Back from the Shadows

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Three weeks after 9/11 and two days before the U.S. invaded Afghanistan, Mamdouh Habib was on a bus headed out of the Pakistani town of Quetta when police swooped and arrested him. What, they wanted to know, was an Australian citizen doing in this restricted border zone - a Taliban stronghold - without a permit? "Wrong place, wrong time," says Habib's lawyer Stephen Hopper: the Egyptian-born father of four, who planned to move his family to Pakistan, had simply been looking for business opportunities and a good Islamic school for his sons. But U.S. security agents, who soon took custody of Habib, didn't buy his story. They and their Australian counterparts - who had recently raided Habib's home in Sydney - believed he had been in Afghanistan, training with al-Qaeda.

No firm evidence has been made public. But in the view of U.S. authorities, the al-Qaeda theory - lent weight by a confession Habib has since retracted - made the then 46-year-old too risky to release. As a result, he has spent three years behind bars, first in an Egyptian jail where he claims he was tortured, then at the U.S. military prison in Guantanamo Bay, Cuba. He's also been in a legal no man's land, deemed an "enemy combatant" but neither charged with a crime nor declared a prisoner of war. A military tribunal last year found that Habib was "a member of, or affiliated with, al-Qaeda forces, or associated forces." But last week the U.S. announced that he would soon be released without charge and sent back to Australia.

The news revived criticism of the Australian government for not pressing harder and earlier for Habib's release. It also rekindled debate about whether democracies can fight global terrorism without sacrificing their most cherished legal principles. Habib's case, says Law Council of Australia president Stephen Southwood, QC, "shows the danger of depriving people of the ordinary protections of the criminal law. It's horrendous to think that he was detained for so long when it must have been apparent relatively early that he hadn't committed an unlawful act."

It cannot have helped Habib that Australia's security services had been watching him for almost a decade. What first caught their eye were his connections with four Egyptians in New York. Ibrahim El-Gabrowny, Mahmud Abouhalima, Sayyid Nosair and Sheikh Omar Abdel Rahman all had ties to al-Qaeda; all were convicted of involvement in the 1993 plot to bomb the World Trade Center. Habib joined protests at Nosair's 1991 trial for murdering a rabbi, tried to raise money for El-Gabrowny's defense, and raised $500 to buy medicine for Sheikh Omar. But his motives were purely charitable, Hopper says: "He would always stand up for the underdog." The increasingly devout Habib also joined the same hardline Muslim prayer group as Willy Brigitte, Murat Ofkeli and Bilal Khazal, who were all later charged with terrorism offenses in Australia or overseas. But he didn't share their views, Hopper says. Indeed, Habib had a public fight with Khazal, and was eventually banned by the group because "they thought he was a cia spy." "He's probably a bit wacky and a bit paranoid, but he's no terrorist," says Hopper, who has never met his client. "Just because people do strange things that you and I wouldn't do doesn't mean the bogeyman (of terrorism) is there."

Since the shock of 9/11, the U.S. and other Western governments have tended to err on the side of caution. Canberra has been criticized for its seeming indifference to the plight of Habib and fellow Australian David Hicks (who's been charged with three terrorism offenses). "The government has failed in its most basic obligation to protect Australian citizens," said Shadow Attorney General Nicola Roxon. But since Australia's counterterrorism laws weren't yet in force when Hicks and Habib were captured, they could not have been prosecuted at home, said Attorney General Philip Ruddock. Given the "grave nature" of the allegations against them, it was felt that "seeking to return them (to Australia) would not be a desirable outcome ... in terms of our security." The Law Council's Southwood says "the government should have insisted from the outset that Hicks and Habib be either charged or released"; Ruddock says the government has "consistently" done just that.

Hopper is now hoping the legal system that couldn't save his client from three years in limbo will deliver him some compensation via possible lawsuits. The government says that since Habib was lawfully detained, he is not owed an apology or compensation. "Because of his former associations and activities," Ruddock says, Habib will remain "a person of interest" to the security services. And the dilemma of how to fight terrorism without abusing terror suspects' rights will remain a topic of interest to the public for a long time to come.