Mamdouh Habib’s treatment in Australia from here on will be a litmus test for Australian democracy and our rule of law – commentary by Tony Kevin, 17 January 2005

In a few days, Mamdouh Habib will arrive back in Australia. On 12 January, the day that his imminent release - from three years’ US military detention without trial at Guantanamo Bay military prison, after interrogation allegedly under torture in Pakistan and Egypt - and his pending return to Australia were announced, I sent the following personal observations to a few folk in and around Australian politics:

"No one is talking at all about compensation for the great harm done to Habib and his family's health, reputation, welfare. The whole tenor of named and anonymous officially-sourced comment is that he is really probably guilty of knowledge/involvement in September 11, but somehow it was not possible to proceed with the US charges. The Australian Government's complaints about the US role do not go to how unjust it was that Habib was held for three years without trial; they go to a sense of regret that the USA did not in the end put him on trial. Habib is still "guilty until proved innocent " - and how can he hope to do this now ?

I see very intimidatory messages coming out here, directed at Habib and his lawyer: that it might still be possible for the Australian Government to try him here for something, after the "Jihad Jack" trial. While not being a lawyer, I suspect that this is all huff and puff. The real message to Habib and his lawyer and any supporters is: to shut up, to not make waves, to not seek compensation for what was done to the Habib family, Australian citizens all. "If you are a good quiet boy, we might leave you alone". If I am right, this is all nothing more than gross intimidation, and it would be disgusting. Habib is an Australian citizen and he should have rights. What is being conveyed to and about him now by the Government makes him less than a third-class citizen - it makes him a nothing.

Who will employ Habib after such a tarnished return to Australia? How will this poor man pick up the pieces of his life and his family's life? By all accounts the man is brutalised and psychologically gravely damaged if not entirely broken. These cruel and degrading circumstances of his return to Australia - facing new barrages of threats and allegations that he cannot disprove - may only make his condition worse.

Was it, I wonder, Habib's lawyer's preparedness to expose in US Court evidence the alleged presence of an Australian security officer as witness to Habib's initial torture in Pakistan that finally precipitated the US-Australian release decision ? Were they afraid that, with good legal representation and a lot of world interest in the trial, he could make that charge stick ? If this is the case, Habib's release is less about humanitarian impulse, due process or the rule of law - and more about shutting up an inconveniently vocal Australian citizen who was a victim of rendition to Egypt, torture, and cruelly prolonged incarceration at Guantanamo. See also point 2 above.

Tony Kevin."

I then sat back to see how this litmus-test issue might play in our media. Today, five days later, I see a mixed but broadly positive picture of public response. On 13 January, there were hard-hitting, responsible editorials in the Sydney Morning Herald and the Canberra Times: more uncertainly, in The Australian. The next day 14 January, a fine and brave opinion piece in The Australian, signed by Professor William Maley, responded to the uneasy fencesitting of The Australian editorial.

There was also good coverage in The Age: an editorial on 13 January, "Australia must close this dark chapter",

http://www.theage.com.au/news/Editorial/Australia-must-close-this-dark-chapter/2005/01/12/1105423554286.html

and an excellent opinion piece by Julian Burnside QC the next day 14 January, 2005, "What did our Government know?"

http://www.theage.com.au/news/Opinion/What-did-our-Government-know/2005/01/13/1105582648183.html

Correspondence columns have carried a few illiberal expressions of outrage at any sympathy for Habib’s case, e.g. from ACT Liberal MLA Steve Pratt who should know something about imprisonment without trial – he spent a few years locked up in Serbia after being arrested under suspicion of spying, when he was heading Care Australia’s humanitarian relief operation there.

All the more reason to salute Maley’s courage as an in situ academic. He has a public record of such courage. It is easy enough to be bravely liberal in an unsigned editorial. Significantly harder, when you have to sign your name to it, laying your public reputation and, finally, your job on the line each time that you do.

Here are the web references and some key excerpts from the cited pieces (Apologies, I read the two pieces in The Age only after this article was completed) . They will be useful references when Habib arrives, and we watch how that goes down. I believe what happens to Habib after he returns will be a litmus test for Australian democracy and our rule of law. Tony Kevin, 17.1.2005

 

Canberra Times editorial, 13 January 2005 "Total disregard for justice"

http://canberratimes.com/detail.asp?class=your%20say&subclass
=general&category=editorial%20-%20leader&story_id=363235&y=2005&m=1

"…But in days, Mamdouh Habib is expected to be free. Free to unrelenting surveillance by Australian intelligence. Free to the daily judgment of others that he is a terrorist. Free to a life irrevocably changed."…

"Of course, it is not unusual for those suspected of a crime to be released without conviction or indeed for a prosecution not be pursued in the first place. Yet the notion of habeas corpus has been ignored, and while several countries, including our own, have given liberty- sapping powers to police and judges in regard to terrorism, the Habib case is a clear example of how we are the worse for it ….

