Thursday, 22 July 2010

J'Accuse...! The Dreyfus Affair

Alfred Dreyfus

The human family has ever found ways to marginalise some of its members. Fear and misunderstanding can come in many guises – witch hunts in the middle ages, McCarthyist persecution of supposed communists in the 1950s, and of course that perennial defilement, racial prejudice.

France, like other countries, has had its share of this. The Dreyfus Affair was particularly shameful not just for the unjust suffering imposed on a loyal Frenchman, but because those entrusted with power knew that what was happening was wrong. They found it expedient to allow a member of a marginalised community group to suffer rather than take responsibility for injustice.

For years, the authorities swept Captain Dreyfus under the carpet – like so much embarrassing dust. The legacy was a divided and weakened France.

Whilst we should be alert to the follies of drawing too close a parallel between historical events and our present day challenges, we must also be astute to learn the lessons of history. Stories from the past are our key to understanding the human condition.

Today, as we face issues of injustice, of threats to minority groups, and abuse of state power, the Dreyfus Affair continues to resonate.

The Dreyfus affair began in 1894, when French authorities gained possession of a “bordereau” (or memorandum), which listed items the writer would deliver to Lieutenant-Colonel Schwartzkoppen – the German military attaché in Paris. The bordereau demonstrated that there was a traitor in the military prepared to hand secret information to the Germans.

Another intercepted message to Schwartzkoppen referred to a person known as “D”. French officers searched their files for officers with surnames beginning with “D”, and when they came to Dreyfus – an Alsatian Jew – they had their culprit.

The first notable legal feature of the Dreyfus case is the infamous “dictation test” to which he was subjected. The authorities needed to obtain a control sample of Dreyfus’s handwriting, against which to assess the handwriting on the bordereau. Accordingly, on Monday morning 15th October 1894, Captain Alfred Dreyfus’s nightmare began. Major the Marquis Du Paty de Clam summoned Dreyfus to headquarters, showed him a bandaged thumb, and asked him to write a letter he would dictate.

He began to dictate from the bordereau. When Du Paty demanded to know why Dreyfus was trembling, he explained that he was cold, and kept writing. Finally, Du Paty shouted to Dreyfus that he was under arrest for treason. The bewildered Dreyfus protested his innocence. Du Paty offered him a pistol, but Dreyfus declined suicide, and said that he wanted to live to prove his innocence and vindicate his name.

The dictation test was a way of making Dreyfus incriminate himself – without caution, without even knowing the charge against him, and in violation of his right to silence. He was asked to write out the very words of the note said to constitute evidence of treason, but not told why. He complied, thinking it was a simple clerical task.

Today the security authorities in Australia – particularly ASIO – have power to compulsorily question in relation to security matters. There is no right to silence, and a person commits an offence if they do not provide the information sought. If charged, it is for the defendant to prove he or she did not know the information being sought – an almost impossible task. Although the information actually given will be subject to indemnity, further material derived from that information can be used in evidence against a person compulsorily questioned – a serious inroad into the right to silence and the privilege against self-incrimination. Powers of this kind are open to abuse – and already have been abused here in Australia. It is because power corrupts that democracies surround powers with proper safeguards. The exercise of the ASIO powers is secret, largely unaccountable, and overrides internationally recognised human rights.

In prison, Dreyfus was held incommunicado. This was designed to avoid political embarrassment to the government – there was no forensic or security reason for doing so. The Minister for War, General Auguste Mercier, realised when he saw the file that the case against Dreyfus was weak: much of the information in the bordereau could not have been known to Dreyfus, and the reference in the document to the writer being about to go on manoeuvres was not consistent with Dreyfus’s own schedule. Mercier moved to the conclusion that Dreyfus should be freed.

Enter the right-wing press. La Libre Parole was the most virulent of a group of anti-Semitic papers in circulation in Paris in the 1890s. It was the type of lurid journalism which spouted crackpot theories about international conspiracies of Jewish bankers. Lieutenant-Colonel Henry, was a friend of the French army officer Marie Charles Ferdinand Walsin-Esterhazy – the real author of the bordereau. Fearful that his friend might be exposed, Henry leaked information to La Libre Parole that the Jew Dreyfus was being held as a traitor, but some people in the War Department were thinking of releasing him. The resultant publicity, alleging that the War Department was probably being paid off by a syndicate of international Jewry, made it clear to Mercier that if he freed Dreyfus, he might lose office, and the government could fall.

