The Age ran an interview today with Abdul Rahman Ayub, a former leader of Jemaah Islamiyah’s Australian branch. As JI’s activities in Australia are not widely-known, here is a short history of how its Australian presence developed, in the context of JI’s own formation and its split from an earlier movement, Darul Islam.

This history has been compiled from notes I had been making for a paper a few months ago, before deciding to focus the paper on a different topic.  I would be keen to hear feedback from JI watchers.

This post largely covers up to 1999 and does not go into detail on the Jack Roche plot and how some JI factions decided to support al-Qaeda’s global terror campaign, which I may address in a follow-up post. Sources have been placed at the bottom.

The global jihadist movement received some support from within Australia during the 1990s, but on a much smaller scale than in Europe. The Australian connections were primarily through small and informal networks which enabled some individuals to train or fight overseas, mainly in Pakistan with Lashkar e-Toiba and in Afghanistan with Al Qaeda.

The most significant formal network in Australia was Mantiqi IV, which resulted in the country’s first planned act of jihadist terrorism, the Jack Roche plot. Mantiqi IV was the local branch of Jemaah Islamiyah, a jihadist organisation based throughout Southeast Asia that had the chief goal of establishing an Islamic State in Indonesia.

Jemaah Islamiyah’s origins lie in Darul Islam, an Islamist movement that waged an insurgency against the Republic of Indonesia until 1962. The Sukarno regime defeated the rebellion and captured, tried and executed its leader, Sekarmadji Karidjan Kartosoewirjo. The Suharto regime, which took power in 1966, continued to suppress Darul Islam. However, attempts by the intelligence organisation Opsus to revive and control this underground movement, in order to manipulate the 1971 election, created a window of opportunity. Darul Islam took advantage, re-gained a national base and re-asserted its challenge to the state through both political activity and violent action.

The movement developed a territorial command structure that mirrored that of the Indonesian army. Its members conceived themselves as belonging to an already existing Islamic State (albeit one that needed to be defended from a secular regime) the Negara Islam Indonesia (NII) declared by Kartosoewirjo  in 1949. Among its members were Abdullah Sungkar and Abu Baku Bashir, who would later establish JI.

Sugnkar and Bashir joined Darul Islam in 1976, and had been Islamist preachers with a significant following in their own right. They ran a school known as Pondok Ngruki, and operated an anti-government radio station until it was shut down in 1975. Their approach to creating an Islamic State differed from that of Darul Islam as a whole, foreshadowing the eventual split. The two preachers were influenced by international Islamist writers such as al-Maududi and Hasan al-Banna, founder of the Egyptian Muslim Brotherhood and had a Middle Eastern-influenced and puritanical understanding of Islam. By contrast, Darul Islam’s understanding of Islam, while absolutist, was heterodox in that it contained Sufi elements and local folk traditions.

More significant were strategic differences. The two preachers adopted a new approach to undermining the state after being arrested in 1978 then released in 1982. Sungkar and Bashir became key figures in the Usroh movement, which was an attempt by at least two factions of Darul Islam to build a new base of support by creating small, interlinked study circles, which was an organisational concept derived from the Egyptian Muslim Brotherhood. This was more sophisticated, and less overtly confrontational, than Darul Islam’s strategy of creating a shadow government. Sungkar and Bashir also sought further international linkages. During this time, their first connections to Australia developed.

The first key connection resulted from an Australian woman who converted to Islam, Rabiyah Hutchinson, becaming an enthusiastic participant in the Usroh movement. In early 1984, Hutchinson met Abdullah Sungkar and Abu Baku Bashir, worked for a period at their school, Pondok Ngruki, and then travelled to Jakarta and joined one of their Usroh groups. There she met a Darul Islam follower Abdul Rahim Ayub (it was his brother, Abdul Rahman Ayub, who featured in The Age today). Ayub was critical of Sungker and Bashir for deviating from the broader movement, but after Hutchinson introduced Ayub to the two clerics during a trip to Ngruki, he became a loyal disciple.

