Bent into Security: Barrister Contribution to a ... - Wiley Online Library

JOURNAL OF LAW AND SOCIETY VOLUME 44, NUMBER 2, JUNE 2017 ISSN: 0263-323X, pp. 169±99

Bent into Security: Barrister Contribution to a Skewed Order in Two Terrorism Prosecutions in Australia Willem de Lint* and Wondwossen D. Kassa* This article explores two terrorism prosecutions ± R v. Benbrika and Ors and R v. Elomar and Ors ± to probe how Australian lawyers approach the integration of national security interests into the heart of public law. A brief background is provided followed by an analysis of how the Security Legislation Amendment (Terrorism) Act 2002 (Cth), as amended, and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) deviate from the legal order to produce a `skewed blend' between national security and criminal justice. We examine three ways in which barristers contribute to bending of process in counter-terrorism trials: accommodation to the precautionary standard, the resetting of equality of arms expectations, and brokered agreements that depend on the deferential relationships within the court. Consequently, the moral asymmetry of terrorism is the backdrop for the `plausible legality' of `just world' derogations from liberal politics. INTRODUCTION On 2 November 2005, Australian Prime Minister John Howard recalled Senate to pass the Anti-Terrorism Act. The BBC reported that there was specific intelligence of a possible attack,1 and Mr Howard's announcement came a day after the Australian Security Intelligence Organisation (ASIO) warned of a threat of home-grown terrorists in its annual general report to

* Law School, Flinders University, Flinders Law School, GPO Box 2100, Adelaide 5001, Australia [email protected] [email protected] This work was supported by Australian Research Council Discovery Grant Program [grant number 120100191]. 1 Àustralia terror bill introduced', 3 November 2005, at .

169 ß 2017 The Author. Journal of Law and Society ß 2017 Cardiff University Law School This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

Parliament.2 On 3 November, the Anti-Terrorism Act 2005 [No. 2] (Cth), amending the law relating to terrorist acts, was rushed through Parliament. Operation Pendennis-Hammerli, which began in 2004, lasted 16 months3 and concluded with the arrest of 22 men between November 2005 and March 2006. From 1±8 November 2005, 107 articles appeared in the Herald Sun, Canberra Times, The Age, and The Australian concerning the need for terrorism legislation against the latency of a terrorist attack and other ongoing operations.4 In this article we examine two linked terrorism prosecutions, R v. Benbrika & Ors and R v. Baladjam & Ors (later becomes R v. Elomar & Ors), and analyse how the Security Legislation Amendment (Terrorism) Act 2002 (Cth), as amended, and the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) deviate from the legal order by incorporating a precautionary approach. Derogating from the ideal legal order, which embraces principles of presumption of innocence, equality of arms, and adversarial examination, the precautionary approach to counterterrorism borrows from the somewhat antithetical norms of security intelligence. Our analysis examines the prosecutions from the barrister point of view, and develops a framework to examine and evaluate barrister contributions to the application of what we are calling a skewed order of justice and security. In particular, three mechanisms are examined through which barristers contribute to the bending of process in counter-terrorism trials away from legal principles, namely, through accommodation to the precautionary standard, the resetting of equality of arms expectations, and brokered agreements that depend on the deferential, as opposed to adversarial, relationships within the court. We find that a skewed order is sustained by a `plausible legality', given that legal actors operate in a presumptive `just world' against the moral asymmetry of terrorism. The article concludes that by being involved in these mechanisms which the security-oriented legislation dictates, the barristers played a significant role in the application of the legislation with a skewed blend of legal order and precaution. The research draws on an analysis of semi-structured interviews with 14 barristers involved in the two terrorism trials, the judgments (court reports, 2 Àustralia warned of terror threat', 2 November 2005, at . 3 M. Head, `Contradictory verdicts in Australia's largest terrorism trial: Rudd government rushes to claim success' World Socialist Web Site, 26 September 2008, at ; T. Bowden, `Predawn raids net terrorism suspects', 8 November 2005, at . 4 K. Bowd et al., `Journalism in Multi-cultural Australia, Case Study Three: Terrorism raids November 2005' (n.d.), at . Although the authors found that three quarters of the articles related to the proposed legislation, they did not indicate how many were critical of it.

170 ß 2017 The Author. Journal of Law and Society ß 2017 Cardiff University Law School

transcripts), and media reports. The cases were selected from a sub-group of six cases (those that have resulted in a conviction based on Crown's evidence in a trial) out of 16 terrorism prosecutions and 38 individuals at our cut-off date of May 2013.5 The two prosecutions are chosen purposively. They have a special place in the skewed order in Australia. They resulted from Operation Pendennis-Hammerli, a counter-terrorism operation that triggered a legislative measure intended to reinforce a precautionary standard and are the first cases in which the new regime is enforced/tested.6 The interviews took place between May 2013 and October 2014. The barristers were contacted by email and arrangements were made to record interviews in chambers. These were then transcribed and coded. To support one or two key points, the accounts of barrister experience with the interview data from prosecutors and judges have been supplemented. Two caveats are needed. First, this article does not claim that there were no instances where barristers successfully stood for legality in these prosecutions. For instance, barristers successfully challenged the security protocols encompassing the conditions of detention in which the accused were held, their transportation to and from the courtroom,7 the number of police officers in the courtroom, and the placement of a perspex screen separating them from the court.8 However, instead of assessing these victories9 against losses, the article explores the precarious vulnerability of legality, particularly the presumptive role of barristers in an equality of arms, defence of presumptive innocence, and exploitation of procedural motions. Second, the finding relating to the role of the barristers based on the two terrorism prosecutions 5 The review released in January 2015 by the Department of the Prime Minster and the Cabinet reports that by then there had been 35 terrorism-related prosecutions with 26 convictions in Australia since 11 September 2001: DPMC, Review of Australia's Counter-terrorism Machinery (2015) iv, 14, at . Lynch, McGarrity, and Williams indicate that by the beginning of 2015, 46 people had been charged with terrorism offences of whom 26 have been convicted. Only 25 of the 46 were tried by a jury. While eight have been acquitted by the jury of all terrorism charges, some others have been partly acquitted: A. Lynch, N. McGarrity, and G. Williams, Inside Australia's Anti-Terrorism Laws and Trials (2015) 92±3. 6 Statements by John Howard and the then Federal Police Commissioner Mick Keelty and NSW Police Commissioner Ken Maroney asserted the link between the law and the arrests from Operation Pendennis-Hammerli: Head, op. cit., n. 3; Australian Federal Police (AFP), Òperation Hammerli/Pendennis Eden', media release, 16 October 2009, at . 7 R v. Benbrika (Ruling No. 20) [2008] VSC 80. 8 R v. Benbrika (Ruling No. 12) [2007] VSC 524. 9 For an appraisal of the court's rulings, see: B. Carlton and J. McCulloch, `R v Benbrika: The ``War on Terror'', Human Rights and the Pre-emptive Punishment of Terror Suspects in High-Security' (2008) 20 Current Issues in Criminal Justice 287; D. Tait, `Glass Cages in the Dock: Presenting the Defendant to the Jury' (2011) Chicago-Kent Law Rev. 467, at 483±9.


does not claim representativeness. It suggests lines of inquiry that further research may fruitfully investigate; it remains to be assessed if our findings hold true in other terrorism prosecutions. A SKEWED ORDER 1. Legal order: presumption of innocence, equality of arms, and adversarial examination

Legality refers to the rule of law and is stipulated in general principles that denote that laws fail when they do not possess sufficient generality, promulgation, clarity, constancy, and congruence between official action and declared rule, or where they create contradictions and require the impossible or retroactivity.10 Relatedly, legality also denotes the operation of system of review or meta-laws by which interpretations of rules or practices are tested, as, for instance, in a charter of rights or constitution.11 In an analysis of the Hart-Fuller debate on positivism and legality, Jeremy Waldron argues that `perhaps principles of legality are (as John Finnis argues) principles for keeping legal systems in good shape.'12 As Waldron notes, there are notable legal theorists who do not equate observance with the principles of legality as necessary for a legal system or system of law. The question of whether they are mandatory for a system of law or rule-based on a liberal doctrine of political organization would seem more the point of Fuller's argument, which we will address momentarily. For our purposes, the presumption of innocence, equality of arms, and an adversarial examination of the case in a public or open court are crucial to rule of law legality in criminal trials. In the ideal context, criminal justice under political liberalism derives its legitimacy from (at least the appearance of) a visible contest between individual liberty and state authority predicated on the presumption of innocence on the part of the accused and with the onus on the state to prove guilt beyond a reasonable doubt. In addition to playing out in the sub-systems of criminal justice, the ideal of contest depends on an equality of arms that is achieved by the work of actors within civil society and various administrative and executive branches of government who seek to maximize their influence over outcomes. It also requires, in common law systems like Australia's, publicity. A principle of legality may also be apprehended as requiring a cross-examination of evidence by the accused in 10 L.L. Fuller, The Morality of Law (1977). 11 Such principles, as Bassiouni notes, prevent judicial law making: M.C. Bassiouni, `Functional Approach to General Principles of International Law' (1989) 11 Michigan J. of International Law 768. 12 J. Waldron, `Positivism and Legality: Hart's Equivocal Response to Fuller' (2008) 83 New York University Law Rev. 1135, at 1140.


