Sunday, June 23, 2019
At the time of writing, the US President, Donald Trump, has cancelled US military plans for strikes on Iran, in response to the Iranian downing of a US drone and attacks on merchant shipping. On any view, the Iranian regime has been behaving badly. There are good arguments for and against striking Iran. There are very few if any good arguments for a policy of passivity. There is even less reason for viewing this as a problem of Trump or Obama, rather than simply as the enduring "Persian Puzzle".
This Iranian challenge has, since the fall of the Shah in February 1979, been a problem for every US President since Jimmy Carter. It was not always so. Prior to 1979, the Shia monarchical and unified Iran and its 'white revolution' had been a model of how a modernising state could also keep its Muslim faith – esp Shiism which in Iran has historically been accommodating of Jews and Christians. The last Shah was not the best of rulers, to be sure, but he was a good ally of the West, and of Israel, and the Shah also had created an Islamic monarchy that was capable of developing into the constitutional monarchy that had been the object of Iranian reformers almost a century prior. The Iran under the Shah was considered the ‘gendarme of the Middle East’. Instead, the Kerenskyite combination of liberals and Islamists protesting from 1977-1979 ensured that the liberals could do enough to bring down the Shah and not enough to prevent the rise of the Mullahs. The downfall of the Shah and his replacement in 1979 by Khomeini’s Islamic republic – and the Mullahs’ rule of Iran - marked more than a regime change but a civilizational turning point. Since 1979, and especially since the Iran hostage crisis of 1979-1981 and the Beirut bombings of 1983, the Islamic Republic of Iran has been a pariah state, deservedly so.
There are, thus, good reasons for the West to take a confrontational policy towards Iran.
Firstly, as a matter of realpolitik, Iran is the adversarial regional hegemon of a crucial part of Eurasia. It is impossible to fully grasp the historical centrality of what is now Iran without understanding Iran is in the heartland of what Sir Halford Mackinder called the ‘world island’.
Iran is approximately 80 million people occupying the most historically vital land routes to and from Europe and Asia, and is a provider (like Russia) of vital air travel corridors. An aggressive Iran pursuing a policy to deny the West access to and influence in this critical part of the world cannot go unresponded to, at least not without the running of grave risk.
Moreover, as I have written elsewhere some years ago, Iran is the natural hegemon of a region that spans from Kabul to Kobane. Iran has a military history and military culture that is at least 3000 years old, and a commensurate antiquity of brain. Iran is, as I am fond of saying, a "real country", and it also has, despite its proliferation of ethnicities and religions, in addition to its Persian Shia core, a strong sense of Iranian nationhood that all Iranians share, and a capacity to mobilise a population for war - and then endure war and struggle for a significant period of time. As enduring strategic cultures go, Iran can be compared to Russia and China, with geography and history determining Iran's responses no less than do seapower realities fashion the responses of the British imperial nations and the United States. The Iranian military infrastructure includes a very large and self-sufficient Iranian armaments industry, built out of necessity after the Shah fell, but which has only gone ahead in leaps and bounds, such that Iran's capacity to sustain itself in war, and respond asymmetrically cannot be taken lightly. During the Iran-Iraq War, Iran had the support of few countries, and its most reliable arms and ammunition suppliers were itself, North Korea, and, when realpolitik demanded, Israel. Iran's own military resources are supplemented by Russian weaponry. Iran's own military posture and its willingness to both support militant proxies and both Shia and Sunni jihadis, as well as use Greater Khorasan to provide strategic depth, is probably one of the most important and yet under-reported stories of our time. Moreover, viewed from Tehran, the Persian Gulf is called thus for very good and well-founded historical reasons.
Secondly, Iran is the world’s major state sponsor of terrorism. Iran’s Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) are a veritable ‘best practice leader’ in sponsoring terrorism, from the training and ‘mentoring’ of terrorists to their arming and equipping over years. Where some terrorist organisations struggle to effect mass casualty attacks, Iran’s proxies have veritable campaign plans. Iran has not only helped create Hezbollah in Lebanon, which has developed, also, into its own terrorism for export business, but Iran has also assisted Sunni jihadi groups as well, even without exercising operational control, such as Hamas and Islamic Jihad. The ability of senior Al Qaeda fighters to move permissively between Afghanistan and Iraq/Syria, ie through Iran and its near abroad, cannot be by accident. The Iranian regime, also, has had a demonstrated capacity to engage in murder and terrorism, far from home, as former senior officials of the Shah’s regime found out to their peril.
Thirdly, Iran has sought and seeks weapons of mass destruction, especially a nuclear capability, and Iran has been a close ally of North Korea for almost 40 years. It is impossible to discuss North Korea sensibly without any discussion of Iran’s role as a funder, customer, and energy supplier, of North Korea. It is also impossible to discuss the threat posed by an Iranian hunger for a nuclear weapon without discussing Tehran’s use of North Korea as a weapons laboratory, and that any capabilities possessed by North Korea will be readily assimilated by Iran. One does not have to be a neoconservative to appreciate there is a real ‘axis of evil’ between Tehran and Pyongyang. The North Koreans, too, are no strangers to supporting terrorism. On these grounds alone, planning for a strong military response to Iranian misconduct should always be considered, reviewed, and updated.
Fourthly, the Strait of Hormuz is a vital waterway through which approximately 21 million barrels of oil per day is shipped, composing roughly 21% of global petroleum, especially for the benefit of Asia and Europe. To be sure, this raises the questions as to why the Chinese and Europeans less alarmed by Iranian behaviour than the US. There is an assumption that the US (and Allies) will police the Gulf, which, to the degree it means a reluctance to challenge the Persian Gulf as an ‘allied lake’, then this is no bad thing. A more dangerous Strait of Hormuz only guarantees new methods of delivery, including pipelines avoiding the Hormuz strait problem altogether, will be found.
Fifthly, per the above, the West, especially the Anglophone states, have enduring security obligations to their Arab allies, all of whom worry about the hegemonic ambitions of the Iranian regime. Since at least the fall of the Ottomans, there has been a successive as well as complementary understanding that the British and the Americans would help guarantee the security to the Arabian peninsular in return for conferring rights on the British and the Americans in respect of resource extraction and the steady flow of oil from the Persian Gulf. In respect of Jordan and Egypt, this Anglo-American security understanding has included significant local military support in return for Arab support against Saddam’s Iraq and to help secure the State of Israel. The Arab allies have been reliable partners on a range of issues since at least World War II. It is difficult, in particular, to overstate the support provided by Saudi Arabia to the West during the Cold War, not just in the period concerning the Shah’s fall, but also in helping facilitate the sort of diplomacy that is not officially acknowledged. The fear that the Iranian regime’s capabilities and demonstrated expeditionary capacity generate cannot be exaggerated, particularly in an era when Qatar is, also, alienating its former allies. The view from the Gulf Arab states of their security position, with Iran and its proxies forming an arc from Damascus through Baghdad, through the Gulf, south to Yemen, demonstrates a concerted Iranian campaign to encircle, strategically, the West's closest Gulf Arab allies. Moreover, in a very real sense, the West's alliance with the Gulf Arabs is the historic penance due to the sin of letting the Shah fall in 1978-1979. The Shah of Iran was the West's closest ally and was a vital support against the Soviets to the north, and a check on Arab nationalism to the west, and a monitor of events in Afghanistan to the east. When the Shah of Iran fell, so, too, did much of the post-WWII security architecture on which much of Western security relied. Given the importance of the region and of the Gulf itself, it would have been folly of the highest order if Western powers had not more closely engaged and strengthened, as well as militarily fortified, the friendly Gulf Arabs. That the Gulf Arabs may not as yet be 'Scandinavia with camels' is neither here nor there - geopolitics does not care about your feelings.
