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Australia, Too, Moves Toward Accountability
England isn’t alone in rejecting attempts to suppress the record of its government’s complicity in torture. A few months ago, an appeals court in Australia likewise opened the way to a public airing of the involvement of Australian intelligence services in the rendition and torture of one of its citizens.
On October 4, 2001, three days before the official commencement of hostilities in Afghanistan, Mamdouh Habib was pulled off a bus in Pakistan, detained and interrogated for more than a month, and then flown to Egypt and interrogated there for several months before being delivered to Bagram and ultimately Guantánamo. As The Washington Post’s Dana Priest and Dan Eggen first reported in January, 2005, Habib’s habeas corpus petition detailed how, after being questioned by Americans for three weeks in Pakistan, he was taken to an airfield where he was beaten by several people who spoke American-accented English. The men cut off his clothes. One placed a foot on his neck “and posed while another took pictures.”
He was then flown to Egypt…and spent six months in custody in a barren, 6-foot-by-8-foot cell, where he slept on the concrete floor with one blanket. During interrogations, Habib was “sometimes suspended from hooks in the wall” and repeatedly kicked, punched, beaten with a stick, rammed with an electric cattle prod and doused with cold water when he fell asleep, the petition says.
He was suspended from hooks, with his feet resting on the side of a large cylindrical drum attached to wires and a battery, the document says. “When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity” went through the drum,” it says. “The action of Mr. Habib ‘dancing’ on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib fainted.”
At other times, the petition alleges, he was placed in ankle-deep water that his interrogators told him “was wired to an electric current, and that unless Mr. Habib confessed, they would throw the switch and electrocute him.”
Habib says he gave false confessions to stop the abuse.
The same day The Washington Post ran this story, the U.S. government announced that Habib would be released from Guantánamo, and he returned home to Australia—where he had been a citizen for more than 25 years—on October 28, 2005. Like Binyam Mohamed in the U.K., Habib subsequently filed a lawsuit against the Commonwealth of Australia “for aiding, abetting and counseling his torture and other inhumane treatment by foreign officials while he was detained in Pakistan, Egypt, and Afghanistan and at Guantánamo Bay.” Specifically, Australian officials stand accused of participating in his initial interrogation in Pakistan, supporting his rendition to Egypt, and interrogating him at least 12 times at Guantánamo.
The Australian government moved to have the lawsuit dismissed, invoking the common law “act of state doctrine,” which bars courts from deciding the legality of actions by foreign governments; it argued that trying Habib’s case would require the court to decide whether the United States, which was primarily responsible for the acts the Australian officials stand accused of abetting, had violated laws prohibiting torture and enforced disappearance. Last June, a lower court accepted this argument and ordered the case dismissed. But Habib’s attorneys appealed, and earlier this year an appeals court reversed that decision, ruling emphatically that the act of state doctrine “has no application where it is alleged that Commonwealth officials have acted beyond the bounds of their authority under Commonwealth law.”
While Australian courts are generally barred from judging the conduct of foreign governments, the Justices found, they have an essential obligation to judge the constitutionality of actions by Australia’s own legislative and executive branches. “The heart of the matter is that Mr. Habib alleges before a Court exercising federal jurisdiction that Commonwealth officers acted outside the law,” Justice Nye Perram wrote in his opinion (an opinion that, ironically, draws heavily on U.S. court precedents). “The justiciability of such allegations is axiomatic and could not be removed by Parliament still less the common law.”
This is emphatically the case, the three judge panel agreed, when the allegations involve grave human rights abuses like torture. As Chief Justice Michael Black noted in his concurring opinion,
Torture offends the ideal of a common humanity and the Parliament has declared it to be a crime wherever outside Australia it is committed. Moreover, and critically in this matter, The Crimes (Torture) Act is directed to the conduct of public officials and persons acting in an official capacity irrespective of their citizenship and irrespective of the identity of their government…. [It] reflects the status of the prohibition against torture as a peremptory norm of international law from which no derogation is permitted and the consensus of the international community that torture can never be justified by official acts or policy.
...[C]onsistently with Australia’s obligations under the Torture Convention, the Parliament has spoken with clarity about the moral issues that may confront officials of governments, whether foreign or our own, and persons acting in an official capacity. It has proscribed torture in all circumstances, answering in the negative the moral and legal questions whether superior orders can absolve the torturer of individual criminal responsibility and whether, in extreme circumstances, torture may be permissible to prevent what may be apprehended as a larger wrong.
So once again, in a powerful display of the principle of the separation of powers, the courts of another democratic ally have rejected an attempt by the executive branch to hide its role in the torture of detainees in U.S. custody from public scrutiny. In this country, which is primarily responsible for the torture but where the executive branch routinely invokes secrecy privileges and where courts often defer and where Congress has even toyed with granting immunity to torturers, we could learn—or relearn—a thing or two.