open court.13 It is no exaggeration to say that the openness of the criminal court is a measure of a political community's observance of the tenets of liberal democracy. Secret proceedings and undertakings will tend to detract from the legitimacy of the public law system. In addition to a rule of law legality and a meta-rules process, there is a third view in which legality is whatever rules are agreed on or reasonably anticipated by duly authorized officers of the court. In their study of the criminally accused, Ericson and Baranek found that, as agents of the court, barristers (and defence lawyers generally) èstablish and use their own tariff to reach an outcome that both satisfies their sense of justice and is justifiable organizationally.'14 They argued that the recipe rules of the court (the presumptive informal rates of exchange) trump formal legal ìdeals'. Recipe legality thus denotes the normative, brokered exchange value of legality. Recipe legality is informed by the social and political context in which courts manifest as buildings, and people and lawyers and judges draw on common views or prejudices about lived experience, everyday reality or the `real world'. Under the pressure of the precautionary presumption, the bargaining on exchange tariffs has arguably further disadvantaged barristers.15 2. Precaution: anti-thesis of the legal order? Following the events of 9/11 Australia introduced a precautionary approach through successive anti-terrorism legislative measures. Sub-section 101.6(1) of the Criminal Code of Australia make it an offence punishable by life imprisonment for a person to do àny act in preparation for, or planning, a terrorist act'. Sub-section 101.6(2) of the Criminal Code stipulates that a person commits an offence even if the terrorist act does not occur, or the person's act is not done in relation to a specific terrorist act or is done in relation to one or more terrorist acts (emphasis added). The Anti-Terrorism Act 2005 [No. 2] (Cth), amending s. 100.1(2) of the Criminal Code, changed the wording of all terrorist offences from `the' terrorist act to à' terrorist act. The parliamentary record indicates that the purpose of the amendment was to ensure that there could be no mistaking the resident parliamentary intention. The Shadow-Attorney General supported the amendment and expressed the view that the Opposition's understanding was in accord with that of the government: the word `the' in Security Legislation Amendment (Terrorism) Act 2002 (Cth) was used not to require 13 Fuller, op. cit., n. 10. 14 R.V. Ericson and P.M. Baranek, Ordering of Justice ± A Study of Accused Persons as Dependents in the Criminal Process (1982). 15 Packer likens the institutional conflict between due process and crime control in terms of competing values and priorities between due process and crime control or public protection: H.L. Packer, The Limits of the Criminal Sanction (1968).


a degree of specificity with respect to the definition of `terrorist act' ± at a particular time and place ± but, rather, merely to refer back to previous subsections of the Act.16 Prior to the enactment of the National Security Information (NSI) (Criminal and Civil Proceedings) Act 2004 (Cth), the common law doctrine of public interest immunity (PII) was the main mechanism by which the Commonwealth could seek to protect NSI from disclosure during court proceedings. PII allows a court to exclude evidence that, if admitted, would be injurious to the public interest, but there were several problems with this mechanism for protecting NSI.17 The NSI Act, NSI Regulations, and NSI Requirements sought to overcome these difficulties by providing a comprehensive regulatory framework for the disclosure, storage, and handling of all NSI involved in federal criminal proceedings or civil proceedings, whether in documentary or oral form.18 Section 24 of the NSI imposes an obligation on the prosecution and the defence to notify the Attorney General and the Court when they know or believe that they will disclose national security information. Following the notification, the Attorney General will decide whether or not to issue a non-disclosure certificate. In the event that a non-disclosure order is issued, the court will conduct a closed hearing to decide whether to maintain, modify or remove the limitation on disclosure. In the event that the court considers that the attendance of the defendant or legal representative of the defendant would be likely to prejudice national security, the NSI Act empowers it to exclude them from the hearing in which the prosecutor or other authorities give details of the information not to be disclosed or the reasons for non-disclosure.19 It is the judge who will decide whether to 16 A. Lynch, `Legislating with Urgency ± the Enactment of the Anti-terrorism Act [No 1] 2005' (2006) 30 Melbourne Law Rev.747. The then Attorney-General said that `sometimes you face a situation where what you had intended is not read the same way by those who are called upon to adjudicate separately in their role as judicial officers' (id., pp. 757±8). He noted that the amendment would guarantee that the provisions are applied às they were originally intended . . . [that] in a prosecution for a terrorist offence, it is not necessary to identify a particular terrorist act' (id., p. 754). However, according to Whealy J (in R v. Lodhi (2005) 199 FLR 236, 246), even in the absence of the amendment, àn offence will have been committed by a person acting in a preliminary way in preparation for a terrorist act even where no decision has been made finally as to the ultimate target.' Thus, in view of the overwhelming support of the fact that the amendment did not change the preexisting law, it was described as `minor' and `technical': Lynch, id., p. 761. 17 For the shortcomings of the common law PII, see: Australian Government AttorneyGeneral's Department, National Security Information (Criminal and Civil Proceedings) Act 2004: Practitioners' Guide (2008) 6, at . 18 id. 19 NSI Act, sub-section 29(3).


accept a redacted form of information that can still be used against the defendant. Sub-section 31(8) of the NSI Act provides authority for the adducement and testing of evidence in `non-disclosure certificate hearings' and requires the court to give `greatest weight' to the interests of national security over other factors including the `substantial adverse effect on the defendant's right to receive a fair hearing, including in particular on the conduct of his or her defence.' The predictive extrapolation of àn act' and the relative inability of the defence to deploy disclosure for counter-extrapolations may be understood as twin prongs of a precautionary order.20 The burden of proof is shifted into the ambit of the defendant, who must provide an account of activities that have fallen within a risk signature.21 Precaution places the precursor criminal conduct at a much èarlier point' than has traditionally been the case. It may require proactive risk avoidance where plausible risks are deemed to exist, even if such avoidance may be costly.22 In the precautionary or pre-crime logic,23 authorities ànticipate and forestall that which has not yet occurred and may never do so.'24 As Zedner observes, the precautionary approach, treats individuals às guilty ahead of any wrongdoing.'25 It does so by negating àutonomy' and denying ìndividuals the chance to remain innocent by slamming shut the ``window of moral opportunity'' to choose to do right.'26 Whereas the conventional model requires a standard of retrospective certainty ± that is, an act has taken place and the evidence attaches guilt to an individual or individuals ± under the influence of the precautionary turn, prospective prevention requires that the adjudication of evidence matches the allowable uncertainty and weakness of prediction, so that if there is a risk of serious or irreparable harm, lack of certainty will not support inaction.27 As noted above, in addition to the legal extrapolation of intent, the precautionary order's other prong is an information protocol that restricts the publicity of the trial and, as such, the ability of barristers to get behind the motivations of defendants. Intelligence protocols thus slip deeper into the 20 R. Peeters, `The price of prevention: the preventative turn in crime policy and its consequences for the role of the state' (2015) 17 Punishment and Society 163. Peeters argues that prevention `threatens to become a bypass for the innocence principle in criminal law' (p. 177); Ìt is boundless, elusive and expansive' (pp. 167±8). 21 J.B. Wiener and J. Stern, `Precaution Against Terrorism' (2006) 9 Duke Law Rev. 393. 22 C.R. Sunstein,`The Catastrophic Harm Precautionary Principle' (2007), at . 23 The term precaution and pre-crime share similar meaning, where the emphasis is on mobilizing the resources to intervene against people who match a crime signature. 24 L. Zedner, `Pre-crime and post-criminology?' (2007) 11 Theoretical Criminology 261, at 262. 25 L. Zedner, `Pre-crime and pre-punishment: a health warning' (2010) 81 Criminal Justice Matters 24, at 24, emphasis added. 26 id., citing Smilansky. 27 id.; Wiener and Stern, op. cit., n. 21.


court. As Roach notes, counter-terrorism is à secretive intelligence-driven process' that is ùtterly incompatible with . . . the presumption of innocence and proof of guilt.'28 Evidence for counter-terrorism is often ìncomplete, even sketchy', involving `hints of planning by secretive, shadowy groups whose true intentions, capacities, members, locations and weaponry are unknown.'29 Sources and methods of information interception may remain opaque, non-contestable information or criminal intelligence may be entered into evidence and verified by closed tribunal or ministerial fiat.30 In precaution there is a normalization of derogations from publicity, equal contest, and the presumption of innocence, a set of derogations that are consistent with the institutional interests of security intelligence. In ordering by precaution and risk aversion, these practices are cast as merely prudent: cautious support for the antecedent value of viable governability (`doing something').31 Thus, for a large governing minority, doing something has come to be tied to institutional norms that enact the precautionary or preventative state.32 Consistent with this prioritization of the `necessity of decision', there has followed a `perceived need to have in situ ordering practices that are pre-emptive rather than after-the-fact.'33 Leading up to and following 9/11, precaution has been joined up to crime control and the necessity of national security priorities at times of existential threat.34 In this and other ways, a state of exception becomes the `new normal'.35

