In earlier pieces ( HERE ) it was argued that intervention in Afghanistan could not be justified by national security or the value of the US alliance, the two reasons the Government still relies on. It was also argued that the US had recently changed course because it now admits the possibility of failure viz. that it cannot both withdraw troops quickly and ensure Kabul can go it alone.

This needs clarification: while the fact that the US has endorsed peace talks with Taliban leaders shows the war has nothing to do with global terrorism, it does not mean the US is ready to cease fighting. It fights to prevent the forces of President Karzai losing to those of the Taliban, Haqqani and Hekmatyar factions in a national struggle for political power. According to recent reviews of Bob Woodward’s book ‘Obama’s Wars’, much of this consists of a top secret CIA operation to systematically kill or incapacitate insurgent leaders throughout Pashtun areas of Afghanistan and Pakistan. Whether these regional leaders all deserve this fate is, of course, not an issue.

President Obama has a difficult choice: he will lose votes if he breaks a promise to bring the troops home; if he keeps it he will lose the support of those who still believe his security claim (reaffirmed in March) and think he has given in to terrorists responsible for the 9:11 atrocity. Public opinion will also be affected by the fact that casualties suffered and monies spent are seen as an investment, with victory needed to show that Americans did not die in vain. There is now a serious risk that Obama will lose control of the legislative process for the remainder of his presidency, with diminishing prospects for a second term. He is trapped, it would seem, by the rhetoric inherited from Bush and by the seeming inability of the US media to ascertain and speak the truth.

How does this affect Australia? Woodward’s book is also said to reveal a chronic division at the highest levels in the Administration, which would help explain why US policy now seems incoherent to many observers, fighting insurgents while at the same time endorsing Karzai’s policy of national reconciliation. If Australian policy is tied to the US and US policy is largely incoherent, this is the right time for a searching review of this war as well as the general power to make war.

The present procedure for justifying resort to this power is flawed because it ignores the moral gravity of a decision which requires Australians to risk their own lives and to engage in actions which may involve the killing and maiming of large numbers of innocent people. The problem lies in a system which gives the Government a power both to wage war and to avoid formal hearings to test its factual basis; it is compounded by two factors, the habitual delegation of personal judgment by elected members to party leaders, and the re-enforcement of this habit by a doctrine of party unity. The consequences of this self-subordination have been appalling.

Critics of the Vietnam War found their fears confirmed by the ‘Pentagon papers’, but waited years to learn that Prime Minister Menzies had not, as he then claimed, been asked by South Vietnam to provide further military assistance. The alliance argument triumphed and, apart from allied casualties in the tens of thousands, up to three million Vietnamese, mostly civilians, perished. These statistics seem to have had little effect on thinking about war either then or later; but two iconic photo images, one of a South Vietnam Army officer executing a prisoner, the other of a naked girl fleeing a napalm attack, remain unforgettable.

The Iraq war suppressed any sense of this human cost; the Coalition kept no tally, much less identification, of Iraqis killed and wounded. It also relied on false claims, and many were outraged to learn of the government’s ‘cherry picking’ of intelligence reports revealed by Andrew Wilkie. The UK Chilcott hearings, which confirm the speculative nature of the WMD evidence, show why major reforms are needed. Hearings of this kind, with access to all relevant intelligence, are essential; but they should precede the war, not be left for a post mortem.

The US experience is revealing. Many Congress members who voted for the Iraq war say they were misled by false claims. But the Washington Post reported in April, 2004 that no more than six senators and a handful of House members had read the 92 page National Intelligence Estimate on Iraq (withheld until shortly before debates began, it was classified and had to be signed for), or were aware of its dissenting views. The Bush Administration used public outrage over the 9:11 atrocity to serve its own Iraq policy; given media support and a very angry and confused public, it managed to avoid any serious examination of the pro-war case.

