14 January 2005

the wordiest case of sour grapes on record?

Mamdouh Habib remains a person of security concern: Ruddock
[Attorney-General]PHILIP RUDDOCK: Look, the important point, I think, that needs to be understood is that we looked very closely at information that was known to us as to whether or not he could be charged here in Australia, and the Americans had always taken the view that if we were in a position to charge him - and I might say, for that matter, Mr Hicks - that they would have released them to us for the purposes of pursuing those matters. We looked at our laws in relation to these matters and found our laws were deficient.

HEATHER EWART: Is there any prospect of charges being laid against him in Australia?

PHILIP RUDDOCK: Well, there is no prospect under Australian law, on the information that is now before us. But if further information were to become known which suggests that offences have occurred, then charges will be brought.

HEATHER EWART: So you will keep him under surveillance?

PHILIP RUDDOCK: No, I've not said that. What I've said is that he remains a person of security concern and that, in accordance with our law, competent authorities will do what is appropriate in relation to him, and we don't talk about those matters; it's not helpful to talk about them...

HEATHER EWART: But why not, because in effect you're forcing this man to live in some sort of twilight zone.

PHILIP RUDDOCK: No, it's not. It's a situation in which competent authorities have certain lawful entitlements where they can pursue certain matters. Decisions have to be taken in relation to those matters. We do not detail those measures, and it's not appropriate to put that sort of information into the public arena. It only compromises its effectiveness.

HEATHER EWART: But in a democracy like ours, if charges are not laid, isn't a person entitled to live normally with the presumption of innocence?

PHILIP RUDDOCK: Well, they're entitled to live a normal life, subject to Australian law, and...

HEATHER EWART: Do you see what I mean? What sort of precedent are you setting here?

PHILIP RUDDOCK: Well, no, I'm simply saying that under Australian law, there are certain authorities that have - with appropriate consents to undertake a range of activities in relation to any Australians.

What did our Government know?
Habib has not been charged with any offence. It is clear that he has not committed any offence against Australian law: the legislation that might apply was not passed until nine months after his arrest. We can assume that he has not committed any offence against the law of Pakistan or Afghanistan, since those countries have not sought to extradite or charge him. It seems that he has not committed any offence against American law: if he had, he could have been taken to America for trial, but that has not happened.

The decision to send Habib home is the result of two US court decisions in 2004, which appear to have upset American plans. In US courts, evidence illegally obtained must be excluded, because the state should not break the law. Both in American and Australian courts, confessions obtained under duress must be excluded, because of their inherent unreliability. Confessions obtained by use of torture are excluded on both grounds.

The Americans planned to try Guantanamo prisoners in military commissions that would not be bound by the ordinary rules of evidence. Specifically, the commissions were to be able to receive evidence of confessions obtained by use of torture. The overwhelming inference is that the Australian Government knew or suspected that Habib had been tortured.

However, last July the US Supreme Court ruled that it had jurisdiction to review the circumstances of detention in Guantanamo. In November, the Federal Court for the District of Columbia held that the military commissions violated the standards required for fair trials. It ordered that the commissions be halted until America complied with the Geneva Convention relating to prisoners of war.

That ruling spelt the end of the military commissions. The conditions under which detainees in Guantanamo have been held and interrogated practically guarantee that any confession obtained would be excluded from evidence in any trial that could be described as fair.

At Guantanamo, detainees were forbidden to speak; they were permitted two minutes a week for a shower; they were regularly subjected to body searches, including cavity searches; they were frequently held short-shackled for hours on end: this involves squatting on the floor, the hands shackled between the legs and attached to the floor by a chain so short that the detainee can scarcely move. Detainees were held in cells in which the air-conditioning was set to freezing temperatures. They were interrogated while chained to the floor; they were not allowed to go to the toilet during interrogations and would have to urinate in their clothes. Detainees were threatened with electric shocks; they were threatened with the prospect of being sent to Egypt or Morocco to be tortured.

