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Habib and proceeds of crime

January 29th, 2005

As Mamdouh Habib returns from Guantanamo Bay, released without charge after three years, Attorney-General Philip Ruddock is suggesting that the government may seek to stop him selling his story, using legislation that prevents people gaining income from the proceeds of crime.

Contrary to some other commentators, I hope Habib sells his story and that the government makes good on its threat of legal action. I’d be very interested to see what information the government has on this man, whom they have effectively labelled a terrorist, and left to rot, first in Egyptian torture chambers and then in Guantanamo Bay. If they can show, even on the balance of probabilities, that Habib is a terrorist, then he shouldn’t get any money from media organisations, though he should still be free to tell his side of the story without payment.

And now that the issue has been raised, the heat is on the government. If they don’t act, it can reasonably be inferred that it’s because they couldn’t win, and given his statements on this and previous occasions, Ruddock should resign[1].

fn1. Fat chance, I know. But the presence of Ruddock and others like him is the main reason I’ll never be reconciled to this government, no matter how lame the opposition.

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  1. January 29th, 2005 at 10:43 | #1

    JQ, you write ” the presence of Ruddock and others like him is the main reason I?ll never be reconciled to this government”.

    But isn’t that drawing the wrong lesson? One of the problems with our ground-cover-plant, self-reinforcing system is the one that anarchists condemn with “don’t vote, it only validates the farce”, driven by the understanding that it doesn’t matter who you vote for, a politician will always get in.

    This is a consequence of human fallibility; our substitute-for-the-real-thing version of democracy ensures that if they aren’t politicians to begin with, they either become politicians or rapidly fade from view. Human nature and preselection being what they are, it is usually the former. Case in point: Ruddock himself, with his well known ethical and religious background, well thought through (and by now, well rationalised). There is no cure that does not also make government less viable – think of the terrors people have suffered at the hands of the principled.

    But to get back to it, this is not a condemnation of this government, but of a system in which individual governments’ failings are mere symptoms. There is nothing wrong with this government that would not be shared by any government of any persuasion; someone once said that the only good government is a bad government in a hell of a fright (think about it). You are merely taking your desired conclusion and using selective truths to support it; these facts are also to be weighed against the opposition, and are mitigated by being a lesser evil (either in fact, or in the sincere opinion of those putting policies into effect – since they take it to be their ethical duty to do the pragmatically right thing by the Australian people, though that is in fact neither ethical nor, in the long run, even pragmatic). It doesn’t amount to an undercutting of the government’s ethical position relative to the opposition’s.

    I really had better get back to that consequentialism material I promised you, now I have done my 6,000 words for a computer article I promised Forthwrite.

  2. January 29th, 2005 at 16:55 | #2

    Pr Q’s, normally sane & balanced, moral judgement deserts him when the subject of the LN/Ps security and identity policies come up.

    the presence of Ruddock and others like him is the main reason I’ll never be reconciled to this government, no matter how lame the opposition.

