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Habib: No travesty of justice

By Jeremy Rabkin - posted Monday, 24 January 2005

Greens Senator Bob Brown says John Howard's Government must now face "very serious charges" for having "abandoned Australian citizens to torture and illegal imprisonment" at Guantanamo Bay.

Prime Minister Howard, after his remarkable victory at the polls last October, needs no help from Americans in answering such critics.

But perhaps I can help explain why hardly anyone in America imagines that, in releasing Australian prisoner Mamdouh Habib, the Bush administration was making things harder for the Howard Government.


Brown and other Australian critics seem to think that, by releasing Habib rather than putting him on trial, the US is tacitly acknowledging that it was wrong to have held him for the past three years. Lyn Allison, leader of the Australian Democrats, insisted, for example, that the release of Habib showed he had been held "without evidence" and therefore his "detention for over three years was unwarranted and unnecessary".

The reasoning is particularly strange given the known facts of this case. Habib was taken into custody in 2001, in the context of an actual war. That war, against the terror-sponsoring government in Afghanistan, was authorised by formal resolution of the UN Security Council.

It is the common practice in war to hold captured enemy combatants as prisoners, while the fighting continues. Neither the Taliban leaders nor al-Qaida ever directed their fighters to cease operations in Afghanistan. There is still fighting going on in Afghanistan, or at least terror attacks designed to prevent the new government from consolidating its authority.

Had Habib been captured in the uniform of an organised army, it would have been entirely reasonable to hold him for the past three years. Nobody thought it was wrong to hold German prisoners of war for even longer periods during World War II. Nobody demanded that allied legal teams show "evidence" that each individual German prisoner was still dangerous in, say, 1943 or 1944. But Habib was not captured in the uniform of an organised army.

The enemy in Afghanistan did not fight that way. Terrorist forces tried to blend in with civilians to escape detection and then struck randomly at civilians, as well as at military targets. The terrorists ignored all the most basic laws of war.

It is bizarre to think that, while soldiers obeying these laws could be held as prisoners, those who operate in defiance of these laws could not be held unless convicted on formal charges, proved in a formal procedure.


Some prisoners at Guantanamo are going to be subjected to formal trials. It has taken a long time to determine the proper procedure for such trials and to gather evidence for individual charges. But such delays are hardly remarkable.

At the end of World War II, Australia, along with the US and Britain and other allied nations, mounted trials for Japanese soldiers charged with war crimes against allied prisoners and civilians. For many defendants, these trials did not commence until several years after Japan's surrender - in some cases by as much as six years after the accused were taken into custody.

Of nearly 6,000 Japanese prisoners charged in such trials, more than 1,000 were actually acquitted - by military tribunals not known for exacting standards of evidence. Nobody at the time claimed that it was "injustice" to have prosecuted those who were acquitted. Nor was there much complaint when charges against several hundred Japanese prisoners were ultimately dropped without trials.

Whether prisoners at Guantanamo were "tortured" is a different question. There may have been abuses. Ordinary prisoners have been abused in prisons in the US, because prisons are not always properly run. But stressful interrogation techniques shouldn't be automatically denounced as torture. Having ignored the laws of war, fighters in Afghanistan were not entitled to claim Geneva Convention protections against stressful interrogation.

Habib's wife, remember, acknowledges that he tried to raise funds in Australia for Omar Abdel Rahman, who organised the 1993 bombing of the World Trade Centre.

It's possible that Habib did not participate in terror operations in Afghanistan and his presence there was coincidental. But no one should be indignant that US authorities did not want to give him the benefit of the doubt. In an era when terror attacks can kill thousands in a few hours, it's not unreasonable to give higher priority to protecting potential terror victims - who are certainly innocent - than individuals captured in such suspicious circumstances as Habib.

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First published in The Australian on January 13, 2005.

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About the Author

Jeremy Rabkin, a professor of constitutional law at Cornell University in New York state, is author of The Case for Sovereignty.

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