Ticket dispensers on the New York subway allow you to use credit cards.
I bought a ticket and on leaving New York it still had several rides on it, so I gave it to the bag keeper at the splendid Frick Museum. He was a young man of – as they say — Middle Eastern appearance.
But what if the young man had been connected with terrorism and after an attack on the New York subway the ticket had been traced back to me?
I have stamps in my passport and travel documents showing I have been to Jordan twice and the Palestinian Territories.
Did I materially help terrorism by providing the subway ticket? How long should the police be given to sort this out? It was 12 days before Mohamed Haneef was given a chance to put what he says is his innocent explanation to the police.
No doubt I would have been sorted out earlier. I have a white face and my name is not Mohammed. And even if given bail pending the sorting out I am an Australian so not subject to immigration laws.
So maybe the many white middle classes can turn away and not worry. They should not.
You never know when it might be you, or one of yours.
In a way it is fortunate that someone like Haneef has been ensnared in these draconian laws. When you read the transcript of interview it is fairly plain that it is a case of guilt by association rather than guilt by deed. It is a bit like the Old Testament, the Koran, the Hells Angels, the Montagues and Capulets, the Hillibillies in the Appalacians and the Mafia tribes in New York. You are liable for the misdeeds of your extended family. I thought that concept disappeared from Anglo-Saxon jurisprudence with trial by battle in the Middle Ages. Apparently not.
A doubtful case like that of Haneef might help crystallize some thinking on the anti-terrorism and immigration laws.
If the cops had nabbed a real villain, they and the Government would have been able to say, “Just as well we had these tough laws, otherwise the villain would have escaped” – even though the ordinary criminal law would have been enough to do the job.
But having nabbed Haneef who looks like a poor bunny who has some dud relatives, we see how the new laws (immigration and terror) can sweep up people almost indiscriminately.
As Justice Jeffrey Spender said in the Federal Court he, too, would have failed the Government’s interpretation of the immigration law and if he had not been Australian could have been locked up and deported.
With any luck the Haneef case will get people thinking that it is just a bit too easy for an innocent person to be ensnared in these laws.
Yes, we want laws to protect us from criminals and terrorists. But we want protection from terrorists because they pose a threat to our liberty and democracy. So it is a bit silly for us to throw out principles of liberty in order to save them. That is far too similar to the famous case of the Vietnamese village that had to be destroyed in order to save it.
Far from showing that the bail law is too “weak” the case has highlighted that the immigration law is too “strong”. The AFP’s evidence failed to convince an independent magistrate under tough terrorism legislation that Haneef should be held, so it put the material to the political officer, the Minister for Immigration, who decided Haneef should be detained.
When you look at the photograph of Haneef, covering, handcuffed, alone and barefooted in the steel prison van, you have to wonder who is creating the terror here.
Sure, the terror of a suspect facing indefinite detention under almost limitless ministerial power in the Australian immigration system is nowhere near as terrible as the terror of bomb victims and their families. But the point is that we are supposed to be better than that. We are supposed to be highlighting the values of liberty – the presumption of innocence and no unreasonably prolonged detention and so on.
We simply can no longer trust the Parliament and the Executive to uphold these values.
Worse, we have seen in this affair that the Labor Party has gone along with it for fear of being wedged.
In some respects that is understandable – provided we can hope that, in Government, Labor does not counter terrorism and immigration matters in such a draconian way.
Now it may well be that Haneef turns out to be up to his ears in the UK terrorism event, but most of the evidence is pointing to an innocent explanation – particularly as the defence is willing to publish the police interview which is usually the first thing that defence counsel want excluded from evidence because it is so often damning.
But too bad for Haneef, even if he convinces a jury, the Minister can still throw him out of Australia under laws that give the Minister virtually unfettered discretion. With any luck the case will highlight the dangers of giving too much power to the Minister and, indeed, too much power to the legislature that enacted these laws. Again, we need a basic bill of rights.
It is all very well for the police and the Minister to say, “We know best. We have material that cannot be divulged to you” – unless, of course it is selectively leaked.
It is a hyped up scare campaign. Terrorism is a danger, but it can be treated by the criminal law without compromising the liberties we seek to defend — even if there is an act of terror on Australian soil tomorrow. We have not seen a terrorism case yet that could not have been dealt with by the earlier criminal law in a way that respects basic rights.
If we can’t do that the jihadists have won.