However, her travels coincided with the Suharto regime’s renewed repression of Islamist opposition. The Indonesian military opened fire on protesters at Tanjung Priok, north of Jakarta, and the authorities detained and tortured several Usroh members. Hutchinson went into hiding with Ayub. The two returned to Ngruki in early 1985 and married each other, with Sungkar officiating. This year was a turning point for Sungkar’s DI faction, and when Indonesia’s Supreme Court ruled that Sungkar and Bashir should be re-imprisoned, they fled to Malaysia with many of their followers. It was also not safe for Hutchinson and Ayub, so they came to live in Australia, where Abdul Rahim Ayub would later be asked by Sungkar to continue their struggle.

Indonesia’s suppression of Islamism in the 1980s resulted in many activists fleeing to other countries. Many more than Abdul Rahim Ayub fled to Australia, though none would later prove to be as central to JI. One person who fled Indonesia after the Tanjung Priok massacre was Zainal Arifan, who was a religious teacher and acquaintance of Abdul Rahim Ayub, and would later prove to be an obstacle to Mantiqi IV.

From Malaysia, Sungkar and Bashir arranged for many of their followers to fight and train with the anti-Soviet mujahideen in Afghanistan. Several of their followers fought with Osama bin Ladin in the Battle of Jaji, and trained with international jihadists in camps in Pakistan, which set the stage for the al-Qaeda-JI relationship that existed in the 1990s.

By this point, differences between Sungkar’s faction and the rest of Darul Islam were becoming clearer. Structurally, Sungkar had established international connections well beyond those of any other DI leader. Strategically, his faction eschewed DI’s unsuccessful overt method of attempting to re-establish an Islamic State, its territorial command model, and did not yet engage in violence in Indonesia, instead making a considered effort to acquire arms, training and experience in anticipation of a coming war. They also understood that the NII did not in any realistic sense exist, because it did not control territory, and hence saw the need for safe-havens in external countries. Sungkar and Bashir used their Malaysian exile to travel widely and build support for their movement, including in Australia.

On April 1990, Hutchinson and Ayub hosted Sungkar and Bashir on their first visit to Australia. They travelled throughout Melbourne and had minor celebrity status among some members of the Indonesian Diaspora as victims of Suharto.

Hutchinson divorced Ayub that year and she left for Pakistan. From this point on Ayub would be responsible for Sungkar and Bashir’s many visits. On January 1991 Ayub contacted Zainal Arifin in Sydney, whom he had not seen in years, and secured his agreement to host the preachers’ next trip. Following a meeting in Sydney, they agreed to form “Darul Islam in exile”, with Abdul Rahim Ayub as head, and under the overall command of Sungkar and Bashir. They raised an estimated $15,000 a year, at this stage the money was given on the basis of opposition to Suharto, and not for terrorist activity (which JI did not engage in until the turn of the century).

Ayub struggled to build a large following, particularly as Zainal Arifin came to leave the movement, along with ten others, refusing to take orders from Sungkar. Ayub then had to move to Sydney look after the small number of Darul Islam followers remaining.

Sungkar and Bashir officially broke away from Darul Islam on January 1, 1993, and declared the establishment of Jemaah Islamiyah. The JI guidelines were delivered to Ayub and he was instructed to lead the group secretly, not mentioning its existence to outsiders. Sungkar and Bashir argued to their Australian supporters that Darul Islam’s lack of territory showed the need to form a new group, with one follower recalling, “Bashir said that to be Darul Islam you need to have a place, some land, but they didn’t have a place or any land, so the view was that the group shouldn’t be named as a state any more but should just be named group or community.”

JI operated along a territorially-based command structure, but unlike Darul Islam, it was more covert and extended across Southeast Asia. By 1997, four such territorially-based commands were established, called Mantiqis. Mantiqi I covered Singapore and Malaysia, Mantiqi II covered most of Indonesia, and Mantiqi III covered Mindanao, Sabah and Sulawesi (in the Philippines, Malaysia and Indonesia respectively). Mantiqi IV covered Australia and Papua.

