Well, the current round of trials for Abdul Nacer Benbrika and his followers have finally ended, after a marathon trial and three weeks of jury deliberations. Seven, including Benbrika, were found guilty of various terrorism offences; four were acquitted, and one man will face a new trial after the jury couldn’t reach a verdict. Some of the men will now face additional charges.
Out of the trial, there are a number of issues raised, including the extraordinarily harsh conditions the then-accused were kept in, and Robert McLelland not keeping his mouth shut while the jury was still deliberating on one of the cases.
But equally important to consider is what the defendants were actually convicted on. As their solicitor, Rob Stary, put it:
We’ve invested enormous powers to the policing agencies and the intelligence community, there’s no review of this process, got to remember that these men were convicted not of committing, or not planning to commit a specific terrorist act, but talking generally in jihadist ideological terms.
That “talking generally in jihadist ideological terms” involved discussing how murdering random Australians was just peachy. That said, however repugnant it might be, the defence appears to be right in that Benbrika and his followers had no specific plan to perform a terrorist attack on any particular target. But the law doesn’t require that. Anti-terrorism Bill Number 2, 2005, rushed through just before the arrest of the men in 2005, broadened the definition of a “terrorist organization” significantly, to include the general advocacy of terrorist acts, without there needing to be such a specific plan.
While the 2005 legislative amendments were undoubtedly necessary to convict the men based on their actions to that date, it’s important to take a step back. Was it really necessary to protect the community from terrorist attack? In this case, you’d have to wonder. The very need to change the law to broaden the scope of “terrorist organization” beyond those actually planning a specific attack makes clear that they hadn’t begun to plan such an attack; if indeed they ever really would have (or could have).
The group was under constant surveillance by police. Their phones were tapped, their homes were bugged, and one of their confidantes was actually an under cover police officer (or possibly an ASIO employee). They weren’t going to fart, let alone plan an actual terrorist attack, without the entire Australian law enforcement community knowing about it. If they had started to plan a specific attack, Rob Stary argues that they could have then been arrested, charged, and tried then, and it’s hard to find fault with his logic on his point. More generally, it’s hard to think of any situation where such legislation would be necessary to prevent a terrorist attack. If it comes to the attention of police or ASIO that a group has some rather nasty general intentions, but haven’t turned those into contrete plans, all that’s required is to keep an eye on such people until they move from talking to acting. That’s obviously going to tie up substantial police resources. But haven’t we spent an enormous amount of money providing such substantial police resources?
I suppose there is always a risk that such a group might give police the slip; furthermore, the law as it stands might be a useful tool in convincing somebody to be an informant. But none of those seem to apply in this case.
So we’re no closer to an answer. Why was this legislation passed in such an unseemly rush back in 2005? And, more pertinently, is it actually necessary to “protect the community” now?
UPDATE: Tim Dunlop on the Attorney-General’s big mouth.
As reported in the press coverage, there were some specific targets mentioned by members of the group: an AFL Grand Final (OUTRAGE) was one. For my part, I think it’s a very tricky area of policing: this decision on when to pounce. The ordinary law (outside the terrorism area) does recognise unlawful conspiracy, threats to kill*, etc.
It’s not the case that a person is untouchable until the have actually [allegedly] murdered.
* and in this context, it doesn’t have to be as serious as murder, e.g. “going equipped to steal” (person found at 4am with housebreaking tools), “impeding police in their….” (not assaulting police, just being a bloody nuisance), “making a false report” (ringing up to say there’s a serious crime in progress, when there’s not, just as a jape)
I’m not condoning mistreatment of prisoners. But I think some of the criticisms of the so-called terror laws have been foolish. Whatevs, dude.
Another example: murder of an estranged ex-wife.
Divorced couple, former wife has intervention order out, against apparently violent ex-husband. She moves intersate. He finds out her new work address, tells no-one he has discovered it; travels non-stop across State borders and murders her in public outside her workplace. Until the instant he shoots, he has not (it seems) broken any law. [Or is “going equipped to murder” a charge that can be laid?] Afterwards, he is charged with murder. A bit late for her.
At what point (before the murder) should - or could - the police have taken preventative action?
So here’s a question: can society protect ex-spouses? Or is it just too hard? Can society take reasonable steps to protect attendees at AFL Grand Final matches? Is that already covered by bag searches at the entrance gates?
From what I saw somewhere about rescources devoted to the case I worked out that it consumed at least 10 person years of work (10 x F/T persons) just for surveliience etc. Given that resources are always limited and there are competing priorities I think that at some stage there has to be a decision that you can’t keep an eye on eveyone forever and therefore have to grab whatever charges look likely to stick and stop any possible action as well as “send a message” -so to speak - in order to move on.
Ambigulous: I’m not claiming that you need to have pulled the trigger to have committed an offence. But were these guys sufficiently close to doing so to make a prosecution morally justifiable? I don’t know.
