Monday, March 29, 2004

Suspicion is not enough

NZPols takes issue with my objecting to proposed SIS powers. Unfortunately she seems to have missed all that stuff at the bottom about "reasonable limits that can be demonstrably justified in a free and democratic society", preferring instead to allege an absolute position and focus on my distrust of the SIS. So I guess I'll just have to expand my point a little...

Of course we can restrict the movement of people who are in jail (or those who are awaiting trial and may be a flight risk, or those who are insane enough to be a danger to themselves or others) - those are certainly reasonable limits in a free and democratic society. Could national security concievably provide a reason for restricting travel? Of course it could. The problem though is that these proposals put power in the hands of a body which has been shown to be incompetent, and has some fairly strange ideas about what "national security" means (it's all about spying on unions and burgling the homes of political activists, judging by their past behaviour). And this points to another key problem: that there is no independent oversight, no uninvolved pair of eyes looking at the question.

To go back to the example of jail, we do not let the government imprison people without trial. Such power is simply too open to abuse (and the abuses too terrible) for them to be trusted with it. Instead, we demand that they present their case before a judge, and prove it beyond a reasonable doubt to a jury.

(Unlike NZPols, I have no faith in the leader of the opposition as a sufficient safeguard. A party which denounces critics of increased SIS powers as "cringing, screaming lefties" has as much as indicated that it does not care about the human rights of the very people it would have to protect).

Unfortunately, lack of independent oversight isn't the only problem here. The chief one is that restricting travel is punishment before the crime. We don't allow the police to lock people up because they "might" commit a crime - you have to do something first. We allow conspiracy charges where there is strong evidence of active plotting, but the police don't even get to take it to court if all they have is vague suspicion or a belief that someone is a "bad person". Why not? Because it would be fundamentally unjust. The bar to allow such an injustice must be very high indeed, and where there is danger of abuse we are better (and in fact have repeatedly chosen) not to take the risk.

Intelligence by its nature deals in uncertainties and probabilities. But if vague fears and paranoia aren't enough to restrict people's freedom after the fact, then there is no way they can justify such restrictions before a crime has even been committed. Suspicion simply is not enough. If the SIS has real evidence that a New Zealander is going to travel overseas for some nefarious purpose, then they can fucking well lay charges (for conspiracy, or fundraising, or membership in a terrorist organisation); if they don't have evidence, or their "evidence" is of the quality so-far demonstrated, then they'll just have to do their job and gather more.