Mantiqi IV’s primary responsibility was fundraising, and Australia was a very low priority for JI. Sidney Jones stated that Mantqi IV was initially intended to be established in Sulawesi, which “implies a mantiqi in Australia was never really a going concern”.  Nasir Abas, who was head of Mantiqi III and later cooperated with authorities, wrote that the Australian branch was never actually a Mantiqi and was not called Mantiqi IV. He states that it was actually called Mantiqi Ukhra, which translates as “another Mantiqi incomplete”, which both suggests Australia’s low importance to the movement and accurately describes its lack of success.

The branch was in many ways a failure, which their unsuccessful attempt to take over administration of a new Mosque being built in Sydney demonstrated. Zainal Arifin was the main imam for the Mosque, but Abdul Rahim Ayub attempted to have his brother, the jihadist veteran Abdul Rahman Ayub (who entered Australia in 1997 and sought refugee status), installed as imam instead. The result was a confrontation that ended with Arifin taking out Apprehended Violence Orders against the Ayub twins. Some Mantiqi IV members remained in Sydney, while others including the Ayubs moved to Perth and tried to recruit Islamic converts and Indonesian students.

Mantiqi IV were widely regarded as the “weak link” in JI. They expended much effort and money on keeping Abdul Rahman Ayub in Australia (he was denied refugee status and faced deportation) and on trying to keep control of the Mantiqi, as the Melbourne and Sydney based members had begun sending money directly to Bashir rather than through the Ayubs. The Mantiqi was always small –ASIO estimated that Mantiqi IV had 30 members and possibly 100 supporters across three States (Abdul Rahman Ayub states similar figures in The Age today) – and relatively dysfunctional. In 1998 JI dispatched Asman Hashim, a veteran of jihad in Mindanao, to Australia to professionalise the branch.

However, the Mantiqi’s presence did result in Australia’s first jihadist plot, because of al-Qaeda’s successful co-optation of a segment of JI through individuals such as Hambali. In 2000 Mantiqi IV member Jack Roche travelled to Afghanistan to fight with the Taliban (Hambili facilitated the trip and was his main point of contact). While there he was asked by senior Al-Qaeda leaders to do reconnaissance for attacks intended to take place during the Sydney Olympics. The targets were the Israeli embassy in Canberra, the Israeli consulate in Sydney, a prominent Jewish businessman in Melbourne. Mantiqi Four was largely unsupportive of the plot (though there are different versions of what happened and the truth isn’t clear) and the Ayubs felt their authority was being undercut, which helped the plot to fail. It’s fortunate that the plot fell apart by itself, as Australian authorities were unaware of it until after the 2002 Bali bombings.

Following the Bali bombings, homes of suspected Mantiqi IV members were raided in Sydney, Melbourne and Perth. Roche was charged over the 2000 bombing plot, and pleaded guilty.

Sources:

Abas, Nasir (2005) Unveiling Jamaah Islamiyah: Confessions of an Ex-JI Member, Jakarta: Grafindo Khazanah Ilmu. (Written in Bahasa Indonesian, I read a later English translation which I can’t find a link for online) Update 1: In the comments Jack Roche has provided a translation, available here.

Chulov, Martin (2006) Australian Jihad: The Battle Against Terrorism From Within and Without, Sydney: Pan Macmillan.

Fealy, Greg and Borgu, Aldo (2005) Local Jihad: Radical Islam and terrorism in Indonesia, Australian Strategic Policy Institute.

Jones, Sidney (2004) Indonesia Backgrounder: Jihad in Central Sulawesi, ICG Asia Report No. 74, Brussels and Jakarta, 3 February.

Jones, Sidney (2010) “ New Order Repression and the Birth of Jemaah Islamiyah” in Soeharto’s New Order and Its Legacy , Canberra: ANU E Press.

Michaelson, Christopher (2005) “Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?”, Studies in Conflict & Terrorism vol. 28, iss. 4, pp. 321-339.

Neighbour, Sally (2004) In the Shadow of the Swords: On the Trail of Terrorism From Afghanistan to Australia, Sydney: HarperCollinsPublishers.

Neighbour, Sally (2009) The Mother of Mohammed: An Australian Woman’s Extraordinary Journey into Jihad, Melbourne: Melbourne University Press.

