September 2006


I accuse

By Julian Burnside
I accuse
A century after the Dreyfus Affair, “anti-terror” legislation jeopardises Australians’ right to a fair trial

In July 1906, Alfred Dreyfus was finally pardoned. The affair which bears his name had lasted 12 years, dividing French society and scandalising the military, legal profession and press. In that same year, Paul Cézanne died. His portrait of Émile Zola is probably the most famous image of the writer whose campaigning dramatically altered the course of the Dreyfus Affair. Cézanne and Zola had taken different positions over Dreyfus, irretrievably damaging their friendship: a potent symbol of the passions that the matter had aroused.

On 26 September 1894, the French Intelligence Service intercepted a message which had been sent to Lieutenant-Colonel von Schwartzkoppen. This document, later known universally as the Bordereau, demonstrated that someone on the general staff of the French Army had leaked important military secrets to the Germans. An analysis of the contents of the Bordereau suggested that the author must be an artillery officer who had also spent time in four other sections of the army.

Colonel Sandherr, the head of the Statistical Section, was asked to investigate the matter. He examined a list of artillery officers to see whether any fitted the profile, and lighted on the name of Captain Alfred Dreyfus, an artillery officer and a member of the army's general staff. Sandherr was openly anti-Semitic; he noted that Dreyfus was a Jew, and did not pursue any further possible suspects. He reported to the Minister of War, General Mercier, that he had identified the spy in the army ranks.

A handwriting expert from the Bank of Paris was asked to examine the Bordereau to determine whether it had been written by Captain Dreyfus. The expert concluded that it had not. Commandant du Paty de Clam, an amateur graphologist who was involved in the investigation, then called Dreyfus into his office and asked him to take some dictation, on the feeble pretext that he, du Paty, had injured his hand. He dictated a note which included a number of the key words from the Bordereau. At one stage during this minor farce, du Paty waited until Dreyfus crossed a leg over his knee and then asked some pointed questions. His theory, as he later explained, was that any increase in Dreyfus's heartbeat would cause movement of the leg draped over the knee. As he noted no such response to his questioning, he inferred that Dreyfus was not only a spy but also dangerously able to disguise his own emotional reactions.

The sample of Dreyfus's handwriting, obtained in this peculiar way, was shown to a self-styled handwriting expert, Alphonse Bertillon. Knowing in advance that the army wanted Dreyfus's writing to correspond with that in the Bordereau, Bertillon obliged. Later, in evidence presented to court martial, he claimed that the obvious differences between the handwriting in the Bordereau and Dreyfus's own handwriting could be explained by the fact that Dreyfus had cunningly developed an ability to imitate the handwriting of others. Thus, the greater the difference between Dreyfus's handwriting and the writing in the Bordereau, the greater the evidence of Dreyfus's deceit and dissimulation.

Even General Mercier could see the weakness of the case against Dreyfus. He equivocated, realising that to charge Dreyfus and fail would be a disaster for the army: it would reveal both that there was a spy in the army and, just as damaging, that the army was unable to uncover the spy and bring him to justice. But Mercier's hand was forced: on 31 October 1894, word was leaked to Edouard Drumont of the Libre Parole that a Jewish army officer had been arrested on a charge of espionage. The newspaper was fiercely anti-Semitic and it published the allegation, including Dreyfus's name. It then pursued a virulent campaign against Dreyfus, providing the backdrop against which his court martial took place, from 19 to 22 December 1894.

Dreyfus was well represented. His counsel asked that the court martial be held in public, but the request was refused. Even so, General Mercier was told that the prosecution was not going well and the judges appeared to be hesitant about Dreyfus's guilt. Accordingly, he instructed that they be provided with a secret dossier and told that it was essential for national security that the existence of the dossier - which included documents forged by one of Mercier's underlings, Major Henry - not be disclosed either to Dreyfus or his counsel.

These documents convinced the judges that Dreyfus was indeed guilty. After being stripped of his rank and publicly humiliated, Dreyfus was sent to Devil's Island, where he was held in solitary confinement. The guards there were forbidden to speak to him.

