Convicted on fanaticism

A citizen’s response

Fifty-seven years ago a young Milo Radulovich was dismissed from the US Air Force, deemed a ‘security risk’. His crime? A ‘close and continuing’ relationship with a father from Yugoslavia, and a sister who picketed a hotel that wouldn’t have Paul Robeson as a guest. Radulovich didn’t take McCarthy’s word for his crime and sought legal counsel. When in court, his dismissal was upheld by the ‘evidence’ contained in a sealed envelope. An envelope sealed, presumably, because the contents were too shocking, too corrupting, too contagious to lay eyes upon.

This trial was the beginning of the end for McCarthy. Edward Murrow took up the story and people began to understand the illogicality of the ‘reds under the bed’ scare – specifically, they didn’t know what they were afraid of or how to measure this indefinable ‘quality’ that was infecting the US en masse. Ultimately, communists were hard to distinguish, and people concluded that what they were witnessing was not justice.

Cut to Sydney, this week, 2010. A modern-day courtroom in Australia, so doubtless there are barristers involved who care about justice and a presiding judge who cares about evidence and everyone involved is determined to get to the truth. The last thing an Australian court would want to do is falsely convict five men of terrorism charges and send them each to prison for between twenty and thirty years.

Yet, the similarities between this trial and Radulovich’s sealed envelope are startling. Here is a case that has been ongoing since 2005, yet details remain sketchy. There’s inconsistent eyewitness reporting – in fact, an FBI witness testified that they were unable to identify the accused – and evidence too shocking to be revealed. The Australian public should, instead, take the word of the judge, the Attorney-General and those all-round good guys who always have our best interests at heart, ASIO.

ASIO claims these men were under surveillance for over sixteen months, prior to their arrest, and what’s more, knew they were under surveillance. But still they plotted and planned the greatest terrorist attack on Australian soil?

In addition to the surveillance ‘evidence’, are the videos and other extremist materials that were too shocking to be shown to the jury. And we can’t know the actual target of the terrorist attack, as the Australian public is far too corruptible.

The group’s ‘ringleader’ allegedly had ‘enough ammunition to keep firing for 37 hours’. (How much ammunition is required to keep firing for 37 hours? Is this one bullet per second by one shooter? Is it one shooter firing one bullet every four hours? Is it the number of bullets the person had on them at the time of arrest? How does one arrive at such a figure?)

And here I was thinking that owning guns and saying stupid things was quintessentially Australian. Barnaby Joyce, for instance. Fanaticism? Check. Guns? Check. Opposition to the government? Check. But there’s no suggestion that Barnaby Joyce should be tried for conspiracy to commit terrorism because he’s a member of the National Party – and not Muslim – so the threat’s not terroristic.

Barnaby jokes aside, this case is very grim. Five Australian men have been sentenced to 28 years (21 minimum), 26 years (19 minimum), 23 years (19 minimum) and 23 years (17 years and three month minimum).

The ABC reports:

The jury heard from 300 witnesses, examined 3,000 exhibits, watched 30 days of surveillance tapes and listened to 18 hours of phone intercepts; however, there was no direct evidence linking the accused to the terrorism plot.

Seems like quite a lack of evidence for a case that took four years to come to trial – no actual evidence, in fact, but in ASIO we trust.

Justice Anthony Whealy wasn’t satisfied that the accused intended to kill anyone, but

was satisfied beyond reasonable doubt that each of the offenders had intended that the end result of their actions would be serious damage to property, carrying with it the risk of death or injury to the public.

The risk? That finding makes it sound like this case with unprecedented sentence lengths is about potential property damage – a conspiracy to blow up a building or two that may result in injury.

Conspiracy to commit a terrorist act has become quite popular over the past few years in the US, the UK and Australia, and not just post-September 11. It’s rather easy for agencies to brandish around conspiracy charges because all you have to do is convince people that the accused had thoughts that don’t fit neatly within an ordered and harmonious legal system.

These men are against Australia’s invasion of numerous Middle-Eastern countries. (Guess what? So am I.) Whealey accused these men of ‘an intolerant and inflexible fundamentalist religious conviction’. Whatever their politics, religious beliefs or actions, there is no evidence tying them to an actual physical crime, but rather ideas surrounding crime. There are laws that already exist for crimes when they are committed; why do we need laws for having ideas? The reality is that these men have been convicted of thought crime.

Justice Whealey found that

it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life.

This ‘fanaticism’ that Whealey sees as a driving force is northing more than pseudo-psychological attempts to use the law to criminalise what is perceived as a sort of groupthink. ‘Fanaticism’ is an impalpable quality that’s impossible to define, the parameters as ambiguous as that of communism. There are many correlations between the redscare and Islamophobia and there’s an exact term for it: fear-mongering.

Greg Barns, one of the lawyers in Benbrika’s trial, said in 2008, ‘The anti-terror laws as currently drafted are breathtakingly wide in their scope and will inevitably result in guilt by association’. Yes, by association to Islam.

There are other terrorism-related cases pending, such as the three men charged with providing funds to the Tamil Tigers . They have all plead guilty, despite the fact that numerous organisations and governments were providing support to the LTTE at the time. That is, in fact, how aid reached the Tamil population.

Type ‘terror charges, Australia’ into the Google search engine and an infamous list of names including David Hicks, Dr Mohammed Haneef and Jack Thomas are instantly returned. What do all of these cases have in common? The government, government departments and ASIO were found to have fabricated, concealed and coerced when scrabbling for evidence in these cases.

The Australian government has shown itself to be dishonest and inhumane, and the laws they wield to crush dissent are not transparent and they are not resulting in justice. When someone is sentenced to prison for close to thirty years, it is not something that can be fixed retrospectively when a bureaucrat or an operative decides they made an error in judgement. Australia has judged these people as too bad to live in our communities for half their lives.

These people are in jail for thinking outside the law, as are the Barwon 12 – an eerily similar case where the prosecution was unable to ‘identify any imminent terrorist attack’. Is this what our justice system is for?

Why isn’t this case of five Sydney men given a combined maximum sentence of 128 years our sealed envelope?

‘We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law.’ Edward Murrow, 9 March 1954

Jacinda Woodhead

Jacinda Woodhead is a former editor of Overland and current law student.

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