To your broader point, there are limits to how far we can, or should, go to protect ourselves from crime. Where the boundaries are drawn are always going to be the subject of debate. I’m just asking whether the boundaries are drawn correctly in the case of these specific laws.
From the Act:
I guess that outlaws singing “John Brown’s Body”! If you have sung that song, or intend to sing that song, turn yourselves in immediately.
Counsels? Urges? Indirectly provides instruction? Directly praises?
It’s a travesty.
I have to say, I’m all for civil rights but it would have been me and my fellow Muslims who are blamed if the police *hadn’t* swooped on Benbrika et. al. and they had committed a terrorist act. (Not to mention, I live in Melbourne so any terrorist act could have likely impacted me and my family members as much as anyone else in Melbourne).
The vast majority of Muslims are peaceful, law-abiding folk. Unfortunately there are a few bad apples (just like there are a few bad Catholic Italian apples involved in organised crime). When the police lock them away, it makes society safer for me both as an Australian *and* as a Muslim.
Robert - great post. I think you’re being too dismissive of the risk that a group could give the police the slip. That certainly seems implausible in the Benbrika case but it’s not hard to imagine how that could be a substantial risk given different facts. I think the argument against these laws is stronger to admit of some risk, but argue that that risk does not justify legislating against thought crimes. As Katz illustrates, praising a terrorist act is pretty wide net.
I think the point at which a crime is committed has to be the point at which you start to operationalise it. Sitting around with some friends and talking about blowing up the AFL grand-final is abhorrent, but shouldn’t be illegal. Having had that conversation, then obtaining the MCG building schematics and shopping for fertiliser in bulk is roughly the point where the law should step in.
Would that make Ted Bullpitt a Terrorist due to his constant “threats” of “Someone Should Blow those little Catholic School kids up ? ” or words to that effect.
We shouldn’t ignore the possibility that in moving from casual discussion towards genuine planning, potential terrorists might change their MO a bit, with the attendant small chance they’ll slip whatever surveillance net is round them. Change of meeting place, suddenly talking in code, that kind of shit.
Frank - ahh, no. No it wouldn’t.
With regards to people slipping the net, perhaps. I suppose it wouldn’t be wise to assume that future aspiring terrorists are always going to be as ineffectual as Benbrika and his followers. Mind you, so far it’s been a reasonable assumption; a surprisingly high fraction of the “domestic terrorists” arrested in the USA and Australia thus far have been of the “couldn’t organize a piss-up i a brewery” variety.
But in this specific case, the risks seemed minimal. Certainly, there doesn’t seem to be anything we’ve learned so far that required rushed changes to the law to prevent an imminent threat.
Robert, you made some good points in the post and in your replies. It’s very much a matter of balance, and I certainly don’t pretend to have any good answers.
There may be a slight “self-selection” effect in this observation you made: “a surprisingly high fraction of the “domestic terrorists” arrested in the USA and Australia thus far have been of the “couldn’t organize a piss-up i a brewery” variety.”, in that we could guess that STUPID plotters have a higher chance of getting sprung before they act [even assuming they were ever capable of acting, rather than idly boasting]. Or he can’t make his sneakers explode.
The smarter (or luckier?) ones don’t get arrested because they are incinerated by aviation fuel in a skyscraper, or die in an explosion in a busy public place like a railway carriage.
It’s difficult. Cheers.
But there hasn’t been any successful terrorist attacks in Australia for decades. None. Zero. Zip.
So these smarter/luckier terrorists are either being caught and dealt with in secret by extra-judicial means (an abhorrent possibility but one that I can’t entirely discount our government being involved in), or to date none have actually been found.
Sorry, Robert: I was considering events and incidents overseas. Is that foolish?
No, of course not.
But there hasn’t been a terror attack in the United States since 9/11 either.
But even if you look at the British situation, there’s been a hell of a lot more failed or intercepted attacks than successful ones.
The bad guys only have to get lucky once. The good guys have to be lucky all the time.
Terrorism should not be treated like a civil crimes matter. It is war - the niceties of civil society don’t count in war. These guys get off lightly. The Geneva Conventions allow for the execution of non-uniformed enemy.
Perhaps this will help Razor rather than we go through it all again. Starting with Mr Fyodor’s well expressed comment here to Walter Mitty and what follows, ie some humour thrown in as well.
http://larvatusprodeo.net/2005/08/08/the-question-on-everyones-lips/#comment-18893
“It is war - the niceties of civil society don’t count in war.”
Too right. Why are we pussyfooting around with trials? These towelheads should’ve been bundled into helicopters, flown out to see, and pushed out, just like the Argentine Generals did with the Commos in the 1970s.
flown out to see what exactly? whales??
Sorry. People seem to be missing the point. How can you just drag someone off the streets and can them for god knows how long, just because they express an opinion or a feeling.
