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Evan Whitton
19 April, 2005  
Our justice system is ill equipped to handle the "war on terror"

The Lord Warden of the Cinque Ports and his spiritual heir, Jackie the Lackey, have menaced us with an endless series of terrifying threats. But if the “war on terror” is not just another hobgoblin, then the best way to fight it is the French way

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, most of them imaginary.

– Henry Louis Mencken, 1920

imageAs a well-furnished lawyer, the Lord Warden of the Cinque Ports never had a problem with lying. The old blowhard menaced the populace with threats that 3,000 wildly romantic commos were about to take control of Australia, and that the force of gravity would have Chinese standing on our heads unless he forced unwilling lads to halt their downward thrust in Vietnam.

But the Knight of the Thistle has been easily surpassed by his spiritual heir, the lawyer/statesman adoringly known as Jackie the Lackey. He menaced us with threats that dusky boat persons would swamp the country; that the evil Saddam Hussein would blow up the world unless our lads stopped him; that his vile opponents would increase interest rates; and that we are momentarily at risk of being overborne by fiendish terror.

Unfortunately, the Federal Police Commissioner, Michael Joseph (Mick) Kelpie and other experts have put him in a position where he can put up or shut up about terror. The Australian of March 21, 2005 reported them as saying a system such as the one used in France would more effectively deal with terror suspects.

The facts are on side of the terror experts. The French investigative system does not conceal relevant evidence, and roughly speaking puts away three times as many major criminals as our adversary system, and at a third of the trial cost. At the same time, its pre-trial filters largely prevent the innocent being charged, let alone convicted.

Nonetheless, first law officer P. (Philthy Phil) Ruddock told The Australian he was not currently in favour of a French-style system, because that involves a whole lot of principles that if introduced here would create a great deal of problems”.

Indeed they would, and mainly for lawyers purses, but PP kindly went on: However, if they say anything that is worth looking at, I would be picking it up as quickly as anybody.

The dogged Mr Kelpie may take that as an invitation to demonstrate that an achievement of our system is to anally penetrate his investigators, at least in the view of a type of terrorist, the Mafia, recorded by Alexander Stille in Excellent Cadavers: The Mafia and the Death of the First Italian Republic (Pantheon, 1995).

imageAfter an investigating magistrate, Judge Giovanni Falcone (pictured), used the investigative system to put 344 Mafiosi off the streets in December 1987, the Mafia persuaded politicians to make it more like the adversary system.

On Tuesday, September 20, 1988, an FBI tap on a telephone in the Cafe Giardano, Brooklyn, recorded an enlightening chat between an anonymous hood just back from Sicily and a heroin dealer, Joe Gambino:

Anon: Now they’ve approved the new law they can’t prosecute as they did in the past …

Joe: Oh, so it’s like here, in America.

Anon: No, it’s better, much better. Now these bastards, the magistrates and cops, can’t even dream of arresting anyone the way they do now.

Joe: The cops will take it up the ass. And [Judge Falcone] won’t be able to do anything either? ... They’ll all take it up the ass.

Anon: Yeah, they’ll take it in the ass.

The justice system itself appeared to suffer a similar painful indignity at the recent al-Qaeda conspiracy trial in England. Commenting on the debacle – eight of the nine accused of terrorism were found not guilty – in the Telegraph (UK) of April 17, Melanie Phillips noted:

“In the eight months of the trial, the jury heard only about four weeks of evidence. The rest was legal argument The jury never actually heard some of the most crucial evidence. It all raises urgent questions about whether the adversarial knockabout and courtroom gamesmanship that characterise the criminal court system can cope with trials of this nature, where public safety is said to be so gravely at risk.

It seems to follow that if Jackie and PP really believe the enemy within are a potent threat, they will adopt the French system. If they dont, we can all heave a sigh of relief, safe in the knowledge that terror is just another hobgoblin.