CANBERRA – The U.S. and Australian governments could face legal action for damages after the Pentagon announced that it would release Australian citizen Mamdouh Habib from the notorious Guantanamo Bay prison in Cuba after three years in detention without charges.
While Habib’s legal team was taken by surprise by the Pentagon’s decision, future legal moves will only be taken after his return to Australia, which is expected to be next week. “We just want to get him home first,” said Habib’s main lawyer, Stephen Hopper.
Possibilities for legal action include defamation suits against Australian politicians and suits against U.S. officials for contravening the U.S. Torture Act. Australian government agencies will also be targeted for failing to protect the rights of a citizen while he was overseas.
“We have just got to wait and see what happens when he [Habib] comes home … and debrief him and find out what has gone on and whether he wishes to proceed with anything,” Hopper told IPS.
Last week lawyers for Habib filed a document with a U.S. court alleging that Habib was tortured on Oct. 5, 2001 after being detained on a bus while traveling from the Afghanistan-Pakistan border to the Pakistani city of Karachi.
In his affidavit, Habib said that men with a North American accent interrogated him with an Australian official present. The Australian government denies that one of its officers witnessed the torture.
Habib was subsequently moved to Egypt where his lawyers allege he was “subjected to unspeakable brutality” over a six-month period. He was moved once more to the U.S. military base at Bagram in Afghanistan and then, on May 4, 2002, to the notorious Camp X-Ray at Guantanamo Bay in Cuba where it is also alleged he was mistreated.
According to the court document, Habib said he had been forced to stand on an electrified drum. “When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity ran through the rod, electrifying the drum on which Mr.. Habib stood,” the document stated.
In the wake of the Abu Ghraib torture scandal in Iraq, U.S. media outlets took the accusations about Habib’s torture seriously. “There is no doubt the media coverage those accusations got in [North] America had a significant role in shaping the government’s decision,” Hopper said.
The U.S has claimed that Habib had prior knowledge of the Sept. 11 attacks in the United States and had trained with al-Qaeda.
But lawyers for Habib dismiss the accusation as ludicrous. “As far as I’m aware, the only evidence they have got against Mumdouh Habib are these admissions induced under torture. What are they worth?” asked Hopper.
A U.S. Pentagon statement on Tuesday announced the release of the Habib and four remaining British men and insisted on describing them as “enemy combatants.” It said the five would be released on the grounds that “the governments of the United Kingdom and Australia have accepted responsibility for these individuals and will work to prevent them from engaging in or otherwise supporting terrorist activities in the future.”
While two Germans arrested with Habib were released after two weeks following protests by their government, the Australian government’s inaction for over three years has been criticized by the Law Council of Australia.
“Mr. Habib and his family have every right to feel aggrieved with regard to his treatment by both U.S. and Australian authorities,” Law Council President Stephen Southwood said in a statement after Habib’s release was announced.
At a media conference on Wednesday, Australian Prime Minister John Howard tersely dismissed the suggestion that an apology to Habib was warranted. “We don’t have any apology to offer,” he bluntly told reporters at a media briefing in Canberra. “No, we won’t be offering compensation,” he said.
“I haven’t questioned the right of the Americans, given the circumstances, to apprehend him. But we have argued all along that they had to either charge him or let him go,” added Howard.
While Australian Attorney General Phillip Ruddock has repeatedly acknowledged that Habib cannot be prosecuted under existing Australian law, Howard refused to concede that Habib should be considered innocent. “It is not for me to proclaim matters of guilt or innocence. That is the last thing that a member of the executive should do,” he said.
Australian Greens Senator Bob Brown, who gained major coverage in the United States when he interrupted the speech by U.S. President George W. Bush to the Australian Parliament in October 2003 to protest against the illegal detentions in Guantanamo Bay, has welcomed the Australian’s impending release.
“The Bush administration, after torturing Habib, now admits it has no case against Mr. Habib that would stand up in a U.S. court,” Brown said.
The decision to release Habib has also raised hope that the U.S. will drop charges against another Australian, David Hicks, who is to be tried before a U.S. military commission in March.
Hicks’ Australian lawyer, Stephen Kenny, said that Habib’s release will make his client’s continued detention “untenable.”
Hicks has been in Guantanamo since 2001 and told his family that he is on the brink of madness.
“I feel as though I am teetering on the edge of losing my sanity,” wrote Hicks in a letter dated in August but only recently received by his family.
He wrote of confusion and mood swings brought on by his detention. The charges against him include conspiracy to commit war crimes, attempted murder, and helping the enemy during the 2001 U.S.-led war in Afghanistan.
“The Australian government has consistently said he has committed no offense known to Australian law and I doubt that includes international war crimes that the Americans are purporting to try him under,” Kenny said at a media conference in Adelaide on Wednesday.
In the meantime, Habib’s wife, Maha, wants her husband back home to help him recover from his ordeal. “All I can think about is having him back with us,” she said. “He’s been through a lot … I think the criminal in this situation is the government. They committed the crime.”