However, there are also very good reasons for the West, led by the US, to, for now, anyway, step back and not escalate the tense situation.
The primary consideration, which goes entirely unmentioned by the, “Whither the liberal international order?” crowd bloviating from their cable TV green rooms and think-tanks - but which consideration is not missed by anyone with any sort of military intelligence and planning background – is that there are still almost 20,000 Allied troops in neighbouring Afghanistan. Any attack by the US on Iran would, almost certainly, see Iranian-backed attacks on Allied forces in Afghanistan only increase. Afghanistan, especially the once Persian areas of western Afghanistan such as Herat, are not just neighbouring Iran but are seen by Iran, whether under the Shah or under the Mullahs, as security frontiers. There is almost no way that a strike on Iran would not endanger Allied troops in Afghanistan. Moreover, there would be even greater threats to the supply of Allied troops, already positioned at some distance from closely allies’ territories, over the coming Afghan winter, as well as endangerment of any future extraction of the Allied position.
The ongoing vulnerability of the Allied position in Afghanistan makes clear, also, the illogic of not just attacking Iran but, also, poking the adjacent and hyper-aggressive Russian bear, to any serious person trying to appreciate, militarily, the current situation. All that the Afghanistan War has managed in almost 20 years to achieve, at considerable cost in precious lives and national treasures, is to position a permanently exposed Allied expeditionary force close to Iran and Russia, in addition to its regular combat with the Taliban and like enemies. It is hard to conceive of a more strategically reckless misallocation of precious military resources than the Afghan War, as I have argued here.
A secondary, if more sublime, consideration that militates against striking Iran is that a strike sufficient to have any effect on the Iranian regime would likely bond average Iranians to an unpopular Mullahs’ regime. It would provide a ready Western scapegoat for the Iranian Regime’s corruption, brutality, and its inability to supply its citizens’ most basic needs. The Iranian people are a brilliant people and are now often protesting the regime. Their great King, Cyrus, is central to the Biblical story of the Jews’ return to Zion in Ezra and Nehemiah. The ancient history of Greece, Rome, and Byzantium, as well as the history of the Ottomans and the Russians, is filled with their wars and diplomacy with the Persians. This history is a testimony not just to the historic geopolitical importance of Iran’s territory but also to the dynamism and will of the Persian and Iranian peoples across millennia. There are ample reasons given by Persian and Iranian history for believing that the Mullahs regime will fall, perhaps by a popular revolt building on the 2009 protests, perhaps by a successful military coup. The West should do its best to contain the Iranian regime’s worst external manifestations, especially that of its sponsorship of terrorism and the threat to both Persian and Omani Gulfs. But, in respect of the internal dynamics of Iran, the West should do as little as it possibly can to make everyday Iranians feel any sort of loyalty to the Mullahs’ regime, of the kind that a military assault on Iran would inevitably provoke. Instead, consistent with the West’s ongoing containment of an aggressive Iran, measures should be taken to aid the Iranian civil society and, especially, those Iranians who seek a future of constitutional government, under the rule of law, and honouring the finest traditions of Iran as a pluralist and prosperous nation.
All in all, there are no really good options in 2019 with respect to Iran. It is an ancient civilisation, it is a hegemonic power, it is a sponsor of terrorism, it is a maker of bad into much worse situations. Iran constitutes a challenge that prudence dictates must be taken very seriously. At the same time, Iran is simply too large for a comprehensive military response short of a full-scale war – and on any view, we are not yet at that juncture.
As I often counsel here, and elsewhere, it is always good to see things as they are and to keep even the gravest of matters in perspective. Iran has been subject to severe sanctions and these will likely get only worse as a result of the regime’s behaviour. The living standards of the average Iranian are poor and getting worse. The regime is already paying a high price for its transgressions in terms of isolation and the impoverishment of its people. For now, to borrow from the great American diplomat George Kennan, in the context of the now defunct Soviet Union, the main element of the West’s policy towards Iran must be that of a “long-term patient but firm and vigilant containment of [Iran’s aggressive] tendencies.” Such a policy has yielded benefits in the past and will do so in the future. Iran is too great a nation to continue, for long, under the rule of such a squalid regime, and the West should do all it can to help promote, peacefully, the possibility of an alternative Iranian future, which builds on its long tradition, especially in Shiism, of the importance of law, and a historic Iranian thirst for constitutional government.
For now, the West should prepare for any eventuality, and rattle the sabre, if necessary and productive, but always be under no illusion that drawing it for the purposes of military action will not see it soon recovered to its scabbard. The wisest course is to keep our powder dry while maintaining the closest watch on the Iranian regime while, also, trusting the Iranian people, and doing all we can to encourage a peaceful and lasting 'regime change'. The Iranians, after all of the suffering of the last 40 years, certainly deserve no less.
Thursday, June 6, 2019
Yesterday, the Australian Federal Police executed search warrants against the Sydney headquarters of the Australian Broadcasting Corporation (Australia’s equivalent of the BBC and Canada’s CBC, and, to some degree, the US’ NPR and PBS) in Ultimo, in inner-city Sydney. You can read all about it here and here, and practically anywhere in Australian news.
I am not briefed in or around the matter and, moreover, as I do practice and give opinions in constitutional, public and national security law, and as I teach constitutional law, I can, in the tradition of the independent Bar, offer my own observations on the law and the process, if not the facts of this particular case (the usual presumptions operate etc).
Thus, I herewith endeavour to provide some light on the law at a time when others, who should know better, are providing so much heat, especially in respect of matters that may come before a court.
But, first, I turn to two of the key matters.
Firstly, I note that these search warrants have been executed during the processes of the criminal trial of a Mr David McBride. Mr McBride is, at all times, as is any one of us, entitled to the presumption of innocence and to a fair trial. The Crown/Government bears all of the onuses here.
Secondly, my view is that the ABC and the media, generally, can and should do all it can to legitimately challenge what actions it believes have been and/or are a violation of its rights. Australia is a robust constitutional state and we all benefit from a Government that is scrutinised, relentlessly and, we hope, in an unbiased manner, by a sceptical media. While I think a sense of perspective should be kept on these events, at the same time, we all benefit from a media that is curious and critical. I am not aware of any serious person who would doubt the need for a vibrant and inquisitive media.
As to the search warrants, which are in serial form, it is fair to say they speak for themselves. Clearly, the search is for materials relating to the Australian Defence Force (ADF), and military operations, including special forces’ activities, and related national security information. This is material that is, obviously, of the most extraordinary sensitivity for a national government. It may relate to past, present, or contemplated, wartime and security operations, and thus potentially include identifiers of Australian military, intelligence, and security services, personnel. It may also include materials concerning Defence’s own internal investigations, which may traverse an additional range of issues, including ones that may go to the fairness or otherwise of ongoing ADF probes. The list of endless complications posed by national security information, especially military information, being ‘leaked’ to the media are significant – and this is why ‘leaks’ are a criminal offence with those convicted of ‘leaking’ facing significant penalties.
