One of my most vivid childhood memories was watching my city burn.

In July 1967, when I was nine, my hometown of Detroit exploded in what was then the worst urban riot in American history. Some 43 people were killed, mostly shot by police or jittery national guard troops sent in to quell the unrest. More than 1,000 were injured and property worth tens of millions of dollars was damaged. Most of the neighbourhood stores were burned to the ground.

Detroit in ’67 presaged the white flight to the suburbs, the hollowing out of one of America’s great cities, and the mass rioting that struck other major urban centres in 1968 following the assassination of Martin Luther King, Jr. The urban unrest led to the election of the law-and-order candidate, Richard Nixon, as president. Ironically, Detroit was spared in ’68 because of riot fatigue and as the beloved Detroit Tigers baseball team went on a miraculous run to win the World Series.

The proximate cause for the Detroit riot, which black Detroiters refer to as a ‘rebellion’, seems eerily familiar today. The spark was a police raid on an after-hours drinking joint, known as a ‘blind pig’, on 12th Street, where black veterans from the Vietnam War were celebrating their return.

The raid was unnecessarily provocative. Detroit police then were seen by most blacks as a brutal occupation army, much like urban cops today. Some officers rode in four-man teams in an unmarked black Plymouth; they were known as ‘The Big Four’. If you saw them, you went inside quickly, because their job was to hunt and beat down black troublemakers. One white police chief who later ran unsuccessfully for mayor, John Nichols, was nicknamed ‘Blackjack Nichols’ for the truncheon he used to beat down unruly blacks.

After the Detroit riots, President Lyndon Johnson established a commission on civil disorder, led by Illinois Governor Otto Kerner, which concluded that America in 1967 was ‘moving toward two societies, one black, one white—separate and unequal’. The Kerner Commission blamed systemic white racism and economic inequality for the violence. It advocated diversification of all-white institutions including the police, which the report said had become militarised, and the news media, which failed to adequately represent America’s growing communities of colour.

Now, 53 years later, I am looking at the unrest from afar and considering how little has changed. Watching that heart-rending video of a white police officer—hand in his pocket, sunglasses perched on his forehead—nonchalantly kneeling on the neck of a black man, George Floyd, murdering him in broad daylight, I am reminded of how black lives are still expendable.

Of course, there has been enormous progress. In 2008, America broke a racial barrier that I never believed would be crossed in my lifetime, when a black man, Barack Obama, was elected president. There are now more black elected officials, CEOs of major corporations, judges, academics, entrepreneurs, millionaires and journalists in the US than ever before.

But all that progress has not been enough.

Police brutality remains rampant, evidenced every day by scenes of unarmed protesters being dispersed with tear gas, rubber bullets and batons in dozens of cities across America. What has changed is the ubiquitous use of mobile phone video to record police actions—shoving a 75-year-old man to the ground in Buffalo, driving their SUVs into a crowd of protesters in Brooklyn or clubbing a demonstrator in the head with an iron rod in Philadelphia.

In Hong Kong, which has been wracked by pro-democracy protests for a year, I have regularly decried police violence against largely peaceful demonstrators—firing tens of thousands of rounds of tear gas, pepper spray and rubber bullets, and beating and stomping on the hands of unarmed activists, most of them already handcuffed and subdued. Now I’m seeing the same kind of violent police behaviour in dozens of American cities, and it’s even more shocking because I expected better.

Since the Detroit riot and the Kerner report, police forces across America are now more representative, with more black officers and commanders. But they still don’t look like the populations they purportedly serve.

Data collected by the Washington Post found that in Wayne County, Michigan, which includes the city of Detroit, the population is 49% white, but the police departments are 78% white. In Prince George’s County, Maryland, next to Washington DC, the population is 12% white, but the various police forces are 38% white. The Bronx in New York is less than 10% white, but 33% of the police are white.

What also hasn’t changed is the militarisation of American police forces—a consequence of US wars in Afghanistan and Iraq, and a government policy launched in 1997 to give surplus military gear free to civilian police. Up to 2014, some 8,000 local police forces received more than US$5 billion worth of combat gear better suited for desert warfare than urban streets. Obama suspended the program in 2014 after the police shooting of an unarmed black teenager in Ferguson, Missouri, but President Donald Trump revived it.

