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Those first casualties: Stephen Keim SC speech at the Moorooka Mosque (3/10/14)

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Terrorism terminology is “slippery” and many governments engage in war crimes and crimes against humanity when they claim to engage in counter-terrorism, writes Stephen Keim SC.

LET ME MAKE my position very clear.

I think our values should be guided by the great human rights instruments.

These include the Universal Declaration of Human Rights; the International Convention on Civil and Political Rights; the International Convention on Economic, Social and Cultural Rights, The Refugee Convention, the Genocide Convention, the Convention Against Torture and the four great Geneva Conventions of 1948 (which lay down the laws that must be obeyed in war). 

Because I support the values in these great international documents, I am against all war crimes.

And I am against all crimes against humanity. I think they should always be criticised and condemned. And I think they should be prosecuted much more than they are. I think the International Criminal Court established by the Rome Statute should be used much more often and more universally to deal with the more serious cases of war crimes and crimes against humanity. It should not be a place where the defendants only come from Africa.

We will only have a chance of preventing powerful people from committing serious crimes if we make them accountable for their actions, including those crimes.

On the other hand, I dislike the “terrorism” terminology. I think much that is condemned as terrorism should be condemned as war crimes or crimes against humanity. Failing that, the international conventions against torture and against genocide provide us with sufficient basis to condemn and to prosecute what is often called terrorism.

The reason that I do not like the terrorism terminology is that it is a slippery terminology, much used by governments in order to condemn their political opponents. Governments do this whether those opponents use peaceful dissent or whether they do, in fact, engage in forms of violent resistance.

Governments also use the terminology to condemn their opponents even when those opponents are other governments.

“Terrorism” is a slippery term. Its sister term, “counter-terrorism”, is equally slippery.

Many governments engage in war crimes and crimes against humanity when they claim to engage in counter-terrorism. But, because they claim to be engaged in counter-terrorism, they often get away without those crimes receiving the condemnation that they deserve.

When we are faced with conduct that breaches the standards laid down in the international human rights agreements, we should demand that the perpetrators are brought to justice. We should do so, however, in a way that does not apply double standards and which does not allow a lack of objectivity or a lack of impartiality to impair our approach to justice.

That is easier said than done. Unfortunately, as I speak to you, Australia and the world is descending into another of their great spiritual troughs where the first five pages of every daily newspaper, on every day ‒ assisted by politicians and national security professionals ‒ has to attempt a new emotional dramatization of the so-called dangers of terrorism.

It is a time to step back. It is a time to take the long view. At times like this, perspective can be difficult to achieve. But it is of increased importance.

In order to gain some perspective, I intend to share with you the results of two quite different studies from two different countries.

The first of these mainly looks at events in the United Kingdom since 11 September 2001. It looks at the way in which counter-terrorism has become a field of propaganda used for political purposes. In particular, I draw on some examples where the propaganda has been grossly inaccurate and, on occasion, simply untrue.

The second study is the product of the combined work of Human Rights Watch and the Columbia University Human Rights Institute. This study looks at the way people of a Muslim background have been investigated, prosecuted and detained in the United States since the events of 2001. It suggests that the United States government has failed to meet its human rights obligations in the investigation and prosecution of terrorism suspects and in its treatment of those in custody. 

Terrorism and propaganda

The first way in which I wish to seek perspective is to look at the way governments have used the concept of terrorism as propaganda in the recent past.

By appreciating the way in which governments have manipulated the truth for political purposes, we can learn to ask sensible and searching questions about the information that is being provided to us at the moment.   

As I have already mentioned, most governments use terrorism and the need to prevent terrorism as a means of obtaining political advantage, both at home and abroad.

This has led to governments’ creating institutions for the purpose of propagating terrorism propaganda. In a study which looks at the actions of the UK and U.S. governments, David Miller and Rizwan Sabir, two UK researchers, have identified a considerable number of institutions of this kind. These include a series of Coalition Information Centres used during the conflicts in Kosovo and Afghanistan, subsequently, consolidated into the Office of Global Communications (“the OGC”) in July 2002.

