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The following article appeared in Pearls and Irritations on 13 December 2021.

The trials of Witness K, a former ASIS officer who blew the whistle on the unusual activities of his organisation, and Bernard Collaery, who was briefed to represent his interests and then charged by the Commonwealth for disclosing classified information, have been a travesty of justice.

Seeking advantage in negotiations with Timor Leste over a joint maritime boundary that would give Australia greater access to oil and natural gas, Australia bugged the Timor Leste cabinet room in 2004 where confidential discussion on the issue took place.

At the time Howard was Prime Minister and Downer Foreign Minister. The present Treasurer, Josh Frydenburg worked for Howard from 2003-2005 and Dave Sharma, the member for Wentworth worked for Downer from 2004-2006. It is unlikely that both did not know about the bugging. David Irvine, AO, was Director-General of ASIS from 2003-2009. ASIS undertook the bugging. ASIS answered to Downer, as Foreign Minister, so presumably Downer authorised the bugging. A beneficiary was Woodside Petroleum. Downer became a consultant to Woodside in 2008. It was the misuse of ASIS resources to achieve an unfair advantage for Australia that motivated Witness K to blow the whistle.

As Attorney-General, George Brandis was apparently reluctant to pursue the matter, Christian Porter, who replaced him, showed no such reluctance, presumably keen to curry favour with Howard and Downer by preventing through legal process, further truths from emerging as to the role an Australian agency played in achieving unfair commercial advantage.

Porter and now Cash have argued for the trial to be held in secrecy under provisions of the National Security Information (Criminal and Civil proceedings) Act, 2004. At the time of introduction, I argued the Act had the potential to be misused to protect illegal undertakings by the state. I pointed to similar Acts in apartheid South Africa which had been used against opponents of apartheid. Now we see the NSI being used as I foresaw.

Cash has sought to further delay justice by presenting ‘additional secret evidence’, without a hearing and consideration by Collaery’s legal team. This ‘evidence’ is apparently in the form of affidavits sworn by ASIS staff to the effect that the actions of Witness K and Collaery have damaged the ability of ASIS to gather intelligence. As a former foreign service officer can I say this is nonsense. What most damages ASIS intelligence gathering is poor training, management and alcohol. Any statement obtained from serving ASIS officers can be regarded as having been obtained under duress. Their careers are on the line.

In seeking to defend the already tarnished reputations of Howard and Downer, Cash has appealed to the High Court to keep a judgement by ACT Chief Justice, Helen Murrell, that found closing the case to the public would damage confidence in the justice system. Cash is arguing to the High Court that information on that judgement is likely to prejudice national security!

The Court of Appeal earlier ruled that the case should be held in open court and sent the matter back to presiding Justice Mossop, who has struggled with the spurious issues of national security in this case and adherence to the principle of open justice.

Cash and Porter have succeeded in making the legal process in this matter messy and unfair. The AFP raided Collaery’s home and obtain evidence which was used against him and Witness K. The case stands as a significant abuse of the Australian system of Justice. It reminds me of the abuse of the South African legal system under apartheid, which I witnessed first-hand from 1976-79. That Australia now finds itself in a similar position is a terrible indictment.

In terms of the denial and perversion of justice, the prosecution and trial of Collaery and Witness K might be likened to the 1894 trial of Dreyfus in Paris, which became known as the Dreyfus Affair.

Captain Alfred Dreyfus, an artillery officer, was convicted in a closed court, on false evidence of giving French military secrets to the German Embassy in Paris. Georges Picquart, head of military counter-intelligence subsequently identified the real culprit as Major Ferdinand Esterhazy. A military court acquitted him after 2 days. Additional charges on forged evidence were brought against Dreyfus.

Dreyfus was a Jew and the French General Staff, and the court were anti-Jewish. The trial and the issues surrounding it divided France. Emile Zola was moved to write an open letter in defence of Dreyfus, called ‘J’Accuse’.

Another trial resulted from a considerable body of public opinion coming out for Dreyfus, not only in France but around the world. Again, Dreyfus was convicted in closed court on the basis of a secret dossier of forged information sent to the judges. However, it was overkill and way too much for public opinion and Dreyfus was pardoned. In 1906 he was exonerated and promoted to Major. He served in WW1, unlike most of his military accusers, and rose to Colonel. He died in 1935.

In October 2021, that great friend of Australia, President Emmanuel Macron, opened a museum dedicated to Dreyfus in the Paris suburb of Medan.