28 K. Roach, `The Eroding Distinction between Intelligence and Evidence in Terrorism Investigation' in Counterterrorism and Beyond, ed. N. McGarrity (2010). 29 Wiener and Stern, op. cit., n. 21. 30 J. Monaghan and K. Walby, `Making up ``Terror Identities'': security intelligence, Canada's Integrated Threat Assessment Centre and social movement suppression' (2012) 22 Policing and Society 133; Weiner and Stern, id. 31 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001). 32 D. Lyon, Surveillance society: Monitoring everyday life (2001); D. Garland, `The Culture of High Crime Societies' (2000) 40 Brit. J. of Criminology 347. 33 B. Hebenton and T. Seddon, `From Dangerousness to Precaution: Managing Sexual and Violent Offenders in an Insecure and Uncertain Age' (2009) 49 Brit. J. of Criminology 343, at 343. 34 K. Arnold, `Domestic War: Locke's Concept of Prerogative and Implications for U.S. ``Wars'' Today' (2007) 39 Polity 1; Wiener and Stern, op. cit., n. 21; Sunstein, op. cit., n. 22; Roach, op. cit., n. 28. Before its application to criminal law the precautionary principle was used in customary international law and regulatory policy, particularly environmental policy, where it has received some scathing critique (see D. Freestone and E. Hey, Òrigins and Development of the Precautionary Principle in The Precautionary Principle and International Law: the Challenge of Implementation, eds. D. Freestone and E. Hey (1996) 3). 35 A. Burke, `The end of terrorism studies' (2008) 1 Critical Studies on Terrorism 37; O. Gross, `What `èmergency'' regime?' (2006) 13 Constellations 74; R.V. Ericson, Crime in an insecure world (2007).


3. Blended order or skewed blend? Accepting that there is a need for some deviation from the ideal, Roach has suggested that what is needed is a blended order.36 In the clash between a security regime and a (criminal) justice regime in counter-terrorism cases, he seeks a compromise by which principles of legality may retain some robustness. In a blended order there is thus a co-existence of secrecy and fairness (the need to keep legitimate secrets and the need to treat the accused fairly), and publicity and efficiency (the need to respect the presumption of open courts and the need for efficient process in prosecutions). He argues that in terrorism prosecutions, what is needed at the front end is a culture change by security intelligence. These actors must collect intelligence through evidentiary standards and a more permissive regime of permissions to share that intelligence and by developing better source- and witnessprotection programmes. At the back end, he suggests clarifying disclosure and production standards in relation to intelligence and the scope of evidentiary privileges, providing the means to make secret material subject to adversarial challenge by a security-cleared special advocate; providing the means for the defence to inspect secret material (by undertaking nondisclosure); and allowing only concrete harms to support non-disclosure (not claims of undefined national security). Anti-terrorism and associated national security information disclosure legislation already enacts measures to support a skewed blend in which the presumptive onus, contest, and publicity have shifted away from the `mythical' absolute of Packer's due process37 and the aspirational middle ground of Roach's blended order. This is so because, where the state is heavily invested from top to bottom in counter-terrorism prosecutions as vindication of policy decisions, legal institutions are pressured to adapt practices and find permissive discourses or rationales.38 The legal order is situated institutionally in shifting political and social milieux. Given the current political and social context, officers of the court have had to adapt to the regime of intelligence in discretionary precaution. Law's truth in legality is distinguished from the security intelligence truth in an asymmetrical moral economy of friends and enemies. Stanley Cohen39 argues that actors use various devices to permit the reconciliation of divergent institutional and moral choices, or the incorporation of undesirable 36 Roach, op. cit., n. 28, p. 316. 37 McBarnett has argued that due process is not contrasted to but already working, through judges rules and other devices, for crime control: D.J. McBarnet, Conviction: The Law, the State and the Construction of Justice (1979). 38 B.R. Roth, `Bending the law, breaking it, or developing it? The United States and the humanitarian use of force in the post-cold war era' in United States Hegemony and the Foundations of International Law, eds. M. Byers and G. Nolte (2003) 232. 39 S. Cohen, States of Denial: Knowing about Atrocities and Suffering (2001) 8.


situations into a world-view. Drawing on Sykes and Matza,40 he conceptualizes that actors make themselves believe that there is no event that needs to be accounted for and thus practice literal denial. In addition, they use implicatory denial, by which they discount the psychological, political or moral implications that follow from their actions by offering justifications, evasions or rationalizations; and interpretative denial, by which the facts are given different meanings or spun in favour of an innocuous interpretation. Through interpretive denial, events may be cast as isolated incidents, temporary aberrations, exceptions, errors in which there are no clear authorities, or wrongly categorized. The institutional context or world-view impacts legal actor denial in at least two ways. First, there is an interpretive denial that the incorporation of security intelligence values, including the assumption of an àsymmetrical moral economy' between ùs and them' can fatally or fundamentally alter political liberalism.41 There is a creative redefinition of legal terms and interpretations on the back of a `necessity' that allows òfficials to publicly defend the integrity of domestic and international legal conventions while pursuing policies that directly contravene their very principles.'42 Although this gambit is empirically weak,43 it is widespread, according to Winter, as an appealing moral narrative that inverts the presumptive power dynamic of the confrontation between state actors and non-state enemies, ànd transposes that confrontation onto a neo-colonial template of civilized vs. uncivilized forms of warfare.'44 Second, the template of a moral asymmetry is supported by the `just world' hypothesis. According to the psychological studies developed by Lerner and associates, the most plausible explanation for the blaming of innocent victims for their own misfortune is belief in a just world.45 By this it is meant that actors will cover derogations from fair play by maintaining that it is part of a world system that for the most part apportions outcomes justly.46 Reference to a presumptive just world and the reassertion of 40 G.M. Sykes and D. Matza, `Techniques of Neutralization: A Theory of Delinquency' (1957) 22 Am. Sociological Rev. 664. 41 Y. Winter, `The asymmetric war discourse and its moral economies: a critique' (2011) 3 International Theory 488. 42 id., p. 490. 43 Compare R.A. Pape, `The strategic logic of suicide terrorism' (2003) 97 Am. Political Sci. Rev. 343; J. Muller and M. Stewart, Chasing Ghosts: Policing of Terrorism (2016). 44 Winter, op. cit., n. 41, p. 490. 45 M.J. Lerner and C.H. Simmons, Òbserver's reaction to the `ìnnocent victim'': Compassion or rejection?' (1966) 4 J. of Personality and Social Psychology 203; M.J. Lerner and D.T. Miller, `Just world research and the attribution process: Looking back and ahead' (1978) 85 Psychological Bull. 1030; M.J. Lerner, The Belief in a Just World: A Fundamental Delusion (1980). 46 M. Requa, `Considering Just-world Thinking in Counter-terrorism cases: Miscarriage of Justice in Northern Ireland' (2014) 27 Harvard Human Rights J. 7, at 7.


hegemony in the context of global asymmetric warfare permits what Rajah refers to as derogations from political liberalism.47 As Rajah documents through her assessment of Indonesia's vandalism laws, `the edifice of rule of law states' is vulnerable to dismantling by authoritarians as, in the context of the presumptive just world in the conditions of asymmetry, the `legal complex', including its resident professional associations and leading practitioners, are made `quiescent and pliable.'48 In this moral asymmetry and the derogations from political liberalism in the presumptive just world there is much space for implicatory and interpretive, if not literal, denial. Sanders argues that the post-9/11 period has ushered in a form of interpretive denial in a new doctrine which she terms plausible legality.49 This doctrine of circumlocution minimizes, explains or hides from conscious consideration that human rights abuses are derogations from the rule of law. Plausible legality combines an acceptance of the institutionalization of exceptional devices associated with the suspension of the rule of law with an awareness of the reputational and legal risks that obtain where the derogations are identified with specific legal actors: Ìt attempts to legalise the exception without publicly suspending the existing order. It aspires to reconcile the normally irreconcilable ± to permit the impermissible without fully admitting the move.'50 Plausible legality assists defence barristers as it involves them in bending the emerging norms to accord with a government's often largely implicit references to urgency and necessity. Roach's blended order, it would appear, depends on institutional forces and an independence of actors that, given the above, has already been superseded. In much current literature, criminal justice and (national) security actions are already blended or `fused' in a retreat from the separation between domestic law enforcement and security intelligence or political policing, a move which has dramatically compromised the institutional bases of legality.51 They permit normalization of derogations from political liberalism in an emerging political geography of authority and exception that strains and stretches the meaning of public law and its basis in visibility, contestability, public ownership, and accountability.52 47 J. Rajah, `Punishing Bodies, Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State' (2011) 36 Law & Social Inquiry 945. 48 id., p. 948. 49 R. Sanders, `(Im)plausible legality: the rationalisation of human rights abuses in the American ``Global War on Terror''' (2011) 15 International J. of Human Rights 605. 50 id., p. 613. 51 J.P. Brodeur, `High Policing and Low Policing: remarks about the policing of political activities' (1983) 30 Social Problems 507; D. Bigo, `Globalized (in)security: the field and the Ban-Opticon' in Illiberal Practices of Liberal Regimes: The (In)Security Games, eds. D. Bigo and A. Tsoukala (2006) 5. 52 Compare R. Chesney, `State Secrets and the Limits of National Security Litigation' (2007) 75 George Washington Law Rev. 1249.