Some time ago, I reckoned I’d like to whack a certain politician round the ear for being a cretin. Should I have been rushed off to clink for evermore, just for being pissed off?
How many people in Australia would be behind bars if they were locked up indefinitley for outwardly expressing nasty or angry thoughts or feelings they had had?
No comment so far on Merkel’s comment tha the 2005 law was dragged in hurriedly, perhaps specifically to “get” (and scapegoat?) Bernbrika and his twerpy mates.?
Until thoughts are acted on, where is the crime? There is a big step moving from grumbling to action.
BTW, no one has questioned what penalties are in play. Are we talking about months weeks or years?
Are we saying someone grumbling should be canned for longer than a rape or violent assault?
There is a similar thread operating at Web Diary and some of the nervous nelly/chicken little “terrism” night terrors stuff comments here are as silly as certain ones there.
“flown out to see what exactly? whales??”
Yes, the whales.
Robert are you really sure that the risk was minimal? Have you heard all the evidence, as the jury did, or have you just been following media reports?
Just wondering, seriously, why what Benbrika and his mates did wasn’t already covered by the conspiracy laws.
Well yes, in principle. That would be a good thing.
Unless the politician you had in mind was Sophie Mirabella. She is of Greek heritage but I’m not sure if she is a Cretan. Still it’s bettter to be safe than sorry.
Good point Greg M.
If you are asking, it may well be that my judgement concerning a certain individual tends to a specific trajectory.
You may well think that; I couldn’t possibly answer…
GregM: I come back to my original point. If they’d had a plan to make such a specific attack, there wouldn’t have been any need to change the law to arrest, charge, and prosecute them.
*shaking head* many years ago I had the misfortune to attend an event where this type of violent ideology was being spouted off (price lists for bullets and machine guns, showing unedited footage of Israeli soldiers beating up and torturing Palestinians etc.). I tell you, the evil in the room was palpable. I am sure not dissimilar to a Ku Klux Klan meeting in the 1960s when celebrating the lynching of blacks. I am religious, and I believe a creature called Satan exists, and I tell you I truly believe Satan was in that room. This is not a free speech issue, there are some ideas and some discussions that are evil and beyond the pale and which our society should not tolerate. When it comes to discussing the murder and killing of other people, then the line has truly been crossed between free speech and evil.
This sets a surveillance and infiltration agenda that might make the efforts of the East German Stasi look modest by comparison.
There are idiots and blowhards in every community. Mostly they simply blow themselves into exhaustion. However, surveillance and infiltration are likely to provoke more violence than it prevents.
Prosecute hard those who are caught buying explosives, firearms, etc. But leave the blaggards to their own pathetic devices and self-exhausting devices.
Yasmin, do you think arresting and prosecuting the people in the meeting you attended would have dissuaded others from being attracted to their cause?
Further to Robert’s point that ” there hasn’t been a terror attack in the United States since 9/11 either”, this is well worth a read:
Portrait of the Modern Terrorist as an Idiot
Robert@29
Definitely. The couple of hundred audience members were ordinary young Muslims. They probably didn’t have much of an idea what they were in for that evening, and yet by the end of the evening, after being brainwashed with videos and rants and raves, I cannot imagine a person coming away from that evening unaffected.
Yet, in the years since September 11 (in the Muslim community with which I am familiar) a stigma was attached to the types of groups that spout this stuff, and a part of that has to be the authorities policing of potential terrorist organisations. There has been a shift from a rose-coloured glasses view of the ‘romance’ of (military) jihad to the reality that these people are criminals who go around murdering innocent, ordinary people.
I don’t believe in thought-crime, I really don’t. But I do think that society should step in when individuals actually organise meetings to discuss and celebrate murdering other people. For me, that’s the free speech line. I cannot abide the anti-Semitism stuff (whether it’s Jews towards Arabs or Arabs towards Jews or anyone towards Arabs OR Jews) and if it’s rubbish like discussing the Protocols of the Elders of Zion, or celebrating Golda Meir’s statements about Arabs then hey.. it’s free speech: distasteful but there you go. But when it shifts to discussing how wonderful it would be to *exterminate* Jews or Arabs and start to discuss how to go about doing that, then it’s beyond the pale IMHO.
Same if it’s killing doctors who perform abortions, and bombing anti-abortion clinics by Christian nutters. A Christian fundaloony group can chew the cud on how awful abortion is until the cows come home (and hey I’m not a big fan of abortion either) but when it shifts to talking about how all their problems would be solved if a few doctors were killed, then it’s beyond the pale IMHO.
How you would police all this stuff? I dunno - that’s why I’m not a policeman or ASIO bod. I like nice, light, peace, love and mungbeans religion, not all this dark Satanic stuff.