Writing in Pearls and Irritations, the Allan Myers Professor of Law at the Australian Catholic University, Spencer Zifcak said, ‘The Collaery case is, perhaps, the most important case ever brought before the Australian courts concerning the extent and limits of freedom of public and political communication in this country. The government’s determination to undermine such fundamental democratic rights is a clear indication that it is willing to act ideologically and illiberally rather than in a manner consistent with core principles underlying liberal democracy. Freedom of the press and whistleblower protections are always the first targets of a repressive state.’

And just as Dreyfus was persecuted as a Jew, Collaery and Witness K have been persecuted for defending the rights of the East Timorese against the greed of powerful individuals and organisations like Woodside Petroleum.

Bruce Haigh is a political commentator and former diplomat.

The following article appeared in Pearls & Irritations on 2 December, 2021.

The day after the terrorist attack on the World Trade Centre, the Australian Prime Minister, John Howard, without reference to the Australian Parliament, invoked Article IV of the ANZUS Treaty in support of the US and its proposed attack on the Taliban in Afghanistan. Australian troops served in Afghanistan until the end of 2002, when they were withdrawn. They redeployed in August 2005 on Operation Slipper under the Special Forces Task Group. By 2008 the ADF brief involved training and mentoring Afghan security forces.

The Minister for Defence, Senator John Faulkner, told Parliament in June 2010 that, ‘Our fundamental objective in Afghanistan is to combat a clear threat from international terrorism to both international security and our own national security. Australia cannot afford, and Australians cannot afford, to let Afghanistan again become a safe haven and training ground for terrorist organisations.’

The precipitate US withdrawal from Afghanistan in August 2021 is likely to once again make Afghanistan a breeding ground for terrorism. No provision was made with the occupying forces of the Taliban for the welfare of the civilian population. Food is short, there is little work, the cash economy has collapsed and the US refuses to release $12 billion of Afghan reserves. Winter is approaching, by next summer, those young men who survive will be very angry and putty in the hands of ISIS.

Australia built a scenario which saw the Afghan military forces taking over security in 2012-14; this wasn’t to be. Acts of terror did not end in Europe. Between 2004 and 2014 there were 15 major terror attacks. And from 2016-2020 there were 59 attacks in major European centres. Clearly the Afghan mission had failed, despite 120,000 troops deployed from 42 countries, although 33 countries contributed less than a 1000 personnel and Austria 2. They were deployed under the auspices of NATO, known as the International Security Assistance Force (ISAF).

It was clear to me by 2008, having served in Afghanistan with DFAT during the Russian occupation, a family history with the British Army in India and a knowledge of history, that the US inspired expedition was doomed to failure. It was not a view shared by urgers in Canberra and the media.

In May 2007 Professor Rory Medcalf, then with Lowy Institute and now head of the NSC at ANU, wrote in an on-line forum sponsored by ASPI, that, ‘In Afghanistan and Iraq, the US has proven a willingness to inflict and sustain large-scale casualties. This should belie any perception among others – such as China – that the US politically was capable of waging war only of the minimal-risk kind seen in Kosovo… Australia, with its recent decision to send special forces back to Afghanistan, is one of the few US allies willing to risk battle there.’

Writing in the Canberra Times in 2008, Major General Jim Molan, said, ‘The Afghanistan war is winnable. We are not being asked to do the impossible. It is not going to be worse than just about any other war. No wars go well initially and the average length of a counter-insurgency is 9 years. We are really only in the second year and, just as we did not get serious about the Iraq war until its fifth year, we are not yet serious about the Afghan war.’

The ABC reported ASPI, in May 2008, calling for an increase of Australian troops in Afghanistan. An article in the ASPI publication Strategic Insights, Number 40, 2008, by Raspal Khosa, argued a strong case for Australian involvement in Afghanistan.

Australian security expert, Dr David Kilcullen, believed in 2008 that the war in Afghanistan could be won. His views modified with time. Both Gareth Evans and Kim Beazley gave their support to the ADF presence in Afghanistan.

Writing in the ABC on line magazine, The Drum, on 26 March, 2008, I said, ‘Fitzgibbon (the Australian defence minister) is in denial at the prospect of allied military success in Afghanistan. The main backer of the Taliban is Pakistan…The US-dominated NATO command is employing the failed tactics of the Russians and the outcome will be the same.

The Russians tried to train an Afghan army and failed and the prospect looks equally gloomy for NATO. The Afghan army, such as it is, is shouldering very little of the burden…

The British fought three major Afghan wars from 1839 -1919 without gain and the Russians had a most uncomfortable occupation from 1979-1989 with the same result.

