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Give Habib a Break!

By Christopher Michaelsen - posted Friday, 4 February 2005

Last Friday Mamdouh Habib, a former Sydney cab driver, arrived back in Australia from Guantanamo Bay, Cuba, where he had been held by US authorities for nearly three years. According to his lawyer, Stephen Hopper, Habib’s ordeal at “Camp X-Ray” involved living in a cage, sensory deprivation, being regularly beaten, electrocuted, immersed in water and having a prostitute menstruate on his face. However, US authorities were not able to find enough evidence to put him on trial and consequently set him free.

Washington’s decision to release Habib represents a severe embarrassment for the Howard Government and also punctures its claims to have a “special relationship” with the Bush administration. Over the course of the past three years, the US continually assured senior Australian officials that Habib would be charged, put on trial before a military court and presumably given a lengthy jail term. Instead the US, apparently without consulting Canberra, decided in January to release Habib.

Rather than returning to well-deserved freedom, however, Habib returned to a hostile Australian Government desperately trying to downplay the political significance of his release. Prime Minister John Howard, for instance, declared that Australia did not have any apology or compensation to offer. Foreign Minister Alexander Downer thought Habib’s three year detention without charge was justified even in the absence of evidence suggesting any links to al-Qaida. And Attorney General Philip Ruddock announced that he would investigate whether any payment Mr Habib received for telling his story to the media could be confiscated under federal Proceeds of Crime legislation.


However, a closer look at the legislation in question reveals that Ruddock’s motivation was the intimidation of Habib rather than a concern for legal principle. The Proceeds of Crime Act 2002 allows for confiscation of literary proceeds if there are reasonable grounds to suspect that a person has committed an indictable offence or a foreign indictable offence. In other words, for the legislation to apply, a person must have been convicted of, or charged with, or proposed to be charged with, an offence committed in Australia or abroad.

Habib, however, has not been convicted of any offence in Australia or in any other country. He is not up on any charges, and there are no charges against him pending. In fact, Habib was released from Guantanamo Bay exactly because there was no evidence to suggest that he represented a threat to US national security or that he had committed an offence under US law. It is thus very unlikely that the Government will be legally able to prevent Habib from receiving payments for selling his extraordinary story to the media.

Apart from these financial and legal considerations, it is unfortunate that Mr Howard has ruled out any apology for letting down an Australian citizen and subjecting him to “incommunicado” detention abroad. Coincidently, the same day Habib arrived back in Australia, a spokesman for the British Government announced in London that Prime Minister Tony Blair was set to issue a public apology to the “Guildford Four”. The four were wrongly jailed for an infamous IRA bomb attack in the early 1970s but later cleared and released in 1989.

It is clear that the Howard Government lacks similar political courage. However, the least it could do is to give Mr Habib a rest and a chance to rebuild his life with his wife and four children. In order to do that he will need every dollar he can get, including those from selling his story to the media. Leaving Habib’s financial interests aside, the publication of his story is also crucial for political reasons. Every Australian deserves to know what one of their fellow citizens had to endure whilst in American hands.

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First published in The Canberra Times on February 3, 2005.

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About the Author

Christopher Michaelsen is an Associate Professor in the Faculty of Law & Justice at UNSW Sydney.

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