Temby, Quinton (2010) “Imagining an Islamic State in Indonesia: From Darul Islam to Jemaah Islamiyah”, Indonesia, Volume 89 (April).

R v Roche [2005] WASCA 4 (14 January 2005)

I was recently asked whether the newly announced Council of Australian Governments review of counter-terrorism laws, and the inquiry that resulted in Anonymous attacks on ASIO and DSD websites, were the same thing. They aren’t, but the three different national security inquiries currently happening can be easily confused.

As we don’t have the simplest security bureaucracy in the world, this post explains what inquiries are occurring right now, what they are about, and how to contribute.

The one getting the most coverage is the “Inquiry into potential reforms of National Security Legislation” being carried out by the Parliamentary Joint Committee on Intelligence and Security.

The inquiry will examine potential changes to the Telecommunications (Interception and Access) Act 1979, the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 (which covers intelligence services other than ASIO, such as ASIS).

The most important thing to read on it is the Discussion Paper, which details the proposals and presents some arguments in favour of them.

As it’s a discussion paper, there is no reason to believe the government plans to go ahead with every proposal in it. The paper divides the proposals into categories A, B and C, in descending order of priority. Category A is “those the Government wishes to progress”, category B contains “those the Government is considering progressing” and category C contains “those on which the Government is expressly seeking the views of the PJCIS”.

The data retention proposal, which has caused the most controversy, is in category C. This is the proposal that motivated #OpAustralia, where Anonymous tried to bring down the ASIO and DSD websites and steal private citizen’s data from AAPT. As many have pointed out, this is an incredibly stupid way to convince people we don’t need extra security powers. Political campaigns like GetUp’s, or well-argued submissions to the inquiry, will prove far more effective.

The inquiry is open to public submissions until 20 August 2012.

Another inquiry in the news is a review of counter-terrorism laws being carried out for the Council of Australian Governments. It was announced on Thursday, though it was originally scheduled for 2010.

The Hon. Anthony Whealy QC, will conduct the review. As a judge he presided over the trial of five members of the Sydney Pendennis cell, who were all convicted of serious terrorism offences. He was also the judge for the trial of Faheem Lodhi, who had taken part in a Lashkar e-Toiba guided terrorist plot in 2003. Whealy has also written the papers “Difficulty in obtaining a fair trial in terrorism cases” (paywalled) and “Terrorism and the right to a fair trial“.

The inquiry is open to public submissions until 1 November 2012.

There is also another inquiry, but this one has not been in the news at all. The Independent National Security Legislation Monitor (INSLM) is conducting his regular annual review.

The current INSLM is Bret Walker, and his job is to examine whether current counter-terrorism laws are effective and justified. His new review will be given to the Prime Minister at an undetermined point before 31 December 2012, and will probably become public some months after. This review will have a particular focus on ASIO powers (questioning and detention), control orders, and preventative detention. I recommend reading the INSLM’s last annual report (which was also his first).

The inquiry is open to public submissions until 10 September 2012.

Why do we have all these inquiries? Largely because national security policy making changed after the end of the Howard government.

A recent journal article by Professor George Williams also made this point: “The change of federal government in late 2007 marked a shift in how Australia’s anti-terror laws have been made. Few new laws have since been enacted and those that have been have involved a more satisfactory process.”

This happened partly because Rudd and Gillard simply had a different approach, partly because their political position was not as strong (compared to when the Coalition controlled both Houses after 2004), and partly because the sense of urgency following attacks like 9/11, Bali, Madrid and London has vanished.

So we currently have a better national security policy process, demonstrated by one public inquiry examining proposed new laws well before they are enacted, and two public inquiries examining whether current counter-terrorism laws are effective and justified.

Tom Hyland, International Editor for the Sunday Age, kindly sent the following email in response to Wednesday’s post Resources: Australian Counter-insurgency in Afghanistan. It is posted here with permission, edited slightly to present the links in the same format as the original post.

I’ve just come across your excellent list of resources on Australia and Afghanistan.

The lack of information here contrasts with what’s available from the Netherlands and which helps put Australia’s role in perspective.

