ZGram - 12/28/2004 - "Secret Evidence used in Australian 'terrorist' trial"

[zgrams at zgrams.zundelsite.org]

ZGram - Where Truth is Destiny:  Now more than ever!

December 28, 2004

Good Morning from the Zundelsite:

A European ZGram reader sent me the following, titled Secret Evidence 
used in Australian "terrorist" trial:

[START]

20 December 2004.

In a development without precedent in Australia, secret evidence is 
being heard in closed sessions, with access denied to the public, the 
media and even the accused man and his lawyer, in a hearing of 
terrorist-related offences currently underway in Sydney. A magistrate 
has granted wide-ranging secrecy and suppression orders, in the first 
test of the Howard government's latest "national security" 
legislation.

After months in a maximum security prison awaiting trial, Faheem 
Khalid Lodhi, a 34-year-old architect, was brought before the Central 
Local Court last week on nine charges, most alleging a conspiracy to 
commit terrorist acts in Sydney. The committal hearing will determine 
whether the Pakistani-born Australian citizen is sent for trial. On 
the opening day, the prosecution dropped a further charge of 
attempting to recruit a young student to a terrorist organisation.

Lodhi was bundled into the court building in shackles, in full view 
of the media. The display was intended to convey the impression that 
he is a violent and highly dangerous individual. Like several other 
Muslim men charged with terrorist offences in Australia over the past 
year, Lodhi has been denied bail and held in virtual solitary 
confinement in a "super max" prison, cut off from family and friends. 
Under state and federal "counter-terrorism" laws, the traditional 
presumption in favour of bail has been scrapped. It will only be 
granted in "exceptional circumstances".

On receiving a confidential affidavit from the Commonwealth, 
Magistrate Michael Price imposed a number of secrecy orders despite 
vigorous objections by lawyers for Lodhi and by media organisations. 
The orders mean that the affidavit itself will remain suppressed, and 
the media is barred from disclosing even the general nature of the 
material relied upon in it.

Lodhi's barrister, Phillip Boulten SC, opposed the government's 
secrecy application as "completely unacceptable practice" and 
"extraordinary" and argued it would seriously disadvantage his 
client's case. Much of what he said was heard in closed court, so it 
went unreported.

Dawid Sibtain, a lawyer representing four major media groups, 
criticised the affidavit as "hopelessly imprecise". "It's a blanket 
order [which] travels far beyond the issues necessary and far beyond 
that which is prescribed", he told the court. He said the 
government’s argument would allow a baseless prosecution, motivated 
by "state and federal political interests", to override the 
constitutional principles of open justice and freedom of 
communication.

Speaking for the Howard government in reply, Commonwealth counsel Tom 
Howe dismissed the constitutional right to have facts heard in court 
as "nonsense on stilts". As a general rule, he insisted, national 
security should prevail when it conflicted with the right to an open 
trial.

This sweeping assertion, and the magistrate’s acceptance of it, 
illustrates the far-reaching and draconian character of the National 
Security Information (Criminal Proceedings) Act, which was pushed 
through federal parliament this month with the backing of the 
opposition Labor Party.

The Act permits trials on terrorism, espionage, treason and "other 
security-related" charges to be held in complete or partial secrecy. 
In closed court sessions, judges can allow government witnesses to 
testify in disguise via video and, in some circumstances, exclude 
defendants and their lawyers from trial proceedings. If a lawyer 
refuses or fails to obtain a security clearance, for example, a judge 
can exclude them from secret sessions, and from viewing transcripts.

If Lodhi or any other alleged "terrorist" is committed for trial, 
juries can be asked to convict them without seeing key evidence. With 
the judge's permission, the prosecution can withhold testimony or 
other material from the accused and present it to the jury in 
summarised and censored form, preventing defence lawyers from 
questioning its credibility.

These provisions violate some of the most fundamental legal rights of 
an accused person, won in centuries of struggle against absolutist 
regimes. These include the right to hear all the prosecution's 
evidence, cross-examine its witnesses to test their veracity and 
credibility, and expose its case to public scrutiny. The legislation 
flouts international human rights law, including the International 
Covenant on Civil and Political Rights, which enshrines an accused's 
right to access, and respond, to all material being used against them.