THE SKEWED ORDER IN PRACTICE Preparatory offences, that do not require specifying a target or plan of attack, consistent with the skewed order, are central features of Australian terrorism trials.53 As of January 2015, of the 26 people convicted with terrorismrelated offences, 17 were convicted for preparatory offences under Division 101 of the Criminal Code.54 Moreover, experience with Australia's terrorism prosecutions shows that courts are prepared to hand down lengthy sentences of imprisonment to those convicted of preparatory terrorism offences even where, `the enterprise was interrupted at a relatively early stage of its implementation'.55 In Lodhi v. R [2006] NSWCCA 121, para. 66, Spigelman CJ described the criminal responsibility in these offences: Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. (emphasis added)

Two such prosecutions arise from Operation Pendennis-Hammerli. In these cases, one in Victoria (R v. Benbrika & Ors) the other in New South Wales (Regina v. Baladjam & Ors56 later becomes R v. Elomar), 16 men were prepared for trials. In Benbrika, seven men were convicted on various terrorism-related offences after eight months. All seven were convicted for intentionally being a member of a terrorist organization, knowing that it was a terrorist organization (s. 102.3(1)); Benbrika for intentionally directing activities of a terrorist organization, knowing that it was a terrorist organization (s. 102.2(1)) and possession of a thing connected with preparation for a terrorist act, knowing of that connection (s. 101.4(1)); Joud, Ahmed Raad, and Sayadi for intentionally providing resources to a terrorist organization, knowing that it was a terrorist organization (s. 102.7(1)); Joud, Ahmed Raad, 53 N. McGarrity, `Let the Punishment Match the Offence: Determining Sentences for Australian Terrorists' (2013) 2 International J. for Crime and Justice 18. 54 Lynch et al., op. cit., n. 5, p. 31. 55 Khaled Cheikho, Abdul Rakib Hasan, Mohammad Ali Elomar, Moustafa Cheikho, and Mohammad Omar Jamal, who were found guilty of conspiring to do acts in preparation for, or planning, a terrorist act, received sentences of between 23 and 27 years: R v. Elomar [2010] NSWSC 10, per Whealy J, paras. 57±58. 56 Nine men were charged together at the pre-trial stage of the criminal proceeding in R v. Baladjam & Ors [2008] NSWSC 714. Sharrouf was found unfit to stand trial and ordered to be treated in a prison hospital to be later tried separately. Three others, Baladjam, Touma, and Mulahalilovic pleaded guilty at different times in the course of the proceeding and were convicted without trial by jury. It was only five of the nine (Elomar, Hasan, Jamal, Khaled Cheikho, and Moustafa Cheikho) who were tried and convicted by the jury in Elomar, id.


and Ezzit Raad for attempting intentionally to make funds available to a terrorist organization, knowing that it was a terrorist organization (ss. 11.1(1) and 102.6(1)); Joud for possession of a thing connected with preparation for a terrorist act, knowing of that connection (s. 101.4(1)).57 In Elomar, five men were convicted after 181 days of trial and 110 days of pre-trial proceedings resulting in over 60 NSW Supreme Court judgments.58 All five men were convicted for conspiring to do an act in preparation for a terrorist act (under ss. 11.5(1) and 101.6(1)).59 The conclusion of Pendennis-Hammerli, until recently the largest counterterrorism operation ever conducted on Australian soil,60 in the onset of these prosecutions was set against a stoked-up public anxiety. On the day of the arrests and subsequently, leaks to the media included unproven shocking claims, as barrister Barns noted, that Melbourne landmarks such as the Westgate Bridge, Flinders Street railway station, and the Melbourne Cricket Ground were on the men's target list.61 1. Presumption of innocence and `do something' Barristers involved in these prosecutions noted that the intercepted phrase `do something' was at the centre of the cases. Not required to specify a target or plan of attack, the Benbrika prosecution needed only to point to a statement from an accused that he wanted to `do something.' I think there were three or four occasions where they said `do something', but it was the context and all the other bits and pieces that go with the crown case that gave these words their sinister meaning I do not think my fellow was present at a `do something' conversation. (R4) What [my client] is saying here is not code for violent jihad. When he says `do something', the words mean what they say. He wants to do something to help Muslims and to overcome injustice. He is not sure what, where, or when. He is not cunning. There is no artifice to his speech. He expresses what is in his mind, sometimes to his expense, and you can hear that in his voice. (B2) They did have discussions and go out the country and they did say they should do something. Never what. And there was a young boy came from a fairly quiet family in Melbourne and he wanted to be part of this group and so he is recorded at Benbrika's house as saying Ì want to do something. I am prepared to do whatever you want.' And Benbrika is recorded as saying this is not the time . . . My take on this is that Benbrika is not prepared to do anything. He loved to be adulated. (R7)

57 58 59 60 61

R v. Benbrika & Ors [2009] VSC 21 (3 February 2009). AFP, op. cit., n. 6. Elomar, op. cit., n. 55. AFP, op. cit., n. 6. G. Barns, `Terror scaremongering threatens our democracy' The Age, 22 September 2014, at .


Consistent with Zedner's comment above, barristers commented on the almost impossible task of contesting the character of thought or proving a negative. Well the problem is preparatory acts. People who are transitory players, marginal players get caught . . . the legislation does criminalise anticipatory or preparatory acts. There were bit players who got burned, who if they'd have been treated in another way would have been powerful influences within the Islamic community for moderation. (R8)

The defence team in Elomar appeared to accept that the men had been arrested at a more advanced stage of preparations. Still, there was no specified or imminent act against which to argue. Barristers were compelled to follow the interrupted preparation presumption codified in law, but had to claim at one and the same time that their client had àbandoned' a `pursuit': Objectively (my client) abandoned the pursuit of the conspiracy well before he was arrested. No doubt. (R10) A lot of the material that was presented to us we could say, he's never watched a beheading video, he's not looked at these discs, they were simply left in his room; we got a complete copy of his hard drive . . . The sort of penultimate act was that he was supposed to pick up some acid, but he didn't. He drove off. But the acid was there to collect. After putting the order in. He drove off. (R1) I don't think that everything out there is benign, but there's certainly a basis for saying that this was bravado; it was a group of disenfranchised people who were in a club and were never going to act upon it. (R10)

These particular barrister observations make plain the discursive work between the elements of the charge, the agreed actions of the accused, and the rhetorical accommodation of fact to law. In the above, one barrister refers to a `club' and another to a `penultimate act'. Accordingly, the societal agreement against `doing nothing' is opposed to a presumptive organization of criminal actors who say they want to `do something'. In the meantime, as a prosecutor, to `do nothing' when the standard of precaution has arguably been met would be to fall short of the requirements of the standard. The pressures and pulls on court officers are toward their common interests, values, and social networks. Barristers may sympathize if not empathize with the criminally accused, but they identify with their opposite in the court.62 One of the barristers put it simply: Ìmagine the outcry if nothing was done and something did happen' (R10, emphasis added). The right to be presumed innocent until proven guilty is a fundamental legal value. It is a principle of the common law that no guilt can be presumed until a charge has been proved beyond a reasonable doubt. Unlike drug offences and child sexual offences that place an evidentiary burden on the accused and where a reversal of onus is explicitly provided by law,63 under 62 Ericson and Baranek, op. cit., n. 14. 63 Australian Law Reform Commission, at .