There’s this:
3D ‘The next generation’. Lessons learned from Uruzgan for future operations
Netherlands Institute of International Relations
December 2011

This has excellent background, and highlights the early tension between the Dutch, Australians and US:
Mission Uruzgan: collaborating in multiple coalitions for Afghanistan
Amsterdam University Press
June 2012

An earlier TLO report is also useful:
The Dutch engagement in Uruzgan – TLO report 2010
The Liaison Office
May 2010

Here in Melbourne, Richard Tanter did great work setting this up:
Australia in Afghanistan: quick guide
The Nautilus Institute
October 2010

And forgive my journalistic preciousness, but Lateline’s report on the TLO/AusAID issue was an old story (worth re-telling nonetheless).

You read it here first:
Taliban far from defeated in Australian zone: report
April 22, 2012

And again here:
Independent analysis of Oruzgan mission axed
May 27, 2012

As for why there’s a paucity of reporting here, people in my business usually blame military and government obstruction – a valid complaint, up to a point.

The other side of the story is that editors, based on what they assume to be readers’ interests, are just not interested in the story.

Today the Shanghai Daily reported that two terror suspects, an Australian and a Tanzanian, have been arrested in Kenya.

The article raises a possible al-Shabab connection, stating that “the country’s security agencies have been on high alert after intelligence reports hinted that al-Shabab terrorists are escaping into the East African nation as the operation to rout the insurgents from Somalia gains momentum.”

If the arrests are al-Shabab linked, this will be the first allegation of an Australian becoming involved with the Somali jihadist movement since 2009, when the Holsworthy Barracks plotters were arrested. Following those arrests, no evidence has appeared of new Australian connections to al-Shabab.

While the Sydney Morning Herald reported in March 2012 that ASIO still had concerns that some Australians were providing money to the group, there was no open source confirmation of this.

By contrast, claims in 2007 about Australians (mainly from a small segment of the Somali diaspora) supporting, and travelling to fight with, al-Shabab were supported by statements from some community leaders, the mother of one person involved, and later with evidence that appeared in the Holsworthy Barracks trial.

However, such support is less likely to occur now than before 2009, as the authorities have proscribed the organisation and imprisoned a key intermediary, Saney Aweys. Also, al-Shabab’s already limited popularity in the global Somali diaspora has declined in the past few years.

I’ve no idea what will come out from these recent arrests in Kenya, as there has only been one report. It could prove to be very significant, particularly as al-Shabab merged with al-Qaeda in February this year. Alternatively the two people may be innocent, they might not be linked to al-Shabab, and the article itself could simply be wrong.

If it does turn out to be new evidence of Australian involvement with al-Shabab, I suspect it will be much less extensive than what occurred between 2007 and 2009.

Update 1: More detail has appeared in The Star, a Kenyan newspaper, which reports that the man is suspected of belonging to a bomb-dealing syndicate in Kenya’s second largest city, Mombasa. Some shots were fired during the arrest, and it’s not clear if he will be taken to court. The article in The Star does not suggest any al-Shabab connection.

Update 2: Turns out the journalist Philip Dorling inquired with DFAT about this case. It’s looking doubtful that the arrested man is an Australian after all.

The CTC Sentinel has published an article of mine on the Holsworthy Barracks plot, one of Australia’s key terrorism cases.

For those new  to the case, on December 2011 three Melbourne men were sentenced for plotting a mass shooting at Holsworthy Army Barracks in Sydney. Wissam Mahmoud Fattal, Saney Edow Aweys and Nayef El Sayed had been found guilty of conspiring to prepare for or plan a terrorist act between February and August 2009.

A new development occurred last week. The prosecution was appealing the length of their sentences of eighteen years imprisonment. The appeal was scheduled for Monday 18 June, but the counsel for the three offenders announced they were appealing the convictions altogether. The judge agreed to adjourn the sentence hearing until the conviction appeals were ready.

My article examines the plot and is based entirely on open sources, including the sentencing document, a collection of media reports of the investigation and court proceedings, and academic writings. Unfortunately, the amount of open source material appeal on this plot is limited compared to some other terrorism cases like Operation Pendennis. Hopefully more court documents will become publicly available when the appeals are settled, which I will use to revisit the arguments made in the article.

