Janet Albrechtsen began composing pieces for the Australian media around 15 years ago. In that time, she has never managed to write the words ‘habeas corpus’ in any of her columns.
This was perhaps understandable back in 1992, when she was writing in the Sydney Morning Herald about how bus companies break highway safety rules (‘Coach Lines Break New Safety Laws,’ 15 January), or about the woes of the Tokyo stock market (‘Tokyo Trauma Is Likely to Continue,’ 23 January). But by the time she began writing for The Australian in September 2001, Albrechtsen was moving on to weightier matters like Western civilisation and how to defend it.
Nowadays, Albrechtsen regularly instructs her readers that the rule of law is a central and non-negotiable part of Western values. Given that the most fundamental guarantee of liberty under the rule of law is indisputably the right of habeas corpus, her failure to mention it is very curious.
What is going on here?
It’s true that habeas corpus is not a frequent topic of conversation on talkback radio in fact, most people manage to get through life without coming across the term at all. In August 2001, I asked a group of university students to write down the meaning of the term. Most were unable to give any answer. One speculated wildly, and memorably, that it was a form of ‘alien debriefing.’ Such ignorance in first-year university students is deplorable but understandable, given the wretched civic education to which they’re subjected.
Albrechtsen’s indifference to habeas corpus, however, is of a very different order. It leads her to narrow the meaning of the rule of law to a tidy convergence with her own opinions and prejudices, and to restrict the protections of the rule of law to those whom she pronounces innocent or to those whom she considers worthy.
We are no longer talking ‘Habeas Corpus 101’ here, rather ‘Inanity 505.’
To put it bluntly, it is impossible to uphold the rule of law, or the liberty of the citizen under the law, without habeas corpus. For Albrechtsen’s readers and others not familiar with the term, habeas corpus is a legal practice meant to guard against unlawful detention it mandates that a person cannot be rightfully detained without due and speedy process of the law.
In the famous United States Supeme Court case of Shaughnessy v Mezei (1953), the former US prosecutor at the Nuremberg War Crimes Trials, Justice Robert Jackson (while dissenting from the outcome of the case) succinctly set out the antiquity and force of habeas corpus
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from Executive restraint. Under the best tradition of Anglo-American law, courts will not deny hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates.
In that case, Ignatz Mezei was a Hungarian immigrant who had lived in the USA since 1923 and had briefly gone back to Europe in 1948 to visit his dying mother. When he attempted to return to the USA, he was placed under detention at Ellis Island near New York City for undisclosed security reasons. Other countries then refused to admit him on the basis that he had been designated a security risk by the US, and after two years detention, Mezei petitioned for a writ of habeas corpus. His petition was upheld by a local court but the US Government appealed all the way to the Supreme Court, and won. (Despite this, like Habib, Mezei was quietly released a few years later.)
Justice Jackson prefaced his opinion in the case by noting, ‘Fortunately it still is startling, in this country, to find a person held indefinitely in Executive custody without accusation of crime or judicial trial.’ Unfortunately, it is no longer startling Australian citizens Mamdouh Habib, and David Hicks were held in a US prison in GuantÃ¡namo Bay in precisely this manner.
Thanks to Sean Leahy
Albrechtsen asserts that neither Habib nor Hicks was entitled to the protection of the rule of law or the benefit of Western values, on two grounds: first, that both Habib and Hicks were terrorists; and secondly, that neither is a very nice person.
Albrechtsen initially broached the topic of the detention of Hicks and Habib in a column in The Australian in early 2002. (‘Soldiers of Terror Don’t have Rights,’ 13 February) From this first column, through to her most recent discussion of Hicks’s return to Australia two weeks ago, Albrechtsen has pronounced that neither Hicks nor Habib was entitled to judgment by their peers in a court of law, and that the presumption of innocence had no role to play in their fate.
By some power superior to that of a court of law, Albrechtsen was able to discern what the ‘facts’ of the matter were in both cases, long before any charges had even been laid.
In 2003, Senator Bob Brown protested the prisoners’ detainment to President George W Bush. Albrechtsen, in her column in The Australian ( ‘Brown Blind to Immoral Reality,’ 29 October 2003), promptly retorted: ‘ No, Senator, David Hicks and Mamdouh Habib are precisely where the facts show they belong’ that is, in indefinite detention at GuantÃ¡namo Bay.
