rendition
9 Sep 2009
Did Australia Know Habib Was Being Tortured?
Even though many details of his rendition remain secret, a hearing next week will finally decide whether Mamdouh Habib can bring a compensation case against the Commonwealth
Sometime in early November 2001, a terrified and confused Australian man named Mamdouh Habib was taken from a Pakistani prison cell trussed in chains. Someone within the US administration or intelligence system had decided he needed a tougher than usual interrogation and he was forced aboard a CIA-operated jet bound for Egypt.Egypt lived up to its reputation as home to one of the most brutal prison systems in the world.
Habib, a Bankstown-based father of four, says for the next five months he endured a myriad of horrors: suspended from the ceiling and beaten, shocked with electric prods (including on his genitals), forcibly injected with drugs, held in a flooded room with water up to his neck, deprived of sleep, and shackled in a cell so small he couldn't stand. The "intelligence" produced from these efforts has long since been discarded as worthless and Habib has never been charged.
Nearly eight years on and still no one has been held accountable for this barbaric episode. In fact, authorities in both the United States and Australia are doing their best to make sure the details stay a secret.
Habib has always maintained that Australian officials were complicit in both his transfer to Egypt and his subsequent torture there. Despite best efforts, the official Australian position — that we had nothing to do with it — is unravelling.
Internationally, lawyers and human rights advocates pursuing justice for other victims of "extraordinary rendition" are finding themselves increasingly stymied, as the cover of "national security" is thrown over this Bush-era counterterrorism policy.
Still today, most of what we know about "extraordinary rendition" — aka "torture by proxy" — comes from the stories of those fortunate enough to survive. Canadian technology consultant Maher Arar was rendered from JFK airport in New York to a grave-sized cell in Syria for 10 months. (Arar's own government has categorically pronounced his innocence and paid him compensation.) More recently, UK resident Binyam Mohamed told of being sent to a Moroccan prison for 18 months, where his body, including his genitals, was sliced with razor blades.
While President Obama has strongly denounced the use of torture, and made some modest disclosures about CIA "enhanced-interrogation" techniques, his administration has disclosed nothing about the rendition program.
When a major court case threatened to expose details of the rendition program, Obama's Justice Department took the same approach as it did under the Bush administration — it argued that "state secrets" should prevent it being heard.
The case is a private compensation case brought by five victims of rendition against a subsidiary of the Boeing Company whose planes were allegedly used by the CIA to transport prisoners. The intervention by the Obama administration has effectively halted the case, possibly for years, prompting this damning critique from the American Civil Liberties Union Attorney on the case, Ben Wizner:
"The Obama Administration has now fully embraced the Bush administration's shameful effort to immunise torturers and their enablers from any legal consequences for their actions. The CIA's rendition and torture program is not a 'state secret'; it's an international scandal. If the Obama Administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability."
Rendition is not just America's dirty secret — it also touches the countries that stand accused of aiding and abetting the rendition of their own citizens. Like the United Kingdom, and Australia.
UK resident Binyam Mohamed has claimed that British intelligence was complicit in the horrific torture he faced in Morocco. Just like the Habib case, Mohamed says his torturers were armed with information that could only have come from his home country.
A British parliamentary committee, doggedly pursuing these allegations and others of British complicity in torture, has found a "disturbing number of credible allegations" and called for an independent inquiry. The committee had trouble getting the full picture though because key ministers and the head of MI5 refused to testify.
Just how far the US will go to keep a lid on this was demonstrated by a development in Mohamed's court action against the British government. A lawyer acting for the UK Government requested the High Court suppress part of the evidence in Mohamed's case, not because it revealed anything of national security interest, but because the United States had threatened to halt intelligence sharing with the UK if the evidence in question was revealed.
This prompted High Court Judge, Lord Justice Thomas to respond in outrage, "That is not constitutional, it is the use of naked political power."
