The dismissal on November 12 of the charges against alleged terrorist Izhar Ul-Haque after NSW Supreme Court judge Michael Adams ruled on November 2 that ASIO officers had "committed the criminal offences of false imprisonment and kidnapping at common law", have led to calls for increased oversight over ASIO.
Justice Michael Adams found that Ul-Haque was led to believe he was under arrest and that if he did not comply with whatever was asked of him physical violence would be used against him or his family.
Ian Wing, a former long-time president of the Australian Institute of Professional Intelligence Officers, was quoted in the November 14 Australian as saying in response to the dismissal of Ul-Haque's trial: "I don't like the idea of secret police, which is what ASIO is verging on becoming."
Sydney lawyer Stephen Hopper said that he was not surprised by what happened to Ul-Haque. "It is the norm rather than the exception", Hooper said.
Ul-Haque, a medical student at the University of NSW, was illegally intimidated by ASIO in an attempt to coerce him to spy on Faheem Lodhi, who was convicted by a NSW jury in June 2006 on three terrorism-related charges, by wearing a listening device.
When Ul-Haque refused, he was arrested and charged in April 2004 under anti-terror laws for attending a Lashkar-e-Toiba (LET) training camp in Pakistan in January 2003. On his return to Australia, he decided that he wasn't a "fighter" and resumed his medical studies.
After his arrest, his bail application was refused, despite Australian Federal Police officers privately admitting that he posed no danger to Australian society. Ul-Haque said at his trial that he had been originally told by police that his activities in Pakistan were not of concern, only his links to Lodhi.
Ul-Haque's activities in Pakistan were described by Justice Adams as "of relatively minor criminality. Indeed, I think that he did not know that he was committing an offence under Australian law". The LET, which fights against India over the disputed territory of Kashmir, was not a banned organisation at the time Ul-Haque attended the training camp.
During the pre-trial hearing on October 24, Kemuel Lam Paktsun, a senior counter-terrorism officer with the AFP, testified that police were directed to charge "as many suspects as possible" with terrorism offences following the enactment in 2003 of the new anti-terrorism laws.
"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", Lam Paktsun said.
But behind this "eagerness" lies the political imperative to be seen to be finding and prosecuting terrorists. The Howard government benefits by frightening the population, boosting its security credentials (and justifying the new laws). The security agencies benefit by boosting their credentials, securing increased funding and resources and justifying their expanded powers under new anti-terror laws.
The cases of Dr Mohamed Haneef, Jack Thomas and Ul-Haque have exposed the fact that people who are not terrorists are being pursued by ASIO and the AFP under the anti-terrorism laws. We are therefore entitled to suspect that 13 Muslim men currently in Barwon prison near Geelong, and nine Sydney men in Goulburn's super-max prison, may also have been "fitted up" as "terrorists".
The anti-terrorism laws themselves are at fault for being so broad and general that it is possible for them to used against non-terrorists. In the case of the Barwon 13 and the Goulburn 9, a new law which allows any group to be deemed a "terrorist organisation" will be tested at their trials beginning next February. Did the men constitute an "organisation" at all, and if so, was it a terrorist organisation?
Ul-Haque was pursued because of his association with Lodhi. Was Lodhi a terrorist? It must remain highly doubtful that he was. The evidence against him was very flimsy. He was accused of wanting to bomb the Australian electricity grid. The evidence for that was his purchase of two schematic diagrams of the electricity grid.
Lodhi said he wanted them for office wall maps to promote his proposed new business venture — exporting electrical generators to his native Pakistan. The generalised diagrams would have been useless for finding locations for an attack.
Lodhi's possession of a Friends of the Earth poster of Australia with uranium mine sites and the Lucas Heights nuclear reactor marked on it was also alleged to indicate an intention by him to attack the reactor.
Lodhi had no equipment, no chemicals, no bombs and no plans for using bombs. It is difficult to understand how the evidence presented at Lodhi's trial can possibly be regarded as beyond a reasonable doubt. But the principle being applied now for anyone accused of being a terror suspect is the precautionary principle — if there is any suspicion at all, convict.
In an atmosphere of terrorism paranoia and "eagerness" to use the new laws to obtain convictions, Lodhi was sentenced to 20 years imprisonment. The conviction is possibly one of Australia's most serious injustices.
Lodhi himself was pursued because he associated with Willie Brigitte, a French convert to Islam, when he resided in Australia for five months in 2003. The accusations against Brigitte originated in France. But Alain Chouet, the former head of France's external security agency, told the February 5 Australian that the French charges against Brigitte were "weak" and that Brigitte is "a person without importance whom the Australian authorities are continuing to play on to create fear".
Brigitte has been accused of plotting (with Lodhi) to attack the Lucas Heights reactor and the Pine Gap satellite spy base. The "evidence" that Brigitte intended to attack Pine Gap is that he mentioned the base in conversations with his wife, a former Australian Army signaller in East Timor.
Brigitte was arrested in October 2003 on grounds of breaching the non-employment stipulations of his tourist visa, and deported back to France later that same month. He was then arrested under that country's draconian anti-terror laws.
For three-and-a-half years, Brigitte was held without trial. He was finally convicted earlier this year under France's catch-all charge of "criminal association in relation to a terrorism enterprise". He was not charged with having been involved with any terrorism plot while in Australia.
It has been reported that the French judges relied heavily on the Australian investigation of Brigitte in order to establish guilt. Yet at Lodhi's trial, Justice Anthony Whealy found that there was insufficient evidence to try Brigitte in Australia. Apparently the Australian evidence that was central to convicting Brigitte in France was too weak to have him convicted in Australia.
What is highly disturbing here is that Australian and French authorities seem to have come to an arrangement of mutual convenience. Canberra wanted a bogeyman in the "war on terror", and Paris wanted yet another anti-terrorism conviction. But where is the convincing evidence of an immanent or planned terrorism attack in Australia? Nowhere to be seen.
The collapse of the case against Ul-Haque and the AFP officer's admission that police had been instructed to make as many arrests as possible to test out the new anti-terror laws, point towards a disturbing scenario — that the anti-terror laws are being used to justify the laws themselves and to advance a political agenda, instead of defending us from any real terrorists.
The political agenda demands that a terrorist plot be found. That leads to expanded the powers of the security agencies, which in turn are used to frame innocent people as "terrorists". This is the real 'terrorism" threat that we face in Australia.
[Colin Mitchell is an activist in the Melbourne-based Civil Rights Defence.]