Talk It Out

Akerman’s war on good sense - again!

Piers Akerman can always be counted on for a senseless rant. If you are looking for an example of really bad journalistic writing, Akerman's his latest piece titled "Leadership foreign to Haneef pawns" doesn't disappoint.

As usual Akerman displays his ability to write in a balanced and unbiased manner by starting his article with "A week before the undesirable Dr Mohamed Haneef bolted from Brisbane, the self-proclaimed great and the good gathered at Griffith University to demonstrate their willingness to be used as political pawns in his support." Actually, for Akerman this is quite restrained - at least he didn't mention stormtroopers, Hitler's Nazis, Stalin's communists and Mao's Red Guard in one sentence, but someone should tell Piers that while loaded language may sometimes enhance a valid argument, it does not bestow validity on an argument which has none in the first place.

Akerman follows his normal practice of not letting the facts get in the way of a right-wing rant or to interfere with his near-pathological* need to attack the ABC. He wastes no time attempting to bring the ABC into his story "They were welcomed by the ABC’s Sandy McCutcheon, Radio National Australia Talks Back host, and addressed by Haneef lawyer Peter Russo and barrister Stephen Keim before a torrent of the usual civil libertarians, lawyers, preachers and Democrats spoke." There then follows a comment about McCutcheon's involvement in an anti-Iraq war symposium (why wouldn't anyone like the Iraq war, it's been so successful!). However, in his haste to have a go at the ABC, Akerman conveniently forgets that Sandy McCutcheon has not worked at the ABC since 2006. Akerman's brand of journalism obviously doesn't require accuracy.

Then Akerman has a bit of fun with Haneef's interview on Channel 9, during which he was described as “a shy man . . . gentle for a suspected terrorist”. With impeccable (or should I say impenetrable) logic Piers immediately states "It has an eerie echo in a phrase by John Hooper, in The Observer, who described Mohamed Atta - the terrorist who piloted American Airlines Flight 11 into the World Trade Centre - as “a shy, considerate man who endeared himself to Western acquaintances”.

That's right, all "shy", "considerate" and "gentle" men (of Middle Eastern appearance of course) must be terrorists! Why didn't we see it before? It proves the case against Haneef! Maybe its the "secret" evidence that Kevin Andrews is reluctant to share with us. Perhaps Piers will volunteer his time to help the AFP draw up plans to round up all shy and considerate men and hold them indefinitely on suspicion of terrorism.

Interestingly, Akerman criticises Tara Brown for being too superficial when interviewing Haneef. Not having watched the interview, I can't comment on the veracity of that accusation. But I will comment on Akerman's failure to practice what he preaches. Having accused one reporter of superficiality, he demonstrates the same in his article. He accuses Kerry O'Brien of showing a "lack of understanding" when questioning Ruddock about the government's handling of the case, but says nothing about how this alleged lack of understanding was manifested. He demonstrates his lack of critical analysis by quoting Kevin Andrews statement “I’m going to protect Australia and Australians first. So far as I’m concerned, his visa is cancelled and that’s that” and asserting that "It’s called leadership. It’s in short supply in the ALP and obviously an alien concept to Haneef’s supporters."

Yeah, that's right, a political slogan about protecting Australians from someone who is not even a threat to them followed by a refusal to discuss the matter ("and that's that") shows leadership! Some might think it shows lack of accountability, but Piers is happy to gaze adoringly at any Howard government Minister and, like Andrews, obviously doesn't feel the need to explain how the Minister's conduct demonstrates leadership qualities.

Then there is the assertion that "under the Act, the Minister has that discretion and in this matter he has acted both legally and correctly." Akerman obviously has legal qualifications that he carefully concealed from the rest of us which enable him to determine whether Andrews acted legally. Pier's valuable opinion notwithstanding, some of us may want to wait until a court rules on the matter, while remembering that the Minister has a duty to use that discretion for proper purposes under the Migration Act and not for extraneous reasons, such as ensuring the continuing detention of someone who has been granted bail.

Oh and of course his article doesn't explain how taking issue with what the government did turns us all into political pawns, but hey, an article content doesn't really have to relate to the title does it? 

But there is one thing that I agree with Akerman on - leadership is in short supply in the ALP. If they keep on going in that manner, Akerman may have to start writing nice things about them.

* Yes, it's an example of loaded language, but I do attempt to make a (hopefully) valid argument. 