The Act also rides roughshod over previous judicial rulings in 
Australia. For example, in March this year the country's supreme 
court, the High Court, rejected as "misconceived" a government 
application for a closed hearing of an appeal by a young man, Simon 
Lappas, who was jailed for trying to sell classified information to a 
foreign government. In Lappas’ case, an Australian Capital Territory 
Supreme Court judge also stayed one of the indictments against him 
after the prosecution claimed that key documents not be disclosed in 
the trial, on the basis of "public interest immunity". The judge 
described the process as "redolent with unfairness".

Speaking in the Senate on December 8, Labor’s spokesman, Senator Joe 
Ludwig, declared that the new Act provided the "right checks and 
balances". In reality, it places enormous powers in the hands of the 
federal government and its political intelligence service, the 
Australian Security Intelligence Organisation (ASIO), which provides 
official assessments of national security and conducts security 
clearances.

The scope for political exploitation of these powers is multiplied by 
the extraordinarily wide definitions in the barrage of 
"anti-terrorism" laws introduced by the Howard government, with 
Labor's assistance, over the past three years. Terrorism includes any 
conduct undertaken for a political, ideological or religious purpose, 
with the intention of coercing any government or section of people, 
which threatens to seriously damage or disrupt any official property 
or public infrastructure. This definition can cover legitimate forms 
of protest, including strikes, pickets, blockades and mass 
demonstrations.

In addition, no intention to aid terrorism needs to be proven. Being 
"reckless" about the likelihood of assisting terrorism can suffice 
and, in some instances, the onus of proof is effectively reversed, 
requiring the accused to prove that their actions were innocent.

Lodhi, for example, was charged with attempting to recruit Izzhar 
ul-Haque, a 21-year-old medical student, to a Pakistan-based 
organisation, Lashkar-e-Toiba (LeT) between March 2001 and April 
2003, while being "reckless" as to whether LeT was a terrorist 
organisation. This charge was designed to convict Lodhi without 
proving any criminal intent; he could be convicted simply on the 
basis that he should have realised that LeT was engaged in terrorism. 
But at that time the government itself had not listed LeT - an 
Islamic group fighting against Indian control of Kashmir - as a 
terrorist group. This week's dropping of the recruitment charge 
suggests that a key part of the prosecution against both men has 
collapsed.

Lodhi remains charged with committing an act in preparation for a 
terrorist attack and "recklessly" making documents to facilitate a 
terrorist act. The court was told that Lodhi planned to bomb a "major 
infrastructure facility" - the national electricity grid - because he 
used an assumed name to request maps of the grid from the Electricity 
Suppliers Association. The maps are freely available to the public.

Months before his arrest, ASIO secretly installed a tracking device 
on Lodhi's computer at his workplace, a Sydney architecture firm. He 
reportedly accessed a government planning web site to obtain 
satellite images of city buildings and transport infrastructure. But 
this is hardly a crime - the web site, called "iplan", is also 
publicly available in order to facilitate the work of urban planners, 
architects and others.

The prosecution further alleged that Lodhi dumped aerial photographs 
of Sydney military installations, including the Holsworthy army base, 
in a park rubbish bin near his home. He is also accused of faxing an 
inquiry to a chemical company about purchasing urea nitrate - a 
fertiliser - using a false company name, and of using a false name to 
obtain a mobile phone number.

>From what has been produced in public, the case against Lodhi is 
>flimsy and circumstantial. When ASIO raided his home, officers 
>allegedly found military training manuals, files relating to 
>"Islamic extremism", a video promoting "violent jihad" and 15 pages 
>of notes written in Urdu, the Pakistani language, on how to make 
>explosives, invisible ink and cyanide gas, among other poisons.

Detectives also found 100 rolls of toilet paper, which the 
prosecution claims could have been used to extract a low-density 
explosive, nitrocellulose. On the face of it, this charge seems 
absurd. Nitrocellulose is found - usually in higher concentrations - 
in many other commonly used products, including medications, 
photographic supplies, table tennis balls and magicians' "flash 
paper".