One of the requirements of any form of search order, especially one for the Police, is that it describes with specificity what is being ‘searched’ for by the authority. One should add that this search was conducted peacefully – the AFP officers and agents even signed in at the ABC’s reception and then engaged in extended discussions with the ABC’s own lawyers. This was hardly the ‘afternoon of the long hard drives’. This was most certainly not any sort of "raid".
To the above, I would add the following by way of enlightening discussions on the matter of how and why the Government has a legitimate interest to defend, especially amid all the criticisms of the AFP that are now being made. In order, they are:
 Australia resulted from National Security concerns: The Australian union brought about by the Federation movement, the "one indissoluble Federal Commonwealth under the Crown" that commenced on 01 January 1901, resulted from the Australian desire for security - not the desire for liberty. One of the primary drivers of Australian Federation in the late 19th century was the need for the six sparsely populated British colonies to secure the enormous Australian continent and its approaches. As the High Court, whose Great War courts were populated by that Australian founding generation and whose cases supply much of our law to this day, noted in 1918, “It is a matter of common knowledge that the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs for the establishment of the Commonwealth.” The Constitution, and the High Court interpreting it, has always given significant deference, especially in time of war and crisis, to the national government and its responsibility for national security and the ‘defence of the realm’. These separate observations by Justice Isaacs – who would in due course leave the High Court to become Governor-General and thus Commander-in-Chief of the armed forces – are worth quoting at length as it gives an idea of how broad the deference to the Government is in Australian law, especially in a time of war and crisis, notwithstanding that 2019 is not 1916:
“Defence includes every act which in the opinion of the proper authority is conducive to the public security. Those who are entrusted with the ultimate power of guarding the national safety are not bound to subordinate that consideration to any other.”
“A war imperilling our very existence, involving not the internal development of progress, but the array of the whole community in mortal combat with the common enemy, is a fact of such transcendent and dominating character as to take precedence of every other fact of life. It is the ultima ratio of the nation. The defence power then has gone beyond the stage of preparation; and passing into action becomes the pivot of the Constitution, because it is the bulwark of the State. Its limits then are bounded only by the requirements of self-preservation. …. The best protection all the rights and powers so jealously, and in ordinary times so justifiably, defended can have, so far as Australia is concerned, is the very Commonwealth power that is now sought to be limited. The Constitution cannot be so construed as to contemplate its own destruction or, what amounts to the same thing, to cripple by checks and balances the ultimate power which is created for the undeniable purpose of preserving at all hazards and by all available means the inviolability of the Commonwealth and of the several States.”
The more recent 2007 case of Thomas v Mowbray affirmed the breadth of the Government applying laws made under the Defence power’s expansive reach, including control orders as against a person suspected – but not convicted – of having, essentially, skills useful to terrorism and sympathies with terrorists. There, the majority of the High Court found the control orders valid. Noteworthy was what Justices Gummow and Crennan said about the effect of the Australian Constitution on ideas of governmental duties to their citizens: “The obverse of that obedience and allegiance was the sovereign's obligation of protection. This notion of a compact sustaining the body politic cannot be weakened and must be strengthened by the system of representative government for which the Constitution provides.” Thus the Australian compact is one focused, primarily, on the Australian Crown and the Monarch's Government delivering security - and not liberty. Regardless of whether the Crown should ave more or less power by statute made under the Australian Constitution's context, the Crown itself endures and contains by necessity all the royal prerogatives necessary to secure its realm, from making war to making peace, to resisting incursions from afar. The contrast with some republican settlement, with a government constituted by limitations on its powers, could not be starker.
 Australia has no First Amendment: For good or ill, Australia has no constitutionally entrenched freedom of speech and freedom of the press. Australia has never had a Pentagon Papers case. The closest approximation to the issue arising was the 1980 Defence Papers’ case, concerning leaks from the Government in respect of Australia foreign relations in respect, inter alia, of the Soviet threat, the Shah of Iran, and the East Timor crisis, in which the High Court found for the Government, albeit on the lowly ground of infringement of copyright. Even so, as Justice Mason noted, in making injunctions against publication: “If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained”. While Justice Mason believed that governmental embarrassment was insufficient a reason to enjoin publication, there is no Australian authority that any materials touching on military operations would not be prima facie barred from disclosure and publication. For those pushing an American-style First Amendment, it should be noted that the United States Government, especially under the liberal Obama presidency and even given the First Amendment, has always conducted vigorous leak probes and prosecutions of leakers (eg Daniel Ellsberg), which has in itself raised issues about press freedoms. It is very unlikely that mere changes in the law per se will change anything about the weighing up of the interests of the Government and of the media. Indeed, the American experience seems to be that little changes except battles over which ideological team’s judges sit on what courts, which is a fate I would reject for Australia and our courts.
 The Government has its rights, too: The Australian Government has not just a legal duty but a moral obligation to protect its national security information at all levels of security classification. The leaking of any information that compromises not just the security of the nation but also the personal security of the Government’s personnel – uniformed or civilian – is a grave danger to the Australian body politic. In terms of a “chilling effect”, I can think of nothing more deterring to those who go in harm’s way on Australia’s behalf than to have the Government's information on them and their service, especially in the realm of military operations, find its way via 'leaks' to the media, however responsible and ethical, and there be no effort by the Government to retrieve this national security material and secure it. Similarly, Australia has a very close and very deep military alliance with the United States, the United Kingdom, Canada, and other allies, and Australia shares military materials and intelligence - and Australia has shared with it military materials and intelligence - of the gravest important. Any inability of Australia to safeguard its military and intelligence materials, and retrieve them if stolen or 'leaked', prejudices not just Australia's own national security but the allied security and diplomatic relationships that the Australian Government has built up and upon for over a century. The Government’s interests and actions, which may ultimately require the purging of any storage devices or computer servers on which the material may have been stored, is, in the circumstances, a reasonable and proportionate response to the risks posed by a national security compromise of this scale.
At the root of much of this and other debates, is a fundamental misunderstanding as to how Australia is to be governed. Australia is, simply, not constituted as a democracy. Instead, constitutionally, Australia is a monarchical, constitutional, and federal nation-state, with democratic forms – but at all times within a territorial not democratic constitution.
As noted above, a key driver of the Australian union and its resulting Constitution was and is to, literally, constitute an Australian nation-state that could defend itself and perpetuate its nationhood. There were few warm American or continental style flourishes and declarations as to the ‘rights of man’ but, rather, the cold reality of an enormous Australian task to hold so large a continental nation together, come what may. The Australian intent was security not liberty.
The Australian Constitution thus vests the executive power in the Crown, ie a government vested in the Monarch, albeit a power exercised by the Governor-General on the advice of the Ministers of the day. That Governor-General also exercises the command-in-chief of the armed forces. The ministers of the Crown are drawn from the membership of the bicameral Parliament: a House of Representatives containing Members of Parliament elected by the people in 151 separate local electorates across Australia, as well as a Senate elected at large by the people of each State to represent them in the Senate as a House of Review. There is no national vote, at all. The upshot was a national government made responsible to an elected Parliament of local and State representatives. You can read more on Australia’s federal system here.