In the same piece, Albrechtsen went on to make various allegations about Hicks’s record, adding, ‘According to intelligence sources, as bad as Hicks’s record looks, Habib’s is worse.’ The evidence? According to Albrechtsen, ‘a spokesman for Foreign Minister Alexander Downer has told The Australian that Habib was in fact training with al-Qaeda in Afghanistan before September 11.’ Albrechtsen concluded Habib and Hicks ‘are illegal combatants and have been treated as such’ handily delivering her verdict before any examination of evidence in a legal proceeding.
In defence of Albrechtsen’s powers of legal prescience, Hicks did plead himself out of GuantÃ¡namo Bay by making a stipulation of fact as to his role in al-Qaeda (although the circumstances surrounding that ‘confession’ are notorious and do little to restore the reputation of Bush or Howard or any of their apparatchiks).
Habib, however, has made no such admissions. He was released (in Albrechtsen’s phrase, on to ‘the streets’ of Sydney) without charge or trial. By her account, Habib was never entitled to the presumption of innocence, and he remains disentitled to it.
In an opinion piece published in The Australian in 2005, just after Habib was released from GuantÃ¡namo Bay ( ‘ Ex-prisoner Is Hardly a Hero,’ 9 February), Albrechtsen asserted that ‘Defending the rule of law and the rights of citizens is a noble cause, but Habib is a dubious choice as aggrieved victim.’ All those insi
sting on Habib’s innocence, she maintained, were simply in the grip of unworldliness. For example, Albrechtsen’s response to American-born Marty Morrison’s characterisation of Habib as ‘a wonderful man’ was that ‘She does not know Habib. Not really.’ Albrechtsen in contrast really knows Habib, and recited the evidence she has marshalled against him:
Six trips to Pakistan and Afghanistan between March 1998 and July 2001, surely not all for checking out schools; admissions that he raised funds for the Egyptian-born cleric Omar Abdel Rahman, convicted for the 1993 bombing of the World Trade Centre; allegations that Habib told friends he met Osama bin Laden and undertook advanced training with al-Qaeda in Afghanistan; allegations of a phone call to his wife days before the September 11 attacks, warning of a looming ‘big event’ in the US. On it goes. Habib’s supporters say it’s all bunk because his confessions were extracted by torture. Yet there are other witnesses who put Habib in al-Qaeda training camps. We’re talking Terrorism 505, if it is true.
And on it goes, as if it’s true.
As a lawyer, Albrechtsen would know that none of this stew of unattributed allegations, unnamed witnesses, and one too many trips to Pakistan would last five minutes in a court. Seemingly undeterred, Albrechtsen confided to her readers that Habib was released not because he was innocent but because he was so guilty that he could not be safely tried:
Perhaps Habib was released because the US authorities decided that to prosecute him, even in a military tribunal, would mean disclosing vital intelligence sources that may be needed to hunt other terrorists and prevent the next terrorist attack? And Australia cannot prosecute Habib because the anti-terrorism laws were introduced too late to apply to his activities. In other words, someone can benefit from the presumption of innocence but still be dangerous.
Ah Mamdouh, we hardly knew ye at least, not like Janet knows ye.
Albrechtsen also really knows David Hicks better than anyone else. Two weeks ago, when Hicks was returned to Australia, Janet pushed to the front of the media line, saying, ‘let me be the first to welcome home David Hicks.’ She also offered to help him write his memoirs because his friends don’t know him like she does.
Albrechtsen went beyond Hicks’s guilty plea to the US military commission and rehearsed his earlier ‘admissions’ such as when he called himself a ‘well-trained and practical soldier’ in letters to his father.
But the clincher for Albrechtsen was a passage from a letter Hicks had written from GuantÃ¡namo Bay to former flatmate, Louise Fletcher:
Listen, have you got any friends I can f*** when I get home? They have to be good-looking and I prefer big tits as well. Well, send their photos with the letters so I can check them out.
If any real doubts remained that Hicks’s admissions to the US military commission provide an ex post facto justification for his disentitlement to the right of habeas corpus and the presumption of innocence, then Albrechtsen believes that Hicks’s desire to fuck good-looking women with big tits should dispel them.
But on these grounds, who among Australian (heterosexual) men would ‘scape whipping?
Arguments about the rule of law need a more serious and considered forum than Albrechtsen provides.
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