Although common sense argues for the best forensic standards a democratic system can devise, it is easy to forget that an unjustified war, whatever the motives, is a form of mass homicide carried out by nations. Despite this, both major parties continue to ignore a Greens’ proposal to vest legal authority for war in the Parliament. The federal Greens/Labor accord will now see a debate on the Afghanistan war, but there are two further matters to consider; the failure to address them lessened the value of the many eloquent speeches which preceded the Iraq war.

The first is the need for Committee hearings, with access to military intelligence and official advice. Hearings are a quasi-judicial process to clarify facts and identify issues; they are the best way to lessen the risk of going to war without good reasons, and the best way to see if these reasons still hold. The debates serve a different purpose; they enable members to argue for and against motions based on an informed sense of how to respond to the issues. Ideally, hearings should precede the debate, but the need to bring troops back is now urgent; they are still needed, however, both to review the war power and to re-think the role of the alliance in any future wars.

The second goes to the core of any two party adversarial system. This is the practice/doctrine of party unity, whereby party members are not free to form and vote on their own opinions. It leaves decisions on whether war is justified to a handful of political leaders, whose judgment may be affected by many factors, not excluding hubris, personal ambition, an irrational public mood, and the benefits and pressures of an alliance.

The practice is hard to reconcile with the Westminster model on which our system is based, in which elected members are representatives of the public, with a duty to make conscientious judgments on their behalf. When they give up this responsibility to party leaders they effectively disenfranchise their electors, who are entitled to have them inform themselves and act on their own judgment. The case for party unity, on the other hand, is largely pragmatic – internal dissent is seen as a clear electoral liability.

The convention has been to permit ‘conscience votes’ on certain matters of deeply-held personal and religious conviction. A different but more compelling case arises where the issue is not one of private morality in this way, but a major question of principle viz. whether, in light of community values, it is right to take action likely to kill or maim vast numbers of innocent people – soldiers who have a duty to defend their country and civilians who get in the way. This precedes the question whether there is a right to ask Australian soldiers to risk their lives.

In such cases the public arguments are likely to appeal to the same values, but differ in their sense of what they require, in most cases because they disagree about the facts. Such issues of principle are not just matters of private conscience; they arguably make up the bedrock of any public morality. Like legal principles, they require personal judgment which cannot be delegated; they are different to the kind of policy judgments, such as budget priorities, which call for party unity (in extreme cases of neglect or prejudice these will also raise issues of principle).

The coming debate will be an opportunity for members of all parties to reflect on the nature of their duty and perhaps also on Edmund Burke’s famous defence of the representative theory, now widely seen as part of the Westminster model. As Michael Stokes has recently reminded me, Burke would reject the idea that members are delegates of the party for the same reasons he rejects the claim that they are delegates of the public. But it will be hard to overcome a long habit of deference. If there was more public focus on this important preliminary issue, more members would have to consider, explain and act on their own views. This would be a giant step towards a more responsible, because more intrinsically democratic, system.

In the meantime an independent Senate has great power if the Opposition will co-operate. Whether the Senate will compel evidence from the executive branch is an important but vexed issue. While it has never recognized limits on its power to subpoena witnesses and documents, use of this power is understandably rare in practice because it is unfair to public servants who risk being punished, either by the Government for giving information or by the Senate for refusing it.

This may change. In a remarkable and original series of decisions in the 1990’s, the High Court of Australia found an implied right to freedom of political communication, which they saw as fundamental to the system of representative democracy the Constitution sets up. Although its scope remains unclear, in appropriate cases this right can override even legislative constraints. If the issue came before the High Court, it might well rule that public servants cannot be penalized for exercising a right to provide relevant information, on an issue of great political consequence, when required by the Senate.

This is a question for constitutional lawyers and political theorists, but it might help to change a political culture which works to suppress personal responsibility in favour of party unity, even on major issues of principle. It would, if the argument succeeded, lessen the risk of going to war other than in genuine self defence or as mandated by the UN. In all other cases there is a risk that complex questions of justice and morality may be prejudiced by irrational fear, a compliant media or, as suggested in an earlier paper, the misuse of an alliance.

Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and and international law.