It is not hard to see why Habib is now to be released. After his arrest in October 2001, he was sent to Egypt for six months, where he was tortured. He was then taken to Guantanamo and interrogated for three years. No American (or Australian) court would admit confessions obtained by these methods.

What is really significant is the timing of his release. The November court decision means, in substance, that evidence obtained by use of torture would not be allowed. The Americans must then have realised that they could never make a case against Habib. Only then did the Australian Government ask that he be returned to Australia.

This sequence of events raises some very disturbing questions: How much did Australia know about the treatment of Habib? Why did Australia not ask for his return before this - why did we wait until evidence obtained by torture was ruled out? Why has Attorney-General Philip Ruddock been so guarded in his comments about the treatment to which Habib has been subjected?

The overwhelming inference is that the Australian Government knew or suspected that Habib had been tortured, but believed that a military commission could use evidence obtained this way. Conditions in Guantanamo have been the subject of many reliable reports over the past two years. From late 2002, Major-General Geoffrey Miller was in charge at Guantanamo. In April last year, he was exposed as the person responsible for the outrages at Abu Ghraib prison in Baghdad. The Australian Government knew of those events months earlier. It must have known of the mistreatment of prisoners in Guantanamo; it must have known that the mistreatment was designed to obtain evidence that could only be admissible in a trial that lacked the basic requirements of fairness. And it certainly knew that the victims of this mistreatment included two Australian citizens. The alternative, only slightly less disturbing, is that our Government simply did not care how the Americans treated Australian citizens.

Detainee Says U.S. Handed Him Over for Torture
Habib, a 48-year-old Australian citizen who grew up in Egypt, was about to disappear for six months into an Egyptian prison. There, he says, his Egyptian captors shocked him with high-voltage wires, hung him from metal hooks on the wall, nearly drowned him and mercilessly beat and kicked him.

The former coffee shop owner soon confessed to a litany of terrorism-related crimes, including teaching martial arts to several of the Sept. 11 hijackers and planning a hijacking himself. Habib later insisted that his confessions were false and given under "duress and torture."

Habib's more than three years of incarceration came into sharp focus this week, when the Bush administration agreed not to charge him with any crime and to repatriate him to Australia. Once home, he will be free, Australian officials said Wednesday.

"When he returns to Australia, he will not be detained or charged," said Matt Francis, a spokesman for the Australian Embassy in Washington. "He is a person of security interest, but we do not have any laws under which he can be charged."

Habib's vivid account of his secret delivery by U.S. forces to an Egyptian prison and his torture before being transferred to Guantanamo Bay, Cuba, in May 2002 is the most detailed to surface of a CIA-run operation that has played a growing role in the war on terrorism. The operation, the controversial "extraordinary renditions" program, is run by a secret unit in the CIA's counter-terrorism center.

Habib's U.S. lawyer, Joseph Margulies, said he planned to inform his client of his impending freedom when he visited him at Guantanamo on Saturday.

"If the U.S. government believes he's done something wrong, they wouldn't let him go," he said.

In a statement, the Defense Department said the Australian government had "made a number of security assurances … that were important to the transfer decision."

The CIA declined to comment on the case.

News accounts, congressional testimony and independent investigations suggest the spy agency has covertly delivered at least 18 terrorism suspects since 1998 to Egypt, Syria, Jordan and other Middle Eastern nations where, according to State Department reports, torture has been widely used on prisoners.

Impunity in breaking the law is a bad thing. No-one, including the US and Australian governments, contends that the Torture Convention is not part of the domestic law of Australia and the US. Why then are both governments violating it directly (the US) or winking at such violations (Australia's competent authorities)?

I would have thought the most basic sign of competence in the competent authorities dashing about with their lawful pursuits of certain undefined matters would be to understand the presumption of innocence and the right to liberty. Evidently that particular hurdle is too high a leap for Australia's first law officer.

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