The case against Lodhi relies upon an alleged conspiracy involving 
French citizen Willie Brigitte, who arrived in Australia in May 2003 
and was deported on visa violation charges five months later. 
According to the prosecution, Brigitte's subsequent interrogation 
sessions in France revealed that he went to Australia to plan a 
bombing attack. But Brigitte has not been called as a witness and 
there is no independent confirmation that he has made such 
admissions. French law has permitted the authorities to imprison him, 
without trial, on a vaguely-worded charge of "associating with a 
group with a view to preparing an act of terrorism".

Video witness discredited


Magistrate Price approved the giving of evidence via video-link by 
alleged terrorist prisoners held in custody in the United States and 
Singapore. However, the first of these witnesses, Ibrahim Ahmed 
al-Hamdi, admitted under cross-examination that US authorities had 
stopped asking him to testify in cases because he had been 
discredited.

Speaking from a Kentucky prison, Hamdi acknowledged that he had lied 
and fantasised in giving evidence about conditions in a LeT camp in 
Pakistan. Al-Hamdi, who is originally from Yemen, is serving 15 years 
for weapons possession and visa breaches. He was arrested in February 
2003, and charged with conspiracy to commit a terrorist act in 
Chechnya. That was dropped by the FBI on a plea bargain, on condition 
he gave evidence against former associates.

In an apparent move to prevent the second video witness, Arif 
Naharudin, from being similarly discredited, Howe, the government's 
barrister, applied for, and was granted, a second set of suppression 
orders, also on the basis of confidential affidavits that were only 
shown to the defence in censored form. Howe obtained "public interest 
immunity" from disclosing details of Naharudin’s interrogation in 
Singapore - where he has been held for two years without charge - as 
well as an order blocking any public cross-examination of the witness.

Howe tendered two additional "open" affidavits - from Australian 
Federal Police Commissioner Mick Keelty, and ASIO director-general 
Dennis Richardson - stating that their terrorism investigations would 
be "seriously compromised" if the information were disclosed to 
Lodhi’s defence. But Boulten, Lodhi's barrister, told the court there 
was ample reason to assume that the suppressed information related to 
pressure applied to Naharudin to testify in return for more 
favourable treatment by the Singapore authorities.

In other words, having had its first star witness demolished, the 
government sought to exploit the secrecy provisions to block the 
defence from doing the same to Naharudin. Nevertheless, the 
magistrate granted the prosecution's requests.

Without access to the evidence, it is impossible for the World 
Socialist Web Site to judge with any certainty the allegations 
against Lodhi. But the fact that the prosecution is relying upon such 
witnesses suggests that the case is weak.

As with other Islamic men brought before courts in recent months - 
ul-Haque, young Sydney man Zeky "Zac" Mallah, Jack Roche in Perth and 
Joseph Thomas in Melbourne - Lodhi was arrested many months after his 
alleged activities and following protracted contact with ASIO. In 
some instances, the defendants had even volunteered to ASIO the 
evidence cited against them, seeking to cooperate with authorities.

There is no doubt that, with the assistance of a willing media, the 
Howard government and ASIO are using these cases to whip up public 
fears of supposed "terror cells" and justify further draconian 
measures in the "war on terror". Since September 11, the government 
has seized upon the "war" declared by US President George Bush for 
both domestic and international purposes. It has provided the pretext 
for the criminal invasions of Afghanistan and Iraq, diverted 
attention from mounting economic and social problems at home and 
legitimised previously unthinkable police state-style measures, 
including semi-secret trials.

All the time, longstanding legal norms and basic democratic rights 
are being overturned. The secret trials bill was just one of four 
"counter-terrorism" measures pushed through parliament's brief 
post-election sitting this month - each with Labor's support. The 
other new laws give ASIO and police forces vast secret surveillance 
powers, allow them to intercept emails and mobile phone SMS messages, 
and provide for ASIO vetting of all applicants to use ammonia 
nitrate, an agricultural fertiliser.

Attorney-General Philip Ruddock has foreshadowed further, 
unspecified, measures for the New Year.

www.wsws.org

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