Spying on the spies
Wednesday, 14 November 2007
 
IT took more than an hour during what's called an informal chat before ASIO agents realised they had the wrong person.
 
The innocent Sydney man plucked from his daily routine and plunged into the shadowy world of counter-terrorism was so traumatised by his treatment at the hands of Australia's spies, he complained to the Australian Muslims Civil Rights Advocacy Network.

 

Rabiyah Hutchinson, the woman authorities say is more closely connected to "al-Qa'ida central" than anyone in Australia, was also apparently approached by spies last year with an offer to meet in a Bankstown hotel. But the former wife of a Jemaah Islamiah terror leader must have known her rights and is understood to have declined the offer.
 
"I can tell you that this sort of informal questioning does happen regularly," AMCRAN spokesman Waleed Kadous says.
 
"Another theme that has come through ... from people contacting us is ASIO using the powers that have been given to them as a tool of coercion. They (ASIO) will say something like: 'We can do this the easy way (you co-operating with us) or we can do things the hard way (use the new legal powers we have been given to make life difficult for you).'
 
"This has turned up in the Izhar (Ul-Haque) case, but we have spoken to people subject to such incidents before.
"Threat of the application of immigration powers seems to be extensive."
 
It is exactly what caused the collapse of the commonwealth terrorism case against Sydney medical student Ul-Haque. A judge this week found ASIO agents had kidnapped and falsely imprisoned the 24-year-old medical student during a so-called informal chat in a park in Sydney's western suburbs.
 
Commonwealth prosecutors were forced to drop charges that he had trained with terrorist organisation Lashkar-e-Toiba after a damning judgment by NSW Supreme Court judge Michael Adams, who said key interviews with Ul-Haque were inadmissible because of gross misconduct by ASIO officers.
 
Adams found ASIO officers had intimidated, coerced and illegally detained Ul-Haque while questioning him.
 
Nothing about the Ul-Haque case surprises Sydney lawyer Stephen Hopper. "It is the norm rather than the exception," he says.
Hopper says he has had several clients who were inappropriately interviewed by ASIO officers while their houses were raided.
Hopper says his clients were often not advised of their rights or given the opportunity to call a lawyer to determine their rights. "It is also great fodder for the pro-Islamic extremist propagandists," Hopper says.
 
He warns that the present safeguards of ASIO's watchdog, the Inspector-General of Intelligence and Security, are inadequate. "I don't mean any disrespect to the current inspector or his predecessor but there needs to be a body that is independent of ASIO and the prime minister's office that oversees the agency," Hopper says. "They can't all be part of the same club."
The Ul-Haque case is the latest in a series of bungles by Australia's security agencies that are causing an erosion of public trust in their operations, according to former spies and security experts.
 
University of Sydney anti-terrorism legal expert Ben Saul says there needs to be a criminal investigation and internal ASIO disciplinary procedures. "There must be a criminal investigation into whether ASIO has overstepped its powers. An investigation by the (Australian Federal Police) would be appropriate," Saul says.
 
ASIO chief Paul O'Sullivan has refused to comment on the actions of his spies. Inspector-General of Intelligence and Security Ian Carnell, who has the power to investigate the actions of ASIO, has declined to comment.
Federal Attorney-General Philip Ruddock, the minister responsible for ASIO, is not going to take any action. "It was not a trial of the ASIO agents," Ruddock says.
 
Ruddock finds the organisation to be very professional but qualifies his statement, saying: "I never say any organisation is perfect." However, he says if anyone believes there has been an offence committed, they are entitled to take the evidence and ask for an investigation. It just won't be Ruddock investigating.
 
The bungles by the agencies charged with the job of protecting Australia from a terrorism attack are undermining public confidence, according to former intelligence officers and academics.
 
The trouble began with the terrorism case against Zak Mallah, the first person to be charged under Australia's new laws. The charge was eventually rejected by a jury after the police were found to have acted illegally in gathering evidence against Mallah, including using an undercover officer posing as a television reporter to buy a suicide video from him.
 
In 2003, ASIO also missed warnings from its French spy counterpart about terrorist Willie Brigitte. A routine request for information was not acted on by ASIO for days because it was sent on a weekend. A second French request a month later asking that Brigitte be placed on immediate surveillance was also not acted on promptly because it was sent over the Labour Day long weekend. Brigitte was eventually arrested two days later on a visa violation.
 
In 2006 Melbourne man Jack Thomas had a verdict that he received funds from a terrorist organisation overturned when the Victorian Court of Appeal ruled interviews conducted by the AFP while he was imprisoned in Pakistan were inadmissible. He faces retrial next year.
 
Former Guantanamo Bay detainee Mamdouh Habib, who was held as a terror suspect for four years, was released without charge.
The Administrative Appeals Tribunal found key interviews conducted by the AFP and ASIO while Habib was in custody "would be unlikely to be admissible in any criminal proceedings".
 