Should add to Robert@29 - arresting and prosecuting the people who were responsible for the evening’s programme yes. Ordinary audience members no - they didn’t know what they were in for.
Umm Yasmin: thanks for your informed perspective. When it gets to the point that people are explicitly advocating violence against others, there’s also racial and religious vilification law that can be applied (though I happen to think that’s too broadly drawn in Victoria at the moment). If there were easy answers here, we wouldn’t need the discussion.
Fmark: Good link - Schneier is a favourite of mine.
“Yet, in the years since September 11 (in the Muslim community with which I am familiar) a stigma was attached to the types of groups that spout this stuff, and a part of that has to be the authorities policing of potential terrorist organisations. There has been a shift from a rose-coloured glasses view of the ‘romance’ of (military) jihad to the reality that these people are criminals who go around murdering innocent, ordinary people.”
Y’see, I just don’t see that the bit I bolded “has to be”. I for one would prefer to think that it’s the recognition of the reality of terrorism (that follows in your above para) rather than the fear of being caught which has brought about the stigmatisation of jihadis among Muslims. Maybe the bold bit is right, but I hope it’s a piddlingly small part, because the other part is much more important IMHO.
Unless it’s incitement which for example NSW retains as common law and the Federalistas under Howard had incitement codified anyway in the Criminal Code. Current Cth law essentially lowers the bar to the level of thought crime.
Whether these people are being sent down by a fair law or a cobbled together one matters not to me.
They are frightening and on the evidence dangerous.
I don’t see why we should spend police resources on keeping tabs on them when they can be locked up with their asses against a wall 23/24.
Good on the jury and the judge. The Attorney-General though is a muggins for commenting on the case.
Jack Hackett
Because Jack, if they can lock up these they will realise thay can lock up others who they don’t like either, may be much more innocent, like the Jews in the thirties and forties and we are on the slippery slope to totalitarianism.
First EVIDENCE ( of something REAL; out in the public arena for all to see) THEN court and whatever may follow.
Once again, we do not what the sentences are yet and we understand further cases are pending with some of these folk also.
I don’t want to see misguided young blowhards jailed for periods that you wouldn’t dream of given a calculating violent thug or rapist.
They frighten the frightened.
Haven’t we locked up dangerous persons for centuries? Why did we need new laws to perform an old function?
These people do not play by Queensbury rules, they are mad and bad. Neither psycchiatry nor conventional anti-criminal processes will be able to deal with them.
Their aim is to punish the west and impose their theology on all. They wish to frighten and terrify people, and they have.
They will have to live with the reaction to that.
Jack Hackett
“These people do not play by Queensbury rules”.
Judging by the numbers of killed (for their own good!) in different parts of the Middle East, neither do we of the West.
So what has that got to do with the prosecution of criminals who threaten the public in this country?
Worry about those closer to home.
Jack Hackett
So what has that got to do with the prosecution of criminals who threaten the public in this country?
Worry about those closer to home.
Jack Hackett
Yes! Like…
Martin Bryant
Julian Knight
Bradley John Murdoch
Ivan Milat
None of these belong to identifiable brown groups that you can round up and sequester Jack - and they’re the ones with the actual body count.
Back to the drawing board.
Kinda reminds me of the standard police tautology:
Well yes. In the NYTimes or something the like, in Afghanistan I think, eight bystanders are wiped out because the allied troops thought someone they didn’t like was living in the house next door, just yesterday.
” These people do not play by Queensbury rules. They are mad and bad,”.
Who actually are you referring to?
Think before you answer, if you are going to.
The idea that we give carte blanch to murdering anything that moves in other peoples countries because there is just the faintest chance it might protect certain people from the consequences of their actions here, reeks of gutlessness to me.
I don’t like “terrorism”- including state terrorism done allegedly for my welfare.
I’d rather be dead than resposible for the deaths of children, old people and pregnat women who never meant or did me any harm. But then I’m only the excuse for the terrorism, aren’t I?
It’s being done for the benefit for others of my race and culture and is actually done for things like Gas and oil and pipelines and profits, although I can’t claim total lack of complicity, since I live in the prosperous West and benefit from it, too.
But don’t try to make me proud of being an accessory to murder.
One huge upside of this conviction will be the sorting out of the wheat from the chaff.
Up until now an assortment of hangers on and semi-radicals (the all talk no action variety) have been able to hang off the committed fanatics and gain a bit of street cred just shooting their mouths off.
Thats all changed, there is much less chance of ASIO or the Feds wasting time on non-serious dabblers because those people now know the risks.
Up until now its been quite possible to shout “death to the infidels” and hang around with those plotting to do the same.
Now you can still shout it, but if you take steps to plan it….
This is a fairly typical reaction. The authorities acted early. Before you whinge about the law, try to imagine what might have happened had an attack proceeded. Would you feel comfortable with that scenario? Fancy telling someone that their nearest and dearest is dead.