Yesterday, the following item appeared in the Crikey correspondence section:

Neil James, Executive Director, Australia Defence Association, writes: Re. “War criminal to hero … a dangerous precedent” (Monday, item 19). Jeff Sparrow used a popular-front agitprop technique, redolent of the Communist Party of Australia in its 1930-1970 heyday period, in tacking on some incorrect claims about current ADF operations in Afghanistan to his supposed conclusion of an historical piece on the execution of Harry “Breaker” Morant in the 1899-1902 Boer War.

Sparrow wrongly (in both moral and factual terms) claimed “… in Afghanistan at the moment Australia has authorised elite counterinsurgent forces to carry out targeted killings, in a strategy modelled upon the notorious Phoenix Program of the Vietnam War. A campaign of assassination of local leaders thought to be loyal to the Taliban contains an obvious potential for human rights abuses, especially since it’s almost impossible for the media to monitor what undercover troops actually do.”

Crikey word-limits prevent further discussion of the false and somewhat arrogant assumption that only “the media” can or should act as a constraint on the operations of our defence force.

As to the law and the context applying, under the Laws of Armed Conflict (LOAC) as they are now known — either with Breaker Morant in the Boer War or now in Afghanistan — the deliberate and pre-meditated killing of enemy combatants outside the authorised rules-of-engagement (ROE) and subordinate orders-for-opening fire (OOF) is usually plain murder — as is the same killing of non-combatants.

But as our Chief-of-Defence-Force has explained on several occasions when similar sensationalist and factually incorrect media reporting has occurred, the ADF does not undertake “targeted killings” or “assassinations” of either enemy combatants or other Afghans. Nor, incidentally, is our Special Operations Task Group (SOTG) in Afghanistan an “undercover” unit.

The sloppy terminology of Sparrow and others incorrectly and immorally implies that civilian Afghan community leaders have been murdered by the ADF when even the Taliban leaders killed by our troops have been killed legitimately as enemy combatants in conformity to the ROE applying and in open combat with our troops (who openly wear Australian uniforms).

Moreover, in moral and practical terms as a fellow Australian talking about Australian soldiers, Sparrow and others are guilty of more than sloppy terminology. These incorrect claims in the Australian press undoubtedly assist the Taliban and their apologists by providing propaganda quotes of supposed “evidence” that the ADF is somehow acting illegally rather than in full compliance with LOAC. The danger of such actions in a complex and nuanced counter-insurgency war, and one with broader international implications for Islamist terrorism outside Afghanistan, cannot be under-estimated.

Whether knowingly or unknowingly Sparrow and other claimants are unfairly adding to the dangers facing the lives of our diggers by, at best,  recklessly providing assistance to the enemy they are fighting. Our diggers are fighting in Afghanistan as part of a UN-endorsed international force and consequent to a lawful decision by the democratically-elected Australian government. Any reckless or worse assistance to the enemy our troops are fighting, by any Australian citizen, is an active act of disloyalty and well beyond the exercise of legitimate dissent from the Australian government decision to deploy them.

Intentional assistance to an enemy our defence force is fighting on behalf of all of us is, of course, rightly punishable under Australian law (since the Burchett loophole was finally closed in 2002).

Under the Security Legislation Amendment (Terrorism) Act, 2002, an Australian citizen anywhere in the world commits treason if he or she (among other things):

• intentionally assists, by any means whatsoever, an enemy, at war with the Commonwealth;
• intentionally assists, by ‘any means whatsoever’, another country or organisation that is engaged in armed hostilities against the Australian Defence Force (ADF); or
• forms an intention to do any of the above acts and manifests that intention by an overt act.

Given continued false claims about supposed ADF “assassinations”, etc, it would now seem high time that this law was tightened to ensure even reckless assistance to an enemy was punishable, as already applies with several terrorist offences.

Finally, getting back to Sparrow’s ostensible purpose for his article, no serious Australian military historian that I know of believes that Breaker Morant was innocent in the murder of the German missionary Hess by his co-defendant, Hancock. Both of them contravened the laws of war (as then applied) to the shooting of Boer prisoners after capture although some summary shootings might have been then justifiable for those captured illegally wearing British uniforms (depending on the extent of the items of uniform worn and their motive and actions in doing so).

There were also deficiencies in how the charges against Morant, Hancock and Witton were preferred and in their court martial and sentencing. Senior British commanders were also at fault, even if only indirectly, and were not punished.

But several enduring lessons were learnt and have been implemented down to the present day, especially as Australia has fought all its wars as a junior member of an international coalition.

Although Morant and Hancock were not serving in an Australian unit at the time of the offences, after their execution without the Australian government being consulted legislative and policy steps were taken to prevent a reoccurrence. The executions also led to the continuing successful practice from World War I onwards where Australian contingents contributed to international coalitions always remain under Australian command, are placed only under the operational control of allied commanders (where applicable), and are never under foreign command. It also led to the Australian policy not to execute a single soldier for cowardice in either World War.