In March 1896, another document containing sensitive information was intercepted by French Army intelligence. That document, later known as the Petit Bleu, identified the spy in the French Army as being Major Walsin-Esterhazy. Colonel Picquart, who had been instructed to investigate the background to the Dreyfus case, was able to compare Walsin-Esterhazy's writing with that of the Bordereau. Having previously been convinced that Dreyfus was guilty, Picquart now believed him innocent.

By September 1896, Picquart was trying to persuade the senior officers of the army's general staff that Dreyfus had been wrongly convicted. Unfortunately for Picquart - and for Dreyfus - the officer who worked most closely with Picquart in the investigation was Major Henry, who, of course, realised that the closer Picquart got to the truth, the more exposed was Henry himself, as it was he who had forged the documents in the secret dossier. Henry therefore set to work falsifying new documents to incriminate Dreyfus, at the same time keeping Walsin-Esterhazy informed of the progress of Picquart's investigation.

In late October 1897, Picquart was transferred from his position and sent on a series of missions to increasingly remote climes. It was some time before he realised that, without being told, he had been removed from the Dreyfus investigation. With Picquart safely out of the way, Henry produced a letter allegedly written by the Italian Embassy to the German attaché, identifying Dreyfus as the spy in the French Army.

In the meantime, Dreyfus's wife, Lucie, and brother Mathieu had been attempting to convene an inquiry into the original conviction. Largely because of Mathieu's efforts, the original Bordereau was published in a newspaper on 11 November 1897, where it was seen by M. de Castro, a South American stockbroker. Remarkably, de Castro recognised the handwriting of the Bordereau as being that of one of his clients, Major Walsin-Esterhazy. He contacted Mathieu Dreyfus and the campaign then developed a head of steam: Walsin-Esterhazy was tried by court martial but, astonishingly, he was acquitted, despite all the evidence against him.

On 13 January 1898, the journal L'Aurore published a "letter to the President of the Republic" written by Émile Zola under the headline ‘J'Accuse ... !'. Zola wrote: "I accuse General Mercier of having made himself an accomplice in one of the greatest crimes of history ... I accuse General Billot [Mercier's successor as Minister of War] of having in his hands decisive proof of the innocence of Dreyfus and of having concealed them ... I accuse the judges of the [Dreyfus] court martial of having violated all human rights in condemning a prisoner on testimony kept secret from him ..."

‘J'Accuse' identified the lines of battle in French society: the military versus the rights of the individual; the dominance of the republic versus the dominance of the church; Christianity versus "the Jewish conspiracy". The article provoked anti-Semitic rioting throughout France, but it also provoked a growing concern about Dreyfus's trial, ultimately leading to a retrial.

Zola, together with George Clemenceau, the political editor of L'Aurore, forced France to face the fraud which had been perpetrated in Dreyfus's court martial. For his troubles, Zola was charged with criminal libel. During that trial, General Mercier swore that Dreyfus was guilty, and asserted that the security of France was at stake. The press published the names and addresses of the jurors in Zola's case, putting them under immense public pressure, and reiterated the general's message. Zola was convicted and ordered to pay a heavy fine.

Then, on 30 August 1898, Major Henry confessed his perjury in the Dreyfus case, and his falsification of the secret dossier. He was imprisoned, and committed suicide while awaiting trial.

A year later, Dreyfus's second trial took place. It was held at the Rennes in Brittany, in order to avoid the passionate atmosphere of a trial in Paris. It is a measure of the level of anti-Semitism prevalent in French society at the end of the nineteenth century that Dreyfus was again convicted, by a five to two majority. This time, though, he was found guilty of treason "with extenuating circumstances", and just ten days later, on 19 September 1899, the President of France signed a pardon. Dreyfus accepted the pardon, but only on the condition that he was entitled to continue to pursue a campaign to demonstrate his innocence - a pardon, after all, proceeds from an assumption of guilt.

Six years later, on 12 July 1906, after a further inquiry, all three chambers of the Supreme Court of Appeal sat jointly and annulled the verdict of the second trial and, finally, proclaimed Dreyfus innocent. He was subsequently reinstated in the French Army. Notwithstanding all that had gone before, the parliamentary vote on the question of the reinstatement was not unanimous: the Chamber of Deputies voted 432 to 32; in the Senate, the vote was 182 to 30. Dreyfus saw active service in World War I, and died in 1935.

