Terror laws target 'thought crimes'

October 25, 2009

It is a pattern that is being repeated over and over worldwide. Security agencies conduct secret surveillance of suspects, record their conversations, then convict them under anti-terrorism laws so broad that expressions of opinion and radical talk are sufficient to define a terrorist.

No actual plans to carry out any terrorist act are required.

So it is that five Sydney men were found guilty on October 16 of conspiring to commit an act or acts in preparation for a terrorist act.

There was no unambiguous evidence of any physical steps taken towards committing any terrorist act.

Instead, the prosecution relied chiefly on recorded conversations, in which the men expressed radical Islamic ideas and on the "extremist" literature found in their possession.

The Crown prosecutor admitted in his summing up that the case was circumstantial and there was no direct evidence of any particular act planned.

But, he said, the jury only needed to be satisfied there was an agreement, even an unspoken agreement, to commit the crime.

To reach this agreement, he said, "… you do not need to have it written down, you do not even need to have spoken it … an agreement in this context can be reached by an understanding".

The Crown prosecutor spoke of the "mindset", the "sentiments" expressed and the "state of mind" of the men as evidence that they wanted to prepare a terrorist act, said the October 17 Weekend Australian.

Last year, seven Melbourne men were found guilty of membership of a terrorist organisation — the "organisation" was the seven men themselves.

Under Australian law, a terrorist organisation can be defined as a group that "indirectly fosters" a terrorist act.

The jury in the Melbourne case apparently decided the men's radical talk among themselves was indirectly fostering a terrorist act, even though there were no preparations to carry out any act.

The evidence against them was also in the form of recorded conversations.

An undercover operative, known as SIO39, helped entrap the men.

SIO39 convinced the alleged "leader" of the group, Abdul Nacer Benbrika, to accompany him to a location where a camera hidden in a tree filmed them witness the detonation of an explosive device manufactured by the police.

Similar kinds of terror convictions have occurred in the United States.

In May, five men in Miami were convicted of various terrorism charges on the basis of recorded conversations. It was alleged the intended targets included the Sears Tower in Chicago and FBI offices.

But there was a lack of evidence showing any actual steps were taken towards any act.

Instead, prosecutors concentrated on the "mindset" of the group revealed in the recordings.

An FBI undercover agent had joined the group. In what proved to be a key piece of evidence, the agent led a secretly filmed ceremony in which the group pledged an oath of allegiance to al Qaeda and Osama bin Laden.

Defence lawyers said the case was an FBI set up and the group had been manipulated.

Now, four Somali men have been arrested in Melbourne. It was alleged they intended to attack Sydney's Holsworthy army base, yet they had no weapons at the time of arrest.

Once again, it appears the evidence presented will be in the form of recorded talk.

Will we see the pattern repeated again? Are these men to be tried on the basis of their expressed ideas rather than their concrete actions?

Clearly we have strayed into dangerous territory if the government can convict people for the views they express.

The new laws are open to abuse by security agencies.

There are many that believe no special new laws to deal with terrorism are needed and that the previously existing criminal law in Australia was more than adequate for the job.

This is the opinion of Stephen Keim, one of the lawyers who represented Dr Mohamed Haneef.

Haneef was briefly arrested in 2007 and falsely accused of involvement in terrorist acts by Australian authorities.

Keim's submission regarding the government's new security bill is available on the Attorney General's department website.

The Rudd government must do far more than tinker around the edges of the anti-terrorism laws. Ideally the laws should be repealed, at the least they need to be radically reined in.

[Colin Mitchell is an activist with Civil Rights Defence in Melbourne.]

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