My response is below:

It was with a certain surprise that I learned in yesterday’s Crikey of Neil James’ proposal  (yesterday, comment) to imprison me for treason.

James took exception to two sentences in an article about, of all things, Breaker Morant. In that piece, I wrote, inter alia:

In Afghanistan at the moment Australia has authorised elite counterinsurgent forces to carry out targeted killings, in a strategy modelled upon the notorious Phoenix Program of the Vietnam War. A campaign of assassination of local leaders thought to be loyal to the Taliban contains an obvious potential for human rights abuses, especially since it’s almost impossible for the media to monitor what undercover troops actually do.

For James, I have slurred the troops. Therefore, I have assisted the Taliban. Any “reckless or worse assistance to the enemy our troops are fighting, by any Australian citizen,” is, he says, “an active act of disloyalty and well beyond the exercise of legitimate dissent from the Australian government decision to deploy them.”

The Security Legislation Amendment (Terrorism) Act, 2002, makes assisting the enemy a crime punishable by many years imprisonment. But James wants the law amended to ban even ‘reckless assistance’, which is what he says I’ve provided.

He thinks, in other words, that my article on Breaker Morant should become a terrorist crime.

No, seriously. That’s what he thinks.

Well, if I’m to be gaoled, at least I’ll have some company.

“The ADF does not,” says James, “undertake ‘targeted killings’ or ‘assassinations’ of either enemy combatants or other Afghans.”

Really? Gosh, that traitor Air Chief Marshal Angus Houston must have been on the Taliban payroll when he explained on the defence department website that “Mullah Qasim, a senior insurgent commander who had planned attacks against Coalition Forces and who controlled suicide bombers in Oruzgan province, was successfully targeted and killed on May 24.”

Targeted and killed? Clap Houston in irons!

Then, with the Air Marshall safely imprisoned, James could get to work clearing out the vipers in the ABC and those at the Australian, that mouthpiece of Talibanism.  Tony Jones has, after all, discussed ADF assassinations on Lateline; in the Oz in August last year, Mark Dodd described how “Australian special forces have killed a senior Afghan Taliban leader, Mullah Karim [in] an officially sanctioned assassination designed to rid Oruzgan province of hardcore militants.”

More generally, it’s no secret that the counterinsurgency approach adopted in Afghanistan draws explicitly upon the CIA’s infamous Phoenix Program from the early seventies. If anything, it seems rather understated to suggest, as I did, that tactics modelled upon a Vietnam-era program responsible for widespread atrocities contain a potential for human rights abuses today.

But of course the issue goes well beyond those specifics, since James’ desire to gaol those who depart from ADF-approved talking points threatens, in principle, every journalist and editor in Australia. Any report on, say, the corruption and cruelty of the Karzai government, the civilian casualties produced by US or Australian operations, the thousands of Afghans detained without trial, or, in fact, anything much else about the ongoing occupation, could be said, in James’ menacing phrase, to “undoubtedly assist the Taliban and their apologists by providing propaganda quotes”.

The Jamesian logic constitutes a deliberate and explicit attack on civil society, one that would, apart from anything else, entirely criminalise the peace movement. If using the term ‘targeted killing’ assists the enemy, well, what happens if you say bluntly that the war is wrong, that it’s producing misery upon misery for the people of Afghanistan, and that it should be brought to an end as soon as possible? How many years do you get for that?

Half a million or more Australians rallied against the Iraq war on 15 February 2003: he’ll need quite a gaol to hold us all.

Rather splendidly, the Australian Defence Association website explains that Neil James “tries [every day] to put into practice his belief that vibrant and informed public debate is essential to Australia’s national security”.  Now, one could describe James’ desire to imprison political opponents in many ways (the word ‘insane’ comes to mind) but ‘productive of vibrant debate’ is not one of them.

For that reason, it’s tempting to dismiss James’ daily antics in the Crikey letters column as the harmless clowning of a professional buffoon. Except, of course, Neil James is a widely published defence pundit: somebody somewhere, you would imagine, must take his fulminations seriously.

Furthermore, the terrorism legislation contains exactly the phrases he says it does, criminalising anyone who intentionally assists, “by any means whatsoever”, a country or organisation that the ADF is fighting. More than that, it also proscribes those who “form an intention” to assist such a country or organisation.

Civil libertarians have long argued that such chillingly vague language (what does it mean to form an intention to assist someone by any means whatsoever?) provides the legislative basis to crush political dissent — and James offers a textbook illustration of the authoritarian mind’s Pavlovian response to legislative opportunities for repression.

I don’t imagine he will really succeed in shipping me out to Barwon prison. But if I were, say, Sheik Hilaly, I’d be a little more worried. In the right climate, in the midst of a tabloid beat-up against an unpopular Muslim leader, well, the old cry of ‘disloyalty to the troops’ might well find a resonance.

Yes, in different circumstances, it might be funnier to receive threats from someone like James, apparently keen to prove himself the ADF’s enforcer: part Colonel Blimp, part Chopper Read. In today’s context, however, you’ll forgive me for not laughing.