As Americans recoil at the horror of Floyd’s murder and continue to demonstrate for racial justice, the world has taken notice. Demonstrations have spread around the globe, from London to Melbourne. Nothing less than America’s international image and clout are at stake.

Systemic racism has for centuries kept America from living up to its promise and mission to promote human rights around the world. The US has consistently held itself up as the world’s moral beacon. But it has constantly found its message undercut by how it treats its own citizens of colour at home.

America entered World War II to help free the world from fascism and promote President Franklin Roosevelt’s ‘four freedoms’, and black Americans fought proudly in the efforts to liberate Germany and Japan. But when a decorated black soldier named Isaac Woodard was returning home from the Pacific theatre to South Carolina in 1946 after the war’s end, the uniformed veteran was pulled off a Greyhound bus by local white policemen who beat him with their nightsticks. They shoved their billy clubs into his eye sockets, rupturing both eyes and leaving him permanently blind.

Woodard’s case, and the courtroom acquittal of all the white policemen who beat him, led President Harry Truman to create the Civil Rights Commission and desegregate federal agencies and the American military.

During the Cold War, Soviet propagandists used American Jim Crow–era segregation laws and the strife in the south as a way to deflect criticism of its own human rights record. A common Soviet retort to any American criticism was, ‘And you are lynching blacks.’

Racial injustice at home, and the civil rights movement of the 1960s, also sapped black American support for the war in Vietnam. As Muhammad Ali famously said when refusing to be drafted, ‘No Viet Cong ever called me nigger.’

The US is now engaged in a growing confrontation with China, over trade imbalances, China’s responsibility for unleashing the Covid-19 pandemic, human rights abuses like the brutal incarceration of a million Muslim ethnic Uyghurs in Xinjiang, and Beijing’s crackdown on Hong Kong. China is pushing ahead to impose a draconian new national security law on Hong Kong which many fear will permanently erode the territory’s promised autonomy.

For Beijing’s propagandists, the unrest in the US has been a godsend.

China’s Foreign Ministry spokesperson, Zhao Lijian, in a press conference said, ‘What is happening right now once again shows the seriousness of racial discrimination and violent law enforcement by the police, and the urgency for the US to address them.’

Spokesperson Hua Chunying was more succinct, tweeting out George Floyd’s last words: ‘I can’t breathe.’

Hu Xijin, editor of the nationalistic communist-owned Global Times tabloid newspaper, chimed in on Twitter: ‘President Trump declared that he will deploy thousands and thousands of soldiers to quell the chaos. Then why did you arrogantly accuse other countries of quelling riots? Why do you brazenly promote yourself as a beacon of democracy and human rights?’

After the first days of looting and vandalism, the protests sweeping America have turned largely peaceful. Two weeks after Floyd’s murder, the sustained nature of the demonstrations suggests to me—cautiously, hopefully—that this time, America may be facing not a spontaneous outburst of rage, but a durable and catalytic movement for long-lasting change.

Rosa Parks’s refusal to give up her seat to a white man on a bus sparked the civil rights movement of the 1950s. The blinding of Isaac Woodard led to the banning of racial discrimination in the federal workforce. So too may the gruesome murder of George Floyd in Minneapolis lead to badly needed changes in policing in America.

What we do not need is another high-level commission or blue-ribbon panel to look at the root causes of unrest. We already have the Kerner Commission. White racism begot black anger, it found. That sad conclusion remains as valid today as it was in 1967.

In my previous post on the recently released 2017 Independent Intelligence Review, I promised to come back to the subject of oversight. But before we get to that, it’s important to understand the legislative framework under which oversight will take place. (Thus this series of posts now becomes a trilogy.)

As I noted earlier, implementing the organisational changes recommended by the review will entail making a number of legislative changes. In particular, the Office of National Intelligence will require a new legislative instrument in order to subsume the Office of National Assessments, which currently operates under the ONA Act. And putting the Australian Signals Directorate on a statutory footing will require—at least—a modification to the Intelligence Services Act.