I mention this as the design of the Australian constitutional system is for a strong executive government, that can secure Australia’s interests, but which is also responsible to the Parliament. Much of what is being asked for, now, consciously or otherwise, is for the Government to be made accountable to the media for the perceived excesses or errors of war or national security activities. Our system is, instead, intended for that accounting to occur in the context of the Parliament. To be sure, the media’s role and duty is to inform and scrutinise the Parliament. But it is the Parliament’s duty to make laws that enable it to properly scrutinise and demand accounting from the Government of the day, especially in relation to its wartime and national security activities. And if a law is overly broad and oppressive, then it is for an active citizenry to pressure their representatives in the Parliament to make new laws and/or amend old ones.
We are not made secure – indeed we are made much weaker – by promoting a culture of leaking (either by any official toleration or media encouragement). This is encouraging the commission of crimes and, also, encouraging the risk that national security personnel, as well as national security information, will have their safety and privacy endangered. The Government has the duty to account to the Parliament – and it also has the duty to safeguard the lives and interests of those Australians it sends in harm’s way.
Ultimately, it is unlikely that this current episode will change anyone’s minds, sadly. The media, no doubt, has legitimate grievances as to the opaque nature of governmental activities. At the same time, heads of the armed forces and security services chiefs do play a much more public role than they did pre-2001 and have shown a willingness to explain their roles to an interested media and public. In a time of crisis, the Australian people have to be able to both trust their Government and trust their media’s reporting of what the Government and its armed forces and security agencies are doing. A more measured and open dialogue is probably the best answer, long term, and an acceptance that while the Government will not always get everything right, we are also not in some authoritarian era, either. Indeed, the best means of improvement lies with the tools that our Constitution has always provided: the power of the Parliament to hold the Government to account and the power of the Parliament to make news laws and to amend old laws.
One can only hope that a more open and transparent discussion will lead to fewer outbreaks of ridiculous hyperbole and an acceptance that the Government, too, has its legitimate interests. Australians have had 118 years of nationhood, persevering through wars and depressions, times of plenty and times of hardship, and our national endurance will continue to demand an energetic government that can both protect our constitution and free society, and secure our nation and her people.
Tuesday, March 26, 2019
On the 9th of May, 2017, the US President, Donald Trump, dismissed the then FBI Director, James Comey. At the time, there were allegations that Trump’s firing of Comey was related to the FBI’s ongoing investigation of the Trump 2016 campaign and allegations of its links with Russian persons and the Russian state. At the same time, there was, also, a memorandum by the US Deputy Attorney General, Rod J. Rosenstein, recommending Comey’s termination. Trump’s own firing of Comey noted that Comey had told Trump privately that he was not under investigation, something that Comey would later admit was correct.
On the 17th of May, 2017, Mr Rosenstein appointed Robert Swan Mueller III, the former FBI Director, to thoroughly investigate the Russian Government’s effort to interfere in the United States’ 2016 election. The record of appointment can be found here.
It is important to note, here, that:
(A) the Mueller probe was, in its origins, a counter-intelligence investigation that contained a mandate for criminal prosecutions, where necessary and appropriate. A counter-intelligence investigation is necessarily protective – it is focused on identifying and assessing threats to national security, not merely investigating those criminal matters that may be prosecutable; and
(B) in the United States, the counter-intelligence and national criminal investigation functions are combined in the one agency: the Federal Bureau of Investigation. In other Western countries, in particular in the British imperial/Commonwealth nations, the counter-intelligence and national criminal investigation missions are often discharged by separate agencies (eg in the UK, MI5 and the National Crime Agency, in Australia, ASIO and the Australian Federal Police, and so on.) There is much sense in separating the functions, if only because these agencies have very different cultures and the sorts of people who excel at counter-intelligence work are, very often, the sort of eccentrics and social misfits who would, rightly, never be accepted as agents and officers of any respectable law enforcement body.
Keeping both (A) and (B) in mind, we come to now, late March 2019, and Mr Mueller has submitted his report as Special Counsel to the US Attorney-General, William Barr. The Mueller Report's contents remain undisclosed and, one expects, will require significant declassification and/or redaction before any part of it can properly be released.
On the 24th of March 2019, Mr Barr, as the Attorney General, supplied a synopsis of the Mueller report to Congressional leaders (see here), and its two key findings:
Firstly, Mueller cleared Trump and his campaign of conspiring or coordinating (a distinction without any real difference) with the Russian Government. While the Special Counsel did charge a number of Russian military officers with cyber/computer hacking for the purposes of influencing the US 2016 election, the Mueller investigation did not find that Trump or his campaign were party to the Russian effort – and “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign”. At the same time, while the Mueller probe may not have found evidence that established or supported any conspiracy, it is likely the counter-intelligence aspect of the Mueller probe has commenced or followed leads in respect of Russian and other foreign influences that will probably be run-down over the next few years if not decades. Mueller, as a former FBI director, was uniquely well-suited to oversee such a probe.
Secondly, Mueller left the issue of whether President Trump’s behaviour evidenced “obstruction-of-justice concerns” at large. It is unclear what the alleged obstruction was: was it Trump's intercession for Lieutenant General Michael Flynn? Was it Trump firing former FBI Director James Comey? Or was it Trump attacking the Mueller probe? Or something else? Was it Trump denouncing the probe as a “witch hunt”? (The last of which may be unwise and against legal advice, but is arguably something Trump is as free to do as anyone else). So, the obstruction issue became one for the Attorney General to determine. Thus it came to be that both the Attorney General Barr, and the Deputy Attorney General Rosenstein, “....concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” More than anything else, Rosenstein’s concurrence in this conclusion is critical, here. Rosenstein had both (A) advised Trump to fire the former FBI director James Comey and (B) had initiated and supervised the Mueller probe. Rosenstein would be the one US Government official who would be charged with pursuing, as well as the key government witness to, any allegation of obstruction. While there is no gainsaying the idiocies that any Congress will engage in, the legal question of obstruction was negatived by Rosenstein’s express concurrence. [An interesting question, also, arises here, as to whether Mueller could have formed an independent view on the facts. Mueller was interviewed by Trump for the position of FBI director on 16 May 2017. It seems highly likely that Mueller would, at that interview, have become acquainted with Trump's views on Comey and why Comey was fired. It is also highly likely that Mueller has his own views of Comey, which may well have changed during the Special Counsel probe. Another question for another day.]
As a matter of full disclosure, you can find all my comments on the Mueller probe here and you will note, and I take no satisfaction in saying this, that, as early as the 15th of June 2017, it was clear, on the evidence, that Trump would be cleared. Moreover, as a matter of common sense given the colandar-like US system, does anyone seriously believe that if there was evidence of Trump and his circle conspiring with the Russians, it would not have leaked long ago? Donald Trump could barely coordinate with his own presidential campaign-why would any sentient being think Trump would be able to conspire with the Kremlin and keep it a secret? This is not to say that Trump's campaign was not a magnet for grifters, drifters, people other GOP campaigns would not hire, as well as those with suspicious pasts, including Russian associations - Trump's campaign had all of those sorts of characters. But the idea that Trump, of all people, with his penchant for bombast and inability to keep a secret, would be the Kremlin's idea of a useful dupe, is rather at odds with the history of Russian subversion.
This all said, though, in the best traditions of the “wilderness of mirrors” that is the arena of intelligence and counter-intelligence work, as well as the slow drudge of a criminal investigation and prosecution, the question inevitably arises, ‘what did we learn’? In answer to this question, I say the following.
