The failed prosecution of Jack Thomas and at least four men from the Benbrika group who were acquitted of being members of a home-grown jihadist organisation in 2008 has not only eroded public confidence in counterterrorism agencies but also hurt our relationship with large sections of the Muslim community.
Engagement and dialogue became a distant secondary consideration during those prosecutions.
The landscape after the September 11 attacks has altered the balance, perhaps irretrievably, between the rights of the citizen and the powers of the state. One has only to look at the myriad legislative changes that have permeated our justice system. Anti-terrorism laws need to be pared back immediately.
The Australian Building and Construction Commission legislation removing the presumption of innocence and right against self-incrimination is another example to be concerned about. Add to that comprehensive powers vested in police and the establishment of exclusion zones restricting citizens’ ability to move freely within their state. There are many more examples. Detention without charge, a la Indian-born doctor Mohamed Haneef, is one of the most serious.
But the most disturbing aspect comes in the form of the alienation of the Muslim community, at least in part, from mainstream Australian society. Only time will tell how this might play out.
The alienation as I have viewed it comes from second-generation young Muslim men and well-established first-generation Muslim immigrants. They are not disaffected, poorly educated or part of the long-term unemployed, as is often suggested. Rather, they are often articulate, intelligent and drawn from families regarded as quintessential migrant success stories. The broader issue that causes alienation comes from the treatment of their Muslim brothers and sisters in Palestine, Iraq, Afghanistan and Egypt, and the West’s duplicitous dealings with oppressive regimes in those countries.
Within this context we saw the prosecution of Thomas, David Hicks, Haneef and others in cases that were either embellished, exaggerated or just plain false.
History will show that Thomas was prosecuted not as a Taliban operative who had returned to Australia to launch some sort of traitorous attack: the so-called sleeper cell waiting to be activated. The public’s view of Thomas was contaminated by such overstatement and was fundamentally flawed.
The truth is that Thomas was an inconsequential figure in the war on terror. He was simply repatriated to Australia after six months in Pakistani detention, having been interrogated by US, Australian and other intelligence services. He was said to be of no intelligence value and his role in Afghanistan was even less than that of Hicks.
The real message in the Thomas case was not about the prosecution of a Taliban sympathiser.
The case was designed to send a clear message, particularly to any home-grown convert, that if you express any jihadist ideology and subscribe to fundamentalist Islam, you will be crushed – crime or no crime.
That policy was replicated in the Benbrika prosecution. Twelve followers of Abdul Nacer Benbrika through attendance at religious classes were alleged to have formed their own unnamed and unspecified terrorist group.
Even with the legislation relating to what constituted membership of a terrorist group being cast so widely as to include concepts of formal and informal memberships, four of those young men were acquitted after three years as unconvicted prisoners in the most austere and punitive remand environment and without any offer of compensation, let alone apology.
Well, what has all this done? The aborted Haneef prosecution did nothing more than undermine public confidence in the Australian Federal Police, which had once again cried wolf in pursuing an unsustainable prosecution and wrongly identifying an innocent man as a terrorist suspect. How does the Muslim community view this sort of conduct?
What made it worse was politicians from both main parties clamouring over the AFP and intelligence community in a completely uncritical and unsophisticated manner.
My impression as an observer is that those who have now been exonerated are placed on a pedestal by their community. They are often described as “martyrs for Islam”.
The process of engagement with sectors of the Muslim community has been totally inadequate.
Suspicion is fuelled by unmeritorious prosecutions, unhelpfully aided by a sycophantic attitude to the US and its foreign policy objectives.
Our participation in Iraq, now rationalised as “an engagement resulting in regime change”, and the intractable war in Afghanistan fuelled that sense of alienation.
The draconian nature of the terrorism laws attacking the fundamental cornerstones of our criminal justice system – the right against self-incrimination, the right to silence and the presumption of innocence – has been at a significant cost to the community.
Benjamin Franklin said 250 years ago: ”Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” How apt in 2011.
Robert Stary runs one of Melbourne’s biggest criminal law practices.