The OGC operated under the direction of the White House and was responsible for supplying lies about the threat posed by the Saddam Regime in Iraq. There were specific institutions for distributing propaganda produced by the OGC, including the Office of Public Diplomacy in the U.S. State Department and the Ministry of Defence and the Foreign and Commonwealth Office in the UK.

In the UK, a committee known as the Iraq Communication Group was responsible for running a campaign to mislead the media on Iraq’s alleged possession of weapons of mass destruction including by providing dossiers of misinformation.

Another UK propaganda institution was the Civil Contingencies Secretariat (“the CCS”) established in 2001. In a pattern becoming familiar from reading Australian newspapers at the moment, the CCS issued information to media outlets about an alleged ricin plot. As it turned out, subsequent research revealed that there was no Ricin involved and, very probably, no plot. By this time, of course, it was too late. The news of the Ricin plot that did not exist had caused the broad feeling of fear for which it was intended.

Another example of the misuse of anti-terrorist propaganda in the UK is illustrated by the difference between the focus of anti-terrorist policy in that country and the reality of the national security threat which actually exists. While official sources have proclaimed a severe national security threat from Islamist or Jihadi violence, data obtained under freedom of information legislation indicated that the major threat of political violence in the United Kingdom has been from armed groups in Northern Ireland.

The information revealed that, over a four year period to 2009, the Northern Ireland groups were responsible for nearly 2,000 failed, foiled or successful attacks while Islamist groups had produced only six such attacks.

The recklessness with the truth is shown by the way that government sources, at different times which are as little as a month apart, have given highly inconsistent accounts of the number of Islamist plots. The UK examples show government sources giving estimates that vary from 20 to 70 or from 30 to 80.

My last example of the way in which official accounts must be treated with scepticism comes from Operation Volga, an actual operation against a specific alleged plot in which a house was raided and two brothers of Muslim heritage were arrested, one of whom was shot, during the operation, by the police. At the time of the operation, high profile allegations of a dangerous chemical bomb were made with suggestions that large scale loss of life was potentially imminent.

At the time, the police denied responsibility for the shooting and made allegations that the shooting occurred when the victim tried to take the gun from an officer. Much later, the truth was revealed that the shot had been fired by the officer in error because of the officer’s bulky clothes.

No bomb was found and the two brothers were released without charge.         

It does not follow that the events which are being reported in Australia at the moment are all creations for propaganda purposes. It does indicate, however, the need for scepticism when the counter-terrorist publicity machine goes into overdrive.

Recent events do seem to indicate, however, that many of those working in Australia’s mainstream press are, themselves, short on scepticism and low on the ability to ask searching questions.

That does not mean, however, that we, as individuals, cannot bring our own sceptical frame of mind to bear on the events as they are unfolding.

The approach to investigation: The human rights watch report

The HRW study examined 27 cases of investigations involving American Muslim defendants.

The study looked at the cases from initiation of the investigation to sentencing and post-conviction conditions of confinement. The report documents the significant human cost of certain counter-terrorism practices such as aggressive sting operations and unnecessarily restrictive conditions of confinement.

Many of the more than 500 individual prosecutions that have taken place have targeted individuals who were not involved in any form of terrorist activity at the time the investigation began.

In some cases, the FBI may have created terrorists out of law-abiding individuals by conducting sting operations that either facilitated or invented the suspect’s willingness to act.

The statistics are stunning.

Out of the more than 500 federal counter-terrorism convictions, nearly 50 per cent resulted from informant-based cases. And almost 30 per cent of those cases were sting operations in which the informant played an active role in the underlying plot.

There have been far fewer prosecutions in Australia.

And I do not know of any studies which have analysed the Australian cases from this point of view. But the Australian Parliament has just passed legislation to allow ASIO to conduct Special Intelligence Operations in which the ASIO participants are exempted from either civil or criminal liability.

The same legislation makes it a serious offence for any journalist to report anything about these operations. The penalty applies even if the journalist was unaware that it was a Special Operation of this kind.

With civil and criminal exemption, and the absence of any scrutiny from journalists, the stage has been set for ASIO to pursue the same kind of sting operations criticised by Human Rights Watch.