    aviours and cruelties are real enough but venal rather than mortal (how many people has he had killed or maimed? What countries are worse off for AUS’s intervention?).
    There is a touch of Matthew 23:24 (“Ye blind guides, which strain at a gnat, and swallow a camel.”) in Pr Q’s obstinate refusal to countenance the Howard govts overall achievements.
    Sure there have been a few flies in the ointment, such as playing the race card in the Tampa election, buggerising about the refugees, bastardising a few terrorist suspects, lying about WMDs and so on. But the upside has been considerable. It shows a lack of proportion and perspective to rail at the government over one or two occasionally bad political eggs and broken civic eggs whilst ignoring the many wonderful policy omelettes to be had by all.
    The current LN/P has put down one of the best alien relations policy in modern AUS’s history, rivalling the glory days of Curtin/Chiffley/Calwell, Holt/Hasluck/Oppenheim and Whitlam/Barnard admins. Its policie have been both in AUS’s strategic interests and broadly consistent with humanitarian goals. The mass of mainstream Australians recognise and reward this, and most elite commentators realise that Howard et al have handled the unprecedented round of threats & problems that have sprung up since the 1998 Asia crisis with reasonable success.
    Lets go through the shopping list. The list is impressive, including:
    Ordering the ADF to assist three nations (Timor, Afghanistan, Iraq) to national liberation and democratic establishment.
    Providing stabilisation assistance to troubled nations in our region (Bougainvillea, Solomons) that are being re-built;
    Strengthening our key global strategic alliance (with USA) by military favours;
    Repairing oiur key regional strategic relationship (with INDON) with a massive humanitarian intervention;
    Putting a stop to the illegal, exploitive and risky “people smuggling” trade;
    Trouncing the nativist (Hanson) and muliticulturalist (Theophanous) political reaction to a mainstream, cosmopolitan and progressive settlement program;
    Building NESB immigration up to record quantities and proper qualities (less nepotism);
    Removing rorts from the over-lawyered humanitarian refugee program which is now up to respectable levels;
    Preventing a mass-casualty terrorist attack on homeland AUS.
    Encouraging trade, investement and tourism from Asia (esp the rousing giant of the PRC).
    It is also disappointing to see that Pr Q succumbs to the Knight of the Double Standard when judging the current LN/P govt. He is able to “reconcile himself” to the Whitlam govt alright, despite its serial misdeeds in foreign policy, including its appalling betrayal of the East Timorese, Gough “I’m-not-having-hundreds-of-f*cking-Vietnamese-Balts-coming-into-this-country” Whitlam’s stony-hearted attitude towards a flood of absolutely authentic refugees fleeing communist oppression & ethnic cleansing, the disgraceful recognition of Stalinist conquest of the Baltic states plus the germinal idiocy of the Grassby multicultural racket?
    I would like to, for the umpteenth time, remind progressive-liberals that Howards conservative-liberalism is the most effective way to implement the utilitarian-strategic and humanitarian-moralistic goals that we all share.

  3. derrida derider
    January 29th, 2005 at 18:25 | #3

    Ruddock is of course a scurvy politician. But whatever his (considerable) moral failings, surely his behaviour in the Habib case is a case of a bridge too far in political terms – when even the Daily Terror thinks he’s over the top, he might just be over the top for middle Australia.

    I think this government is still vulnerable to a “mean and tricky” campaign – mainly because it has a number of ministers in it (including the chief one) to whom that label applies in spades. All it will take is for the economy to go off the boil (no, RWDBs, I’m not hoping for that – I just think it likely) and the heavy Bomber will have a real chance of hitting the target at the next election.

  4. wpc
    January 29th, 2005 at 19:57 | #4

    Interesting comments all.

    Derrida derider, I think Beazley has a chance as well. But I reckon it is because he is similar to Howard, rather than different.

    Latham was like the dangerous girl/guy that might be okay to go out with a few times but you’d never marry.

    Beazley and Howard are safe, dependable options. Australians are conservative in the true sense of the word.

    However, I think you will find that Ruddock is quite popular, and most people don’t give a damn about Habib.

  5. ray
    January 30th, 2005 at 07:01 | #5

    Kim can win, of course he can, but it will prob ably rely on the economy being a bit softer and interest rates being a bit higher. Maybe our current account might eventually become a problem, who knows? Perhaps the RBA might decide it has to jack up interest rates to restrain it (does that sound familiar?). The one thing you can count on (sadly) is that the electorate is particularly likely to be swayed by anything that involves it taking a moral position on what the Government has done.

    By the way, Sydney’s Sun-Herald today suggests that there is a problem now because Latham didn’t call to congratulate Kim, where do these media guys make this stuff up?

    Ray

  6. Paul Norton
    January 30th, 2005 at 10:06 | #6

    Reading Jack’s post reminds me of a metaphor which Professor Frank Knopfelmacher was fond of, namely that of the fox and the hedgehog. The fox knew a great many small things whereas the hedgehog knew only one thing, but it was very important. Professor K used to say that he was a hedgehog.

    In this debate, Jack is the fox and John is the hedgehog. Whatever else may be said about the Howard government’s record, its behaviour in the cases of Hicks and Habib, and its legislative and administrative responses to the post-9/11 environment, have gone a long way towards setting at naught basic principles of accountable government and protection of citizens’ rights under the rule of law which go back to the days of Herodotus, if not earlier.

  7. James Farrell
    January 30th, 2005 at 12:38 | #7

    Can anyone tell me whether Ruddock could actually do what he is apperently threatening? What exactly is the ‘legislation that prevents people gaining income from the proceeds of crime’, and does it truly cover crimes that the person has neither been charged with nor convicted of? Are there precedents? If someone ruins my life by circulating rumours that I poisoned my wife, and I then write a book about the experience, can the government charge me with profiting from crime, and make its case by demonstrating that on the balance of probability I did poison my wife? Quite apart from the ethics of the matter, it all rather strains my credulity.