Firstly - and this did not require anyone of the stature of Robert Mueller to investigate - American politics is open to a degree of corruption and influence by foreign moneyed interests and foreign intelligence services (often the same thing in many countries) on a scale as great as, if not much worse than, any other first world country. The American republic, while it has so much to admire in its design and founding, is, in 2019, possessed of a political class that Russians, like the Chinese, Ukrainians, and a host of others, know is open to corruption, intelligence dangles, and compromise/kompromat. (Even Australia, felt it needed to donate money to the Clinton Foundation.) The Paul Manaforts and Podesta brothers and others are but archetypes of a notorious American cohort of political vagabonds. One hopes that the United States has now learned a valuable if painful lesson on why the swamps of professional politics are best drained permanently. One doubts, however, that anything will be done by a political establishment that is happy to be at least rented, if not bought. One foresees, instead, that the Russians, Chinese, and other malefactors, will simply see the Mueller probe as deterring them from doing nothing but seeking a smarter variety of traitor and useful idiot to now suborn in the future, and, especially, for 2020.
In the Russian case, their historic practice, going back to the Tsarist Okhrana, of spreading disinformation, fake documents, sowing domestic chaos and distrust, means that the Kremlin’s appetite for destruction has only been whetted by the hysteria and insanity of America’s political class and media over the past three years. The clearly desired Russian effect of a divided and suspicious America was achieved beyond Putin's wildest dreams. While I have long counselled a realistic and historically informed approach to the Russian threat, given that the cold war is now long over, anyone thinking the Russians, or the Chinese and Iranians, have not seen here a real vulnerability for exploiting America’s domestic divisions, at very little real cost, is deluding themself. Unless and until the United States takes seriously its duty to its own people, to protect them against foreign influences and the rampant political and lobbying corruption that enables its spread, the future of American domestic politics is what we have seen recently. And every US ally should be extraordinarily concerned by the sight of this great and powerful republic whose political class is seemingly unable to protect America from meddling by malevolent foreign adversaries.
The case of the Steele Dossier and how this tract found its way into the FBI's hands is endlessly fascinating and disturbing. This anti-Trump dossier, full of the most sordid and lurid details of Trump's alleged activities, was compiled by the former British intelligence operative Christopher Steele, relying on local Russian sources, for the benefit of anti-Trump forces in US politics. The fact that Steele had not been in Russia since the 1990s, and Steele had no way to verify his alleged sources and whether any part of the dossier was or was not true, was neither here nor there. For a certain segment of US politics and media, the fact that the Steele Dossier was anti-Trump, even if it was otherwise the stuff of fabulism, was enough-they 'wanted to believe'. The fact that an apparently experienced Western intelligence operative like Steele could be so naive as to not see how ripe a target he was for Russian disinformation is simply bewildering. Even now, the Steele Dossier remains a still unverified product of opposition research yet, as set out below, it found its way into the FBI's hands and was briefed to Trump by Comey in early 2017. The question of whether the (known to be unverified and scandalous) Steele Dossier formed any part of the evidentiary foundation for a surveillance warrant obtained from the US' FISA courts is a matter that remains at large, and, if proved so, would be a matter that would see any lawyer in any other common law jurisdiction, seeking to move the court ex parte on the basis of Steele's dubious chronicle, disbarred or struck off. The Steele Dossier was the recycling of political skulduggery into an allegation of facts that would poison US politics from 2016 on and was a disinformation success beyond the Kremlin's wildest dreams.
Secondly, and further to the above, something clearly went badly wrong with the US Intelligence community in 2015-2016 and, most especially, with the FBI in the Comey era. The conduct of the former Director of National Intelligence, James Clapper, and the former CIA Director, John Brennan, was nothing short of deplorable and, in Brennan's case, disgraceful in retirement. However, something was badly awry with Comey and the FBI. It is not just that James Comey was weak with respect to baulking at prosecuting Hillary Clinton, and a pathetic presence online. He seems to have been, at best, the FBI’s invisible man. It is not just that so much of the Comey-era FBI leadership has been fired or terminated for cause, or referred for criminal prosecution. If it was well known to the FBI in 2015-2016, such that it then commenced the Crossfire Hurricane investigation, that the Russians were seeking to insert themselves or their agents into the orbit of the Trump campaign (and, given Russian enrichment of the Clintons over the years, one cannot be sure it was only the Trump campaign), the FBI had an undeniable and positive duty to defensively brief Trump and his senior aides. There is, simply, no excuse for the FBI leadership’s failure to warn Trump and his campaign of what the FBI leadership then already knew were destabilising Russian machinations. It is difficult to think of another first world country where the national counter-intelligence agency would not have acted to protect a threat to a national political campaign. It is difficult to think of any serious counter-intelligence professional in history who would have behaved as Comey and his coterie did in 2015-2016. In the UK, for example, the security services are a not uncommon if subtle advisor to political leaders, especially where dubious backbenchers and mainchancers are associating or have associated with the wrong sorts of ‘Johnny Foreigner’. In Australia, ASIO will make public statements to warn of foreign influence, especially the Chinese in recent years. The French, also, are particularly zealous at protecting their domestic politics from foreign intrigues. Somehow the FBI of the Comey era went missing in action as a concerted - if not overly large, expensive, or sophisticated - Russian campaign to sow chaos in an election year went into top gear. The FBI’s handling of the notorious Steele dossier, almost certainly the product of current and former Russian intelligence operatives, where it was taken seriously enough for Comey to brief the US President-elect in January 2017, is a matter for another day but suggests an FBI with major problems.
(One suspects that Clapper and Comey briefed Trump on the Steele Dossier to both inform the incoming president but, also, one infers, as a means of suggesting to Trump this duo had 'one over' on Trump...little did either realise that Trump's careeer spent in property development prepared him unusually well for dealing with stand-over men and how they are best 'fired' when attempting to extort.)
Thirdly, on any view, the US news media has utterly disgraced itself at every step of the Mueller probe. It was clear to anyone who could read plain English that Mueller’s probe was intended as a counter-intelligence probe into Russian activities in the 2016 election, not a mission to remove Trump from office. The all but obsessive belief in the US media, with all too few honourable exceptions, that Mueller was, indeed, the means by which their bête noire Trump would leave office in disgrace if not under actual arrest, has destroyed what little remaining credibility that the US media enjoyed after its embarrassing bias during the Obama years and the Hillary campaign. That Trump won an election that the media overwhelmingly opposed him on was Trump’s unforgiveable sin. That, on balance, even the hyperbolic ‘Don from Queens’ Donald Trump was far closer to the truth as to the veracity of the allegations against him than almost anyone in American journalism was – not to mention a US media whose cable news green rooms were populated by former American security eminences sullied by the Iraq war - should provoke some serious soul-searching. To its credit, many independent and even left of centre journalists (who I would probably disagree with on most things) did ask questions and refuse to join the media herd, with Matthew Taibbi’s brutal but deserved account a 'must read' from this debacle. The lion of the conservative American media establishment, Brit Hume, was right to describe the media coverage as the "worst journalistic debacle of my lifetime". The US media needs its own reckoning. I say this with no relish but, instead, with regard to the vital role that a serious and independent media plays in informing the public and in holding governmental power to account. If the media is now so rotten and agenda driven, then not only will these crucial public duties go unperformed but, when a crisis inevitably occurs, there will be no media in which the public can have any confidence. Finally, hopefully, conservatives who believe in the rule of law will have learned to be sceptical of rushes to judgement based on institutional trust not actual evidence, and will be cautious before joining any future pile on of a Democrat placed in Trump’s position.