The article uses the plot as a study of how an internal threat emerged from what began as a diaspora-based support network for an external insurgency, in this case the al-Shabab movement in Somalia. It argues that the transformation did not occur through overseas instigation or online radicalisation, but through the involvement of non-diaspora-based ideological sympathisers, socially linked to an earlier cell, determined on revenge, and restricted from traveling for jihad abroad. The article shows that while the Somali connection was new, the plot developed through processes characteristic of Australia’s jihadist scene, which has so far been small, interlinked and closely-monitored.

Take a look, and be sure to also read the other articles in this month’s issue of CTC Sentinel by Christopher Swift, James Brandon, Lorenzo Vidino, Adam Elkus, John P. Sullivan, Christopher Anzalone and Zachary Abuza.

On 5 June Sabirhan Hasanoff, a dual US-Australian citizen, pleaded guilty in a New York court of providing material support to al-Qaeda. He had been accused of providing technical assistance through a co-conspirator who had travelled to Yemen and pledged allegiance to al-Qaeda. This was the first confirmation of something that’s been suggested in media reports for the past few years: Australian citizens becoming involved with jihadist groups in Yemen.

The key group is al-Qaeda in the Arabian Peninsula (AQAP), the Yemen-based branch of al-Qaeda that produces Inspire magazine, and was behind the attempted bombing of an airliner in Detroit in 2009 and the placing of explosive-filled printer cartridges in cargo planes in late 2010. ASIO and other agencies have long been concerned about the possibility of Australians becoming involved with AQAP.

In the nearly eleven years since 9/11, there have been many reports of Australian citizens or residents engaging in jihadist activity in countries such as Afghanistan, Pakistan, Lebanon, Somalia and Yemen. For the first four of these countries, these claims have been confirmed by evidence heard in open courts, multiple convictions (both locally and overseas), and sometimes by the people involved talking to the media.

For Yemen, there had not been any similar confirmation until last week.

Media reporting has indicated possible cases of Australian involvement in Yemeni jihadist activity since at least 2006.

In October of that year, three Australian citizens were arrested in Yemen, suspected of being part of a group running guns to jihadists in Somalia. Two of them were the sons of Abdul Rahim Ayub, the former leader of Jemaah Islamiyah’s Australian branch. They were also related to Khaled Chieko, who was arrested in Operation Pendennis in 2005, and convicted in New South Wales of a conspiracy to commit acts of terrorism in 2009.

Representatives of the AFP travelled to Yemen and interviewed the suspects. The solicitor of the third suspect, Polish-born Marek Samulski, called the detention into question, stating that “I have concerns that the process my client is subjected to is unconstitutional and unlawful”. By December the two brothers were released while Samulski remained in prison.

The two brothers then travelled to Lebanon, where they were deported from, before returning home. ASIO subsequently cancelled their passports. Later Samulski was also released without charge.

Media coverage of alleged Australia-Yemen terrorism links then went quiet until 2010, when a spate of connections was reported.

On March 2010 Sally Neighbour reported on “Abdullah” said to be suspected of (but not charged with) involvement in the Sydney Pendennis plot, for which Khaled Cheikho and eight others had been convicted. According to the article, “Abdullah” had previously attempted to travel to Yemen with his family in 2004. However, his passport had been cancelled by ASIO, when they found him “likely to support or participate in acts of politically motivated violence.” In late 2009 his passport was returned, and he the travelled to Yemen and disappeared. The article also stated that “Abdullah” was believed to have trained with Lashkar e-Toiba at the same time as David Hicks and that his attempted trip to Yemen in 2004 was arranged by Marek Samulski.

In May 2010 Shyloh Giddins, a former Sydney resident who moved to Yemen in 2006, was arrested following an investigation into AQAP activity. Yemeni authorities put her in solitary confinement while her two sons, aged four and seven, were placed under house arrest. Five weeks before her arrest, ASIO had deemed that her “extremist interpretation of Islam and her activities in Yemen are prejudicial to security” and cancelled her passport. She had earlier been married to Mohammed Touma, alleged organised crime figure and brother of Sydney Pendennis cell member Mazen Touma.

