Legal brief big on justice, but short on facts of war

There is an old legal aphorism that advises: "If the law is against you, argue the facts; and if the facts are against you, argue the law." With the public emergence of material linking Mamdouh Habib with al-Qaida since the early 1990s, it is no surprise that his more sophisticated supporters have adopted the latter course.

Australian intelligence officials recently revealed that Habib was identified by other al-Qaida detainees as a participant in five paramilitary training courses between 1998 and his arrest in 2001. These same witnesses placed Habib, on September 11, 2001, in an al-Qaida camp in Afghanistan undergoing instruction in advanced counter-intelligence tactics.

Moreover, Habib made an international call to his wife in Australia just a few days before the deadly 9-11 attacks. The New York Times reported that signal intelligence personnel who intercepted the call heard Habib inform his wife of an impending "big event" in the US. But Islamic Council of Victoria executive Waleed Aly argues that Habib's guilt or innocence is "irrelevant". Instead, Aly prefers to focus on the "procedural injustice" inflicted on "a man who was shamefully denied due process". Aly is a lawyer and it is understandable that he might wish to view the Habib affair through the prism of his profession.

Yet he erred in applying the standards of the conventional courtroom to an arena that must, by necessity, be governed by an entirely different set of statutes. By its very nature, war violates the most fundamental principles of civil society. And while there is a legal code that governs the conduct of armed conflict, it is infinitely more permissive than the ordinances that are operational in civilian life.

In wartime, homicide is not only permitted, but it is rewarded. Soldiers on the battlefield are promoted for the same act that would earn them prison sentences in civilian life: killing their foes. In combat, there is no legal requirement to read the enemy his rights before shooting him from ambush. Thus, it is self-defeating folly to apply peacetime legal standards to a wartime environment where they are irrelevant.

Moreover, when the rules of the barrister are misapplied to the realm of the bombardier, real injury can result. This was illustrated by a front-page story in The Washington Post in October 2001 relating that President Clinton spurned the perfect opportunity to nab Osama bin Laden in 1996. At the time bin Laden was living in the Sudan and there was substantial intelligence data implicating al-Qaida in the 1993 World Trade Centre bombing. Yet Clinton declined the Sudanese offer to hand over bin Laden because his attorney-general didn't think she had enough evidence to convict the Saudi terrorist leader in a court of law.

But thousands of additional American lives might have been saved had radical Islamic terrorism been dealt with as a national security matter rather than a criminal justice issue. Had Bill Clinton called in the navy SEALs instead of a team of lawyers from the justice department, the Twin Towers in lower Manhattan might still be standing.

In the wake of the September 11 attacks, the US Government did not repeat that same mistake. Congress moved quickly to pass legislation authorising the President to use military force against past and future terrorist threats to the US. And George W. Bush promulgated that directive by declaring the 9-11 attacks to be "on a scale that has created a state of armed conflict that requires the use of the United States armed forces".

Napoleon is reputed to have said: "a la guerre, comme a la guerre" (in war, as in war). The US appropriately considered the attacks conducted by the al-Qaida network to be acts of armed conflict, not run-of-the-mill criminal offences to be dealt with by conventional judicial means.

Habib chose sides in this armed conflict - the enemy side. And by voluntarily affiliating with a terrorist organisation that violates the laws of war by deliberately targeting innocent civilians, Habib placed himself in the category of illegal combatant. Habib was not even eligible for the privileges of the Geneva Convention. Yet despite Habib's active participation in the enemy terrorist war effort, Aly demands that he be accorded the expansive rights of our normal court system.

In essence, advocates for Habib suggest that we follow in the flawed footsteps of Clinton by conducting the campaign against radical Islamist terrorism by judicial, rather than military, means. This is a misconceived attitude that brought us disaster in the past and doubtless would do so again in the future.