August 3rd, 2007 Posted by Unsilenced | Howard government, Media, Terrorism and war on terror | no comments

Andrews wins gold in suspicious character competition

If coming up with ludicrous accusations was an Olympic sport, Kevin Andrews would be a gold medal winner. His statement that the the speed of Dr Haneef's departure from Australia only made him more suspicious would have been funny if it didn't suggest that something is truly rotten in our government.

Haneef's speedy departure is suspicious? Well lets see:

• When Haneef was arrested almost a month ago, he was in the process of leaving Australia, apparently to get to his wife who just had a baby. It is ever so suspicious that once released he would be keen to do what he was trying to do a month ago and get home to his wife and daughter!
• He spent four weeks in custody - two being questioned by AFP and two locked up, courtesy of Mr Andrews who branded him a person of bad character. Yeah, it is really suspicious that someone put through that sort of ordeal would want to leave Australia in a hurry!
• Andrews seems to have forgotten that he cancelled Haneef's visa. Without a visa Haneef had no right to be in Australia and in fact, after his release from custody he was placed in "residential detention". Naturally, it is very suspicious that someone who has no visa and is being detained for that reason may want to leave the country as soon as possible!

And here is the best basis for suspicion:

Shortly after Haneef's release Kevin Andrews stated "After taking advice, including from the Australian Federal Police, I have indicated that the commonwealth has no objection to Dr Haneef leaving Australia. Indeed the effect of the visa cancellation is that he should remove himself, he should depart Australia in any event"

It is most suspicious that Haneef would take the Minister's advice and depart Australia with all due haste, isn't it? But not quite as suspicious as Andrews apparently forgetting having made the statement and using Haneef's prompt departure to stir up unfounded suspicions. Is he really that stupid or does he think we are? 

July 30th, 2007 Posted by Unsilenced | Australian politics, Howard government, Terrorism and war on terror, Misconduct in politics | no comments

Haneef and the true dangers of anti-terrorism measures

After a four week ordeal, Mohamed Haneef has finally left Australia. Kevin Andrews refused to reinstate his visa, but allowed him to go back to India. This "generosity" comes at a price - Haneef is free to leave only on the condition that he doesn't talk to the media or allow his picture to be taken. The government is clearly hoping that if Haneef leaves quickly and quietly the whole affair and the government's role in it will be forgotten.

The Haneef affair should be remembered, not because it is undoubtedly a source of acute embarrassment to the government, but because it demonstrates the dangers of overzealous anti-terrorism laws, combined with the willingness of the government (with the blessing of the opposition and most of the electorate) to undermine the rule of law and trample civil rights in its "war on terror" (or more accurately in its attempt to make political mileage out of the "war on terror"). Ruddock may have the gall to say "I think that what we have seen is that the system worked as was intended", but what we have seen is the failure of "the system" to do what it is supposed to do - ensure that in our pursuit of the guilty we protect the innocent.

Civil rights, separation of powers and the rule of law are core Australian values, they are there to protect everyone one of us. Dismantling them to go after suspected terrorists puts us all in danger. I think this rationale was best described by Robert Bolt in his play about Sir Thomas More - "A man for all seasons":

Roper: … you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

In our haste to get after the Devil of terrorism we have allowed our government to cut down laws protecting our civil rights, to undermine the rule of law and the separation of powers. When you add into the mix the political interests involved and the pressures resulting from them, standing upright in the winds is becoming increasingly more difficult, and the Haneef affair is a good illustration of the results that follow.

Haneef was arrested in the thoroughly suspicious act of trying to board a plane to India, where his wife had just given birth, without having a return ticket and while looking Muslim. After being held and questioned for two weeks, while his lawyers weren't even given enough information to know what the evidence against him was, Haneef was charged under section 102.7(2) of the Criminal Code Act 1995 (Cth):

102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

This provision was included in the Criminal Code as part of a host of anti-terrorism measures hastily legislated by the government. So hastily in fact that the legislation does not even define what "support" or "resources" mean. Quite extraordinary for an offence that carries such severe penalty. In the case of Haneef it was decided that providing a SIM card to a relative, who later happened to be charged with concealing knowledge of a terrorist act, was sufficient to charge him with the offence.

To add to the peril of undefined nature of the offence, bail can only be granted for a person charged with a "terrorism offence" in "exceptional circumstances". Nonetheless, a Brisbane magistrate ordered that Haneef be released on a reasonably low ($10,000) bail. What happened as an immediate consequence of that decision is perhaps the best clearest illustration of the government "cut[ing] a great road through the law" - the executive intervened to subvert the court decision and keep Haneef incarcerated using the migration powers. 

