Is ASIO unconstitutional?

The answer to this question can only be based on an assessment drawn from my own acquaintance with the constitution which is, I admit, pretty meagre. My knowledge of the agency is even slimmer, naturally. What I do know, though, is that the constitution requires representative government. The High Court has created a doctrine of "implied freedom" of speech, where in order for representative government to exist the electorate must be adequately informed. From Wikipedia: "freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively".

In the ASIO annual report for 2011-12, we find the report's authors relying on the threat of war to justify the agency's existence, as in: "Well developed national capabilities take considerable effort to build and are difficult to re-establish in an emergency." It's a warning that prudence requires the existence of a secret arm of government in case Australia enters into a war against a foreign nation. After all, the CIA was established after WWII, as was MI5. The FBI dates from WWI. Secretive law enforcement agencies tend to rely on international conflict and the shenanigans that opposing sides get up to in order to achieve total domination, to justify their existence. But clearly ASIO is an arm of the civil authority.

To reassure the electorate of ASIO's legitimacy the annual report is full of comforting language. There's a fair bit of stick, of course, such as the bit about "violent jihadist ideology" that comes up early in the section on terrorism. This section headlines Part 1 of the annual report, 'The security environment 2011-12 and outlook'. That's a pretty loaded phrase, right there. After all, "jihad" means "struggle", so it's hard to see how a jihad can be an ideology. A method, certainly. Yes, sometimes Islamic extremists are violent, there's no question about that. But a jihadist can equally be viewed merely as a voluntary participant within the activist element of pan-Islamic identity politics. ASIO's report is generally full of bland managerial material aimed at putting a positive, professional spin on its activities, and at deftly demonising social elements that it is focused on disrupting. It should be the kind of report that a journalist reads with one eye half closed out of a sense of caution.

Anyone can read this thing, it's public and available. Of course, most people won't bother, or won't bother finishing it (like me) because it's chockers with the kind of bureaucratic, self-referential language that has excessive significance for the initiated but means zip to a member of the general public. Most of the acronyms are ones the average citizen will never have heard of. There are no points of reference apart from those that are carefully inserted in the text in order to generate the enemy the agency requires to justify its existence. Your eyes glaze over helplessly as you ineffectually scan through line after line of impenetrable prose that is designed to reassure and terrify at the same time.

Getting back to the implied freedom thing, if we don't know about ASIO's activities how are we able to gauge its effectiveness, its rasion d'etre, or its legality? Even whether it is legally carrying out its activities, or ethically following either the law or professional codes of conduct? ASIO's status as a statutory authority MUST be a matter of parliamentary - and public - scrutiny, if it is to be constitutional. Simply put, we can't know about it so we can't talk about it. Oh, sure, from time to time there is a story in the media about ASIO and persons it deems to be of interest. There was one a couple of weeks ago about ASIO's activities with regard to an Islamic bookshop in suburban Melbourne. But apart from that we are forced to rely on something called the 'Inspector-General of Intelligence and Security' who it seems oversees ASIO's activities. Maybe (how would we know?). Then there's Nicola Roxon who is reponsible for ASIO as part of her portfolio. But the one person is never talks about ASIO in the media and the other person never talks about ASIO in Parliament. And if the media is not talking about ASIO, in my book, it's not constitutional.

The agency is to publish a book about its past, in 2013. How revealing will that be? We know from reading Wikipedia that there was a Russian infiltration of ASIO some 40 years ago and we can therefore assume that this will be discussed in the book. But it's likely to be a whitewash. You can imagine a lackey in some sweaty foreign secret service bureau going to Amazon to order the book and, with his fingers trembling feverishly on the computer mouse, clicking through to his checkout basket, intent as he is on securing access to vital information about Australia's security apparatus. Or not.

For Australians it comes down to trust. The burden lies with Australians to trust the agency, since the agency does nothing to substantiate its role or justify its existence in the public eye. But all sorts of things can happen that we can never know about. The risk of extortion, for example, is extremely high. An ASIO employee can access information, transport it out of the office, and use it to persuade a person to fork out money under threat of the release of information that might be incriminating in an ethical or reputational sense, but that cannot reasonably be used to prosecute that individual for a crime. There is also the risk of employees selling information to foreign agencies.  There is also the risk of excessive zeal. I worked for a NSW crime commission for a year as a sub analyst and I know how much "rubbish" data is carefully collected, collated, and entered into a searchable database on a daily basis. You have police officers taking things from the premises of suspects and handing it over to junior clerks, who go about processing the material - pieces of paper, notebooks, airline ticket stubs, receipts - and using that information to populate a database that can be accessed remotely from multiple, isolated locations. Even Stella Rimington, the ex-MI5 chief-turned novelist, in her memoir talks about how junior clerical staff in MI5 were tasked with creating files on suspects and populating them with "relevant" information.

It's not hard to find examples from the past of excessive zeal. Oh, sure, the McCarthy era is SUCH a long time ago now (and things are different, I hear voices say, today), but in those days people were investigated by ASIO simply because they expressed an interest in socialism or belonged to a book club. And even when you get to see the files created in those days, which have been declassified in recent times, there are parts blacked out, including names of informants and other details, that keep you wondering about what really happened. Read the history of the CIA written by Tim Weiner a few years ago, and the document trail ends some 40 years ago. Anything more recent than Nixon remains classified, and not available for public scrutiny.

And these guys ask us to trust them. Really, they do. ASIO is essentially an un-democratic agency of government where there is no guarantee that the government even knows what is going on in the street in our name. There is zero scrutiny by government or by Parliament or by the media. As a result, the electorate cannot know what the agency does or assess dispassionately whether the people it is targeting deserve to be targeted, or whether the methods used to target them are legal or ethical. This complete absence of transparency commits me to declaring that I think that ASIO is unconstitutional, and should be scrapped immediately.