Australian anti-terrorism legislation the presumption of innocence and the legal burden of proof are `formally in place'.64 However, in practice the precautionary standard, as demonstrated above, draws away from this presumption. For barristers, legality is what will be decided by the judge and is conditioned by the legislation, by the meaning intended by Parliament, and not impeachable with a bill or charter of rights (were they in play). On the day, the gravity of law's truth is tilted toward the precautionary, as situated in an atmosphere of unfolding emergency and reflected in the confident words of a prosecutor, who drew implicitly from the context of the court to fill in the blanks of `do something': Even if they might use terminology like `do something' they meant `commit a terrorist act', `blow something up'. And that became very apparent over time to the point that there was absolutely no doubt at all that's what they were talking about. The first couple of times you heard it, it might have been equivocal, but in the context in which it was used over a period of twelve months it made it very clear that was what they were on about. (R12, emphasis added)

2. Equality of arms and the NSI Act As noted above, the precautionary standard is a powerful obstacle to barristers' ability to preserve the protection of presumptive innocence. Another significant impediment to successful defence relates to deviation from the principle of equality of arms. Defence lawyers may be disarmed by the character of information and evidence in counter-terrorism cases. We found evidentiary information to act in two ways. First, the sheer quantity of potentially exculpatory material places a burden on the defence to review all of the possibly relevant material that is disclosed. Second, non-disclosure (due in most part to privilege on the claim of national security) ensures that there will be only a selective, partial view of the entire information tranche. (a) `Have a drink from this fire-hose' The evidentiary standard in precautionary terrorism prosecutions permits the use of intelligence of èvidential significance'.65 Because what may look like 64 J. McCulloch, `Human Rights and Terror Laws' (2015) 128 precedent 26, at 29. The legislative history of the Security Legislation Amendment (Terrorism) Bill (No 2) (2002) (Cth) confirms this. The first draft placed the onus of proof on the defendant in relation to some aspects of the preparatory offences, similar to child sexual offences and drug offences. This was changed and burden of proof placed on the prosecution's shoulders following submissions to the Senate Legal and Constitutional Legislation Committee. Senate Legal and Constitutional Legislation Committee, Parliament of Australia, consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism Bill 2000) (No. 2) ss. 3.84±3.85, 3.91, 3.100 in B. McSherry, `Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws' (2004) 27 University of New South Wales Law J. 354. 65 Roach, op. cit., n. 28.


preparation is criminalized in preparatory offences, evidentiary collection begins at the time authorities deem that a profile is matched up to subjects. The power to target and collect information is wider than the requirement of `reasonable suspicion'. Former DPP Christopher Craigie notes: `the preparatory nature of the new terrorism offences allows the Australian investigative authorities to intervene early where the cases will be circumstantial.'66 He adds that early intervention by the investigative agencies ìncreases the quantum of evidence'.67 McCulloch and Pickering observe that `terrorism prosecutions under pre-crime regimes are typically commenced on the basis of vast amounts of ``circumstantial evidence''.'68 Operation Pendennis intercepted 127,000 telephone calls69 and up to 3.35 terabytes of electronic data amounting to about 9 million pages of paper.70 In Benbrika, the prosecution relied to a large degree on 481 conversations that were covertly recorded by use of telephone intercepts (TI) and listening devices (LD).71 In addition to the surveillance evidence, viva voce evidence from police and civilian witnesses, testimony from an undercover police operative (`SIO 39'), and expert evidence, a large quantity of èxtremist' literature and videos seized under warrant was also tendered.72 In Elomar, there were more than 2,100 witness statements, from which 300 witnesses gave evidence, and over 2,000 physical exhibits were viewed, of which close to 1,000 were tendered by the Crown into evidence. The paper brief was in excess of 150 A4 lever arch folders.73 As reflected in the following comments from barrister respondents, the quantity of information was overwhelming:

66 C. Craigie, `Management of lengthy and complex counter terrorism trials: an Australian prosecutor's perspective' (2011), at . 67 id. 68 J. McCulloch and S. Pickering, `Pre-crime and Counter-terrorism: Imagining Future Crime in the War on Terror' (2009) 49 Brit. J. of Criminology 628, at 634. 69 Craigie, op. cit., n. 66. 70 AFP, op. cit., n. 6. 71 Benbrika & Ors v. The Queen [2010], para. 7. The police and legal costs of a stayed second prosecution of Benbrika and three of his followers on conspiracy to commit a terrorist act charges was at least $20 million: see K. Moor, Àbdul Benbrika and other terrorists wanted to kill but can't be prosecuted' Herald Sun, 20 September 2011, at . 72 Benbrika & Ors, id., paras. 9±13. 73 AFP, op. cit., n. 6. In terms of cost, Regina (C'Wealth) v. Elomar & Ors was one of the most expensive publicly financed federal criminal trials in Victorian history, the funds available for the accused's defence being unprecedented, including $7.2 million given to Victoria Legal Aid's Commonwealth defence budget. According to the respondents, this level of support was not expected in future trials.


I started the trial with a brand new laptop computer which was the same as what everyone else had and I remember having something in the order of 16 and 17 GB of material on the computer around about the end of the committal . . . By the end of the trial proper, I think there was something in the order of 34 GB of material on the computer. (R4) We were given the entirety of every one's computer making it burdensome for us to deal with. They probably would not say that but tactically the CDPP's disclosure has this tactic of either bearing us or telling us that this case is not so great that we are not bothered with it and you can have it all. But the disclosure was really burdensome for us to deal with and saw through. (R2)

While lawyering in other criminal cases is normally practised under the assumption that one lawyer can assess 90 pages of documents an hour,74 this norm would not allow a lawyer to do anything meaningful for his client in counter-terrorism prosecutions. R8 states: We got thousands of hours of material that hasn't been transcribed, so it's having the capacity or resources to listen to it. It simply can't be done. There were thousands of hours. And we could not listen to it. There may have been crucial conversations either incriminating or very important to the defence. (And the client can't remember?). They don't. It's years ago. You simply don't have the capacity to do it. You're dealing with a very unequal playing field. It's tilted in one direction at a very high incline. (emphasis added)

Counterterrorism has required unprecedented cooperation and collaboration between the police and the prosecution. Normally Crown prosecutors do not take part in criminal investigation owing to à clear separation between the functions of investigators and those of prosecutors'.75 In counterterrorism prosecutions there has been considerable modification of that model, paving the way for prosecutors and investigators to work together beginning from the investigation stage. Police work with prosecutors on information that is subject of months of refining. Contrasting counter-terrorism prosecutions with other criminal prosecutions, Craigie observes that in the former à strong practice of pre-brief advice and cooperation has grown up as an essential part of preparing for a complex prosecution process.'76 The prosecution's extra early involvement and cooperation with law enforcement and security agencies is at the expense of equality of arms. While the former has followed the case from the beginning, flagging signposts and lines of attack, the defence is provided with buckets of information post facto and must play catch up. Explaining the benefits of the prosecution's collaboration with the police beginning from the investigation stage, Craigie indicates èarly involvement provided our prosecutors with the opportunity to have a much fuller understanding of the evidence, both its 74 M. Dunn, `$7m ``terror'' aid bill' Herald Sun, 15 May 2007, at . 75 Craigie, op. cit., n. 66. 76 id.


strengths and weaknesses.'77 And on the other side, barristers expressed the general inability to evaluate the information: It's impossible for defence teams to evaluate a larger body of material. It's impossible, I might say for the Victorian police. I made all sorts of claims because I did listen to a lot of tapes in X case that the crown had not led evidence which was probative of his innocence and his complete rejection of terrorism which was critical. I played a number of those tapes to the jury. A whole folder of material which I played . . . that material would never have been put before the jury if I had not listened to this material, and if X had not had recollections of having had discussions with people that he could point me to. Now that's a vast undertaking. I spent 6 and a half bloody days a week listening to the material, trying to work in court, listening to the material on weekends. My poor instructors were doing the same. That's a very difficult thing to do. (R8, emphasis added)

The case against the defendants was based on an interpretation of a few selected statements out of an extraordinary quantity of intercepted communications. The defence depended upon enormous resources to offer an alternative reading or contextualization of that account. As per the statement above, potentially probative material was brought to light only where these resources were matched by fortuitous instances of recall from the accused. As a result, getting the relevant information requires dogged perseverance and extraordinary effort. Pointing to this, R2 noted, `maybe there is a needle in the haystack, which is the defence, is somewhere.' A basic tenet of justice relating to the right to counsel is the principle of equality of arms,78 which requires that procedural conditions be similarly provided to all parties at trial and sentencing. Deviation from this requirement is allowed only where `based on law' and `justified on objective and reasonable grounds', it does not involve àctual disadvantage or other unfairness to the defendant'.79 However, having a counsel does not guarantee equality of arms. Commenting on United Kingdom terrorism prosecutions, Walker identifies a lack of defence resources and expertise to match those of the police.80 Australian prosecutions see at least as much pressure on the equality of arms.

77 id. 78 UN Office on Drugs and Crime, Handbook on Criminal Justice Responses to Terrorism (2009). 79 General Comment 32, para. 13; Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism (A/HRC/22/26), para. 36; Communication No. 1347/ 2005, Dudko v. Australia, para. 7.4. 80 C. Walker, `Prosecuting terrorism: the Old Bailey versus Belmarsh' (2009) 79 Amicus Curiae 23.