Fourthly, for all of the United States’ current travails, it should take enormous pride that it can still produce a public servant of the calibre of Robert Mueller. I have enormous personal regard for Mueller. Yes, he was and is, to borrow the nonsensical terminology of our time, a son of ‘privilege’, a ‘prep’, but he was also that rare member of his cohort who volunteered to serve in the Vietnam War that so many, including future US Presidents, did their best to evade – and Mueller served there with distinction as a Marine officer. Mueller then, also, eschewed a lucrative career in private practice to take prosecutorial positions in the service of the public interest. On any view, Mueller is a heroic figure and only the more so for his willingness to disappoint the baying mobs and political hacks. Hopefully, for the US’ sake, there are other Muellers out there, who will avoid partisan politics, and the temptation to play for applause from the gallery, and instead doggedly follow the evidence where it leads and, if it is insufficient, be satisfied to publicly clear, rather than bring a false prosecution. Robert Mueller is a living reminder of the sort of diligent, quiet, self-effacing, and American “wise men” who created the American century, and who built and led a superpower.
Finally, the full truth of the Mueller probe, especially its counter-intelligence aspects, and its related issues will likely never be known. Moreover, the personages involved have still never been asked questions on what really happened in 2015-2016 in any exhaustive manner. It is as if a narrative took hold that few if any in journalism or academia wanted to question. As a wise Crown Prosecutor once said to me, “Even the greatest of crimes is but a mere chronology”. In March 2019, even with Mueller’s report now submitted, it is still entirely unclear what actually happened – when, where, who, how, etc and why - during the late Obama era. It is hard to make sense of a counter-intelligence probe whose history only gets more confusing - not more clear - over time. None of this invoved Robert Mueller. But further questions only arise from anyone looking back, fairly, at the history of the "Crossfire Hurricane" probe and the bizarre set of circumstances that led to the Obama-era FBI probing the Trump campaign, especially after the truly sham-like decision of the FBI to allow Hillary Clinton to escape prosecution.
My own particular curiosity is the evidence that would be given by Admiral Michael S. Rogers, USN, the former head of the US’ National Security Agency. After the US election, in late November 2016, Admiral Rogers went to meet the then President-elect Trump in New York City. Very unusually, Admiral Rogers went on his own to meet Trump. Usually when intelligence chiefs meet with a senior political figure, let alone a president-elect in the American system, they will attend as a phalanx, not just to provide a comprehensive briefing to the dignitary but, also, to ensure that each has a witness as to what was actually said. Instead, Admiral Rogers went on his own to see Trump, ostensibly about a job in the new administration. If anyone in the US Government at that time would have been very well aware of Russian hacking and kompromat, it would be Admiral Rogers. Yet, Admiral Rogers went to meet Trump, on his own, and to this day, what they discussed has never been leaked. Perhaps it was just a job interview? Perhaps it was just an informal briefing? But, nonetheless, after Admiral Rogers met Trump, there were calls from within the outgoing Obama administration for Rogers to be fired. And, moreover, Admiral Rogers was the only senior intelligence figure of that Obama era to have then been kept on by the incoming Trump administration, and to have retired from government service with all due honour and dignity.
Whatever Admiral Rogers (and those of that circle) knows of this critical 2015-2016 period is a matter for others to question but, until, especially, he and others write their memoirs or are subpoenaed to produce documents and testify, the full history of the late Obama era, the FBI, and the Russian threat, will still elude us all. Until the intelligence and policing heads are probed at length on the chronology of all these matters, from the Russians to the FBI’s conduct, nothing approaching a reliable history of this 2015-2016 descent into Moscow Centre-induced madness can be written. Hopefully, with Mueller now reporting in, that timeline can now start to be assembled, by vigorous, curious, and unbiased, journalism of the kind that has been so woefully absent for the past 4 years. We should all hope this will happen, especially as, after all, if you have spent years stumbling around the ‘wilderness of mirrors’, you can only start to find your way out by first breaking glass.
Sunday, January 27, 2019
Needless to say, morale in much of the Church in 2019 is low. But what else should, reasonably, be expected? Given that the past 25+ years has been a hard time for Catholics, especially those in the formerly Protestant, Anglophone, world, where the Church has been damaged - entirely justifiably - by its seemingly endless sex abuse scandals. It cannot be overstated just how much the moral filth of sex abuse and its covering up has disfigured the Church. The repeated scandals, the gravity of the crimes, the seriousness of the sin, and the sense that one’s church was not the solution to any problem but was the problem, has caused so many Catholics to question their hierarchy and, even, put their own faith on a time out.
This scandal-induced demoralisation has been compounded by the general post-Vatican II sense among many Catholics, for some time, that no one is all that sure what the Church still teaches, what is essential and what is optional, and even whether the Pope, himself, was, per the old joke, still a Catholic. One can exaggerate these problems, of course, and the rot that has infested the Western or Latin/Roman-rite of the Church has not been true for the universal Church, especially in central and eastern Europe and Russia, as well as Asia and Africa.
Thankfully, while the post-modern Church may have its issues, the ancient Church’s 20+ other Rites continue to march the ‘church militant’ onward and upward, if not always at the same speed. I pass over issues in the Russian and Chinese branches of the Church, here, for reasons of brevity and because, as Zhou Enlai said of the French Revolution’s effects, it remains too early to tell what will happen. As the wise Jesuit says, “If the question is who runs the Church, who is in Hell, or when does the world end, those are Management decisions and we are in Sales.”
This said, among the Anglophone laity, while there has been a steady but sure decline in Sunday Mass attendance, and numerous examples of terrible catechetical teaching, Catholics continue to identify as such despite enormous temptations to defect elsewhere or go for a ‘spiritual not religious’ identification. Moreover, while all these storms have rocked the barque of St Peter, the Church still performs, throughout the world, its "good works" and historic mission of operating schools, hospitals, shelters, universities, clinics, and receiving and resettling refugees of all faiths and all nationalities in enormous numbers and with an effectiveness beyond, and at a cost significantly below, that done by secular bureaucracies.
As a cradle Catholic (albeit with Presbyterian ancestry), I take as much of this as I can in my stride, as no doubt my ancestors did. The Church will always be imperfect, as humanity is fallen, and prone to Sin. As the book of Ecclesiastes both promises and warns, “What has been, will be again, what has been done - will be done again; there is nothing new under the sun” [Ecclesiastes 1:9].
Taking a step back, it is difficult to overstate how supranational the Catholic Church is: it is in every country on earth, and usually well before that territory was its own nation-state. The Church is truly universal and if one is after true ‘diversity’ in one’s religion, then go to any Mass at the Vatican or, indeed, in Sydney or London or New York, where sitting next to each other in the pews, one will find bankers and paupers, peers and commoners, lawyers and former convicts, ancient landowners and new immigrants, all reciting the same creed and exchanging, usually awkwardly, the same sign of peace, while singing badly to really terrible modern hymns. In our parents’ generation, and both of my late parents were Vatican II refuseniks, it was even more universality amid diversity: all of this would have been said and done the same, in Latin and had incense, wherever you were in the world, in line with the Mass of Pope Paul V of 1570. The Catholic Church was described by someone as, “Here comes everyone”.
