MARR ON HANEEF

On day two, ASIO knew he was clean

David Marr, smh

December 24, 2008

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MICK KEELTY is no more than a ghost in the Clarke report. Though the Australian Federal Police are revealed on page after page to have made an absolute mess of the case, Commissioner Keelty is barely an extra in the narrative. He gets three mentions in the first 100 pages. There's no discussion of his direction - or failure to direct - the officers below him. There are no findings on his role. Nothing.

Keelty appears to be a protected species. Both the Attorney-General, Robert McClelland, yesterday and the former NSW Supreme Court judge John Clarke, QC, in his report share the notion that the AFP's most senior officer is somehow not responsible for the glaring faults exposed in its senior ranks. Clarke makes no bones of it - the evidence against Mohamed Haneef was "completely deficient".

He blames one man above all for the mess: the federal police's Manager Counter Terrorism Domestic, Commander Ramzi Jabbour. Though Clarke called him "impressive, dedicated and capable", he found Jabbour had lost objectivity and was "unable to see that the evidence he regarded as highly incriminating in fact amounted to very little".

Once the British police discovered Haneef was no longer in Britain, they all but lost
interest in the case. Not Jabbour. He persuaded reluctant police to arrest Haneef as he was about to board a plane to India. It was a "cynical" Jabbour, said Clarke, who kept evidence that might exonerate Haneef from the magistrate detaining the doctor in the Brisbane watch-house and from the then minister for immigration, Kevin Andrews, who was to cancel his visa.

In popular mythology, police are the hard heads and spooks the dreamers. But Clarke reveals a pattern in this case of ASIO giving Haneef a clean bill of health while the police, led by Jabbour, continued to put the worst possible slant on the scant evidence against him.

Clarke writes that Haneef could be held without charge only while police continued to have "reasonable grounds" to believe he had committed a terrorist crime. But as the days passed and no information turned up to contradict Haneef's story, that belief became "difficult to sustain", said Clarke. "The 'evidence' supporting this premise consisted largely of Commander Jabbour's asserted experience in counter-terrorism."

Two heroes emerge from Clarke's narrative. Federal agent Neil Thompson of the federal police and Detective Sergeant Adam Simms of the Queensland Police were the officers who had to be persuaded to arrest Haneef and the ones who interrogated him over the best part of 24 hours, at the end of which they refused to put their names to any charges.

Clarke wrote: "Simms and Thompson told the inquiry that the usual course would be for them, as the arresting officers, to make the decision about whether or not to charge, and that consequently they felt 'under considerable pressure' at this time. Both said, however, that in their opinion there was insufficient evidence, and they refused to charge Dr Haneef."

So Jabbour took over and charged the doctor with recklessly assisting a terrorist organisation by giving his cousin Sabeel Ahmed an old SIM card - still registered in his name - one year before Sabeel's brother tried and failed to blow up a London nightclub and Glasgow Airport.

Though the charge was withdrawn after only a fortnight in a welter of public embarrassment, the federal police continued to pursue Haneef. Simms got a trip to Britain out of it and there discovered how easy it is to buy a SIM card in anyone's name, real or false. He told Clarke "he wished that 'someone had come forward and said that a lot earlier', noting that it 'begs the question as to why terrorists would want to use SIM cards that are registered in the names of affiliates, associates or relatives. It just doesn't stand to reason'."

It never did. Clarke talks like an old judge but without a judge's power. He doesn't allow himself to reach cut and dried conclusions. Everything is veiled in the languid rhetoric of concern, surprise, bewilderment, etc. "I record my surprise that not one of the people involved in the police investigation and the charging whom the inquiry interviewed stood back at any time prior to the decision to charge and reflected on what Dr Haneef was known to have done."

Bugger all. Aficionados of the case will find hundreds of fascinating details in the report that clarify the complicated interaction of police, ASIO and the minister's office. We discover that though Haneef was begging to be allowed to talk to his wife, it took the federal police eight days to do it. Clarke refused to accept police claims that such contact might have allowed the prisoner to wreck the case.

ASIO's role behind the scenes is the most eye-opening aspect. We knew it had cleared Haneef before he was charged. What now emerges is that within 48 hours of his arrest ASIO told the government in writing that it "had not identified information to suggest that Haneef: posed a specific threat to security, in Australia or overseas; was planning to undertake an act of violence in Australia or elsewhere; was involved in, or had foreknowledge of, the failed UK attacks."

That advice never changed. It proved correct. But the government essentially ignored it. The federal police come out as cowboys and ASIO as the cool professionals. But the cowboys were running the show.

Jabbour gets another caning: "There does not appear to have been any systematic process for recording and updating the information received in the course of the investigation and for keeping track of significant avenues of inquiry for the purposes of assessing the grounds for the belief that Dr Haneef had committed an offence . . . In the absence of such a process, any review by Jabbour of the reasonableness of his belief was likely to have been an impressionistic exercise."

This was the first time the new machinery of detention without charge had been used. Guarantees against misuse of the system are theoretically provided by the oversight of a magistrate, in this case Jim Gordon of Brisbane. But Clarke shows how difficult Gordon's position was. Essentially he was flying blind with only the information police let him have.

Clarke found Haneef "was not told he had a right to personally make representations to the magistrate" and his lawyers never saw sensitive intelligence evidence against him. The material the police gave the magistrate was seriously inaccurate and did not include important evidence that supported Haneef's innocence. Clarke keeps some of his strongest language in reserve for urging changes to a system with "simply no provision covering procedural fairness problems".
That there is presently no limit to the time a person can be held without charge he calls "the most obvious deficiency" of the legislation.

But he also recommends the machinery be operated only by skilled lawyers and senior police, which was not the case with Haneef's detention. "Having regard to the fundamental importance of the extended deprivation of liberty, there is a strong case for requiring the application to be made by more senior officers, trained in the process and familiar with all the facts, including those arising in sensitive material."

All that is for down the track. Nothing in the report mattered so much to Haneef yesterday as Clarke's simple exoneration on its opening page: "I could find no evidence that he was associated with or had foreknowledge of the terrorist events or of the possible involvement of his second
cousins Dr Sabeel Ahmed and Mr Kafeel Ahmed in terrorist activities.'