  8. January 30th, 2005 at 16:38 | #8

    James, I think Ruddock’s mounting a bit of a pre-emptive strike on the media. It seems clear that most well informed lawyers think that the Government could not effectively mount the civil action he is talking about. I think the continued angst about Habib probably reflects some sort of unacknowledged guilt in the mind of government figures over what’s been going on at Guantanamo, but maybe I’m being too generous to Ruddock.

  9. Homer Paxton
    January 30th, 2005 at 20:08 | #9

    Agree with JQ.
    Have the claims tested and determine the result by the balance of probabilities.

    I do remember ruddock as the Minister who said that the Chinese would perform an abortion on a chines woman they sent back to China.

    Unfrtunately for her and her baby they did.
    No aapologies from Mr Ruddock.

    Thus in this case I have no faith in him.

  10. kyan gadac
    January 30th, 2005 at 23:37 | #10

    Ruddock’s counting on the fact that he knows that Habib has probably been diagnosed as a paranoid schizophrenic or similar, so nothing he says will be taken seriously. Like, sure he’s been tortured etc. but he probably can’t string a sentence together. So there is no story worth selling just a sad, pathetic man, burnt out and mumbling. At least, that’s my guess, he may prove me wrong. But I’d better London to a brick that Ruddock wouldn’t have made those threats about selling a story if there was one to sell.

  11. Dave Ricardo
    January 31st, 2005 at 09:01 | #11

    For years, Ruddock, the liberal Liberal, was pilloried by the Liberal Right. Like the kid who gets mercilessly bullied at school, Ruddock must have decided that he couldn’t take it any more and in order to be accepted, he had to show the bullies that really, really he was just like them – hence his utterly illiberal performance as Minister for Imiigration and now Attorney General.

    It’s all very pathetic.

  12. Atticus
    January 31st, 2005 at 09:10 | #12




    The relevant legislation appears to be the Proceeds of Crime Act 2002 , particularly Part 2-5, “Literary Proceeds Orders”. The key section is s152, which provides that a Court may make an order requiring a person to pay the Commonwealth the value of any “literary” (defined to include media paid interviews) income if the the court is “safitsfied” that the person has committed an “indictable offence” or “foreign indictable offence” and derived teh repelvant income in relation to that offence. There are also provisions for restraining orders and temporary confiscation based on “reasonable suspicion”. Though I’d have to check the cases, I’m pretty sure “satisfaction” amounts to roughly the same thing as proof on the balance of probabilities. The Act is explicit that it is not necessary that the person has been convicted of the relevant offence. See AustLII at http://www.austlii.edu.au/au/legis/cth/consol_act/poca2002160/.

  13. Dave Ricardo
    January 31st, 2005 at 09:49 | #13

    “I’m pretty sure â€?satisfactionâ€? amounts to roughly the same thing as proof on the balance of probabilities.”

    If there wasn’t enough evidence to even charge Habib in the Guantanamo Bay justice system, much less convict him, then I doubt that there would be enough to sustain proof on the balance on the probabilities.

    Bring it on.

  14. James Farrell
    January 31st, 2005 at 10:50 | #14

    Much appreciated, Atticus. I don’t suppose anyone has been prosecuted under this Act yet, without having being convicted of anything. So it’s yet to be tested even with a simple case like my wife-strangler example. I wonder if any of our legal experts would be bold enough to speculate what the courts would make of ‘indictable’ in Habib’s case.

  15. Atticus
    January 31st, 2005 at 12:15 | #15




    Check out s337A. It explicitly includes in the definition of “foreign indictable offence” any offence triable by the military commissions set up by Bush after 9/11. This might raise retrospectivity issues, but because this probably wouldn’t count as a criminal prosecution, there’d be no doubt the Commonwealth has power to legislate retrospecivley. Anyway, the argument that the Commonwealth lacks the power to pass retrospective criminal laws has always seemed pretty weak to me – I think people read the Polyukovch case with a little too much wishful thinking.