The factors defeating these interlopers were topography, the people and the strategic location of Afghanistan and so it will be again…

Australia should seek to engage with all elements in Pakistan who are fostering the Taliban and assisting Osama bin Laden. Australia needs to acquire an independent understanding of the motives and attitudes of the Taliban and their backers.’

In On line Opinion on 5 January, 2009, I said, ‘Writing in the Sydney Morning Herald, 19 December, 2008, “Turn the tables on Afghanistan”, retired Australian General, Jim Molan, claims that the success achieved against terrorist in Iraq can be translated to Afghanistan and he calls for an increase of up 6,000 Australian troops.

I think Molan premature when he talks of Iraq being a success. The destabilising effect of the invasion will, in my opinion, be felt within Iraq and the region for another decade at least.

He talks of the Afghan people when in fact there is no such entity. The majority are Pushtuns who dominate and mistreat minority groups including the Hazaras, Tadjiks and Turkmen. Molan ignores the divisive influence of topography on both military activity and nation building and possesses the blind optimism not seen in Australian military and diplomatic analysis since Vietnam.

Molan claims that, “our great weapons are our morality and openness to scrutiny…our information must be truth”, which, unfortunately does not apply to reporting on the war in Afghanistan…the US has learnt none of the lessons of Vietnam. Its presence conveys a sense of occupation, the destruction of property and homes and the deaths of innocents, translates into recruits prepared to fight for a war lord, the Taliban or whoever else will arm and fed them…

The policy driving the war and the manner in which it is being prosecuted makes the war in Afghanistan unwinnable. Terrorism is founded in belief, ideology and emotion. Does anyone in the western alliance seriously believe they can blast, kill and maim their way to a victory in which no known terrorist is left standing in Afghanistan?’

And I wrote this in early 2009 when ASPI and other right-wing organisations and individuals were advocating troop increases and declaring victory in sight.

Writing in ABC, The Drum, in October 2009, I posed a number of questions, ‘Policy makers in Australia need to ask what it is they hope to achieve from the Australian military presence in Afghanistan? Is it just support for the US/Australia alliance or is Australia seriously engaged in a fight against international terrorism? If it is the latter then it needs to be explained how this commitment is achieving that and in what way does it impact positively in the short and long term on the lives of Australians? And this is not intended to goad the AFP into conjuring up confected baddies from the ranks of the misguided and dispossessed.

Are US objectives realistic? Can they be achieved? At what cost and over what period of time? Is the Australian commitment making a positive contribution? Are we getting value for money? Is there a downside and if so, what is it? Is it vital to our national interest to be putting the lives of young Australians on the line over Afghanistan?

ASPI and right-wing camp followers never sought answers to those questions and the LNP did not seek to ask them. Rudd made half an attempt but was slapped down by the US.

In November 2011, again writing in The Drum, I addressed what had become known as green on blue killings ‘To believe that the Australian commitment to Afghanistan has not changed as a result of the killing of three Australian and two Afghan soldiers by Afghan soldiers said to be loyal to the Australian military contingent, is to ignore some basic human emotions and to ignorantly or wilfully misunderstand the average Australian soldier.’

There had been a similar attack in October, 2011 and another in August 2012. By far the largest number of war crimes committed by Australian soldiers occurred in 2012 and 2013. Both sides by 2012 loathed each other, racism on the part of NATO soldiers was a feature of their existence in Afghanistan, as it had been for US troops in Vietnam.

I finished the article with, ‘The war in Afghanistan can’t be won, and Afghanistan isn’t ours – or anyone else’s – to lose. Australia will not form part of the peace process or be required to broker a peace deal. Many lives have been lost, many others ruined and money squandered in Afghanistan, but it is not a sign of weakness to admit that we’ve made a mistake. Rhetoric about progress being made will not re-cast the war in a more favourable light. It is what it is. Futile.’

It is not by co-incidence that the same people who backed the war in Afghanistan, led by ASPI, are now at the forefront of the anti-China push. They segued from fighting Islamic terrorists in Afghanistan to fighting Asian communists in China. These are angry and fearful people. They were wrong about Afghanistan. The Intelligence they relied on needs to be questioned whether Five Eyes or domestic agencies. Too often their analysis appears to fit western ideology, political imperatives and the needs of the Industrial/Military Complex than the situation on the ground.

Bruce Haigh is a retired Diplomat who has served in Afghanistan, Iran, Pakistan, the Middle East, Asia and Africa. He writes and comments on International and domestic issues. He was a Member of the Refugee Review Tribunal.