(b) A kind of disclosure The quantity of disclosure may be a significant impediment to a barrister's capacity to lead a defence. In addition, within the legal framework of national security information protection, the quality of disclosure may also provide sometimes insurmountable obstacles. As outlined by Roach, a major conflict in terrorism trials is between intelligence and evidence, expressed as the need to keep secrets versus the need to treat the accused fairly.81 Under the NSI Act the judge is called upon to defend the interests of the court in the principle of legality against a government claim of public interest immunity under national security. Though theoretically the court has the power to `maintain, modify or remove' the Attorney General's restriction order on disclosure, as the Eminent Jurists Panel of the ICJ suggests, in light of its duty `to give greatest weight to the question of ``the risk of prejudice to national security'' rather than to the needs of the accused',82 the court has only a slight chance to decide otherwise than according to the Attorney General's order. The legislation's specific direction requires the court to favour the government.83 Thus, to operate with efficiency, the regime depends upon a fairly generous attribution of good faith by judges to police and security actors on their claim that the information that is secured from public scrutiny has been properly deemed and interpreted as privileged by those agents. As noted by R8: What you get from the legal perspective is edited highlights. You don't get the broader material. So we don't have the resources to understand the context in which the edited highlights arose. In every case it's the edited highlights that go before the jury. There's an argument about the extent of them, the compass of it.

In line with our discussion of resources in the last section, in the earliest counter-terrorism cases the prosecution was still learning how to tread between a reliance on the judge to support disclosure of materials or protect

81 Roach, op. cit., n. 28, p. 316. 82 International Commission of Jurists, `Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, Assessing Damage Urging Action' (2009), at 153. 83 Lynch et al., op. cit., n. 5, p. 119. Lodhi's argument both at trial and appeal that, while s. 31(8) seems to give discretion to the court, it is effectively an order as to how a case is to be decided, was not accepted: R v. Faheem Khalid Lodhi (NSWSC 21 February 2006) per Whealy J, para. 108; Australian Government AttorneyGeneral's Department, National Security Information (Criminal and Civil Proceedings) Act 2004 (2008), at 25.


them under PII. R8 remarked that they knew for certain that the regime in earlier prosecutions was less tight than in later ones, and that the next set of prosecutions would be further tightened up:84 In X, the arguments about disclosure of PII were undertaken by special counsel in the Attorney General's office. I spent quite a lot of time with him and subsequently for the control order for the case. The politicisation of that whole issue was very great. Their practice became one of obfuscation and of trying to restrict information so that the capacity to go behind the document, establish context, establish the full narrative was very slight. (R8, emphasis added)

Similarly R2 commented that during his client's trial, they: did not encounter a single thing that actually had any bearing on national security in the sense of foreign information or foreign relationship. It was simply used to shield a lot of documents and it was just part of the hysteria and the enthusiasm for secrecy.

In R3's opinion (based on the particular case he dealt with), if `there are sorts of reasons that are given in lots of affidavits we cannot see, then in my view material is not being disclosed which should be.' Questioning this trust foundation, they noted that natural justice elucidates: One story is good until another is told. The judge does not have that sceptical voice except in his own head. His [sic] judgment would be assisted by the possible argument from the other side having access to the material. Judges will not know all the possible arguments that could have been raised by defence lawyers against the Cth's PII claim had the material been accessed. They can only make intelligent judgment of the possible arguments from the defence.

Although R4 acknowledges that they were inundated with information, the barrister states that they `would be constantly asking . . . is that all?' to which the response was, `No there is a bit more; and we get a bit more and a bit more ± there was a lot of that.' This left them and R1 with the belief that there was still an unknown quantity of undisclosed information to which access was not provided: A lot of the material that was presented to us we could say, he's never watched a beheading video, he's not looked at these discs, they were simply left in his room; we got a complete copy of his hard drive, so, not really, no. But there was obviously other conversations which were monitored. There was the prayer hall. There was intelligence. There were informants. Quite clearly and we never got access to that material. (R1, emphasis added)

R7 reflects on the secrecy's potential impact on the fairness of the trial:

84 On the other hand, bail was granted in some terrorism prosecutions. In Aruran Vinayagamoorthy and two others, while acknowledging the seriousness of the offences, Justice Bongiorno reasoned that the defendants àre entitled to the full benefit of presumption of innocence': Lynch et al., op. cit., n. 5, pp. 101±2.


We have had arguments about whether or not the individual can in fact have a fair trial because he is denied so much information that he can never get a fair trial. The courts can decide that having the pretence of a fair trial would be an offence against the process itself and so they would prevent the prosecution from proceeding against the individual. We've got that remedy. How much further we have in terms of being able to investigate these matters is extremely limited because of all of the secrecy provisions that they've got. We've created a monster and we don't have any power of control over the monster.

To add to the pressure on the judge, as outlined earlier in the article, the prosecution came before the judiciary during what was presented as an ongoing threat. Leaked media stories were raising the profile of security threats as if to suggest that the accused comprised the tip of the iceberg or were networked into a larger conspiracy from which the accused needed to be cut off: During the pre-trial there were secret affidavits about releasing other information. The judge was provided information as to an ongoing threat, obviously, to protect the release of information. He was certainly getting information about the level of threat ongoing in the trial. There were pre-trial arguments which we never saw but quite clearly it was: `we can't release information because of an ongoing threat.' . . . For example, where were the other listening devices? Who was being monitored at particular times? The judge was getting additional information with regard to an ongoing threat through secret affidavits in terms of the subpoena arguments. (R10) We had the Attorney-General's involvement, who was not concerned about the fairness of the trial. Depends therefore on the judge who does not have much knowledge of it. He was frightened inevitably by Chakra stories of terrorism, they read The Australian, they read the Murdoch press and they are anxious. (R8)

Consequently, the full or complete roster of targets from a network being intercepted from which the prosecution has developed information against the accused is privileged on the basis of the government's reference to an ongoing threat. Historically, such an argument might have compelled the judge to tell prosecutors that they could not make the court deviate from the principle of disclosure that far. In the context of the institutional pressure from security intelligence, the pressure of a stoked-up public anxiety, and the apparent will of Parliament, barristers had little room to manoeuvre. In the meantime, the derogation from political liberalism could be denied or its legality justified as plausible. 3. Adversarial process and limiting agreements or instructions (a) Deferent agreements over adjudication We noted above the tension between the need to keep secrets and fair treatment of the accused. Also in conflict is the presumption of openness against efficient process. As Justice Whealy observes, the NSI Act ìs quite a complicated piece of legislation . . . [I]t gives the appearance of having been 189 ß 2017 The Author. Journal of Law and Society ß 2017 Cardiff University Law School

drafted by persons who have little knowledge of the function and processes of a criminal trial.'85 He found the intrusion of AG and compulsory adjournments àre manifestly calculated to fragment and delay criminal process ± an outcome usually and correctly regarded as wrong in principle and as policy.'86 Furthermore, apart from referring to information relating to national security in general terms,87 `there is no single definition of ``national security information'' in the NSI Act' that the judge may consult to refine a position.88 The general reference to national security is so broad that Lynch, Williams, and McGarrity note that ìt is difficult to think of any information that might be relied upon in a terrorism trial ± that would not enliven the obligation to notify the Attorney-General.'89 There are other factors that discourage barristers from going for adjudication and contest. In the event that the court decides to exclude them when it hears the General Attorney's or the prosecution's argument for nondisclosure, they will be in the dark as to the other side's argument and, as Lynch et al. rightly note, the ability to launch a meaningful argument against non-disclosure orders in such cases is minimal.90 Even where their submissions, by chance, happen to be relevant to challenge the argument advanced in support of non-disclosure, the duty of the court to favour the government means their hope of successfully contesting the non-disclosure argument is insignificant. As reported by Walker: in general terms, there is a widely held view among practitioners that the potential difficulties for the fair and efficient running of a criminal trial posed by a full-blooded application of the NSI Act are obvious, but have so far been avoided. Indeed, a view encountered from different quarters is to the effect that the awful prospect of the NSI Act operating to its full extent in a contested way has had the effect of producing in nearly every such case agreements in place of contested adjudications.91

85 A. Whealy, `Terrorism and the Right to a Fair Trial: Can the Law Stop Terrorism? A Comparative Analysis' (2010), at 18. Whealy also noted that the `legislation poses a very significant challenge to the efficient running of a criminal trial' and that `[d]elay and disturbance to the trial process is perhaps the most significant potential problem created by the legislation' (p. 23). 86 id. 87 The NSI Act in general refers to two different categories of information: ìnformation which relates to national security or the disclosure of which may affect national security, and information, the disclosure of which is likely to prejudice national security' (id., p. 10). 88 id. 89 Lynch et al., op. cit., n. 5, p. 114. 90 id. pp. 115±16. 91 B. Walker, Independent National Security Legislation Monitor: Annual Report 16 December 2011 (2012), at 61.


Consideration of the onerous application of the Act compelled defence counsel to enter into agreements that resulted in the elimination of several witnesses by arrangements between the parties. In R3's view: [w]hen materials subject to PII [public interest immunity] are not accessed by the defence lawyers it weakens their ability to argue against confidentiality of the material for lack of adequate information and thus the system is biased in favour of the party that makes the claim.