For all these good works and for all this ‘diversity’, like its Orthodox brethren - and unlike all too many protestant churches - Catholicism has steadfastly refused to ‘evolve’ or apostatise itself on the issues of the day. On abortion, on euthanasia, on marriage, Catholicism, even now amid the current storms, has not capitulated to fashion or surrendered to what is fashionable. While Pope Francis has been attacked from within his own Church, often unfairly, there has been no Pope in my lifetime who has more vehemently denounced abortion and spoken for life than the current Shepherd. The deposit of Faith has been kept secure and, for Catholics, the fact that, looking back over two millennia, even the worst Popes did not alter the Church’s doctrine, especially in this day and age of weak bishops and episcobabble, is a source of great and enduring comfort. Moreover, there were also, always, good Popes conferred on the Church to guide it through the worst of times.
As the Western world changes and its public morals revert to the pagan norms of the pre-Christian world, the Church, battered and bruised, to be sure, still stands as a sign of contradiction. As the ageing St Paul wrote to his protégé Timothy, “I am giving you these instructions…so that by following them you may fight the good fight, having faith and a good conscience. By rejecting conscience, certain persons have suffered shipwreck in the faith” [1 Tim 1:18-19]. Indeed, a gaze over at 2019’s Church of England gives a sense of what the ‘shipwrecked’ future may have been had Popes listened to the zeitgeist: a shrinking church, which has routinely given into fashion even at the risk of schisms, now even offering re-baptisms of the human person to celebrate their new transgender identity. Where does this end?
While morale may be low and the current cohort of bishops often disappointing, the Church itself still has its laity which, having had its faith and loyalties tested by appalling scandals and lax governance, still turns up and still stands up. The laity turns up to march for life, to fight against abortion, to argue for the dignity of those so ill they cannot fight for themselves, and to fight for causes so unfashionable and so obnoxious to our times that one cannot but be in awe. The Catholic royalty, aristocracy, and intellectual leaders still hold the shepherds to account to protect the fundamental teachings of the Church. And in doing so, the Catholic laity gives witness to what the Psalmist said, “The sum of your word is truth; and every one of your righteous ordinances endures forever.” [Psalms 119:160] In this sense, then, especially as liberal Boomers pass from the Church's leadership and bureaucracies, thankfully leaving no heirs, the Church’s future is probably better than it may look now.
Indeed, in a Western world where the liberalism of the Tarpeian Rock awaits those who, in their conception, their sickness, and their mortality, will be or are burdens on ‘the pursuit of happiness’, the Church must be – indeed, it can only ever be – in the most vehement of opposition. The Church is, again, not just in opposition to the world but will be, again, a missionary church, as well as Pope Francis’ “field hospital” for the wounded. After all, as Jesus said to His disciples, "If the world hates you, know that it has hated me before it hated you." [John 15:18] For a Church in opposition, there is no greater assurance than this that its battle is the most thoroughly righteous one in which it can engage.
The Church went through tremendous scandals and reforms in the 16th century. Even then, its standard could still be carried forth by St Ignatius of Loyola and the new Jesuit order that he founded. Of the Jesuits’ number, the figure of St Edmund Campion loomed large and still looms large in the Anglophone world.
St Edmund Campion was a child prodigy and an Oxford student of such ability that he gave the speeches welcoming both Queen Mary and Queen Elizabeth to the university. Campion, while a nominal Anglican, would, through his studies and the divine will, find his way into the Church, where he would go to the continent and Rome to join the Jesuits, be ordained a priest, and then return to his native and newly protestant Elizabethan England as a missionary priest in 1580. It was not a long mission, and Campion was soon caught by the Queen’s spies and tortured. While offered many inducements by the Queen’s councillors to return to the Church of England, Campion stood strong in the Faith and, as a physically broken man, was brought to a show trial in 1581. All of the details of Campion’s trial are gory and unjust, and Campion was, inevitably, found guilty, sentenced to death, and then executed at Tyburn, as so many British saints and martyrs were during the Protestant ascendancy. Campion, however, left us with the closing words of his famous “brag” of 1581 where he challenged the Privy Council that was meeting to decide Campion’s fate. To the Privy Council, Campion closed:
The expense is reckoned, the enterprise is begun;
It is of God; it cannot be withstood.
So the Faith was planted;
So it must be restored.
From opposition to restoration is a worthy mission. So, my fellow Catholics, welcome to another Kulturkampf. As Pope St Leo XIII wrote in Sapientiae Christianae, "Christians are, moreover, born for combat, whereof the greater the vehemence, the more assured, God aiding, the triumph".
Keep the Faith!
Friday, November 9, 2018
One of the many benefits of having practised and taught constitutional law is you will possess insights into matters of current controversy, not just in your own jurisdiction but in the historically ‘parent’ jurisdictions that inspired one’s own, in my case, the Commonwealth of Australia.
One of my first questions to those new to Australian constitutional law is, "why do we speak in terms of the nation being constituted by a basic law?" and "who is doing the constituting?" of the nation-state. These are not idle questions. While Australia was a rugby and cricket team before it was a federated nation, Australia only has a legal existence because its Constitution, literally, constitutes the Commonwealth of Australia. How and why this new nation was constituted are matters of critical significance.
As Australians, with our “WashMinster Constitution", wherein American-style Federalism (the Washington part) coexists with British parliamentary institutions and norms (the Westminster part), we have to always acknowledge the various inspirations for own basic law. The Australian founding fathers in the Federation movement were inspired by Canadian and American experience, and to some degree the Swiss republic. In particular, there was high regard among the Australian founders for the Philadelphia Convention of 1787 and the genius of the American founding generation, in particular Alexander Hamilton and James Madison. Like the American founders, the drafters of the Australian Constitution in the 1890s were conscious that they were uniting disparate British colonies who inhabited a massive island continent plus Tasmania (The distance between Sydney and Perth is greater than that between London and Moscow). In the words of Sir Edmund Barton, the first Prime Minister of Australia and later a Justice of the first High Court, "a nation for a continent and a continent for a nation". The new national Constitution and the national government for which it provided were particularly required to ensure the national security and economic prosperity of those who would become the Australian nation. At the same time, like their American inspirations, the colonial Australians adopted Federalism as the device by which the several colonial polities would unite – or ‘federate’ – as one “one indissoluble Federal Commonwealth under the Crown” per the Constitution's preamble.
The genius of Federalism is that it allows for a geographically and disparately, and even quite differently, populated, nation-state, to hold together, despite the inevitable frictions between its members. Federalism literally provides unity in diversity. Federalism provides a mechanism for people to share a common nationality without unduly sacrificing the big to the small, or the rural to the urban. By allowing representation by differentiated seats and territories, Federalism assures the localist that his or her membership of the larger nation does not negate the right of the province to govern itself and, also, assures that the smaller region's voice in national affairs will count for something, and not be drowned out – or dictated to – by those who may form a notional electoral majority.
The concern of Federalism is to establish a functioning and federating polity that distributes power along the lines of geographic territory and not the national populations per se. Its primary concern is to keep the federated state together, to keep 'those compacted in the compact’, to borrow from a great judge’s words. Democracy in some form is important but it is a specific form of democracy within the constituent provinces of the Federal structure and not democracy across the Federal structure.
