that Pakistan has been and is an unreliable ally in Afghanistan because it has always had its own agenda and, thanks largely to the steadfast refusal of the Americans to concern themselves with how the Pakistani Inter-Services Intelligence Directorate spent U.S. taxpayer’s money during the insurgency against the Soviet Union, and subsequently, many Pakistani actions in Afghanistan have been seriously counterproductive.

But I have a lot of sympathy for the Pakistan Government in relation to their problems in the FATA, and for those who argue that American actions in and in relation to the FATA are a major problem.  The Federally Administered Tribal Areas are designated thus because, to the extent that they are administered at all by any external agency, they are administered direct from Islamabad.  They are neither states nor parts of states. Anyone who lives in a Federal structure ought to understand that.

An important part of the history of the FATA is that they are within Pakistan as a result in the first instance of an 1893 agreement between Henry Mortimer Durand, the Foreign Secretary of British India at the time, and the Afghan Amir Abdur Rahman Khan. The border marked out in the 1890s runs for 2,640 kilometres, is poorly marked, and cuts right through the Pashtun tribal areas. Pashtun tribespeople work, trade, marry and move across the border pretty much at will. Afghanistan and many Pashtuns reject it as an arbitrary division of the Pashtun heartland, and do not consider it to be a validated international boundary – so much so that Afghanistan opposed Pakistan’s application to join the United Nations upon independence in 1947.

In 1901 the tribal agencies on the British side of the Durand Line were first formally designated as such under British rule, as part of the arrangements for the administrative separation of the Pashtun region from the Province of Punjab.  The Pashtun region itself was divided into (initially) five tribal agencies and the “settled region” of the Pashtun belt, which latter became the North West Frontier Province (NWFP). The tribal agencies did not come under the administrative purview of the NWFP, but were administered by political agents under the orders of the Governor of NWFP, who was directly responsible to the Viceroy of India. The Governor was expressly instructed not to interfere in the internal affairs of the tribes, but to maintain friendly relations with them and to disburse tribal allowances that had been agreed in a series of treaties with tribal leaders.  If, in spite of the agreements and the financial inducements, the tribes caused trouble, the British would mount punitive expeditions and impose collective fines or other retribution, and withdraw speedily.

On partition in 1947 the fledgling state of Pakistan induced all of the tribes to become part of Pakistan, rather than India, but the status of the region remained somewhat ambiguous. All Pakistan’s regular army units were withdrawn from the region in December 1947, and in 1949 Pakistan negotiated an Instrument of Accession under which the FATA would maintain the semi-autonomous status and administrative arrangements established by the British in 1901.

Under Pakistan’s 1973 Constitution, the Pakistan Parliament has no power to legislate for the FATA – the President extends laws to the FATA through Presidential Regulations. The FATA have no police or law courts, and the Supreme Court does not have jurisdiction to safeguard and enforce constitutional rights there.

Today, the FATA consist of seven semi-autonomous agencies and the six frontier regions, which are situated within the NWFP.  The FATA cover an area of 27,000 sq. km. inhabited by 3.5 million people, and have a 600 km (Durand Line) border with Afghanistan.

It is into this delicate situation that the U.S. has thrust itself as part of its war in Afghanistan, with demands that the Pakistan Government get the tribals under control (something no-one has ever done since the Pashtuns first appeared in the historical record in about 500 B.C.) and its autonomously initiated cross-border drone strikes against people it considers to be its enemies.

This leaves the weak civilian Government of Pakistan in an impossible situation, and the resulting mess means that the Afghan War is destroying Pakistan as well as Afghanistan.


Principal source for the above background: Hilary Synnott, Transforming Pakistan: Ways out of instability, published by Routledge for the International Institute for Strategic Studies, 2009.

Hilary Synnott was British High Commissioner in Islamabad from 2001 to 2003, and the Coalition Provisional Authority’s Regional Coordinator for South Iraq in 2003-4. Before joining the diplomatic service he was a submariner in the Royal Navy.