Government interference in the process of justice is the greatest threat to the rule of law and to the protection of our civil liberties. Failure to maintain a strict separation of powers between the executive and judicial arms means that political interests of the government are allowed to take the place of justice. It means that decisions affecting our rights a liberties are made not in the open forum of the courtroom, after presentation and consideration of the various arguments, but in the secretive confines of a ministerial office (in this case Kevin Andrews'), based on one sided information, without an opportunity for argument or appellate scrutiny. 

The fact that the government was able to take that measure with not a whisper of protest from the Opposition and very little concern on part of the electorate demonstrates just how much danger the rule of law is in when it comes to anti-terrorism measures. An individual accused of a terrorism offence may find himself deprived of all the normal protections that the law gives a person (and lets remember that the person is innocent unless they are proven guilty).

Lets recall that at the same time stories were circulating in the media, fueled by various statements made by the AFP and the government: that Haneef the SIM card was to be used to set off the bomb, that the SIM card was found in the burning vehicle at Glasgow, that Haneef lived, worked and associated with the UK terrorists and so must have known what they were up to, etc. All these allegations have now been proven to be false. Ruddock was publicly stating that courts should be prevented from granting bail for terrorism offences altogether (the implication being that people as clearly guilty as Haneef should not be released) and Andrews was hinting that there is "secret" evidence, known only to the AFP and himself, that must prove Haneef's guilt.

When Haneef's lawyers took a page out of the government's book and released a transcript of his interview, they were publicly and viciously condemned by government ministers, including Howard who contended that now Haneef wouldn't be able to have a fair trial (you don't say!) and Ruddock who was threatening to have Stephen Keim QC prosecuted for daring to release a document with the potential to counter the misinformation leaked by the government.

Haneef is now free in spite of the "system", not because of it. He is free because because his legal team had the courage to fight the government in its own arena of public opinion, rather than their traditional arena of the courtroom, because release of Haneef's interview allowed public scrutiny of the gaps in evidence, because of heightened media interest and because, unlike the cowardly stance adopted by Rudd, Peter Beattie continually questioned the process. A bit of luck probably helped too.

Consider the situation: an individual is charged with a very serious offence, the scope of the offence is not clear, his legal team are not given access to all the information required to defend him, he is being held by virtue of a ministerial decision which cannot be appealed on merits and in relation to which he was not given the right to be heard, he is being vilified in the media by the same government that has locked him up and his lawyers are being personally attacked by the government for daring to defend him.  So much for natural justice, so much for presumption of innocence and so much for the rule of law.

Every one of us can become that individual, because we have allowed the government to undermine the rights and values that are there to protect us all. This is the true danger of anti-terrorism measures - the protections for the innocent have been dismantled. Before we allow our leaders to continue cutting the road through the law, we should ask what will protect us from the winds. And our leaders would do well to ask themselves whether undermining public confidence in anti-terrorism laws advances Australia's fight against terrorism.

July 29th, 2007 Posted by Unsilenced | Australian politics, Law, Human rights, Howard government, Terrorism and war on terror | one comment

Haneef fiasco and the politics of (ir)responsible government

I am in the process of writing a post about what the dangers of overzealous anti-terrorism measures as illustrated by the Haneef case. But before that post is complete, it is worth commenting on responsibility of the various actors in the Haneef fiasco and the hypocrisy of denial of that responsibility by the government.

A government that is responsible for a mistake or a bad situation is not necessarily unfit to govern. Of course it depends on the nature of the mistake and the government's role in it, but we have to face the reality that mistakes, and sometimes serious mistakes, can and do happen. A government which makes a mistake, admits it, learns from it and does what needs to be done to correct the situation is not a bad government by reason of the error alone.

On the other hand, a government which is responsible (wholly or in part) for a mistake or a bad situation and does not admit its responsibility, instead blaming anyone or anything it can, is not fit to govern. Not because it is responsible for a situation, but because it is unwilling to be what a government in a democracy must be - responsible.

In the wake of the collapse of case against Dr. Haneef, the Howard government sought to distance itself from the fiasco, blaming anyone and anything it could point a finger at.

Let's take a look at some of the government's outrageous attempts to duck responsibility:

1. "We didn't detain him" 

Perhaps the best example is the statement by Howard "The detention of the man was undertaken by the police and not at the request or direction or encouragement of the Government".