Successive Australian governments have also shown a determination to shut down Mamdouh Habib's claims. Even before the plane from Guantanamo Bay landed, John Howard declared Habib wouldn't be getting a cent of compensation. The Rudd Government is continuing the vigorous legal fight to have Habib's compensation case against the Commonwealth thrown out of court even before it starts.
In a critical hearing which starts next Monday, the full bench of the Federal Court will be asked to decide whether, after years of legal wrangling, the case can go ahead.
Habib's lawyer, Bankstown-based Peter Erman, says it's been an incredibly complex legal case to establish. He does not argue that Australia was involved in the physical assault on Habib, but rather that its officials aided and abetted his maltreatment during detention in Pakistan, Egypt, Afghanistan and Guantanamo Bay. If this is found to be so, Australia would be in breach of the Geneva Conventions.
Erman has been forced to struggle through documentation heavily edited with the censor's black pen to make his case. He believes at least some of these redactions are more about protecting the government's position than protecting national security.
He cites as an example a document he received, redacted on the grounds of national security. By chance — obviously a mistake made in Canberra — he later saw the same document again in another proceeding, but this time without the redactions. The piece of information withheld on the grounds of national security? A statement by an ASIO officer that Habib presented as a "straightforward and truthful witness".
Habib's long-standing claim that Australian officials were complicit in his illegal transfer from Pakistan to Egypt is, in part, founded on his account of the joint interrogations he endured in Pakistan. He says he was threatened with being sent to Egypt if he didn't cooperate in the presence of Pakistani, Australian, and American officials.
Initially, some viewed this as a wildly implausible tale. The Australian Government steadfastly and repeatedly maintained it had no knowledge of the plan.
This exchange between then Foreign Minister Alexander Downer and Laurie Oakes on Channel Nine's Sunday program in 2005 is typical:
"ALEXANDER DOWNER: I don't have any evidence that the Americans took him there, to the best of my knowledge.
"LAURIE OAKES: He didn't walk.
"ALEXANDER DOWNER: Well, he went from Pakistan to Egypt. There are a lot of different ways you can get from Pakistan to Egypt. I mean I just do not have that information."
Australia was — apparently — duped by its closest ally over the fate of an Australian citizen. It took seven years for government officials to acknowledge that this, of course, was not the case. Thanks to a series of Senate Estimates hearings in 2008, we now know that the Australian government and its agencies were aware of the possibility that Habib might be transferred to Egypt by the Americans — long before he was sent.
The public record now registers three occasions when Habib's case was discussed: on 21 October 2001, when ASIO head Dennis Richardson was told by a US government official of a rendition plan; on 22 October 2001, when the Australian Federal Police (AFP) and ASIO were involved in a meeting in Pakistan where it was canvassed; and the next day in Canberra, where it was discussed with senior officials from the AFP, ASIO, Foreign Affairs, the Department of Prime Minister and Cabinet, and the Attorney-General's Department.
Suddenly, Habib's claim that his rendition was raised during the joint Australian/American interrogations that began on 24 October 2001 doesn't sound so implausible after all. By their own admission, the AFP and the Attorney-General's Department did nothing to stop Habib being rendered to Egypt. All ASIO admits to doing is telling the US that rendition wasn't Australian policy.
Many questions remain. Could we have stopped it if we tried? Did we really try? Or, did we allow it — even encourage it — to happen?
Back in 2002 I asked the then Pakistani Interior Minister if the Australian government asked to have Habib deported back to Australia. He replied "No, they did not."
Habib's lawyer Peter Erman says he'll be alleging in court that "they did nothing to assist Habib in extracting himself from that situation." Erman has seen evidence relating to Habib's detention in Pakistan that he can't reveal, because in order to see it he had to give national security undertakings he wouldn't discuss it, even with his client. But, he says, this evidence "would tend to assist the thrust of our case". All he can say is that this evidence "goes to the element of control, the Australian government's control over the situation in Pakistan, as far as Habib's detention was concerned".
