Charges against Izhar Ul-Haque have been dropped after a judge found on November 12 that ASIO officers had deliberately committed the offences of false imprisonment and kidnapping. This comes after a series of abusive charges against several people, with a senior police officer saying that police were instructed to charge as many people as possible to test the limits of new terrorism legislation.
Ul-Haque, a medical student at the University of NSW, visited a Lashkar-e-Toiba (LET) training camp in Pakistan in January 2003. At the time, LET was not a listed terrorist organisation. On his return to Australia, he decided that he wasn't a "fighter" and resumed his medical studies.
His motivation was at least partly a reaction to racist treatment he had received in Australia. After the terrorist bombings on the World Trade Centre in 2001, Ul-Haque's father was unable to find work in Australia and returned to Pakistan. In late 2002, Ul-Haque wrote to his father "Western patients look at me as if I'm a frog. They don't wish to speak English to me. How can I spend five to six years with them? [doing medical training]"
The charges brought against Ul-Haque were based on what he told ASIO officers and the AFP. However, NSW Supreme Court Judge Michael Adams found that the questioning of Ul-Haque was so oppressive that it was "grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused."
The questioning started when Ul-Haque was approached by three ASIO officers on his way home from university. They said "You're in serious trouble. You need to talk to us and you need to talk to us now."
They interrogated Ul-Haque in a park and later in his bedroom until 3 am, before handing him over to the Australian Federal Police. Adams said the manner of questioning was a "gross breach of powers." He was not offered a lawyer, not informed that he had the right to remain silent and given the impression he could not walk away. "They were aware that what they were doing was unlawful", Adams said.
"I am satisfied that when he said he believed he was under arrest and that if he did not comply with what the officers asked him they would either use physical violence or take him to a more sinister place for interrogation ... the accused was telling the truth. Furthermore I think that this state of mind was intentionally instilled."
The withdrawing of charges against Ul-Haque following illegal ASIO behaviour is not an isolated case.
Zak Mallah was acquitted of terrorism charges in March 2005 under similar circumstances — the police acted illegally in gathering evidence that was so extreme that the presiding judge exercised his discretion to exclude the "confessions."
In July 2006, Dr Mohamed Haneef was charged with terrorism offences which were then dropped for lack of evidence. These are just some examples.
Adam Houda, Ul-Haque's lawyer, was quoted in the November 13 Australian saying "From the beginning this was no more than a political show trial designed to justify the billions of dollars spent on counter-terrorism."
According to the article, Terry O'Gorman of the Australian Council for Civil Liberties said "Terrorism laws are draconian. If judges are finding that ASIO operatives are breaking even these draconian laws, which favour ASIO as against the individual, then something serious needs to be done about it."
The significance of the court's decision is that under Australian law, there is no automatic right to have evidence excluded if it has been illegally or improperly obtained. This is a matter of discretion for the court. In Ul-Haque's case, the judge decided that the ASIO abuses were so serious and so deliberate it was proper to exercise his discretion to exclude the evidence.
A senior police officer with the counter-terrorism section of the Australian Federal Police has said that police were directed to charge "as many suspects as possible" with terrorism offences in order to test the new anti-terrorism laws introduced in 2003. AFP federal agent Kemuel Lam Paktsun was the senior case officer on the investigation that led to Ul-Haque's arrest.
The November 13 Australian reported Paktsun as saying "At the time, we were directed, we were informed, to lay as many charges under the new terrorist legislation against as many suspects as possible because we wanted to use the new legislation.
"So regardless of the assistance that Mr Ul-Haque could give, he was going to be prosecuted, charged, because we wanted to test the legislation and lay new charges, in our eagerness to use the legislation."
On November 14, the inspector-general of intelligence and security released a statement saying he had initiated an enquiry into the actions taken by ASIO against Ul-Haque throughout 2003 as well as an enquiry into "ASIO's policy and procedures and general practices on the interviewing of persons of security interest, as they stood in November 2003 and currently."