How stupid does Howard think we are? Haneef was granted bail and was to be released, until the government (via one of its ministers - Kevin Andrews) intervened and used its immigration powers to detain Haneef. I do not propose to repeat my previously expressed views about Andrews' action, but given that this action was taken, and apparently taken after discussions between Andrews and other members of the government, it is extraordinary that Howard would say that the government was not responsible for Haneef's detention! In fact, Haneef is still being detained (in residential detention), solely because of the government's action to revoke his visa. 

2. We weren't involved at all - blame the AFP and the DPP

In a variation on the above theme, Howard and Downer joined forces to claim that the AFP and the DPP operated entirely independently and the government was not in any way involved in the prosecution of Haneef.

Immediately after making the "we didn't detain him" statement, Howard went on to say that "the case was prepared and presented by the Director of [Public] Prosecutions, I think that the right thing now is for those two men to explain the process and explain the reasons" and Downer added "These institutions operate at arm's length from the Government and they always should and they always have." 

Yes, the AFP stuffed up (do I dare mention the additions to the diary?). The DPP stuffed up as one of their prosecutors incorrectly told the court that Haneef's SIM card was found in the burning vehicle at Glasgow Airport and that he resided with the London terror suspects. Yes, those two institutions should operate at arm's length from the government, but that's not what happened here - the government may not have conducted the investigation itself, but it was certainly involved. It became involved when it decided to make political mileage out of the whole affair.

Here are just a few examples of the government's involvement: publicly supporting extended detention of Haneef and the AFP handling of the matter, declaring Haneef to be of "bad character" and stating that he will be deported even if found not guilty, locking him up after he was granted bail, publicly attacking and threatening Haneef's lawyers for releasing a transcript of the interview (which they were entitled to release), putting pressure on the AFP and the DPP, implying that anti-terrorism laws may need to be strengthened (presumably to better deal with vicious SIM-card sharing doctors), etc.  

Had the case succeeded, the government would not doubt be quick to claim responsibility and boast about the success of its anti-terrorism measures. But while it it happy to take credit for success, it won't take any responsibility for its part in the prosecution which has now been revealed as a sham.

3. The Opposition are to blame because they supported us

This has got to be the most amusing attempt to duck responsibility - Andrews blamed the Opposition for supporting the government on Haneef. That's right - Labor rather than the government are to blame because they didn't oppose the government's actions!

There can be little doubt that the Opposition deserves criticism (and a lot of it) for its supine, unprincipled and cowardly position during the entire affair. It's "me to" attitude on everything from extended detention to supporting Andrews' outrageous use of migration detention powers means that it deserves almost as much blame as the government.

Nonetheless, Andrews' suggestion is quite extraordinary, not least because it is not too hard to predict what the government would have done if Labor had some guts and stood up to it. Without a doubt Howard would have painted Labor as soft on terrorism, putting Australian lives at risk and trying to bring about the complete destruction of Australia. Consider the government's response to Peter Beattie's criticism of the AFP investigation (incidentally, Beattie deserves praised for doing what the federal Labor did not dare to do). Howard's response to Rudd would no doubt have been even more extreme and would have allowed Howard to score some much needed political points.

Let's contrast the government's failure to accept responsibility with other actors in this drama:

The government's lack of integrity, as evidenced by it playing the blame game, may be contrasted with the actions of others in the Haneef fiasco. Let's start with Damien Bugg, the Director of Public Prosecutions, who reviewed the case, admitted that a mistake has been made and took appropriate steps to remedy the mistake. That was his job, but it must have taken a lot of guts given how political the case is.

The government's actions may also be contrasted with that of Stephen Keim SC, whose decision to release a transcript of Haneef's interview probably significantly contributed to the speed with which the case unravelled. Keim immediately took responsibility for releasing the transcript to the media and stood his ground despite vicious criticism and threat of criminal sanctions by the government. Keim (and Haneef's solicitor, Russo) should be commended for having the integrity and courage that our government obviously lacks.

Without a doubt, the blame game will continue for some time. Perhaps we should take the opportunity to consider whether a government which cannot act with integrity and which cannot take responsibility for its failures is a government that we should return in the next election. 

July 28th, 2007 Posted by Unsilenced | Law, Howard government, Rudd and Labor, Terrorism and war on terror, Misconduct in politics | one comment

Can democracies deal with terrorism?

There was an opinion piece in the Australian concerning the difficulties for politicians in a democracy in showing restraint in their responses to terrorism. The author argued that the shock value, rather than fatalities of terrorist acts means that politicians have no choice but to demonstrate that they are tough on terrorism, especially in a democracy where they will be held to account if they don't.