Freedom of the press is an important feature of western democracy. The role of the press, it has been said, is to afflict the comfortable and comfort the afflicted. Whilst we should protect the freedom of the media assiduously, we should also remind them that at times they abuse their great power. This was an example.

Examples today are the racist remarks of some journalists and shock jocks, all too often legitimising in the public mind the segregation of some ethnic groups in our community. For example, during the July 2002 furore over the Sydney gang rapes, one prominent journalist falsely asserted that “pack rape of white girls was an initiation rite of passage for a small section of young male Muslim youths”.

The trial against Dreyfus opened on 19th December 1894. The court martial decided to conduct its hearings in camera. It was said – falsely – that top secret issues of national security were involved. Injustice is more readily done when courts are closed, because open hearings impose a layer of accountability on tribunals. Had the hearing been open, there is little doubt Dreyfus would have been acquitted.

Security issues are often invoked to seek closed hearings – but the real reason in the Dreyfus case was political expediency.

One of the terror laws passed since September 2001 is the National Security Information (Criminal and Civil Proceedings) Act 2004. Under this legislation, the Attorney-General of the day – a politician – may certify that a particular trial is one to which the Act applies. Once the trial is so categorised, the Attorney-General has a number of further powers. One of the most significant is that the trial may be closed to the public, just as happened in the Dreyfus case.

The case against Dreyfus was, in terms of the evidence presented, a farce. Lieutenant-Colonel Henry testified that an honourable person – “absolutely honourable” - had told him that an officer was committing treason – and had named the officer. “And this traitor –“ he shouted, pointing at Dreyfus “there he is!” Dreyfus jumped to his feet and demanded to know the name of his accuser. Henry merely tapped his cap and said, “There are secrets in an officer’s head that even his cap must not know.” He would not name the officer, but could only swear on his honour that he told the truth. With an air of great gravity he declared: “I so swear!”

Had it ended there, even a secret trial would have been bound to acquit.

But it did not end there. The acquittal of Dreyfus would cripple the government of France, and powerful men were determined to prevent that.

Du Paty secretly approached the presiding judge and handed him a sealed envelope, which he said came from a cabinet member who requested the contents be made known to the judge. The defence did not even know of this material, and had no opportunity to challenge it. The dossier was littered with forgeries, lies, rumour and innuendo, as would have been exposed if an opportunity had been afforded to challenge it.

Australia’s National Security Information Act permits the Attorney-General to certify that a statement of a particular witness can be tendered without the witness being subject to cross-examination. It also permits the Attorney-General to certify that particular questions cannot be answered. It even permits the Attorney to authorise a summary of a witness’s testimony to be tendered. Evidence can also be led in the absence of the accused. This kind of procedure radically distorts the justice system, and allows precisely the kind of injustice seen in the Dreyfus case by the use of the dossier. It expressly authorises political interference in trials, and deprives the defence of an opportunity to challenge evidence.

In fact, the dossier contained information that the real perpetrator of treason wanted to plant on Dreyfus. Secret hearings, and clandestine evidence passed to judges, aid those who want to settle grudges or divert attention from themselves.

In violation of French law, the secret dossier was opened by the judges when they retired to consider their verdict. It led to the conviction of Dreyfus. When the verdict was announced, Dreyfus’s lawyer, the eminent jurist Charles Demange, sobbed.

After his conviction and disgrace, Dreyfus was held on Devil’s Island in the Caribbean. The parallel with Guantanamo Bay is all too obvious. Australians Mamdouh Habib and David Hicks were transported there without any legal hearing - not as prisoners of war, not as convicted prisoners, not under legal process by way of deportation or extradition orders. They were kidnapped, in violation of all the usages of international custom, international law, and human rights.

Remote islands continue to be a convenient place of exile for the politically embarrassing. Just when we had closed Nauru and ended the Pacific solution, the present government has begun exploring other remote islands in which to warehouse asylum seekers..

In 1896 Lieutenant-Colonel Georges Picquart, head of the Intelligence Bureau of the general staff, examined the Dreyfus case, including the secret dossier. What he saw convinced him that Dreyfus was innocent. When he urged his superiors to have the case reconsidered, because an innocent man was in prison, he was told that the matter was closed. “You may be sure” he famously responded “that I will not carry this message with me to the grave.”

