<em>Illustration: Simon Letch</em>

Illustration: Simon Letch

What better time than the eve of Christmas to contemplate death, destruction and the threat of terrorism. The Homeland series on TV about terrorist attacks in the US is a marrow-chilling narrative about war heroes, a bipolar CIA agent, politics, duplicity, treachery, love and counterterrorism.

No force, no power, no technological wonderment in the arsenal is too great as the CIA struggles to get a grip on homeland attacks.

That's the awesome interpretation. The sober view of the struggle and the counter-struggle has been on our shores for the past week or so, in the form of a law professor from Georgetown University Law Centre in Washington DC.

Professor David Cole writes tirelessly about this genre and fights cases in the highest courts in the land. He's Superlawyer in a mortar board. I caught up with him on the telephone as he sped between lectures and forums in Sydney and Melbourne.

His message is that parts of the overreach that characterised the immediate response to the September 11 attacks are being wound back, not so much by Congress, but by a civil society grounded in a robust commitment to rights.

The media, too, played a big part in forcing this retreat. For instance, the American ABC network was responsible for broadcasting pictures of abuse at Abu Ghraib. The Washington Post published the details of the torture memo prepared by two Bush-era Justice Department lawyers. The New York Times broke the story about warrantless wire tapping by the National Security Agency.

These expose´s fuelled the push-back by the rich array of non-government agencies, uniquely the products of US energy and imagination: the American Civil Liberties Union, the Centre for Constitutional Rights, Human Rights Watch and Human Rights First. Together they comprise an institutional resistance force.

The result is, the President, Barack Obama, has changed course in important ways, including the closure of CIA secret prisons, ending the torture of detainees, abandonment of the unchecked executive power his predecessor insisted existed in war time and a declaration his actions be limited by the constitution.

The interesting thing is that since Obama came to power the incidence of terrorist attacks per year in the homeland has halved, down from 20 in 2008 to 10 in 2010, which is the latest figure I have from the National Consortium for the Study of Terrorism and Responses to Terrorism.

Worldwide terrorists attacks in the same period have stayed pretty stable at just fewer than 5000 a year. In fact, the number of terrorist attacks globally in 2010 was almost equal to the total number of attacks in 1991 (4680).

That's all very well and good, and it may have nothing whatsoever to do with Obama, it's just worth noting that the rate of homeland attacks has fallen since the response to terrorism was peeled back.

Of course, the tapestry is not complete. Guantanamo is still in business despite Obama's promise to close it; the CIA has been immunised from torture-related prosecutions; there's no civil damages for tortured detainees who have been found to have done nothing wrong; due process has been scrapped in favour of drone attacks; and habeas languishes in the intermediate appeal courts.

The design and implementation of the military trial process for detainees also has been so flawed as to be rendered farcical. From the original 775 of the worst of the worst who were sent to Gitmo, 167 are still there. It seems there have been only two full military commission trials, with convictions on the flakiest of charges - usually material support for terrorism.

There have been a couple of plea deals, including that of David Hicks. The balance have been released, mostly uncharged. Material support for terrorism, to which Hicks pleased guilty in 2007, was scrapped as a war crime by a US appeals court in a decision a few months ago. It was the stock favourite guilt-by-association type of charge, but unfortunately was only invented as a war crime by Congress after those charged with it had allegedly committed the offence.

There is now a massive deal of scratching around to locate new charges to replace this now defunct non-war crime.

Then there is the problem of torture and how it has infected the trial process. Cole says torture is the biggest obstacle facing the Guantanamo trials. It has become so Kafkaesque that accused terrorists have had their own words, describing what happened to them, classified as top-secret intelligence.

A special room at Guantanamo has been constructed with a sound-proof wall, next to which detainees on trial sit. Their voices can be cut off if they stray into classified territory.

That's how you make torture evidence go away - cut off the sound.

Then there are drones, which are a machine allowing one man to be the accuser, judge and executioner, without the tedium of due process. Cole says that not in all cases are drone killings unlawful, because the US is still at war with terrorists.

There was a mild flurry just before the election to create a ''drone protocol''. That was because of concern that Mitt Romney might be the man with his finger on the trigger.

The protocol seems to have gone into abeyance and there are no clear rules.

This vacuum is manageable while the US has close to a monopoly on drones, but what happens when everyone can have them? Do the non-rules of the US apply to the Iranians, Chinese, etc?

In Australia, the former justice Anthony Whealy is conducting a review of the vast slate of terrorism laws that parliaments passed following September 11 and the terrorist attacks in Britain.

Some of them are rarely if ever used, such as preventative detention and control orders (only twice and they were really for show).

What is lacking in Australia is what Cole calls a ''toehold'', a constitutional set of values around which institutional resistance can coalesce. There is nothing like that here.

The absence of even a charter of rights leaves Australia at sea when governments overreach. Americans have been fearless in litigating and campaigning to achieve a response proportionate to the threat. Here we have no tools for such endeavour.

Twitter: @JustinianNews