There is no doubt some truth in that, but is that the whole story? Is it fear of being held to account by the people in a democratic system itself that mandates an overreaction from our political leaders or is it the desire to capitalise on terrorism? Let's face it, terrorism can give a great boost to a leader's approval ratings. Consider Bush's approval ratings in the graph below. His approval ratings doubled in the immediate aftermath of 9/11.

Similarly Howard's approval ratings jumped 21 points from 40 percent prior to 9/11 to 61 points in October 2001. That's a 50% increase.

Consider the popularity boost these leaders received as a consequence of the terrorist attack, the ensuing fear and the militaristic reaction to the attack. This sort of a popularity jump can be the difference between disastrous election loss and a comfortable win. Consequently, overreaction to the threat of terrorism may have less to do with avoiding a negative reaction from the electorate and more to do with the desire to make electoral gains by inflating the situation or creating a crisis if it doesn't exist, instilling fear and reaping the awards of being seen as "dealing" with the crisis.

While such conduct is more likely to occur in a democracy, for the simple reason that non-democratic leaders do not need to worry about getting re-elected, the phenomenon is not a function of democracy. It is a function of moral and ethical deficiencies on part of political leaders (of both left and right wing persuasions) who put their own interests above those of their country. While political leaders behave in this manner, it is hard to escape the conclusion that the author of the article is right when he says that "terrorism succeeds even when it fails."

I'll leave it to you to decide what it says about the voters if politicians can repeatedly get away with such conduct.

July 27th, 2007 Posted by Unsilenced | Australian politics, World politics, Terrorism and war on terror, United States | no comments

Re-creating Tampa

Once upon a time the Howard government was dangerously close to losing an election. But its fairy godmother delivered it a special election time gift - a ship called Tampa, with its cargo of a couple of hundred desperate bedraggled refugees rescued from their sinking boat. It's arrival saved the government. The carefully stirred fear of inundation by the threatening "otherness" of the asylum-seekers, the not-so suppressed echoes of the White Australia mentality, "border protection" and border excision, military deployment to export the unwanted human cargo to vulnerable and easily bribeable neighbouring islands, all incited voters to turn to the government as the only thing that could "protect" them. Fear is a powerful emotion, so powerful that we don't stop to examine just how irrational our fear may be, so powerful that we forget to be outraged about lies, deception and truth being thrown overboard.  When it comes to election strategy - fear is king!

Now, with election swiftly approaching, the government popularity at all time low and no ship full of convenient scapegoats visible on the horizon, the government had to re-create Tampa by another way. 

Haneef is a rather poor substitution for a boat-full of refugees, but desperate times obviously called for desperate measures. I have previously criticised the actions of the government in relation to Haneef, but I'd like to draw some parallels between the government's previous strategy to capitalise on the fear of asylum seekers and its present strategy to capitalise on the fear of terrorism.

1. Abuses of power

Treatment of asylum seekers was characterised by abuses of power, non-compliance with our international treaty obligations (eg. under the Refugee convention), violations of human rights (eg. by lengthy detention at the pleasure of the executive) and avoidance of legal remedies (eg, by ousting jurisdictions of courts or giving wide discretionary powers to decision makes to make decisions almost impossible to review).

The same abuses are evident in the case of Dr Haneef - lengthy detention prior to laying of charges, lack of clarity in the charges, denial of natural justice by withholding of information from Haneef's lawyers and subverting the legal process by utilising Migration Act powers are a few examples.

2. Lies, damn lies and the government

Anyone remember the children overboard affair? The government lied and it got away with it. A neat trick if you can pull it off.

Haneef's case, we now discover is also plagued by what appear to be deliberate lies or untruths. The AFP told the court (and the public) that Haneef admitted to living with the two UK terror suspects when he was in UK himself. In fact, Commonwealth Prosecutor Clive Porritt told the court that Haneef must have had some knowledge his cousins' links to terrorism because "These are people who he lived with, may have worked with and certainly associated with."

Now we find out that Haneef did not in fact live with the UK terror suspects. That's one hell of a mistake to make. 

The AFP also told the court that Haneef had no explanation for not having a return ticket from India to Australia, when the transcript of Haneef's interview, bravely released by his legal team, shows that he did in fact give a detailed and reasonable explanation. 

And perhaps the biggest "untruth" of all - the entire case hangs on the SIM card that Haneef is alleged to have given to his cousin and that was supposedly found in the burnt out Jeep that crashed into Glasgow airport. Well, new revelations indicate that the SIM card was not found in the Jeep at all, but was seized some eight hours later and was in possession of Sabeel Ahmed, who is accused of concealing information about the terrorist act, but not of actually committing it.