Whilst acknowledging the independence of the judges, R3 indicated that it is ìnevitable that judges generally as a matter of fact pay a high degree of deference to expressions of opinion particularly by people such as the Director General of Security or those speaking on his behalf.' Furthermore: Though there is a judge to check if ASIO's claim for confidentiality is valid, which is better than the agency judging its own claim and argument, judges start by a degree of deference to the Inspector General's view on the matter. (R3)

As one of the barristers puts it, they `depend upon the integrity of the people who are supposedly the brains of the monster.' (And we have no means of verifying their integrity?) `That's correct.' (R7) Deference both to the codified criminal law and to judges' rulings is a paramount requisite of barristers as agents of the court.92 Criminal barristers cannot pull the practitioner body away from recipe rules and court-enforced norms of conduct, even where it might be argued externally that the principles of legality are being made merely plausible by those norms.93 As is clear from the quotes above, deference to security agency summaries or statements of fact is a requisite for defence lawyers in terrorism prosecutions, particularly as the judge has already ruled on how to treat that testimony and evidence. To persist with the question of legality is to challenge the integrity of the judge and his or her role under the separation of powers. Criminal lawyers may take issue with some parts of counterterrorism legislation publicly, but cannot rebuke it in front of the bench. Barrister deference to arrangements in an overriding responsibility to the court may be contextualized further. As noted by Smith, Australian lawyers are not free to defend the interests of their clients by every lawful means.94 92 In the Sydney trial of Baladjam and Ors, the nine accused refused to stand before the NSW Supreme Court and enter their `not guilty' pleas on the basis that one does not stand before Mohammad to pay homage to him. Justice Whealy did not insist, saying that judges `were made of more robust material . . . but a jury may take a different view': L. Lamont, `Terrorism accused refused to stand' Sydney Morning Herald, 1 June 2007. 93 Ericson and Baranek, op. cit., n. 14; McBarnett, op. cit., n. 37. 94 A. Smith, `Defending the Unpopular Down-Under' (2006) 30 Melbourne Law Rev. 495, at 530. In contrast to their Australian counterpart, American lawyers, when the various responsibilities are in conflict, must exercise: . . . sensitive professional and moral judgment guided by . . . the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the


In Australia, `[t]he administration of justice is best served by reserving the practice of law to those who owe their paramount duty to the administration of justice.'95 As Smith summarizes, `when lawyers see themselves primarily as officers of the court, rather than their clients' advocates, they may too easily forgo their client's interest in order not to rock the boat.'96 That is not to say that barristers may not hold a dissident view outside of the court or privately. Some of the interviewed barristers have offered their expertise to law societies, bar associations, and legislative review committees in policy briefings critical of the legislation. It is contended here that it is their formal accounting or resolving of the tension that is nonetheless most significant. In the meantime, private misgivings unavailable even to anonymized publication will not have great effect. One prosecutor argued that the interest of the accused would be better served where lawyers contested the prosecution instead of entering into agreements. When asked if there was anything that they would have done had they been a defence counsel in Benbrika's case, R9 replied: Filing all sorts of arguing, like getting on the front foot and preventing the prosecution from preparing properly. I would have argued the charges and law I would have been agitating to get it on. I would have engaged in house to house combat, I would have challenged every warrant.

However, the barristers were not free to adopt such an approach. For example, in New South Wales, though the defence initially indicated their intention to challenge àll the surveillance evidence ± and therefore the Crown would be required to call every surveillance officer', the trial judge èncouraged defence counsel to obtain proper instructions concerning this issue' and actively facilitated in the interest of efficiency.97 In Baladjam, the judge gave a lengthy opinion about the law and how he intended to apply it, noting that: I propose to leave it to the parties, however, to discuss and agree . . . I would expect the parties to agree to a sensible compromise. I will intervene if that is not possible, but that intervention should be left until the appropriate time, if it be necessary.98

Barristers diminished the impact of security interests and the counterterrorism legislation specifically on the narrow question of their ability to defend their client, despite acknowledging broadly that elements of the legislation, including its impact on disclosure and the standard of proving

95 96 97 98

bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (American Bar Association, Model Rules of Professional Conduct (2006) Preamble, para. 9.) Rule 1, Australian Model Bar Rules, in Smith, id., p. 531. id., p. 550. Craigie, op. cit., n. 66, p. 13. R v. Baladjam and Ors [No 19] (2008), para. 135.


criminal elements, lowered the bar for the prosecution. At the same time, barristers and solicitors acted on the acknowledgement that a robust defence of their clients through vigorous pre-trial motions would grind proceedings to a halt, place the regime in jeopardy, and was therefore a bridge too far. Agreements and undertakings were almost always a subtraction from strong legality principles and were brokered in no small part as a gesture of goodwill. Where there was doubt with respect to the support and furtherance of legality principles, barristers noted that it was the judge, not they, who was responsible for the outcome and their ultimate defence. It was found that barristers justified agreements and undertakings by means of four interlinked rationalizations: that the system and its actors had integrity and are fairminded (R2, R9); that the accused caught up in the prosecution who not their clients are `not saints' and probably guilty (R2, R8, R10); that although the new regime is daunting to legality, they were able to overcome the obstacles on behalf of their clients (R2, R11); that legality is ultimately a matter for the judge or jury or the public at large (R2, R8, R9, R10). (b) Incapacitating instructions As outlined above, the adversarial process depends both on equality of arms and the capacity to wage strong `combat'. As we also outlined, the social, cultural, and political context of the court and the long-standing interests and attachments of professional legal actors encourage the establishment of brokered tariffs in recipe rules. In terrorism cases as in criminal cases generally there are incentives both to push the legal principles, where possible, and otherwise to broker agreements that fall short of the ideal. Since jury trials are amongst the more unpredictable procedures, actors also look toward agreements or arrangements to avoid the risks and costs of unfavourable outcomes along the way.99 In addition, as elaborated above, working with the full measure of the NSI Act can lead to enormously long trials unless agreements are made.100 In addition to formal and informal NSI Act-driven agreements, we found that undertakings included informal agreements to take a common approach that excluded implicating co-accused as prime movers of the alleged conspiracy. To back these arrangements, judges relied on summaries or synopses of the relevant contextual information. Unable to monitor, they relied on trust that prosecutors, law enforcement and intelligence agents were providing a good-faith execution of their mandate. Yet, and as above, this deference to security was conditioned by reference to an unfolding and immediate threat. Barristers noted that there was explicit instruction from solicitors not to `do anything that would jeopardise anybody else' (R2). The point was 99 Ericson and Baranek, op. cit., n. 14. 100 Whealy, op. cit., n. 85, p. 18.


underlined for barristers by the `sacking' of one of them. Ìf you implicate another at [their expense] or benefit your client, you'll be sacked. And it occurred.' (Sacked from the case?) `Yeah, instructions withdrawn' (R10). The impact of these instructions for barristers representing clients whose roles they perceived as minimal was to handcuff them against suggesting that their client might have been manipulated into pre-crime actions by others. R10 notes, `the instructions didn't allow us to say strongly, for example in our case, that we were duped, we were used': X I always regarded as a dangerous person, who was a zealot, a fundamentalist, and potentially someone who could inspire young men to commit terrorist acts. So I had very little sympathy for X. If I'd have been able to say more in front of the jury, I said a fair bit, I'd have said more, but there's a certain constraint. (R8)

Indeed, the constraint led to strong claims among some barristers that the case could not be run as they would have wished: I can say that the dynamic with the group made it very difficult to run the case that I perceived was in his best interest. (R10) My perspective is each defence counsel is going to be as narrow as the client, although I had to have an appreciation of where the evidence [was] against the rest of them because it signifies where my bloke fitted in on the Crown's case. (R4)

At the same time, barristers and solicitors said that there was no group discussion to develop a consistent story-line across the cases: `there was definitely no group discussion. Everyone went their own way' (R10). It can be argued that the honouring of this agreement worked at loggerheads with providing an adequate accounting of events in front of the jury. One barrister put it this way: `When everyone is saying what I'm doing is nothing, what I'm doing is nothing, when clearly there was something occurring . . .' (R10). BENT INTO THE REGIME? Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.101

If through deferent arrangements barristers accommodated themselves into an emergent securitized justice regime, what accounts for these accommodations? As noted, legal practitioners develop a set of neutralizations to