Another critical element of Habib's case is his allegation that his torturers in Egypt had access to personal information, specifically a sim card, that came from his home in Sydney. (ASIO raided his home when he was overseas, taking, among other things, a mobile phone.) The question of whether we shared information to assist Egypt in torturing an Australian citizen is something no Australian government minister or official has yet been prepared to answer.
Leading American defence Attorney Joe Margulies, from the MacArthur Justice Centre, has for years been fighting for the release of rendition victims and for accountability. While he acknowledges that the progress is slow, he says it's worth fighting for. "Democracy dies in the dark and the only way there can be an intelligent discussion about the wisdom of these programs is a full disclosure of what exactly was done."
Not only is next week's hearing in the Federal Court a chance to deliver compensation to a man whose life has been shattered, the case has the potential to finally shed some light on this secretive affair. There is, of course, no certainty the case will ever go ahead.
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The big question about all of this, is why are Rudd and Obama protecting previous admins from the legal ramifications of their actions?
I imagine there are large political considerations but surely their elections were partly about a rejection of their predecessor and much of what they stood for. In Obama’s case I can imagine he is choosing his battles, (and there is only so much that can get done, that the media can digest and spit out, in a certain time frame, in public consciousness) as he has far more than Rudd.
Is it because neither are ready to give up any options in terror war? Perhaps condemnation of rendition etc also condemns the govts of Egypt etc when they were only doing as requested, that future co-operation will be undermined if there is an about-face now?
Whatever it is, it is weak and not what anyone who voted for Rudd or Obama thought they were voting for.
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Perhaps the insinuation that the "freedom fighters" from the west are actually as bad as the terrorists they emphaticaaly denote may tinge their shining wings with dross.
Like, who is going to pay John Howard $50,000 to lie to them about what they are not allowe to know?
In her story, journalist Adcock, lawyer Erman and victim Habib are expecting much more if the compensation boat comes in.
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those like revilo and iview so quick to condemn and revile mamdouh habib as a terrorist should take time to read his own memoir ‘my story: the tale of a terrorist who wasn’t’, as told to julia collingwood, scribe publications 2008.
the man’s story rings true. he’s a prickly and at times rash man, but i suspect he is no terrorist. remember how the AFP got haneef so wrong?
it is very possible that ASIO got mamdouh habib badly wrong too. if so, he suffered greatly from their mistake.
i wish mamdouh habib well, in his csse against the commonwealth. he and his family deserve compensation for what they have suffewed.
I wonder if many believe the Federal Court should award Mr Habib compensation for, as he did admit, training to be a terrorist but failing to purposefully deploy that training? Indeed, who is surprised that, in his own memoir, he denies terrorist involvement, when claiming federal compensation?
Terrorist Shmerrorist. It’s not the point. Habib is just one example of the wonderful variety of knobheads common in Australian society.
Just because some people are convinced that nasty men in dressing gowns and weird hats are out to get them doesn’t make it OK to torture people. In fact, doing torture, or cooperating with torturers (by commission or ommission), or using evidence gained by torture, OR knowingly allowing our citizens to be sent to other countries so they can be tortured is utterly illegal in our law. Why do you think that the HowRudd government is going to such lengths to conceal their complicity if not to cover up evidence of their own crimes (and those of our imperial masters)?
Equality before the law means just that.
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The Islamophia of both revilo and iview typify the barbarity of their brand of prejudice, as well as the ignorance which it accompanies. This is especially so when that prejudice is applied to judge our laws.
Perhaps they should be reminded that Australia does not recognise the habit of a certain Middle Eastern country which reserves special legal privileges to those who are not Muslim.
Under the rule of law there can be no discrimination. All laws must apply with equal voracity to all, regardless of their race, colour, creed, gender or ethnicity.
It has become common habit these days to argue in favour of the destruction of our civilised principles and values in order to deal with global terrorism.