An example of the sting operation is a prosecution known as the Newburgh Four. A judge, in that case, said that the government came up with the crime; provided the means and removed all relevant obstacles; and, in the process had made a terrorist out of a man who was no more than an unfortunate clown.

The report found that, in two cases, law enforcement officers, offered money to suspects to entice them to participate in a plot.

Let me share with you a couple of examples. An FBI agent told the father of Rezwan Ferdaus that his son obviously had mental health problems. Despite being aware of this, the Agency targeted Rezwan and sent an informant into his mosque.

The FBI informant and Ferdaus devised a plan to attack the Pentagon and U.S. Capitol with the FBI providing fake weaponry and funding Ferdaus’s travel. While this was going on, Ferdaus’s health was deteriorating badly and he lost large amounts of weight and so lost his bladder control that he had to wear nappies.

He was eventually sentenced to 17 years in prison and another 10 years on parole.

My second example is Adel Daoud. Adel was a quiet 17 year old student when FBI agents started communicating with him through an online Islamic forum. Adel was asking his parents about the meaning of jihad. They told him that it was the struggle to be supportive of his parents.

The FBI agents slowly developed a plot online for Adel to attack a bar in downtown Chicago. When he was arrested, his community was shocked that the police had decided to ensnare him rather than warn his parents of his vulnerability and suggestibility.

His trial comes up in November.

My third example is Ahmed Omar Abu Ali. Abu Ali was swept up in a mass arrest in Saudi Arabia. After being whipped, denied food and threatened with amputation, Abu Ali made a confession to Saudi interrogators which he has since recanted as false.

Despite his claims of torture and a false confession, the judge in Virginia allowed the confession into evidence and Abu Ali is now serving a life sentence in a super-maximum security prison in Colorado.    

This case is of interest to us in Australia.

There is legislation about to be rushed through Parliament which makes it a terrorist crime to be in certain declared parts of the world. The same Act expands the power of Australian courts to receive foreign evidence (without cross-examination of the actual informants) and foreign government evidence on the same basis.

While there are safeguards and a prohibition against receiving evidence obtained using torture in the proposed legislation, Abu Ali’s experience shows that safeguards are not always effective.

My last example is that of Uzair Paracha.

Uzair was kept in solitary confinement for two years. After the first nine months, the government lawyers were offering a plea deal and Uzair was insisting on going to trial to win his freedom.

He was moved to a special regime of solitary confinement where he was only allowed to talk to guards. All he got to say for months were words and phrases such as “thank you for turning out the light” or “can I have some more toilet paper”.

Uzair has since been convicted.

In the last 12 months, we have seen the Queensland government borrowing similar harsh conditions in jail as a means of launching a political campaign against a particular group in the community. While Mr Newman has been very forceful in defending the Muslim community against prejudice, there is a danger that another government, at State or Federal level, will use harsh prison conditions as part of an anti-terrorism crusade.

That is the end of my examples.

Human Rights Watch expressed a number of concerns arising out of their investigation. They included discriminatory investigations, often targeting people with intellectual and mental disabilities and using informants to invent the criminal activity; use of overly broad charges to punish behaviour that did not show an intent to support terrorism; unfair prosecutorial tactics introducing evidence obtained by coercion and prejudicial evidence that cannot be fairly contested; and prolonged solitary confinement preventing a suspect’s ability to instruct lawyers and prepare for trial.

Conclusion

Thank you for listening to me, this afternoon, and for welcoming me to your beautiful mosque.

The lessons I seek to draw from the two reports are simple.

There is an old saying that “truth is the first casualty of war”.

Similar casualties occur when there is heightened concern about terrorism or, indeed, any law enforcement objective. The casualties can include truth, justice, impartiality, objectivity and a sense of proportion.

Australia, at the moment, has re-joined a war; has heightened its security alert status and is in the process of rushing legislation through the Parliament to restrict people’s rights and to increase the powers of law enforcement and security agencies.

This is a time when every citizen must be vigilant in the cause of truth and in the cause of our human rights values.

You can follow Stephen Keim on Twitter at @StephenKeim1.

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