His account of Pakistan’s current problems in their historical setting is a very readable one, and quite succinct (181 pages of text). I would recommend it as very good place to start for anyone who wants to acquire an understanding of contemporary Pakistan without dedicating a huge amount of time to doing so.

Is Tony Abbott a good Opposition leader?

That is the question addressed by Peter Brent in his Mumble Blog in today’s edition of The Australian –  read it here.

“No” is the short answer given by Brent, who argues that the recent election was effectively a campaign between two Opposition leaders, in the sense that neither was for the electorate a known quantity as governmental leader.

Brent concludes his analysis:

If Abbott survives until the next election, it will be tempting to anticipate a good campaign from him, as we got in 2010. But that’s all over. Barring another ALP brain-explosion, the next election will prime minister versus opposition leader, an equation that doesn’t suit Tony.

And if the parliament goes full term, lasting three more years as leader is also a huge ask.

Abbott’s best - perhaps only - chance of becoming prime minister is on the floor of the House.
That looks unlikely. But not impossible.

I agree with this – I have felt since the outcome of the country independents' deliberations was known that Tony Abbott’s political career peaked on 21 August 2010.

Apart from the advantage that incumbency will give to Julia Gillard, Tony Abbott has other problems.  I think that the outcome of the negotiations demonstrated one of them.  Government was within Abbott’s reach, but he conducted an incompetent negotiation. Unlike Julia Gillard he was too impatient for an outcome, and failed to get onto the country independents’ wavelength. These are both fundamental failures of negotiating practice. It is an enormous disadvantage to feel that you need a quick answer, and if you cannot understand what motivates the other party you have no hope of offering something acceptable to them at reasonable cost to yourself (in the case of both Andrew Wilkie and the country independents, he tried to buy his way in with cash, and in both cases he failed).

This is consistent with a wider problem. Tony Abbott never seems to do the homework that is required of someone who aspires to be Prime Minister of this country. He could not and cannot conduct a sensible conversation about the National Broadband Network or the alternative he is  proposing, he cannot conduct a sensible conversation about the economy (we just get slogans about reckless spending, debt and the need for the budget to be always in surplus), he presents arrivals of asylum seekers by boat as one of the nation’s biggest problems but seems to know nothing of our international obligations regarding either asylum seekers or safety of life at sea, and when his Defence spokesman David Johnston said that he trusts the advice of the troops on the ground in Afghanistan over that of the Chief of the Defence Force (see here), Tony Abbott said that he supported him, but then declined to clarify whether the Opposition was changing its policy on Afghanistan, and protested that he had not had time to obtain a briefing from the CDF. In other words, he knew he supported his spokesman, he just wasn’t sure why, which suggests again a man who has not done his basic homework on what is clearly a major national issue.

I think that if Tony Abbott is to have any chance of leading his party to electoral victory he is going to have to ease up on the manic personal fitness regime and devote some time to the long hard slog of mastering the subject matter of the key policy issues that the nation confronts, and deciding where he stands on them.

04 October 2010

Holding the Opposition ferociously to account

Yesterday afternoon Crikey’s Canberra correspondent tweeted a very relevant demand:

BernardKeane we're still waiting for you to be "accountable" for this tripe @ScottMorrisonMP http://youtu.be/ZRljigv0KK8

What amazes me about the Opposition on this matter is that they appear to operate in a legislation-free treaty-free environment. They bandy about all sorts of heroic talk about tough measures as though the 1951 Convention on the Status of Refugees, the 1974 Convention on the Safety of Life at Sea and the provisions of the Defence Act 1903 did not exist. They just make it up as they go along. The Government is bad enough, but this mob is a nightmare.

I would be prepared to allow for the possibility that the Opposition Leader and his Immigration Spokesman are not aware of these legislative frameworks – homework does not seem to be a strong suit for the Opposition – but really, ignorance of the law is no excuse. Surely they know that much.