Yet it was not until September 1995 that the French Army finally admitted publicly that Dreyfus had been wrongly convicted. (It had earlier refused a gift of a statue of Dreyfus offered by Prime Minister Pompidou.) And, on the hundredth anniversary of the publication of ‘J'Accuse', the French Parliament honoured Émile Zola's role in the Dreyfus affair. President Jacques Chirac apologised on behalf of the nation to the families of Dreyfus and Zola.

It is all too easy to look back on the Dreyfus Affair with an air of superiority, and imagine that what happened in France a century ago could not possibly happen in Australia today. Yet two things made the Dreyfus Affair possible: a secret trial and the use of evidence concealed from the accused and his counsel, and racial or religious prejudice which ran so deep as to blind people to any concern about the quality of justice accorded to the accused.

Anti-Semitism no longer exists in any significant measure in Australia, at least not in the virulent form which characterised France in the nineteenth century and, more generally, western Europe in the first half of the twentieth century. However, other groups are sufficiently unpopular that, for practical purposes, many Australians do not regard their rights as mattering. These unpopular groups include alleged paedophiles, alleged terrorists, Muslims, Aborigines and people with mental disorders. This is not to say that the feeling against any of those groups runs as deep and strong as did anti-Semitism in France at the time of the Dreyfus Affair. But it is nevertheless strong enough that a large number of people in our society do not regard the rights of certain groups as being important enough to deserve the same recognition or protection as others.

The possibility of secret trials, and trials in which evidence is concealed from the accused and their counsel, already exists in Australia as a matter of law: there are several different pieces of legislation which achieve that lamentable result. Division 105 of the Commonwealth Criminal Code, for example, allows a member of the Federal Police to apply for a preventative detention order that will result in a person being jailed for up to 14 days in circumstances where they have not been charged with any offence.

Such an order is obtained in the absence of the person in question, and, when the person is taken into custody, they will simply be given a copy of the order and a summary of the grounds on which it was made. That summary need not include any information which is considered likely to prejudice national security. Thus, a preventative detention order can be made not only without a trial of any sort, but also in circumstances where the subject of the order will not be allowed to know the evidence which was used to secure the order.

Division 104 of the Code operates in a similarly disturbing manner. It allows a senior member of the Federal Police to obtain a control order against a person that confines them to a single address for up to 12 months, without access to a telephone or the internet. When the subject is served with the order, they are to be given a summary of the grounds on which the order was made, but not the evidence. Thus, a person's freedom of movement can be grossly interfered with for up to a year, in circumstances where they have no opportunity to know the evidence on which the order was obtained, much less to challenge it.

Then there is the National Security Information Act (2004), perhaps the most insidious element of the federal government's "anti-terror" legislation. This Act provides that if a party to a proceeding believes they will disclose in that proceeding any information that relates to national security, or if the party intends to call a witness who would disclose such information, then the party must notify the Attorney-General and the court.

The court is then required to adjourn the proceeding until the Attorney-General acts on the matter. If he decides that the proposed evidence or witness would likely prejudice Australia's national security interests, the court must hold a hearing to decide whether or not to make an order preventing the evidence or witness from being called.

During that hearing, the court must be closed: the Act authorises the court to exclude both the relevant party and his or her counsel. And, in deciding the balance between the interests of a fair trial and interests of national security, the statute directs the court to give the greatest weight to the Attorney-General's decision that the evidence would present a risk of prejudice to national security.

These provisions are immediately alarming to anyone who understands the essential elements of a fair trial. They are all the more alarming when they are examined more closely. In particular, "national security" is now defined to include Australia's "law enforcement interests". These include:

(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;
(b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;
(c) the protection and safety of informants and of persons associated with informants;
(d) ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation's government and government agencies.

According to this definition, Australia's national security is affected by revealing that a CIA operative (or any law-enforcement officer) extracted a confession by the use of torture or any other inhumane interrogation technique. It is also affected by revealing evidence of operational details of the CIA, Interpol, the FBI, the Australian Federal Police, the Egyptian Police or the US authorities at Guantánamo Bay.

