One of the albums of my childhood was Pete Seeger’s 1963 live We Shall Overcome. It led me to the banjo, which has been a lifelong blessing for me and a tool of perpetual torture for my family and friends – I once played at the Sydney Opera House.
In one of the verses, instead of ‘We shall overcome’ Pete leads the audience to sing ‘We are not afraid’. Introducing that canto with reference to police brutality in the south, he says ‘we are afraid of course, but we sing it anyway!’ And he harmoniously leads the thousands in that ‘ol gospel song, tears rolling down his face.
I have been reminded of this in the witching hour as this sinking shivery feeling comes over me as I toss and turn. It is fear. A student reflecting on the complete breakdown of the rule law in the United States, asked me with genuine dread in her eyes – it couldn’t happen here, could it? I scoffed too quickly perhaps. On reflection it is a diversionary question – my real issue is whether the US can ever come back from the brink.
The events there are morphing from laughable to downright scary. Troops in Democrat cities, blatant corruption and gerrymandering, universities being defunded, total executive power in the president, media censorship, unabridged support for genocide, extrajudicial deportations and now, chillingly, capital punishment without trial or any due process.
I’m referring to the decision by Trump to order the bombing of suspected drug smugglers off Venezuela. In the first incident, 11 people were killed, in the second three. There was no attempt to apprehend the boats, or turn them around, or arrest the suspects on board. They were just obliterated like an attacking army would be after a declaration of war.
The proud Hitlerian assertions from the Secretary of War (his real title now) was full of words like ‘narco-terrorist’ and themes like ‘protecting US citizens from being killed’ by these ‘cartels’ and ‘gangs’. JD Vance, when asked if it was murder answered, ‘I don’t give a shit what you call it’. Well, let’s call it murder, shithead, because it is.
The unassailable fact is that drug use, ultimately, is a choice of the drug user. Its not as though these imports are shoved in people’s mouths and veins. It just defies reality and reinforces the 1970s concept of the helpless (white) addict being abused by the (brown) cloaked cold-hearted drug pusher. It is as ludicrous as killing oil importers because some people die on our roads.
Trials and safeguards keep community safe
The lack of outcry from the international community at these killings has been deafening. For hundreds of years imperfect but protective legal frameworks and mechanisms have been built up to balance the rights of defendants and victims, individuals and communities, with the key rule biblically and legally being ‘thou shalt not kill’. We have trials and safeguards and evidence and rubrics and precedents to ensure that enforcement agencies cannot just walk up and shoot those who may have committed or be committing a crime. Why – because history will show that if the ice cracks we can all fall through.
The only reason Trump is getting away with all of this is the lack of judicial independence and his stacked Supreme Court. In Australia, judicial appointments have been almost exclusively bipartisan. This means that although we can point to this judge being a conservative stooge, or that one a radical rebel, by and large appointments are on merit and determinations are based on the evidence and precedent. There is no way any High Court in Australia’s history would make such absurd decisions favouring their political master. England leads the way, with a completely independent Judicial Appointments Commission. Trump may control the administrative and legislative arms of government, but ultimately it is his lackies in the Supreme Court that mean his ego and actions are unfettered. We don’t ever have politicians calling judges crooks and corrupt just because they decide against one side or t’other.
So, my answer is that it could happen here, but our safeguards are so much better than in the US, and no-one mainstream seriously argues that this should change.
But then again, what if Dutton had been elected as leader, what if Nigel Farage is in the UK?
Pete Seeger’s banjo case has the words ‘This machine surrounds hate and forces it to surrender’. Which was his toned-down flower-power version of Woody Guthrie’s inscription ‘This machine kills fascists’.
Judicial independence is the same – a crucial bulwark against autocracy – and without it I am afraid. Seriously afraid.
But I sing that I am not anyway, humming it in the middle of the night, just like Pete suggested.
David Heilpern is a former NSW magistrate and is now Dean of Law at Southern Cross University.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