It's the truth overboard affair all over again and the government is up to its eyebrows in it.

3. Fear of exposure

In its (mis)treatment of asylum seekers the government went to great lengths to avoid exposure and conceal information. From gagging parliamentary debate to establishing off-shore detention centres, from whence troublesome journalists or lawyers could be excluded by visa requirements as well as barbed wire, the government ensured that secrecy ruled. One suspects there were at least two reasons for it. The first is that it is easier to dehumanise a group of people when they are physically separated from us. The other is to control public discourse on the issue in a way that suited the government. 

The same is true in the Haneef situation. There are the claims about "secret" evidence that no one is allowed to see and which is therefore immediately presumed to be damning. The crackdown on release of information, including unjustified and hypocritical attacks on Haneef's legal team who dared to release the transcript of his interview (which is how we found out about the lies set out above), combined with carefully planned leaks and public statements by the government create the conditions for control of public discourse about the issue.

Just how important this control is was evidenced by the extraordinary reaction to the release of Haneef's interview transcript, a reaction which included vilification and, arguably, threatening statements by very senior government ministers (including the PM) and pressuring the editor of the Australian to withdraw the online copy of the transcript (the pressure must have been great because the Australian complied). The message is clear - the government wants to be in control of the discussion, it wants darkness where fear can grow and fester, undisturbed by the cleansing rays of light.

4. Labor party response - the shadow

Just like with the asylum seeker situation, Labor has been forced to become a yes-man to the government. Whatever its own ideological standing is on the issue (and unfortunately it is probably not too far from that of the Howard government), if it does anything other than support the government's position it will be swept away by the tidal wave of fear.

It allows the government to lead, with Labor reduced to making weak statements of support. For a government that has been on the back foot, it is a good election strategy.

Haneef case has become the government's chance to re-create Tampa and to bring fear to its aid at a time when rational approach to electoral choices is not in its favour. In doing so, it is again victimising someone who is vulnerable to abuse of power and undermining long established principles that are designed to protect us all. It is once again morally impoverishing Australia.

July 20th, 2007 Posted by Unsilenced | Australian politics, Human rights, Howard government, Terrorism and war on terror, Misconduct in politics | no comments

The true face of terrorism measures

Earlier today a magistrate ordered that Dr Haneef be released on $10,000 bail, pending his trial on charges of recklessly providing resources or support to a terrorist organisation (aka giving his cousin a SIM card that wasn't even used in the attempted attacks). Given that obtaining bail in matters concerning a "terrorism offence" is very difficult indeed, Haneef's release on bail says something about the evidence against him.

But Haneef didn't get much time to enjoy his freedom after two weeks of confinement and interrogation. Shortly after the court decision, Kevin Andrews, the Minister for Immigration cancelled Haneef's visa on "character grounds" and ordered that he be locked up in immigration detention to await his trial at the end of August.

Section 501(6) of Migration Act empowers the Ministerto cancel a visa where he believes that a non-citizen "has or has had an association with someone else, or with a group or organisation, whom the minister reasonably suspects has been or is involved in criminal conduct."

Andrews stated "In turning my mind to the information and advice provided to me by the Australian Federal Police, I have come to the conclusion, I reasonably suspect, that Doctor Haneef has or has had an association with persons involved in criminal conduct."

Naturally, "association" (which is not defined in the Act) can be guilty, for example where a person knows of their associates' criminality, or entirely innocent, such as association with a relative who unknowingly to the person happens to be a criminal. The fact that Haneef was charged with "recklessly" providing support/resources to a terrorist organisation, suggests that the AFP do not think (or cannot prove) that Haneef knew of his cousin's terrorist inclinations. Kevin Andrews refused to be drawn on the issue when questioned about it on the 7.30 Report.

Conceptually it is difficult to understand how "associating", whatever that means, with a relative, without being aware of his criminality, automatically makes you a person of bad character. It is also difficult to reconcile Andrews' action with according Haneef the presumption of innocence that the PM spoke about. However, this is not the biggest issue with what Andrews has done.

What occurred here is a subversion of judicial process (the only process that can guarantee some sort of impartiality and objectivity in such a matter) by the executive arm of government. Not only is this branch of government, through the AFP, involved in prosecution of Haneef, it also has a vested political interest in the outcome of the proceedings - it would be quite embarrassing for the government if its crackdown on terrorism netted an innocent person. Such an eventuality would also vindicate the concerns about anti-terror laws that have been expressed by those who remain concerned about the erosion of civil liberties.

