News & Reviews

RAY BONNER OPINION: What does preventive detention look like?

06 Dec 2023 News & Reviews

What does preventive detention look like? Just ask Abu Zubaydah

It was only 48 hours after the World Trade Centre came down that Republican and Democratic leaders in Congress proposed sweeping “anti-terrorism” measures that became the Patriot Act. It increased the powers of the FBI and CIA to spy on Americans, seize phone and computer records, and to detain immigrants.

As the Albanese government rushes Australia’s parliament this week to approve “preventative detention” laws following the High Court’s decision which outlawed indefinite immigration detention, MPs might have been well advised to slow down, let the hysteria subside and take a close look at what happened when the United States acted in haste after September 11, 2001.

The US Senate approved the 300-page law 45 days after 9/11, whiplash speed. Few members had read it. Another Congressional resolution, passed with only one no vote seven days after the attacks, gave the president sweeping powers to wage war on terrorism, and allowed for the capture and indefinite detention of so-called “enemy combatants”.

Together, the two measures created a “surveillance regime of breathtaking scope that jeopardised citizen’s personal safety, all without public debate”, Martin Baron writes in his new book, Collision of Power: Trump, Bezos, and the Washington Post. They permitted the detention of individuals unparalleled since Japanese Americans were rounded up and put into internment camps during World War II.

What does preventive detention look like? Consider the case of Abu Zubaydah, who was seized in a joint FBI-CIA operation in Pakistan in March 2002. He was the first suspected terrorist taken to a so-called black site, in Thailand, where he was tortured: held in a coffin-size box for endless hours; hanged by his wrists from cell bars; kept naked and blindfolded in a freezing cell; bombarded with loud music; and water-boarded 83 times.

The Bush administration said Zubaydah was No.3 in al-Qaeda. In fact, he wasn’t even a member, which the government has acknowledged, and had no connection to the 9/11 attacks. “He wasn’t hatching plots and giving orders,” Robert Grenier, the CIA station chief in Islamabad when Zubaydah was being monitored and eventually seized, wrote in his book, 88 Days to Kandahar.

Zubaydah was a logistics or travel agent, facilitating the movement of men into and out of terrorist training camps in Afghanistan. He is still being held in Guantanamo Bay. Twenty-one years after his arrest. He has never been charged with a crime. He remains The Forever Prisoner, the title of a documentary I made with Alex Gibney. That’s what preventive detention can look like.

On Tuesday night, the Australian Senate passed the government’s preventative-detention legislation, with the support of the opposition. It seems it will pass the lower house on Thursday. Under this bill, modelled on existing anti-terrorism laws, people who have long ago served sentences for (non-terrorist) crimes may be returned to detention. The immigration minister will refer cases to the Supreme Court of the relevant state. There, it will be up to judges to decide the degree of probability that a person might reoffend. That person need not have committed any new crime. There will be no trial. It will not be a matter of “beyond reasonable doubt”.

Illegal immigrants and asylum seekers, especially those who have committed crimes, don’t generate much sympathy. But it’s worth remembering the warning of a Republican corporate lawyer, and presidential candidate, Wendell Wilkie, in the 1940s: “Whenever we take away the liberties of those whom we hate, we are opening the way to loss of liberty for those we love.”

It might seem far-fetched to think that Australian citizens could ever be subjected to detention because of an apprehension that they might one day commit a crime. But reflect on what the government, and its supporters, have said in proposing a tough detention regime.

“The safety of Australian citizens is our utmost priority,” said Home Affairs Minister Clare O’Neil. “We urge the parliament to support the government in protecting the Australian community.”

Think about that: if it’s in the name of safety, if the objective is to protect the community, to lock up an individual who might, at some time in the future, commit an act of paedophilia, rape or domestic violence, what does it matter whether they are a citizen or an immigrant?

Several years ago, during the height of the hysteria about terrorists, The Economist wrote an editorial that members of parliament would be wise to read and consider. “Locking up suspected terrorists – and why not potential murderers, rapists and paedophiles, too? – before they commit crimes would probably make society safer,” it said. “Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavoury practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it.” Protecting human rights and freedoms is the price of being a civilised country.

That’s The Economist, not some left-wing polemicist.

It would have been better if Australia’s parliamentarians went home, enjoyed their holidays, reflected, and came back in the new year, then considered legislation in less haste. Sadly, that won’t happen.

Raymond Bonner is a Pulitzer Prize-winning former New York Times foreign correspondent and investigative reporter. He was a co-producer of a documentary, The Forever Prisoner, which won an Emmy award. Now living in Australia, he is co-owner of Bookoccino bookstore in Avalon.

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