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New laws may force complicity in human rights abuse


How did Mamdouh Habib escape Guantanamo trial?It has long been a crime to murder anyone, conspire to do so, or fail to tell the police about foreknowledge of such a crime. Yet the Government has introduced 42 new pieces of legislation to deal with murder committed by people called terrorists. According to the Attorney General, Phillip Ruddock, this is not enough. Ruddock says he intends introducing more legislation before the 2007 federal election.

Oddly, Ruddock does not intend to close the legislative hole exposed by the David Hicks case. He will not make it an offence under Australian law to fight on the side of a despicable government like that of the former Taliban regime in Afghanistan—so long as it’s not designated a terrorist organisation. But it will remain an offence to fight on the side of an insurgent group trying to overthrow such a regime.

Apart from dealing with this anomaly, there is a strong case for pruning the existing legislation. In particular, amendments are needed to prevent innocent Australians being forced to provide information which can lead to people being tortured or executed without trial. There should also be a much greater willingness to prosecute Australian officials who are complicit in the torture of the fellow Australian citizens.

Innocent people are by no means exempt from torture, as a Canadian engineer, Maher Arar, discovered in a case relevant to one of the Howard Government’s key anti-terrorist laws. Arar was kidnapped by the FBI at New York’s JFK airport in 2002 and "rendered" (as the official euphemism puts it) to Syria where he was tortured for a year on behalf of the US government. (Yes, that’s the same Syria the Bush Administration publicly lacerates for allegedly helping terrorists.) Last September, a Canadian judge released an 822 page report exonerating Arar of any wrongdoing. In January, the Canadian Government formally apologised to Arar for the supporting role played by the Mounties in his mistreatment and awarded him almost $12 million in compensation.

A similar scandal could easily result from the anti-terror law which allows the Australian Security Intelligence Organisation to detain and question people who are not suspected of terrorist sympathies. All that’s required is a suspicion that they may have information of interest to ASIO or its overseas partners. Despite some safeguards, a little noticed feature of this law is that it smudges the line between ASIO’s previously constrained role as an intelligence service in a democracy and that of a secret police organisation.

How did Mamdouh Habib escape Guantanamo trial?Unlike terrorists and other violent offenders arrested by the police, non-criminals detained by ASIO have no right to silence. Contrary to the case of hardened criminals, they also have no right to know the names of those detaining or interrogating them, or why they are doing so. Refusal to answer questions can attract a five year jail sentence. Detainees are also subject to five years jail if they reveal that they had been detained. The same applies to journalists who report that someone has been detained, even if a serious miscarriage of justice is involved.

One obvious possibility is that ASIO may use the law to meet a request from the CIA to help track down an alleged terror suspect who has been in contact from overseas with someone in Australia. The suspect can then be rendered for torture. Given that Bush has also authorised the CIA to assassinate suspected terrorists, ASIO could force Australian citizens to hand over information which could lead to extra-judicial murder. While this process hardly fits the notion of a fair trial before sentencing anyone to death, there is the additional problem that intelligence agencies make mistakes, as Maher Arar can attest.

Even before ASIO’s questioning powers were enacted, one Australian citizen, Mamdouh Habib, was rendered for torture but received no protection from the Howard Government. Quite the reverse.

Habib was taken off a bus in Pakistan in October 2001 and questioned by members of ASIO and the Australian Federal Police, as well as Pakistani and CIA officials. He was then rendered to Egypt. There is persuasive evidence that Habib was tortured for almost a year before being transferred to Guantanamo Bay. The then head of ASIO, Dennis Richardson, told a parliamentary committee in 2005 that his organisation knew in mid-November 2001 that Habib had been sent to Egypt. Nevertheless, this did not stop Ruddock, the minister responsible for ASIO, from repeatedly denying that the Government knew of Habib’s whereabouts.

Despite authoritative reports about the United States policy of rendering suspects to countries such as Egypt for torture, the Howard Government continues to deny of any knowledge of this happening to Habib. But well placed United States sources maintain that concern about the details being exposed in a trial was the main reason he was released from Guantanamo in 2005 without his previously announced hearing proceeding. Although torture is a clear violation of Australian and international law, the Government refuses to pursue the matter with Egyptian authorities.



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Existing comments

Tonights 4 Corners staging of Hicks interrogation by the AFP in Cuba makes it very clear that they were well aware in May 2002 that he was not with Al Qaida and had in fact left Afghanistan to get away from them because they were over the top.

As to the regime of the Taliban - we thought they were so terrible that we locked up their victims in Woomera, Port Hedland and Curtin, we drove them to suicidal despair and tortured them in every sense of the word with tear gas and batons, water cannons and isolation cells and then denied them a visa.

We sent one woman back to sea bleeding after giving birth and refused her proper medical care and left pregnant women and children on the Tampa.

Apart from that the government of the day in Afghanistan is not a terrorist organisation even though today's government is many times more violent and fundamentalist than the Taliban ever were.

Marilyn Shepherd | 03 April 2007  

To be sure the fantasies of authors and script writers are not as creative as we may think. The dark behaviours hiding places we sanction in our name become terrifying when we personalize them. Though we are in fact confronted our own innocents who are tortured in our name, we remain silent. There is something missing from our times. Is it our voice? Do we have a voice that can stand stronger against the tyranny of those who speak in our tattered name?. Or is our silence buttressed by this confounding comfort?
Thank you Brian.

Vic O'Callaghan | 03 April 2007  

This important article is further evidence of the alarming fact that we can no longer assume that legal processes in Australia will continue to be founded on principles of justice which have stood the test of time to such an extent that we take them for granted.
With the Attorney General intending to introduce even more draconian legislation this has become an important issue that should be a subject of public debate before the coming federal election, as should the matter of a Bill of Rights.

David Dyer | 04 April 2007  

I have written many times to my MP (North Sydney) on these sorts of matters and have had no response. This reinforces my view that our representatives in Canberra are not listening to their constituents. Or is it that the majority of citizens are happy with what their MPs are deciding? It bodes ill for Australia's democratic values, especially the value of A FAIR GO FOR ALL.

norbert kelvin | 10 April 2007