[The alternative to Federalism is not some harmonious common democracy but, likely, a brief dictatorship of the urban majority, which will be followed, in due course, by provincial rebellions.]
It has been hard for the curious observer, with even the most basic knowledge of civics, to avoid noticing, in the American context, numerous appeals by the political media and Democratic partisans to something called “the national popular vote”. I have catalogued such irrelevant appeals to the "popular vote" on Twitter.
These appeals are usually followed by complaints regarding the asserted unfairness of the American federal compact, whereby, since the United States was founded, each State elects two senators, regardless of whether a State is a large woke-polis or some small rural enclave of hicks, “rubes”, or townies.
However, these results are Federalism doing its work in an American republican context, and, in particular, ensuring that the many smaller and rural States do not have their voices drowned out by the few large and urbanised States.
Indeed, in the case of the American founders, they purposely:
• established the United States of America (not the United People of America...one presumes the States were united for a reason);
• enshrined equal senatorial representation in the US Constitution: “The Senate of the United States shall be composed of two Senators from each State” (Article I, Section 3(1));
• established equal senatorial representation to the degree that no American state “without its Consent, shall be deprived of its equal Suffrage in the Senate” (Article V), ie where there any doubt as to the importance of Federalism, the founders created a super-resistant amendment process if ever there was one; and
• established an electoral college (membership determined by each State’s own elections for presidential electors) to, in turn, elect the President and Vice-President, who are the United States’ only two nationally elected executive officers (Art II, Section 1). And if the electoral college is deadlocked and cannot elect a President and Vice-President, then it falls to the House of Representative...which, in the best traditions of constitutional federalism, then votes for President and Vice-President by state delegations and not by party line or any sense of a popular vote, per the Twelfth Amendment.
The concern of the American founders was to ensure that the component States remained united, in a form of government robust enough to survive and govern an expanding American territory, without allowing populated urban centres to dominate regional and rural states. The secessionist movements at the time of the war of 1812 and especially the Civil War show just how dangerous it is to expect that federating nations will always be able to hold together.
The wisdom of the Federalist proposition was accepted by Australia and Canada, which are both constitutional monarchies and federal nation-states. Both adopted the bicameral British Westminster parliamentary system, in which there are two Houses, as a lower elected House (House of Representatives (Australia), as well as a Senate as a House of review.
In the House, the nation is divided into electoral districts/seats/constituencies/ridings on the basis of representing a given territory containing electors for that seat. These seats' boundaries are often redrawn in order to meet population shifts and, in Australia’s case, to provide for, roughly, 150,000 residents and 100,000 voters in each seat.
In a Westminster system, the Executive power is vested in the Crown and the Executive (ie the Prime Minister and Ministry) is drawn from whichever party or coalition has the confidence of the lower House.
While the House’s responsiveness to each individual seat’s electors may be the most democratic element of the Westminster system, especially as these seats determine who will form the government, even then it should be noted, that even the most careful drawing of territorial boundaries for each seat will still provoke some grumbling.
With regard to Australia, the Constitution (s.24) guarantees to each of Australia’s Original States (ie New South Wales, Queensland, Victoria, Tasmania, Western Australia, and South Australia) that they will have a minimum of five (5) House seats, regardless of population movements. Given Australia’s population distribution, and any decline in especially the Tasmanian population, the constitutional guarantee of still-sparsely populated Tasmania having at least five House seats may, in due course, become an issue for some. (As a long time support of Tasmania, if this helps keep Tasmania happily within the Australian federation, then I say Federalism is doing its job.) Moreover, House seats boundaries are limited to those of their State, and may not cross State borders, another example of the Federal nature of the Australian Constitution (per s.29).
Moreover, both Australia and Canada have Senates that are populated by senators that represent States or Provinces. In Australia’s case, each of Australia’s States have an equal number of Senators, regardless of population. Indeed, Australia’s constitutional design is so Federal that the Queensland Parliament had a special carve-out, should it wish to, to elect its Senators to represent specific senatorial electorates within that State (s.7), albeit one never exercised. In Canada’s case, the Senate is not even elected but is instead, in effect, appointed by the Crown on the advice of the Prime Minister of the day, to represent designated provinces and regional areas. None of this is democratic per se but, instead, serves the Federalist interests of making sure the federating parts of the nation-state have their voices heard and representatives in the national parliament to protect the interests of their constituent States, provinces, and regions.
Finally, in Australia’s case, the Constitution can only be amended by national referendum (s.128). Even then, a national majority of electors is insufficient – rather, a proposed constitutional amendment must not only win a national popular vote majority but must win a majority of the vote in a majority of the states. There is no more persuasive indicator of Constitutional Federalism than this requirement. The Australian Constitution's provisions for House representation and Senatorial representation also cannot be altered without the consent of the electors of the States that may be affected at the referendum, thereby replicating the United States’ requirements for constitutional amendment in Article V as regards its States.
The process for amending the Canadian Constitution is at least as Federal and, arguably, even more complex than is the case for the Australian Constitution.
The Future of Constitutional Federalism
No one is ever happy to lose an election. Some are even distressed when they win them. Nonetheless, those contesting elections in specific seats and regions are well aware of the legislative offices that they hope to occupy and what specific electors they are seeking to and, if elected, will be serving each day they are in office. And this is the whole point of Constitutional Federalism: when you run for a House seat representing a constituency or district or you run for a Senate seat for a State or a Province, you are running as a candidate to represent that specific territory and its people in an office provided for by a Federal constitution.
Under a Federal Constitution, you are elected as a territorial representative of a constituency or district or State, to serve that territory's people and to represent their interests, however great or small in size or people. You are, expressly and by intent, not elected as some national, partisan, apparatchik-at-large, who is only there to help enact the herd-like will of the “national popular vote”.
Direct democracies may seem, at first glance, fair, depending on whether or not you like the result, but, over time, they fall, inevitably, apart, especially as a few highly populated metropolises overawe the many sparsely populated towns, villages, and hamlets. Overtime, what could have been a common federal citizenship will become a disputatious unitary polity of electoral winners and losers, of rich versus poor, of town versus country, which will, when the aggrieved are denied representation, lead to political fragmentation, if not rebellion. A direct democracy for a large and diverse nation will provoke only resentments and entrench divisions.
Federalism is the ethos as well as the pact that disparate peoples inhabiting large constitutional states have made amongst themselves, in order to share a common national citizenship, while having their own voice and keeping their own patch. It allows for both necessary subsidiarity as well as for a natural loyalty to the larger nation, in the way that Edmund Buke’s ‘little platoons’ help build up the human society.
To borrow from the Americans, out of the many may, indeed, come one, but that for that one to survive times of war, depression and tumult, and to remain unified, then that one must, in its national legislature, accept that it is a unity composed by the many - and all of the many deserve to have their voices heard.
We live in a time of much anger, partisan rancour, and also much emphasis on ‘diversity’ and allowing people to determine their own courses in life. Federalism is thus not the problem – it is the answer. And while we Anglophones will always require strong central governments to secure the nation and protect its interests, we also need space in our national legislatures for those in the small town, the forgotten region, and the small and neglected province, to also have their say, and to ensure that no section of us is lost in the country that belongs to all of us together.