The government waited for the outcome of the bail hearing and when a desired judicial outcome was not achieved, it took matters into its own hands, exercising immigration detention powers. The purpose of those powers is to detain a person while their visa status is determined or pending deportation. Their use as a substitute for pre-trial detention smacks of illegitimate circumvention of legal process and abuse of power. The fact that Haneef's lawyers were apparently assured that such action would not be taken casts further doubts over the legitimacy of the government conduct.

Kevin Andrews' action reveals the true face of terrorism measures. Dangers lurk not only in extraordinary detention powers, restrictions on ability to obtain bail and ill-defined offences with very severe penalties, they also lurk in the readiness with which the executive branch of government subverts the protections accorded to the accused by the legal process, the willingness that it shows to ignore the doctrine of separation of powers and its ability to become the judge and jury as well as the investigator and prosecutor. Labor's support for this action suggests that this phenomenon is party-neutral. No matter what party is in power, those suspected of terrorism offences (be they attempting to blow up buildings or sharing a SIM card) will find themselves squeezed from all sides with few legal protections available to them. 

July 16th, 2007 Posted by Unsilenced | Law, Human rights, Terrorism and war on terror | 3 comments

Though shalt not share thine SIM card!

Australians, you have been warned! If you give your SIM card to a relative, who later turns out to be a terrorist (even if you don't know about it at the time), you can be hunted down, arrested, charged with something like recklessly providing material support for terrorism and jailed for 15 years. Everyone knows that those SIM cards have become a real rarity. They are not sold everywhere, you know! You sometimes have to walk more than 10 metres to find a store which will carry completely anonymous, pre-paid SIM cards, or phones.

Actually, it's not a laughing matter.  A few days ago I wrote about the inversion of justice created by the detention powers under the anti-terrorism laws. At the time of that post, Dr Haneef had been in detention without charge for ten days as the Australian Federal Police (AFP) tried to find any evidence of his connection to the failed terrorist attacks in UK. Needless to say that if this extended detention did not lead to any charges, the AFP would have had one heck of an egg on its face. Well, this morning the AFP charged Haneef with a "terrorist offence", namely recklessly providing support for a terrorist organisation. 

The offence is set out in section 102.7(2) of the Criminal Code Act 1995 (Cth):

102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

So what exactly is Haneef accused of doing to commit this crime? Well, apparently he left a SIM card to his second cousin, who was one of the failed UK terrorists. That's right - giving a SIM card to a relative, without knowing that he is a terrorist, can lend you in jail for fifteen years.

Because "support" or "resources" are not defined in the legislation, it is arguable that giving your relative a SIM card so he can get cheaper calls, can fall within the scope of the legislation. The fact that anyone can buy a SIM card or a disposable phone in most stores, so it is not much of a resource, may not matter one bit.  Providing hundreds of millions of dollars to Saddam Hussein's regime does not seem to qualify though, so anyone doing that can rest easy.

The width of the provision and uncertainty of what constitutes an offence under that section is remarkable not only in light of the extremely serious penalties that attach to its breach, but also because a person charged with a "terrorism offence" can only be granted bail in "exceptional circumstances". Therefore, Haneef could spend many months in jail, waiting to find out whether giving your relative something that can be bough for a few dollars in any convenience store falls within the scope of the legislation. 

Regardless of whether it does or not, the terrorism legislation clearly needs reform. Not only because it allows detention of people precisely because there is no evidence against them, but also because it is unacceptable that a legislation the breach of which attracts some of the most severe penalties in the Criminal Code is so uncertain. Without definition of what constitutes "support" or "resources" the anti-terrorism laws create a ridiculous situation where someone can spend years in jail for something as innocuous as giving a relative or a friend a commonly available item. Not only is such a situation unjust, it makes a sad joke of the serious issue of terrorism prevention.

July 14th, 2007 Posted by Unsilenced | Law, Terrorism and war on terror | 3 comments

The inversion of justice

Usually we lock people up because there is evidence that they are guilty. Under terrorism laws this principle has been inverted. 

Dr Mohamed Haneef has now been in detention for some 10 days. He has not been charged. Worse still for much of that time, his lawyers have not been told what exactly the accusations against him are. The right of the accused to know the case put against him is one of the most fundamental principles of natural justice. It is difficult to see how Haneef's lawyers can put a coherent case to the magistrate who keeps extending his detention, if they don't even know what the evidence against their client is (or if there is any, for that matter).