    As to whether the fact that the US didn’t charge him indicates the evidence is insufficient to convict him on the balance of probabilities, I doubt it. As I understand it, the US military commissions use the beyond reasonable doubt standard. It’s quite common in normal criminal practice for prosecutors to decline to prosecute, even theough there’s evidence sufficient for the balance of probs, because they think there’s little hope of the evidence clearing the “beyond reasonable doubt” hurdle. I imagine the disincentive to proceed in those circumstances would be even greater in the case of Gitmo prosecutions, where an acquittal would be very embarasing.

  16. James Farrell
    January 31st, 2005 at 14:37 | #16

    Thanks again, Atticus. It’s not obvious that the US is easily embarrassed these days. And if there was so much evidence, I don’t see why they are opting for in camera trials, because with public trials they would be vindicated even if they didn’t get convictions.

    But let’s suppose you’re right, and let’s go further and suoppose that Ruddock does think he has enough evidence to mount a successful prosecution under this Act. Then, given that it would give him a chance to show he was right all along, why did he give such a clear warning? Why not just let Channel 9 pay Habib half a million, then swoop?

  17. Dave Ricardo
    January 31st, 2005 at 14:54 | #17

    Can channel 9 give Habib’s missus the half mill?

  18. January 31st, 2005 at 15:55 | #18

    I’m with kyan gadac above. The Hare Krishnas can have somebody confused as to their identity after three weeks. I’d be surprised if the Gitmo gang couldn’t have Habib very unsure of his story and even his sanity after three years regardless of any pre-existing fragility.

    David Hicks judging by his father’s performance may be a harder nut to crack.

  19. observa
    January 31st, 2005 at 17:04 | #19

    Interesting to compare the softly softly approach to terror suspects cf the reverse hardline approach to paedophilia suspects by the exactly the same commenters. OTOH the govt and community are expected to give an Habib or Hicks the benefit of the doubt, but woe betide any religious leader who took precisely that same attitude with similar accusations of paedophilia, particularly within the church.

    So, what you have to ask yourselves is: Do you want to catch these types of miscreants in their respective acts before they become ‘persons of interest’? So Ruddock is to be pilloried for instituting the precautionary principle here, while in my state Premier Rann has blatantly and publicly interfered in the future parole chances of Von Einem. Personally I think both of them are right to treat these men with the precautionary principle and so do the vast majority of the electorate. What we are extremely sceptical about is the motives for hypocrisy by the usual suspects. Some civil rights are more equal than others eh chaps?

  20. Fyodor
    February 2nd, 2005 at 11:30 | #20

    Particularly dumb argument, observa. How does the Catholic Church’s cover-up of child-abuse equate to the violation of Habib’s rights?

    The fact that you’re reduced to comparing his supposed crime with pedophilia demonstrates in dazzling clarity the moral bankruptcy of RWDBs on this issue.

  21. Katz
    February 2nd, 2005 at 12:03 | #21

    Allowing Mamdouh Habib to profit from his story will result in a bidding war that one of the commercial networks must win. Two consequences of this are:

    1. High ratings (Undesirable for Ruddock)
    2. Mawkish and uncontroversial spin on the story (Desirable for Ruddock)

    Prohibiting Mamdouh Habib from profiting from his story will stymie any bidding war. The ABC or SBS get the story. Two consequences of this are:

    1. Low ratings (Desirable for Ruddock)
    2. Augmentation of appeals to moral outrage(Undesirable for Ruddock, but acceptable because the ABC and SBS will, as usual, preach to the choir).

    Ruddock must choose to either annoy Kerry Packer or irritate the Americans.

    To paraphrase Samuel Johnson, therefore, Ruddock must choose between 300m whingers 10,000 km away or Kerry Packer in the next suburb.

    My money is on Ruddock allowing Packer to buy the story.

    Coming up next: Habib on “60 Minutes”

  22. Naomi
    February 2nd, 2005 at 20:02 | #22

    I was astounded by the Tele today that gave Mamdouh very negative press ‘a security risk AND ON THE BEACH’. Bastard!! Hopefully tomorrow they’ll be distracted by the paedophile in queensland and leave poor Mamdouh alone. For feck’s sake, he’s been trapped in a wire cage for 3 years, surely he deserves a bit of play?

  23. Katz
    February 13th, 2005 at 19:39 | #23

    Ah yes, “60 Minutes”

    Ruddcok has been quoted that he’ll study the tape of the Habib interview overnight to decide what he’ll do next.

    If only Ruddock had recourse to anti-trivia legislation with which he could slap a writ on the Packer organisation.

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