Habib is suing the Government for compensation.
 
Then there was the case of Brisbane schoolteacher John Howard Amundsen, who was charged with making preparations for a terrorist attack. The charge was dropped and replaced with possessing incendiary devices.
 
Most recent has been the case of Mohamed Haneef, the Gold Coast doctor who was charged with providing support to a terrorist organisation. The case against him collapsed and the commonwealth DPP admitted there was no reasonable prospect of conviction.
 
Ian Wing, a former long-time president of the Australian Institute of Professional Intelligence Officers, says some ASIO officers do not seem to have the proper training and are acting like police officers.
 
"Intelligence takes a completely different approach than policing," says Wing, an associate professor at Charles Sturt University. "Intelligence people are taught to break through policies and procedures, break the rules if you like ... our mindsets are trained to be lateral and alternative, whereas police have to be more straightforward. They are completely different cultures. I don't like the idea of secret police, which is what ASIO is verging on becoming."
 
However, Wing does not believe the actions of the ASIO officers were deliberate or premeditated. "I think they thought that what they were doing was OK."
 
Warren Reed, an MI6-trained former Australian spy, disagrees. He thinks it was deliberate and premeditated. "And the danger in that is that people at this level out in the field feel that they can break the rules and get away with it," he says. Reed says there are likely to be many more similar cases that have not been made public.
 
"This is just one case that has become visible to the public," he says.
 
He believes there should be more intense scrutiny of the agency along the lines of the US model, where the CIA is overseen by a powerful congressional system that has the power to call people to give evidence on oath.
 
"We are at a serious stage when the general level of trust in the authorities is being eroded. And the public is turning away from the agencies like ASIO and the AFP, saying they are a joke," Reed says. "We have to work to restore that faith as soon as possible.
 
The men and women who we never hear about and who work long and hard for these organisations deserve better."
 
Fear of ASIO's operations is palpable in Lakemba's Haldon Street, the bustling shopping strip in the heart of Sydney's Muslim community. Shopkeepers are immediately suspicious of newcomers. One organisation that runs Arabic classes is wary, believing ASIO agents have already been sent to pose as students while they spy on them.
 
Kadous says a survey conducted by AMCRAN of about 150 Muslims at a community event revealed an interesting picture about ASIO's activities.
 
"This is a relatively small survey, and it may not have been a truly random sample, but it does give a feel for what is going on in the community," he says. The survey showed about 6 per cent of the respondents had been contacted by ASIO and half knew someone who had been contacted by ASIO.
 
Kadous says one of the comments made was: "I felt if I didn't co-operate, they'd think I was hiding something and be suspicious about me." Kadous says that appears to be what happened to Ul-Haque.
 
About 43 per cent of those surveyed also felt they were being monitored.
 
Kadous points out that the claim is not that they are being monitored but that almost half the community thinks their email, mail or phone lines are being monitored, and that indicates a level of paranoia.
 
Habib has consistently complained ASIO has been conducting a campaign of intimidation and harassment against him and his family. He says he has been approached by ASIO agents and threatened because he had spoken out about his interrogation while in detention. "They said I was talking too much and it was not good for me," Habib says. "They threatened to send me back to Egypt. Then they said, 'If you aren't scared, what about your family?"' Habib's lawyer, Peter Erman, also felt intimidated by ASIO agents who came to his office. Erman, who runs a law firm in western Sydney, says his wife and son have been followed by ASIO agents since he took on Habib's compensation case against the Government. He believes his telephone calls have been interfered with or intercepted.
 
"I think it's intimidation," Erman says. "It's not as if they are going to learn anything about national security or terrorists from a suburban solicitor."
 
Hutchinson recently lodged a complaint with local police alleging ASIO illegally entered her home and tampered with her computer. Hutchinson is understood to be concerned that the alleged intrusion was orchestrated by ASIO, which she says has been watching her closely since she fled Afghanistan in the wake of the September 11 attacks in the US. The alleged incident took place at her southwest Sydney home in September as law enforcement and intelligence agencies prepared for the biggest security operation in Australia, protecting the APEC leaders summit.
 
 
In response to community concern about the activities of ASIO and police, AMCRAN and the University of Technology, Sydney Community Law Centre produced a booklet, Anti-Terrorism Laws: ASIO, the Police and You. Kadous says people need to know their rights. "People often say they have been approached by ASIO and they don't know what to do. We let them know their rights and that is, if ASIO doesn't have a warrant they can't be questioned," he says.
 
"The booklet also says that if there is no questioning warrant, the secrecy provisions also don't apply, meaning you can reveal that ASIO (has) made an approach to ask questions. Then it is up to them whether they choose to co-operate or not."
 
Natalie O'Brien, Sydney
The Australian, November 14, 2007