But the review has much more to say about the legislative basis for the activities of the Australian intelligence community (AIC). In particular, there’s an entire long and thoughtful chapter devoted to the subject. I’ll try to summarise what I see as the most important points, as well as discussing some questions that it raised in my mind, but I’d encourage interested readers to take the time to read chapters 6 and 7 of the review in full.

Chapter 6 of the review begins with a survey of the existing raft of legislative instruments. It observes that the current framework has evolved over time, and that the net result is a less than cohesive combination of enduring principles and ad hoc provisions that cater for changes in the composition of the AIC and the external threat environment. The authors ultimately recommend an end-to-end review of the legislative basis for the AIC:

We recommend a comprehensive review of the Acts governing Australia’s intelligence community be undertaken to ensure agencies operate under a legislative framework which is clear, coherent and contains consistent protections for Australians.

That’s a sensible recommendation, and it’s something that should probably happen every 20 years or so. There are enduring principles that should always be reflected in a democracy’s intelligence-related legislation, but technological and societal changes can render the specifics of even well-crafted legislation unworkable over time. The difficulties of dealing with modern encryption technologies under an interception framework based on the 1970s-vintage Telecommunications Interception Act are a case in point (here and here).

A review of nine major pieces of interrelated legislation won’t be something that happens on a timescale of weeks or even months. So the review also makes some recommendations about changes that could be made to existing laws to streamline processes and remove unnecessary (and often unanticipated) impediments to AIC activities. Most of the recommendations are sensible and unremarkable. For example, when two AIC agencies are cooperating on an activity, the review recommends that they be authorised to raise a joint request for a ministerial authorisation, rather than one each, as is currently the case—even when the requests go to the same minister (paragraph 6.60).

Less uncontroversial are some of the proposals for changes to the ability of AIC agencies to collect intelligence related to Australians. That is the essential tension in the practice of intelligence in a democracy, and so any proposals for change require rigorous justification, and the public is owed a clear explanation. That said, I don’t think too many people would object to the notion of ‘inferred consent’ (paragraph 6.46) of Australians in extremis. For example, I think most of us would want Australian authorities to act without delay if we were kidnapped by pirates or a terrorist group. The proposed change would allow the AIC to get to work immediately, without going through an authorisation process.

I’m less convinced of the review’s argument that no authorisation should be needed retrospectively in cases of inferred consent. After all, the case ought to be a slam dunk, and I don’t think there’s any reason not to keep the bar high for protecting Australians’ rights.

In fact, the review shows a commendable respect for existing protections of Australians. For example, it considers the proposition that the degree of intrusiveness of AIC activity on individuals could form the basis for deciding whether a ministerial authorisation is needed. The authors rightly conclude that it should not (paragraph 6.39):

Using intrusiveness as a defining principle could basically limit [Ministerial authorisations] to activities overseas that would require a warrant if conducted in Australia. This would mean most of ASIS’s current activities to produce intelligence against an Australian would not need an authorisation at the Ministerial level. We are of the view that this approach would diminish the rights of Australian persons in an unacceptable way.

One point on which I’m not entirely convinced (at least based on the detail provided in the unclassified review report) is the section titled ‘Class Authorisations – Australians Involved with Terrorist Groups’ (paragraphs 6.30–6.35). The proposed change concerns Australians ‘whose involvement with terrorist organisations proscribed by the Attorney-General under the Criminal Code constitutes a threat to national security’. So far, so good, but what does ‘involvement with’ mean? That’s important, because we are told that class authorisations are needed because they ‘would allow the [Intelligence Services Act] agencies to respond quickly to developing threats from previously unidentified individuals, a more common occurrence now with the emergence of “lone wolf” attackers’.

But ‘lone wolf’ attackers have only loose affiliations with terrorist groups, almost by definition. To sign up to such a proposal, I’d want to know where the threshold for involvement is set—does someone have to self-identify as a member of ISIS, for example, or would visiting an ISIS website be enough for inclusion in the class? What if someone posts online supports for the religio-political ideal of a caliphate, but gives no indication of crossing the line into violent activity?

All changes to intelligence-related legislation inevitably involve balancing freedoms and security. The devil is always in the detail, and the review’s recommendations are yet to be translated into draft laws. Regardless of whether the proposed major review takes place, the Independent National Security Legislation Monitor is going to have a lot of work to do!