Backroom inquiry rubberstamps false imprisonment, kidnapping and coercion by Australian intelligence agency
20 November 2008
After a closed-door inquiry, the inspector-general of intelligence and security, whose office is part of the prime minister’s department, has found that two Australian Security Intelligence Organisation (ASIO) officers should not face prosecution for their role in the failed terrorism case against a young Sydney medical student.
The extraordinary report, which the Rudd government immediately welcomed, effectively gives a green light for ASIO and the police to employ methods of coercion, false imprisonment and entrapment against anyone alleged of being a terrorist suspect.
Inspector-General Ian Carnell’s findings amount to a repudiation of the decision of a senior judge, who ruled last November that two ASIO officers had been “grossly improper” andpossibly criminal in their “kidnapping” and questioning of Izhar Ul-Haque.
In a blow to the increasingly discredited “war on terror,” the authorities had to withdraw the charge against the young man after NSW Supreme Court Justice Michael Adams declared that “oppressive” and “improper” conduct” by ASIO and Australian Federal Police (AFP) officers made their interviews with him inadmissible in court. Justice Adams said ASIO officers had committed “the crime of false imprisonment and kidnap at common law” against the university student in a deliberate attempt to coerce answers from him.
What happened to Ul-Haque and his family provides a chilling insight into the modus operandi of the security agencies and the governments that direct their activities.
Without any warning, ASIO officers suddenly confronted the young man one evening at Blacktown railway station in Sydney’s western suburbs, and prevailed upon him to get into a car (leaving his youngest brother, 17, stranded). They drove him to a nearby public park where he was interrogated for about 40 minutes and threatened with serious consequences if he did not co-operate fully.
Ul-Haque was then taken to his home, where as many as 30 ASIO, AFP and NSW police officers conducted a search, while his family watched. He was interviewed again twice, amid continuing threats, until almost 4 a.m. At one point, ASIO officers accompanied Ul-Haque back to the railway station to retrieve his car, during which time they conducted a 45-minute interview in the back of an ASIO car, with the student wedged between his two interrogators, codenamed B15 and B16.
Back at the house, Ul-Haque was interviewed in one of the bedrooms by B15 and B16, with a police officer sitting in as an observer. The session, which began after midnight, spanned three hours and 40 minutes, although there were four breaks which in aggregate totalled a little over an hour. The interview concluded at 3.45 a.m. and ASIO and the police officers did not leave the residence until 4.30 a.m.
The young man’s family was effectively invaded and imprisoned inside their home, even though ASIO only had a search warrant. Justice Adams ruled that this constituted a “gross breach of the powers given to the officers given under the warrant”.
In his sworn testimony to the NSW Supreme Court, which Inspector-General Carnell did not dispute, Ul-Haque said he thought he was under arrest or could be arrested, and that he did not think he had a choice about doing what B15 and B16 asked. He was “really shocked” at being approached by ASIO officers, and “really shocked and frightened” by the search at his residence.
Ul-Haque testified that the questioning by B15 and B16 was traumatic because he believed that unless he kept answering their questions, the range of consequences might include physical violence, deportation, arrest and interrogation in a secret location for himself and/or family members. He said he thought such consequences were possible because B15 and B16 could tell the highest levels of government in Australia if he were uncooperative.
In a revealing passage of his testimony, Ul-Haque said that in the ASIO car, B15 and B16 told him, “this issue has gone to the highest levels of government”. He added that their “demeanour and the tone of the voice to me, suggested anything would be possible because they were involved in the highest levels of government in Australia”.
Justice Adams commented that one interrogation, in which officers insisted that Ul-Haque confess to unstated crimes, was “reminiscent of Kafka”.
ASIO officers later phoned the young man and told him they were handing him over to the AFP, with whom he must cooperate. Within hours of the house raid, he was formally interviewed by AFP officers, one of whom had been present during the ASIO interrogations. While, as required by law, AFP officers officially informed the student he was not compelled to answer their questions, Justice Adams ruled that they left him under the impression that ASIO’s instructions to cooperate still prevailed.
The AFP officers demanded Ul-Haque become their informant against Faheem Lodhi, a Sydney architect who was later charged with terrorism offences. Because the student refused to wear a wire and spy for the authorities, he was charged several months later, in April 2004, with “training with a terrorist organisation”—a crime carrying a penalty of 25 years jail. The training allegedly occurred during a January 2003 visit to Pakistan, the country of his birth, even though Lashkar-e-Toiba (LeT), an Islamic group fighting against Indian control of Kashmir, was not listed as a terrorist group at the time.
Amid media headlines heralding the first major terrorist arrest in Australia, Ul-Haque was consigned to an isolation cell in a “supermax” prison, with bail twice refused by a magistrates’ court. After six weeks, he was freed on bail after a judge said the Crown prosecutor had acknowledged that Ul-Haque did not pose a threat to Australia or its people.(See: “Student charged with ‘terrorist’ training released on bail”)
Court documents released subsequently show that the AFP charged Ul-Haque to pressure him into becoming an undercover informer. One AFP agent wrote in a briefing note to ASIO: “The AFP are hoping to use Ul-Haque against Lodhi and although he is not co-operating with them at the present time, I believe when he is charged he may change his mind.” The other purpose of the charges was to satisfy political directives. In secret evidence, a senior AFP officer testified that the police had been directed to “lay as many charges under the new terrorist legislation against as many suspects as possible because we wanted to use the new legislation”.
At the time, the Howard government was under mounting pressure to produce prosecutions to justify its draconian counter-terrorism laws. Ul-Haque’s arrest bore all the hallmarks of a scare campaign timed for the 2004 federal election. Foreign Minister Alexander Downer declared on national television that Ul-Haque had terrorist linkages, “that is for sure”.
Nevertheless, Carnell concluded that ASIO was justified in regarding Ul-Haque as a “person of interest” because of terrorist threats to Australia, and found no evidence that ASIO and the AFP engaged in a conspiracy to trap or coerce him into incriminating himself. He said there was “not sufficient evidence” of any unlawful actions by ASIO officers or any reason to compensate Ul-Haque or his family.
Carnell’s only stated concern was that the methods used by ASIO could again fall foul of a court and prevent a victorious prosecution. He recommended that ASIO should “further train all relevant staff on what steps can reasonably be taken to avoid ASIO activities impacting on the gathering of admissible evidence by police”.
The report endorsed a new joint operations protocol between ASIO and the AFP, and new counter-terrorism prosecution guidelines. These were proposed by a previous AFP-commissioned investigation into the Ul-Haque affair and into another withdrawn “terrorist” prosecution—that of Dr Mohamed Haneef. Conducted by former judge Laurence Street, that backroom inquiry called for closer collaboration between ASIO and the AFP, as well as the Commonwealth Director of Prosecutions, and the allocation of new resources, to ensure successful prosecutions.
The upshot is that the first two inquiries into the security agencies completed under the Rudd government—the Carnell and Street reports—have not only whitewashed the abuses that have occurred, but have further strengthened the powers and procedures at the disposal of ASIO and the AFP to trample over basic legal and democratic rights.