The "war on terror" has resulted in an erosion of human rights around the world - but it has also resulted in court judgements which have protected them even in the face of intense government pressure to look the other way in the name of fighting terrorism. On Friday, we got another one of those judgements - this time from Australia. "Jihad" Jack Thomas was the first person to be convicted under Australia's post-911 anti-terrorism laws, on charges of receiving funds from al-Qaeda and holding a false passport (he had been acquitted of more serious charges of intentionally aiding Al Qaeda). The Victoria Court of Appeal has now quashed those convictions - not because of any problem with the laws themselves - but because of a far more fundamental problem: the evidence relied upon to produce them was unsafe.
The details aren't in the news story, but they are in the judgement, and they're pretty horrifying. Thomas was detained in Pakistan in 2003 for using an altered Australian passport. While in the custody of the Pakistani security services, he was starved, suffocated, threatened with electrocution, and with indefinite detention and being sent to Guantanamo. He was repeatedly threatened with torture and indefinite detention by an American CIA agent unless he agreed to become a covert agent for them, and in one instance the CIA even threatened to send someone to Australia to rape his wife. At the end of this process, he was formally interviewed by Australian Federal Police attempting to gather evidence for a terrorism charge. Naturally, he confessed. While the Australian media has focused on the AFP's inability to provide a lawyer for the interview, the problem is much more serious: given the context in which the interview took place, the ill-treatment and threats of disappearance and torture (which the AFP were well aware of), and the explicit statements by Australian interrogators that Thomas's fate would depend on whether he cooperated with them, there is simply no question that the "confession" could be regarded as voluntary. As the Court noted,
Put bluntly, there can be little doubt that it was apparent to the applicant, at the time of the AFP interview, as it would have been to any reasonable person so circumstanced, that, if he was to change his current situation of detention in Pakistan and reduce the risk of indeterminate detention there or in some unidentified location, co-operation was far more important than reliance on his rights under the law. Indeed, it is apparent that he believed – and, we would add, on objectively reasonable grounds - that insistence upon his rights might well antagonise those in control of his fate.
As for the contention of the trial judge that Thomas had "chosen" to confess, the Appeal Court judges are absolutely scathing:
Of course, the applicant could have declined to answer questions and subjected himself to what he clearly perceived would be an increased risk of indeterminate detention in a foreign country. Realistically, however, that alternative prospect was so daunting that few would be likely to have accepted the risk. Whatever the threat or inducement proffered, there is almost always a choice if the individual is prepared to accept the consequences of the threat being realised or the inducement denied. Even the threat "Confess or be tortured" can be said to involve a choice, and a chance that torture may not be applied. But it could never be regarded as a free choice in the relevant sense.
It's a longstanding legal principle that confessions in police custody must be voluntary - and the police have to be able to show it. This one wasn't, and the fact that it had been obtained overseas, where the conditions of detention were substantially outside the Australian authorities' control, doesn't matter. If evidence is to be admitted into Australian courts, it must meet basic Australian standards of justice. Otherwise, it's not evidence at all.