101 Holmes J, dissenting, in Northern Securities Co. v. United States (1904) 193 US 197, paras. 400±401).


maintain a belief in the system of justice, and that such deviations are slight or permissible in the context of a just world. As above, as agents of the court, barristers use recipe rules to trump legality: they develop equivalencies to match their sense of justice with organizational standards, are keen to show deference to so-called real-world court operation, and are regarded in their professionalism and collegiality against that deference.102 Practices and procedures that would not be favourable to one side if not for the peculiar context of deference that attends cases that are at once political and criminal in character are recast for the context (taking note of public pressure and legislative intent). For instance, R2 was of the view that X did not have the intention or capacity to commit a terrorist act but accepts X's conviction with reference to the external political context: I am not surprised by the verdict at all. It is difficult to expect the jury to accept X does not intend to do what he told his followers that he would like to do . . . Our defence was a fairly accurate analysis of the man, it is a lot to ask from the jury to expect that they accept our defence particularly at that time not too long after Bali and London bombings. (R2)

In addition to viewing the accommodations as part of normative recipe court process, respondents denied that there was a great gulf between de facto and de jure to contend. Literal denial is evident where several barristers were of the view that the accused, other than their clients, were de facto guilty of some serious terrorism offences and therefore `got what they deserved'. There's no doubt that X is a much more dangerous character than my client, but he gets out before my client. (R10)

The barristers in Benbrika thought that the accused in Elomar were far along toward completing a terrorist act, whilst the barristers in the latter looked over to the former as a case where the most serious criminal activity was taking place: I think the people who went to the military base in NSW, they did intend to cause havoc, to have guns, and cause real harm to the people there. They are quite different from Benbrika. And I think that the people who were associated with Benbrika's group in a fairly fringe way were quite violent people. (R7)

In the first instance of literal denial, there is in reality a grave threat to legality, given that the barrister agrees that the prosecutions have captured `something', even if that `something' may not have been traditionally criminal, particularly concerning their client. In the example above, the barrister has selectively incorporated the prosecution's short-form summary description of the Sydney `cell', itself dependent for its furtherance of violence on the leadership of Benbrika. 102 Ericson and Baranek, op. cit., n. 14, p. 234.


Thirdly, barristers deploy implicatory denial. They do not see themselves as implicated because any succumbing to security that is occurring is being done by other bodies, namely, the judiciary and the legislature. In accounting for the resolution of their cases, barristers repeated that the actors involved and the prosecution were fair, that there was a case of serious crime to be prosecuted, that they had to make compromises to themselves, act in good faith as agents of the court, and that ultimately it was up to the judge to ensure that legality was protected. This makes further justifications or rationalizations, including literal or interpretative denial largely unnecessary. When asked if the national security restrictions hampered their ability to represent [their client] properly, R2 responded, `no, it just made cumbersome protracted proceedings.' When asked if they were reasonably satisfied that they were able to defend their client, R11 responded that whilst the laws are outrageous, and there were questions that the trial does not answer, `within that framework I thought I was able to represent my client to the best of my ability.' Despite arrangements arising from the NSI Act that diminish the right of the accused to have access to information having bearing on his case, R2 stated: Ì do not think the trials were unfair because of the withholding information that I know about. We believe that we have got all the information that we think we need.' After indicating his objection to the law and the prosecution as being a pretty blunt instrument for dealing with Benbrika's group, R2 describes the conviction as appropriate: Ì think the verdict was fine.' Although R11 indicates that, given the gravity of the alleged crime and the complexity of the investigation, more senior officials should have been called and cross-examined rather than shielded, he opines that `given I had to work with certain parameters I could not complain about the trial.' When asked about the possible doubts about the guilt of an accused, R2 stated: Maybe some in the AFP, but not in the public face when they presented the case to us. [The prosecutor] may say that you may be right that X did not intend to commit the act but the risk is so high that we are right to prosecute this man and I say yes you are right. (R2)

Fourthly, barristers reported that the prosecution, judge, and proceedings were consistent with the just world, even if that is informed by the necessity to reset justice in the asymmetrical context. In this regard, they reported that the convictions were the outcome of fair judgments and prosecutions. T1 responded that if not fair, the arrangements would not have been accepted by the defence and approved by the court. When asked the same question R6 replied: `[i]f it was made by agreement with the defence that means it was not prejudicial to their clients' case.' If equality of arms in counter-terrorism cases requires enormous resources on the part of the defence, our barristers agreed that they benefited from a proactive effort on the part of Commonwealth and the Victorian and New South Wales governments to supplement legal aid: 196 ß 2017 The Author. Journal of Law and Society ß 2017 Cardiff University Law School

They spent so much money on this. They spent millions and millions and millions of dollars on this trial. And even legal aid couldn't have covered it, the amount of time we put on it. There was injection from the federal government to pay for this trial. (R5)

Ample evidence has been seen among barrister opinion that, given that the accused `were up to something', the resulting convictions are measured within the presumptive just world, one in which actors are making necessary accommodations to an asymmetrical moral economy and its call for some derogations from political liberalism. It may even be suggested that the dissonance of views is explained with implicit reference to the necessity of asymmetry in the rejigging of legality post-9/11. Considering how barristers bridged the divide between their view of their case, client, and the outcome of a trial at which the clients of almost all of the barristers interviewed were completing or had completed long sentences of incarceration, literal and implicatory denial are buttressed by just-world thinking. If resistance was available, where was it being expressed? As has been noted, dissent may be found in various forums outside of the court. In front of the court, however, all three views of legality (rule of law legality, metarules process, and recipe legality) appear to be skewed against the barrister. The barrister is required to serve as a court officer and this places him or her under significant constraint. Part of that constraint is in adopting of recipe rules to the lived environment of the court in a condition of high security in an on-going emergency. At the same time, while barristers may believe that anti-terrorism legislation is inconsistent with principles governing other kinds of criminal proceedings, in the absence of a robust meta-rules process, they can only challenge prosecutions upon a deviation from the applicable law, an unlikely occurrence given the precautionary design of the law. As noted by Ericson, this is legality even if it incorporates what he refers to as counter-law;103 they are compelled by rule of law legality to accept the verdict. And with regard to those meta-rules, counter-terrorism legislation is upheld because there is no overarching human rights legislation in Australia, in which rights could be entrenched. Consequently, barristers were willing to speak against the imposition of the legislation broadly, and they mostly do not believe that their clients were planning or would have participated in any act of terrorism, excluding the precautionary and unspecified `thought crime', but given the ambit of the precautionary order at law they were unwilling to admit that justice was not done with respect to their clients' rights.

103 Ericson, op. cit., n. 35.


CONCLUSION It may be argued that barristers and solicitors representing those accused in terrorism prosecutions are at the heart of the `practitioner pack' as it defends legality. They have a vested interest in doggedly claiming the legality principles in the interests of criminal accused, including the presumption of innocence, the publicity and openness of the court, the right of the accused to see all information that is used as evidence, the right to silence, and the right to a fair contest in front of an impartial jury. As per the UN Human Rights Committee,104 lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognized professional ethics without restrictions, influence, pressure or undue influence from any other quarter. This article has explored the role of barristers, based on their own account, in compromising criminal justice values for national security interests in two counter-terrorism trials. In these case studies, barristers and solicitors were confronted with routine decisions in which the supremacy of legality or the rule of law was quarantined by what is arguably the corrosive power of national security interests. Barristers made some inroads with favourable rulings that assisted the chance of discovery of exculpatory patterns from the disclosed narrative. However, despite individually heroic efforts and the one-time decision of the government of the day to provide top-notch legal resources to the accused, barristers were operating at a disadvantage, given the quantity of information that needed analysing, the lack of certainty that all relevant information was being disclosed through the NSI Act, and thus the incapacity to test alternative exculpatory narratives. Justice is skewed in practice or procedure as criminal barristers confront the precautionary ethic in tangible legislation, the information disadvantage in combat with the prosecutor, and the deviations from open and ambiguous contest that are sought when arrangements and agreements are brokered. Legality is bent through deferent arrangements, undertakings or agreements by which fair play and duty to the court, among other factors, influenced barristers to make arguments that do not contest the big-ticket questions of òrganization' and `conspiracy' at the same time that they outlaw the strategy of shifting responsibility elsewhere, including to the co-accused. As the existential prerogative of security is nurtured and released in a context of precaution, authorized institutional actors, including barristers, adapt and contribute their compliance as rule of law legality is skewed or bent. Barristers have adopted coping strategies that help them to avoid the appearance of complicitness or complacency in the roll-out of the emergent skewed order. The standard of proof in the Anti-Terrorism Act [No. 1] 2005 104 UN Human Rights Committee, `General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial' (2007) UN Doc. CCPR/C/GC/ 32.


compels acceptance of discrete, inchoate acts corresponding to a `preparatory' standard. While many of the interviewed barristers describe these as `thought crime', they accept its justiciability. Just-world thinking encourages their acceptance of the prosecution as meritorious, in particular in relation to accused other than their clients, despite their view of the accused they know best as inept, uninterested or incapable of planning or committing the complicated acts the prosecution alleges. Furthermore, they view the outcome of the trials as fair and just despite the skewedness of the legislation and its application. Alternatively, despite their crucial role in the enforcement of the security-oriented counter-terrorism legislation, barristers engage in implicatory denial, attributing the skewedness of the legal order to other actors ± the court and the legislature.