The media having caused so much of the problem for Dreyfus, other newspapers now rallied to his cause. The Liberal Le Matin obtained the bordereau and published it. It became clear to many that Dreyfus did not write it.

Dreyfus’s supporters continued to lobby, and it emerged that the handwriting on the bordereau matched that of Esterhazy – the real culprit. Mathieu Dreyfus publicly accused him of being the author, in an unsuccessful attempt to goad him into a defamation action. Then Mathieu printed a pamphlet naming Esterhazy as the traitor. Finally the War Department was forced to court martial the real culprit.

The procedure was a confused travesty, and Esterhazy was acquitted after a brief hearing.

Two days later, on 13th January 1898, there appeared across the front page of L’Aurore (the literary and artistic newspaper) one of the most famous headlines in history: “J’Accuse…!

Risking prosecution for criminal libel, and loss of his freedom, the novelist Emile Zola accused named officials of specific and criminal abuse of their duties. The government retaliated, and charged Zola with criminal libel, confining the charges in an effort to avoid reopening the Dreyfus case.

Despite testimony from Lieutenant Colonel Picquart, and Anatole France, and despite Esterhazy refusing to answer any questions, Zola was convicted, and sentenced to prison and a fine.

The role of the artistic and intellectual community in agitating for Dreyfus’s release should be remembered. Zola’s truth-speaking placed his liberty at risk. He confronted powerful forces who did not want to have Dreyfus released. To challenge those forces was to place himself at their mercy - but when he did so, he invigorated the movement to exonerate Alfred Dreyfus.

In Australia, actors, artists and writers have often shown themselves to be the conscience of the nation. They have been prominent in calling for injustice to asylum seekers to be recognised and remedied, forming lobby groups, conducting shows, and keeping the issue in the national consciousness, in a way that echoes Zola’s committed action a century ago. Many activists have been subjected to defamation writs in an attempt to silence them.

When Picquart publicly exposed the falsity of the accusations against Dreyfus – at the cost of his own arrest for revelation of secret army documents - Dreyfus was brought back to France for retrial.

The 1899 trial was a sensation. One government advocate was caught tampering with documents. A defence counsel was shot (not fatally) on his way to court, and his briefcase stolen. Despite the obvious paucity of evidence, the court convicted Dreyfus again – but said there were “extenuating circumstances” (for an officer committing treason!) and reduced the sentence to ten years. It was not until seven years later after an abortive appeal process that a presidential decree finally declared Dreyfus innocent and remitted all punishment.

An Act of Parliament reinstated him to the Army, the ceremony occurring on 13th July 1906. A few days later, a crowd estimated at some 200,000 gathered to see him invested with the legion of honour. He later retired with the rank of major. In 1908 he was shot and wounded by a journalist, who was acquitted of attempted murder. Recalled to duty, he served France in the Great War.

Picquart served 11 months in prison, awaiting a trial which never took place. He later became the Minister for War.

Security issues may be important, but they can also be used to mask injustice. The Scott Parkin case is an example.

France lost international standing over its treatment of Dreyfus, which became an international scandal.

One of the features of the politics of race – where leaders actually exploit racial divisions in order to advance their power – is that it divides the nation. Such divisions, once let loose, can persist for a long time. When Billy Hughes exploited the divide between Catholics and Protestants over the conscription controversy in the First World War, the fault lines lasted half a century.

Anti-Semitism in France did not die when Dreyfus was exonerated. The rulers of Vichy France – the men who made their accommodation with the Nazis - were in many cases the same men who supported Dreyfus’s long incarceration. They imposed a ruthlessly anti-Semitic regime: in Vichy France, the domestic police were routinely used to round up the Jews: something that did not happen in the same way even in Nazi Germany.

It is often tempting to point the finger at other nations with such a record, as if they were somehow evil whilst we are good, but all of us share the responsibility for such deeds. The French failure has been paralleled in every nation, including our own. We have grotesque anti-Semitism here. And of course, no group has a monopoly on suffering. At the moment, for example, to be a Muslim in Australia is to experience real and at times dangerous prejudice.

Terrible though the treatment of Dreyfus was, there remains both inspiration and hope in his story. Who can fail to be inspired by those who struggled to right the wrong, and by the bearing of Dreyfus himself -continuing to declare his loyalty to France despite injustice. And who cannot be warmed by the hope that, like those who supported Dreyfus, we are all able to make a difference if we act to right injustice in the world.

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