"And, typically, although perhaps understandably in the legal sense, Mr Howard declared he would not apologise. However, apology or no apology, Australians have a right to be alarmed, not just alert, about the lack of advocacy for the rights of Mr Habib by the Federal Government.

The absence of a stated charge for Mr Habib's protracted detention - and such incarceration must certainly harm an individual's mental and physical health - displays a gobsmacking disregard for natural justice and humane procedure in admittedly fraught times. The vileness of this approach, and its futility in creating a safer or better world, has been well documented in history: McCarthyism and the heavy- handedness of regime after regime. While the doctrine espoused or supported by Mr Habib may be one we hold no agreement with, Australians cherish a sense of fair play. To that end, Mr Habib's legal team, and others, will inevitably seek to square off the damage done to the accused and potentially the nation's interests." ENDS

 

Sydney Morning Herald editorial, 12 January 2005, "Guilty until proven innocent".

http://www.smh.com.au/news/Editorial/Guilty-until-proven-innocent/2005/01/12/1105423551472.html

"…One thing, however, is plain, and that is Australia's failure to stand up for his rights. The Howard Government's meek acquiescence in the detention of Mr Habib, and fellow Guantanamo inmate David Hicks, has devalued what it means to be an Australian ….

"The Attorney-General, Philip Ruddock, now says Mr Habib is to be released, though it is not clear just what this signifies. Does it mean that Mr Habib has been wrongly held all along, or merely that there is not enough evidence to satisfy even the deficient processes of a Guantanamo Bay military commission? Does it mean Mr Habib may be, as his family likes to believe, "innocent"? The Attorney-General is certainly not saying anything like that. Rather, Mr Ruddock implies that Mr Habib most definitely does have something to answer for. He says Mr Habib "remains of interest in a security context", and that he might have faced charges in Australia if our terrorism laws were retrospective.

So, after more than three years of being detained without charge, Mr Habib is now damned without trial from the mouth of the nation's most senior law officer.

The Prime Minister, John Howard, says there'll be no apology, let alone compensation, for Mr Habib. Yet the Howard Government has much to apologise for. It has failed to make the basic demand that Mr Habib - and Mr Hicks - be either charged before a civilian court or freed. It has not challenged their status as "enemy combatants", which has denied them the rights of prisoners of war. It has largely gone along with the partisan processes proposed for their military hearings, dismissing criticism from Australian and American legal authorities. At almost every opportunity, the Howard Government has been the accommodating US ally, happy to sacrifice the rights of Mr Habib and Mr Hicks. The bitter irony is that Australia's obsequiousness has been in the name of a war against terrorism aimed at defending the very rights and freedoms which the Guantanamo detention camp so aggressively and unapologetically seeks to compromise." ENDS

 

The Australian, January 13 2005, "The price of a person’s rights"

http://www.theaustralian.news.com.au/common/story_page
/0,5744,11922990%255E7583,00.html

"…The fact he is now being released demonstrates the US Government is not above the rule of law. The US Supreme Court ruled last July that terror suspects could not be left in legal limbo indefinitely. This will be no comfort for Habib, especially if his claims of torture while in Egyptian custody are true. But however bad his treatment, it was an infinite improvement on the fate of innocent prisoners of other Islamic fundamentalists who have been beheaded in Iraq. Habib's safe release demonstrates Guantanamo Bay is no gulag without hope of release. The wheels of justice there may have turned too slow, but at least they turned.

