Source: TheSydney Morning Herald

August 25 2006

Richard Ackland

THE shrill reaction from some sections of the media to the release from prison of accused terrorist Jack Thomas has been almost as consuming as the outcome of the case. Of note was the editorial in Monday's The Australian: Thomas had betrayed Australia by travelling to Afghanistan to serve the cause of terrorism. And he's betrayed Australia again by getting off.

Its legal affairs reporter said earlier the law must be wrong because the families of those who died in Bali would not understand it.

Gerard Henderson in this paper said the Victorian Court of Appeal's decision was bad for democracy.

Apart from the tiny problem that Thomas didn't blow anyone up, there is so much speciousness inherent in the notion that the quashing of his conviction is all down to a mad technicality. In fact, it is down to a cock-up by the outfit charged to protect us from all the hobgoblins, the Australian Federal Police.

The only evidence against Thomas was his own admissions made in an 82-minute interview conducted by the federal police while Thomas was locked up in Pakistan. He'd previously been interrogated by the Pakistani intelligence service, the ISID, as well as the CIA, the Australian Security Intelligence Organisation and the federal police (six times). It was the admissions made without a lawyer that provided the ammunition to convict him. There was no other evidence.

Under Australian law he's entitled to have a lawyer present. The two federal police agents, Jason Williams and Stephen Lancaster, put it like this to Thomas: "Under Australian law you are entitled to consult with a legal practitioner or a lawyer. However, we have been advised that in this case this right will not be available to you today."

It gets worse. Before the interview took place the federal police agents in Pakistan urged the federal police back home to get in touch with the Thomas family lawyer in Melbourne, Rob Stary, and tell him a formal interview was planned. That never happened. Stary was not told because the police feared the planned interview would be leaked to the press. The AFP's national manager of counter-terrorism, Andrew Colvin, advised the Pakistani authorities that: "We are prepared to conduct the record of interview regardless of whether Thomas is allowed access to a lawyer."

We know this because the police modus operandi emerged in testimony at a pre-trial hearing last October.

One further titbit. The team leader of the federal police, Stefan Obers, said under cross-examination that the Thomas interview "didn't comply with the requirements". But put all that aside for a moment and remember that the nub of the present outburst is that the Court of Appeal tore up the record of interview. But so, too, in a sense, did the jury at the Thomas trial. There were four charges against Thomas, and the jury threw out the two heavyweight ones: providing resources to a terrorist organisation by agreeing to act as a sleeper agent in Australia. They convicted him on the lesser charges - a passport offence and receiving money from a terrorist organisation, for which he was sentenced to five years, with a minimum of two.

Was there outrage that the jury failed to see sense and slot this person properly?

If the Attorney-General, Philip Ruddock, is concerned that Thomas is a threat to Australia's security he, or ASIO, could apply to have a control order or a preventive detention order under last year's anti-terrorism legislation issued pretty smartly against the hapless Islamist. You'll remember that was the legislation that was urgently required in the war against terrorism, and to my knowledge there have still been no control orders applied for or issued. Possibly the only way to handle these cases in the future is by committees of appropriately agitated citizens. Then we can be sure of having convictions that stick - no matter what.

While mentioning Ruddock and terrorism, there are two issues relating to David Hicks - that other Australian "terrorist" - that need clearing up.

On Monday Ruddock trotted out the usual stuff about how concerned he was about the length of time it has taken not to get Hicks to a trial. He said cases could take a very long time when people sought to test the limits of jurisdiction and were keen on appealing. How true that is. The only thing is that for some time it has been the US Government doing the appealing.

Following Hicks's 2004 victory on the right to counsel and the right to habeas evidentiary hearings, the US Justice Department has been appealing and stonewalling. It is still appealing a January 2005 decision of the US District Court which said that the habeas hearings provided by the Government were inadequate.

Also, at the last meeting of the standing committee of attorneys-general, Ruddock assured the state attorneys-general who raised the Hicks issue that all was well at Guantanamo and that no allegations of abuse have been put to Australian officials.

He must have forgotten the affidavit that Hicks swore for Major Michael Mori on August 5, 2004 detailing 22 instances of ill-treatment, abuse and torture.

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