This is likely to have a powerful effect in several types of case. First, for people charged with terrorist offences. Here, confessional statements may be received, but evidence that torture was used to obtain the confession may be excluded. Secondly, in cases where a person is the subject of a preventative detention order or a control order, this fact may be held back. Thirdly, in cases where a person's ordinary rights have been interfered with because of an adverse security assessment by ASIO, the reasons and evidence for this decision may be held back.

There may already be examples of the second type, but the public is not allowed to know: the secrecy provisions surrounding these orders means that, in effect, we will not learn of them until much later.

In the third type of case, an adverse security assessment from ASIO can result in the cancellation of a person's passport, or their job application being refused, or (for foreign visitors) a visa being refused or cancelled. In those circumstances, getting access to the material which enabled the adverse security assessment may prove difficult or impossible, and any attempt to challenge the material can be met with the Attorney-General's decision.

Last year, an adverse security assessment from ASIO led to the cancellation of a visa, which was, in turn, challenged in the Administrative Appeals Tribunal. The Attorney-General issued a certificate which, in substance, prevented the applicant and the applicant's lawyer from being present in the Tribunal while certain evidence was given and submissions made on behalf of the government. Here is the text of that certificate, issued early this year:

I, Philip Maxwell Ruddock, the Attorney-General ... hereby certify ... that disclosure of the contents of the documents ... would be contrary to the public interest because the disclosure would prejudice security.

I further certify ... that evidence proposed to be adduced and submissions proposed to be made ... concerning the documents ... are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security.

... I do not consent to a person representing the applicant being present when evidence described ... above is adduced and such submissions are made ...

In a few short paragraphs, the nation's Attorney-General produces the conditions which led to the false conviction of Alfred Dreyfus over a century ago.

On Friday 18 August, the Victorian Court of Appeal decided the appeal of Jack Thomas. He had been convicted of receiving money from a terrorist organisation, and a passport offence.

There was a sharp reaction in some parts of the press. In its editorial comment of 19 August, the Australian noted that "The problem is that there is still a massive disconnection between the law and reality", and went on to suggest that "Instead of freeing the enemy, the law should be doing more in the real fight for liberty."

Thomas fled Afghanistan and tried to return to Australia because he was horrified at the September 11 attacks, and utterly rejected the methods of Osama bin Laden. After he returned to Australia, he was allowed to remain free in the community for 18 months before he was arrested. The Federal Police agreed that he had done absolutely nothing wrong during that 18-month period.

It is a long-established principle of law that a confessional statement made out of court by an accused person may not be admitted in evidence against him unless it is shown to have been voluntarily made. The principle operates to exclude evidence obtained by duress, torture, trickery or inducements. It has been formulated over many years with a single objective: to ensure that trials are fair.

The Court of Appeal held that Jack Thomas's "confession" was not voluntarily made and should have been excluded. There was no other evidence against him. The Federal Police who interviewed Thomas in Pakistan knew of his previous interrogations by Pakistani authorities and by ASIO; they knew he had a lawyer in Melbourne willing to help him; they knew he could not get legal help in Pakistan; they knew he was entitled to have a lawyer present; they knew they did not need to interview him until he returned to Australia. They led him to believe that making a statement was the only way he would ever be able to get back to Australia.

Critics of the Thomas decision are saying that some people do not deserve a fair trial. That view has been embraced by the US at Guantánamo Bay. To his eternal disgrace, it has been embraced by the Australian Attorney-General, Philip Ruddock. Fortunately, the Victorian Court of Appeal considers that we have not yet abandoned the principle of a fair trial for every accused person.

In December 2004, the House of Lords decided a case about English legislation which provided for the detention of people who allegedly present a terrorist risk. In an eight-to-one decision, the Lords determined that the laws did not comply with the Human Rights Act. Lord Hoffmann said, "the real threat to the life of the nation ... comes not from terrorism but from laws such as these." How much more forcefully can that be said of Australia's "anti-terror" legislation.

Julian Burnside
Julian Burnside is a barrister based in Melbourne. @JulianBurnside

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