Once home, Habib, like every other Australian, should be free to say and do whatever he likes, subject to the operation of the law. But even in freedom he will be watched. There seems little doubt that Habib has had contact with advocates of violence in the cause of Islam. Yesterday, NSW Premier Bob Carr said his government would co-operate with Canberra to watch any individual when the security of the Australian people required it. The brutal truth is that the war on terror has imposed new rules on us all. There is no case for allowing suspected terrorists and their confederates to plan in peace. As September 11, the attacks in Bali, Jakarta and Madrid, and the dreadful campaign to stop the Iraqi elections all demonstrate, terrorists do not fight by the rules we live by and will exploit every opportunity the letter of the law can allow them. This does not mean there are no rules in democracy's fight against terror. Far from it, the treatment by Americans of prisoners in Abu Ghraib jail in Iraq and the prolonged detention of terror suspects at Guantanamo Bay does the cause of freedom no credit. But these stains can be removed. A refusal to accept that dangerous times demand tough responses leaves Australia open to terror attack. And the deaths that such a strike would cause could never be undone." ENDS

 

Here finally is Bill Maley’s opinion piece in The Australian of 14 January 2005, in full:

"Habib's detention a lesson in the frailty of our freedom"

 

THE release of Australia's Mamdouh Habib from the US detention camp at Guantanamo Bay in Cuba will surely come as an enormous relief to his family, although realistically it may take him years to recover from his experiences. But it also provides an occasion to reflect on the fragility of liberty.

Habib was arrested in Pakistan, far from any theatre of military operations, and therefore scarcely an "enemy combatant" in any meaningful sense of the term. He was deprived of his freedom for a number of years without ever being charged with an offence, or brought before a competent tribunal.

Far from coming to his aid, Australian ministers lined up to attack him under the protection of parliamentary privilege - at a time when Habib was denied permission even to speak with his Australian lawyer, and thus was unable to give his side of the story.

In a shameful exercise reminiscent of his notorious 2001 "children overboard" assertions, the Australian Attorney-General, in his statement announcing Habib's release, could not resist the temptation to give an airing to US claims that Habib had trained with al-Qa'ida -- claims that the US notably lacked the courage to expose to the scrutiny of a judge or jury.

When the Guantanamo Bay camp was established, it must have seemed like a brilliant way of insulating the Bush administration and its interrogators from scrutiny. One wag reportedly remarked that the only three places beyond the reach of the courts were Antarctica, outer space and Guantanamo Bay.

But over time the wonderful plan unravelled. Petitioners acting on behalf of some of the detainees (including Habib) went to the US courts to seek writs of habeas corpus, a remedy the US Supreme Court once described as "the fundamental instrument safeguarding individual freedom against arbitrary and lawless state action".

Finally, in June 2004, in a devastating setback for the Bush administration, the US Supreme Court ruled in the case of Rasul v Bush that it had the jurisdiction to entertain the petitions. This was the beginning of the end for Guantanamo as an institution beyond the reach of the law.

The ruling in Rasul v Bush opened the door to bringing the Guantanamo detainees before real courts where proper standards of evidence would apply -- courts where evidence could be tested and "confessional evidence", if it were to be accepted, would have to have been freely given.

It was at this point that the "case" against Habib started to come apart. In December 2004, FBI communications documenting serious abuses of detainees at Guantanamo were officially released, and in January 2005, a declaration executed by Habib's American lawyer Joseph Margulies gave chapter-and-verse details of tortures that Habib had allegedly experienced on his way to Guantanamo.

Any competent defence lawyer could have made mincemeat of "confessions" or "testimony" collected in such circumstances. As a result, Habib became an embarrassment for his captors.

Terrorism is a threat to the citizenry of modern societies. In the long run, however, unconstrained executive power has the potential to be far more threatening to our way of life. This danger is one thatall true liberals have long recognised.

In his book The Spirit of the Laws, first published in 1748, the great French thinker Montesquieu wrote that "there is no liberty, if the judicial power be not separated from the legislative and the executive".

More recently, US Supreme Court Justice Robert Jackson -- who as chief US prosecutor at the Nuremberg Trials knew something about war crimes -- wrote that, "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land."

In Guantanamo, the Bush administration tried to set itself up as judge and jury in its own cause. It is no wonder that torture and abuse subsequently flourished.

One of the great principles of a free society is that an accused is innocent until proven guilty. In the Habib case, the Howard Government paid occasional lip service to this principle, but in practice, and to its everlasting discredit, treated Habib as guilty from the moment that its "great and powerful friend" decided to pick on him.

This should be of concern to far more than just Habib and his family. The philosopher David Hume once warned that it is seldom that liberty of any kind is lost all at once, and in reckless prosecution of an ill-focused "war on terror", we run the risk of progressively sacrificing the very principles that we purport to be defending. In this respect, the Habib case should serve as a wake-up call. ENDS.

William Maley, director of the Asia-Pacific College of Diplomacy at the Australian National University in Canberra, is editor of Shelters from the Storm: Developments in International Humanitarian Law (Australian Defence Studies Centre, 1995).