The Australian Federal Police Commissioner, Mick Keelty, yesterday flagged a wide-ranging inquiry into the practices and co-operation of the federal police and ASIO as counter-terrorism authorities deal with a crisis of public confidence following the debacle of the ul-Haque case.
The unprecedented investigation comes on the heels of an announcement yesterday by the intelligence watchdog, Ian Carnell, that he will use his powers – akin to those of a royal commission – to examine the misconduct of at least two ASIO officers found by a Supreme Court judge to have kidnapped and falsely imprisoned the Sydney man Izhar ul-Haque.
The federal police have also begun a separate, internal investigation into the actions of their officers, also heavily criticised by Justice Michael Adams.
The inquiries were prompted by the scathing judgment from Justice Adams this week, which also ruled inadmissible all police records of interviews in the case.
That led to the trial being abandoned and the charge against Mr ul-Haque, of training with a terrorist group, dropped.
"I’m considering a significant review in consultation with other agencies," Mr Keelty told the Herald yesterday. "We always knew that the interoperability of intelligence and law enforcement was something that our system had not dealt with previously.
"It’s something we have to ensure is right in terms of the public confidence in policing, intelligence and supporting the criminal justice system."
The inquiry would require the co-operation of ASIO, and possibly other arms of the counter-terrorism apparatus, and would probably be headed by a judge. A person with a law enforcement and intelligence background could also be involved.
Meanwhile, Mr Carnell, the Inspector-General of Intelligence and Security, took the unusual step of beginning an inquiry under his own motion, rather than the typical procedure of having a matter referred to him by a minister or being prompted by a formal complaint.
With powers to compel witnesses to answer questions under oath and hand over any documentation required, Mr Carnell will examine ASIO’s general policies and practices when interviewing individuals of security interest at the time Mr ul-Haque was illegally detained and interrogated in 2003. He will also examine ASIO’s procedures.
Justice Adams noted in his judgment that while at least two ASIO officers had broken the law by kidnapping and falsely imprisoning Mr ul-Haque, their behaviour appeared to be in accordance with the spy agency’s protocols.
The ASIO officers committed the crimes because they coerced Mr ul-Haque to go on a drive with them in a car and then detained and interrogated him until 4am, even though they only had a search warrant for his house.
Compounding the misconduct, an AFP officer sat in on the interviews where Mr ul-Haque was wrongly told he was compelled to answer the ASIO inquiries or face "serious consequences". The officer then took part in a later formal police interview.
Mr Carnell can recommend – not enforce – disciplinary action against the ASIO officers and it will be up to the Attorney-General to decide whether to release an unclassified version of his report.
Meanwhile, Mr ul-Haque’s solicitor, Adam Houda, yesterday gave the strongest indication yet that civil proceedings would be brought against ASIO and the Government for compensation.
"I won’t rule out civil action. In fact, you could say it’s on the cards," he told the Herald. "But it’s something I still haven’t taken to my client."
RELATED:
ASIO under fire after case falls over
http://www.theaustralian.news.com.au/story/0,25197,22748789-17044,00.html jserve.write(“/SITE=TAUS/AREA=NEWS.FINANCE.LEGALAFFAIRS/AAMSZ=110X40/”); ipt>David King – The Australian
November 13, 2007
AUSTRALIA’S counter-terror agencies have come under intense criticism after another terrorism case collapsed and a judge found ASIO officers had kidnapped and falsely imprisoned the suspect.
In a highly embarrassing outcome for the federal Government, commonwealth prosecutors were forced to drop charges against 24-year-old Sydney medical student Izhar Ul-Haque, who was accused of training with the terrorist organisation Lashkar-e-Toiba in Pakistan in 2003.The collapse of the case follows a series of flawed terror prosecutions including the bungled charges brought against Gold Coast doctor Mohamed Haneef in July and the decision last year by the Victorian Court of Appeal to overturn the conviction of Jack Thomas.
In a damning judgment, NSW Supreme Court judge Michael Adams said key interviews, in which Mr Ul-Haque allegedly talked about his activities in Pakistan, were inadmissible because of gross misconduct by ASIO agents and Australian Federal Police officers.
He found the ASIO officers – referred to by the pseudonyms B15 and B16 – intimidated, coerced and illegally detained Mr Ul-Haque as they questioned him.
"I am satisfied that B15 and B16 committed the criminal offences of false imprisonment and kidnapping at common law and also an offence under … the Crimes Act," Justice Adams said. "Their conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused."
Mr Ul-Haque remained silent outside court. His solicitor, Adam Houda, attacked the decision by authorities to pursue the case.
"This has been a moronic prosecution right from the start," Mr Houda said. "The terror laws were introduced, supposedly, to catch terrorists, not brilliant young men like Izhar Ul-Haque. From the beginning this was no more than a political show trial, designed to justify the billions of dollars spent on counter-terrorism."
Mr Ul-Haque, who has completed his medical studies, was accused of receiving weapons and combat training from LET during a 20-day introductory course in January and February 2003, before LET was proscribed as a terrorist organisation.
When Mr Ul-Haque returned to Australia, Customs officers searched his bags and found books and a letter by him addressed to his family in which he stated that he was going to Kashmir for "jihad" and that he intended to join LeT.
He was allowed to go, but was approached by ASIO six months later, in November 2003, at a carpark near Blacktown railway station as he returned from university. He was told he was in "serious trouble" and was taken to a park for questioning.
Justice Adams said it was "almost certain" ASIO swooped on Mr Ul-Haque because of his connection with Faheem Lodhi, a Pakistani-born Sydney architect, was sentenced last year to 20 years’ jail for plotting a bombing campaign.
ASIO agents put Mr Ul-Haque in a car and said: "we can do this the easy way or the hard way".
Justice Adams said the officer’s "very mode of questioning was intimidating".
"He was not told what was being investigated except in the most general terms," Justice Adams said. "He was told, in effect, that he knew what he had done wrong … This is reminiscent of Kafka.
"It was a gross interference by the agents of the state with the accused’s legal rights as a citizen, rights which he still has whether he be suspected of criminal conduct or not, and whether he is Muslim or not."
University of Sydney anti-terrorism legal expert Ben Saul said the case showed there needed to be greater checks on the power of the intelligence agencies.
"It does go to this point about whether the controls on the exercise of ASIO’s powers are adequate or not. The checks and balance may well not be strong enough in this area."
UNSW terrorism and law project director Andrew Lynch said the judgment could not have been more damning of ASIO and the AFP.
"ASIO doesn’t normally interview people with a view to prosecuting them," Mr Lynch said.
"There really does need to be a better understanding on behalf of the intelligence services of what their involvement in these matters can do to subsequent attempts at prosecution … The positive to come from it is that the judicial arm is clearly doing a very good job of holding the executive to account."
Attorney-General Philip Ruddock said he had confidence in the security agencies.
"I don’t think it’s an embarrassment when the legal system works as intended," he said, noting the Director of Public Prosecutions had decided to discontinue the case.
"If there is to be any judgments drawn about the conduct of others in relation to these proceedings, it would come through the proper investigations by the body that is set up to deal with the security agency and that is the Inspector General of Intelligence and Security."
ASIO had no comment about the conduct of its officers. The AFP issued a two-line statement.
"The AFP is aware of the NSW Supreme Court proceedings today. The AFP is currently examining the ruling in this matter."
Justice Adams said it was unlikely the ASIO officer would be disciplined.