When that culture midget, Howard, was interviewed on SBS, he said of the David Hicks matter that his government’s view was that Hicks could not be tried under any laws in Australia and that therefore his government was committed to the Military Commission trial in a foreign country.
The presumption of innocence was ignored, the abandonment of an Australian citizen was complete and many Australians are left wondering whether this abandonment of the principles of our democracy in favour of the arbitrary use of executive power has signalled an end to the age of reason initiated by the principles of the Magna carta.
The Australian government abandoned the basic rule of law for Hicks, why will it not now again follow that precedent and abandon the rule of law for all Australian citizens?
The arbitrary use of executive power is becoming a regular feature in Australia and the barbarism of prejudice only feeds the monster.
Torture was outlawed in the 15th Century, and for good reason. Christendom, as "The Western World" was then called, proceeded to ensure that not even the first step towards torture would again become possible in law.
Regardless of one’s religious or spiritual beliefs, these fundamental Christian values are easily embraced by all.
Until recently every civilised country rejected even the debate concerning torture as a concept diametrically opposed to all those values considered minimum to the requirements of modern civilised society.
Indeed, it is these values, and the capacity of civilised societies to embrace these values, which evoke in us the revulsion for such atrocities as the Spanish Inquisition and the Nazi Holocaust.
With comments such as those responding to Bronwyn Adcock’s contribution, it sickens one to the stomach to learn that the dark age mentality of prejudice and racism are truly still alive and well in our "civilised" Australian community.
Mamdouh Habib is not alone in his quest for justice, with him stands every Australian citizen who values freedom and liberty and the rule of law in a democratic society.
I note, with some distress, that standards have so slipped on this site that the decision to "moderate" (read censorship) has become "necessary".
Exactly how sensitive is the average human mind that it cannot be permitted exposure to the thoughts of others?
Dear readers, please confine your comments to the politically correct line to avoid your viewpoint being moderated/edited/deleted or reported to the thought police.
I think 4 corners did an expose of this situation about a year or more ago.
I watched the program with horror as the program produced documents that demonstrated that the Federal police and the Fed Government were aware of what was going on.
If I recall correctly, the program indicated that the Federal Gov and Fed police were consulted about the whole thing. It was very scarey to see as, if correct, we completely violated the anti torture treaty that I thought we had signed and ratified.
And, before someone accuses me of being a sypathiser or something equally stupid, its got nothing to do with regilion or the accusation against the person. Why are we torturing or consententing to others torturing our citizens on our behalf?
The old truism that there is nothing to fear but fear itself resonates strongly with these issues.
To think our national politic has gone from the Universal Declaration of Human Rights to terrorism legislation and torture in such a short time.
The greatest frustration is what terrorist acts !
Even if we had been subjected to a systematic and concerted attacks , the likes of that experienced in Gaza , Baghdad or Kabul, then certainly our fears would be justified.
But fear that is based on the distortion of propaganda by our own government aimed at its own people , would appear to the gravest threat Australia has ever faced.
Anyway after the Australian government’s complicity in the execution of the Balibo five and the subjugation of the East Timorese , rendition should come as no suprise.
None of this surprises me
One of the greatest condemnations of our Austrian legal system is that the treatment of Habib and Hicks took place with a cabinet including 12 lawyers
some even barristers.
No wonder we need a bill of rights our lawyers are incapable of protecting the least of us and who can be sure that ours or ourselves will never be caught in
this net of injustice.
I believe Howard and/or his cronies knew of the AWB scandal, rendition, what really happened to Sieve X. and then we had the example of that pillar of law the Supreme court deciding that the asylum seeker with no papers could stay confined at the Dept of Immigration’s pleasure because he was "contained" not "detained". No wonder Habib and Hicks had no hope of our government and its institutions demanding justice.
It’s a pity that I have to say as a republican that we no longer have appeals to the Privy Council because it may have given Habib and Hicks and the unfortunate refugee a chance of a hearing