The anti-terrorism laws have created a situation where the federal police are allowed to keep on detaining someone precisely because they don't have enough evidence to charge him (not even prove the case against him, just charge him). One can only wonder at the incongruity of the system where it the very lack of evidence of guilt becomes the justification for continued detention.

Terrorism is a serious concern, but so are the basic civil rights and liberties. Serial killers or serial rapists cannot be treated in the way that Haneef has been, they cannot be detained without charge for almost two weeks and without being given a fair opportunity to defend themselves. Of course, in the present climate, attempted acts of terrorism create far more public fear than serial murders or similar crimes. One could easily think that it is a fair bargain to (at least apparently) gain some safety by turning a blind eye on civil rights violations. But danger comes in different forms and in our eagerness to avoid one danger we ignore another. Arbitrary and protracted detention, coercive interrogation, wrongful imprisonment or torture are all dangers that cannot be ignored simply because, for the moment, we are more scared of something else. 

Those who think that they have nothing to fear if they have nothing to hide should remember the paradox of anti-terrorism laws - at the moment Haneef is being detained because there is not enough evidence against him to even charge him. And if such a paradox is acceptable in one set of laws, how long will it be before it is implemented elsewhere?

July 12th, 2007 Posted by Unsilenced | Law, Terrorism and war on terror, Health and Welfare | 6 comments

Sacrificing the rule of law at the altar of fear

        Inscriptions on the Statue of Liberty

Americans are good at coming up with inspiring slogans. Slogans are not sufficient however for a country to truly remain the "land of the free". They are not an adequate antidote to the fear-driven knee-jerk reactions threatening to compromise essential tenets of rule of law and freedom, not only in America, but also in other democracies.

A few days ago a prominent US judge - Richard Posner, gave a speech to a conference of Australian lawyers in Chicago, in which he reportedly advocated secret trials for terror suspects, increased surveillance and crackdown on US and Canadian Muslims. More frightening still was Posner's suggestion that anti-terrorism efforts should not be "hog-tied" by the Constitution and that US "over invested" in the "traditional concepts of criminal justice." 

I have not been able to find a full copy of Posner's speech, but his speech is said to have shocked the attending Australian lawyers. Posner's position is indeed a worrying reminder of how dangerous a motivator fear is. What we have is a US judge essentially suggesting tearing up the constitution and discarding the principles that form the foundation of the American justice system and the rule of law because he (along with many others) is afraid. We are not talking about someone who is a fool or a right wing extremist. Posner is a highly regarded jurist. Whatever one may think of his economic theory of law (it doesn't appeal to me personally, but each to his own), there is no point denying his capabilities.

That a jurist of his caliber would suggest abandoning the carefully crafted protections and principles that we treasure as cornerstones of our legal (and political) systems, because "the US temper and culture could not sustain repeated terrorist attacks" points to the fragility of our liberties. The country that proudly proclaims itself to be "the land of the free" is willing to destroy its freedoms because of fear. No terrorist action is needed to destroy the American "way of life" - they appear to be content to do so themselves. 

It is not my contention that the fear is unjustified or that the threat of terrorism ought to be ignored. But if we (Western democracies) are to destroy the cherished liberties and principles that make "our way of life" what it is - then what is it that we are fighting for? Do we really want to defend ourselves by destroying who we are? Do we want to abandon the protections and liberties that were achieved through decades or centuries of struggle and sometimes bloodshed? If the answer is yes, then the "war on terror" has already been lost.

One other comment that Posner reportedly made is that the measures he proposed would not "endanger liberty and undermine the political system" because a "very aggressive media" and government whistle-blowers made it impossible for governments to conceal what they did. It is quite extraordinary that a judge would propose media as a substitute for the protections enshrined in the legal system. Leaving essential liberties to the mercies of what journalists wish (or dare) to report and to the possibility that a government employee would be sufficiently disgruntled and courageous to blow the whistle, borders on absurd. It is not to say that the media does not play an important role in government transparency, but it is not an antidote to abuse, as is evidenced by the documented atrocities in the "war on terror". Further, revealing abuses, possibly years afterwards, is not the same as preventing them from happening in the first place.

America's rush to destroy its founding principles is very disturbing. If it continues on that road, the inscriptions on the base of the Statue of Liberty will stand as no more than sad reminders of proud and cherished values willingly sacrificed at the altar of fear. 

July 2nd, 2007 Posted by Unsilenced | World politics, Law, Human rights, Terrorism and war on terror, United States | no comments