Human rights activists criticised her treatment in Yemen, particular the attempt to pressure her through her children. Consular officials requested the children be released and were refused. Canberra reportedly feared she would be killed. Giddins’ lawyer stated that “The whole system [run by the security police] is unlawful under the Yemeni constitution…. The Australians have an obligation and they have a duty of care to ensure that a country detaining our citizens affords them access to their lawyer and due process.” Eventually she was released without charge and deported.

Also in May 2010, the earlier-mentioned  Sabirhan Hasanoff was arrested in Brooklyn and charged, with another man, of conspiring to assist al-Qaeda.  The indictment against them stated that Wesam el-Hanafi (the co-accused) had travelled to Yemen in 2008, taken an oath of allegiance to al-Qaeda, then returned to New York and conspired with Hasanoff to help “modernise” AQAP by providing technical equipment. Hasanoff, who grew up in Adelaide, first pleaded not guilty, but changed his plea last week.

It was also reported in 2010 that a US diplomatic cable, sent to the New York Times by Wikileaks, stated that 23 Australians were on the US terrorism watch list because of alleged links to Anwar al-Awlaki. This list was later placed online. On September 2011, one of the men named on the list was arrested after he allegedly stole an ATM with three other men in a ram-raid.

Beyond those examples, there have also been less specific claims about Australian involvement with jihadists in Yemen. In 2011 ASIO increased the number of people whose passports they confiscated reportedly because of concerns over Yemen. On February 2011, Four Corners aired a documentary where an informant claimed multiple Australians had trained in AQAP camps.

Australia has also featured occasionally in AQAP propaganda. The July 2011 issue of Inspire magazine featured a picture of the Sydney Opera House. Headlines posited that “Al-Qa’ida takes aim at Opera House“, though specialists cautioned people to not overreact, particularly as such threats are often made to get a reaction. Issue 9 of Inspire, released on May 2012, provided instructions on how to start bushfires, and mentioned Australia both as a target and as an example of the damage bushfires have caused.

Evidently, Australian security agencies have been concerned about Australia-Yemen jihadist connections for many years, particular as several suspects had been friends or family of convicted members of a terrorist cell in Sydney. Media reports provide many cases of possible involvement, but they cannot be considered confirmed without the claims being tested in a court, or anyone talking openly about their activities. That means Sabirhan Hasanoff’s guilty plea provides the first public confirmation of an Australian becoming involved with al-Qaeda through Yemen.

The significance of this should not be overstated. Hasanoff’s activities took place within the US and without any reported connections to other Australian citizens, so it tells us nothing about the other cases. As mentioned above, there have been many more confirmed cases of Australians involved in jihadist activity or training in Afghanistan, Pakistan, Lebanon and Somalia than Yemen. Recent terrorist cells in Sydney and Melbourne, such as those foiled in Operation Pendennis and Operation Neath, devised their plans without outside assistance. Also, AQAP’s external operations have never targeted Australia, which only intermittently appears in its propaganda.

Nonetheless, Hasanoff’s guilty plea is significant for confirming something long-suspected, and indicates that Australia-Yemen jihadist connections are worth watching.

The Conversation recently published an op-ed of mine about proven refugees being detained indefinitely after receiving adverse security assessments from ASIO. It was kindly republished by the human rights volunteer organisation Right Now.

That article focused on the unjust nature of indefinite detention, the denial of a right to appeal, and the weakness of the national security arguments used to justify it. This post looks at another aspect: a common misunderstanding of ASIO’s role.

For those new to the story, the basic issue is that around 48 people, found to be refugees, are being detained indefinitely thanks to decisions made in a closed, non-reviewable process. This is largely unprecedented in Australia, and has led to at least one suicide, many attempted suicides, and has torn families apart. New reports on Lateline have helped the story gain momentum, leading to a spate of recent articles, but there is no sign of impending change.

This reprehensible situation resulted from decisions made by past Australian governments, and the unwillingness of the current government to change it. However, there is a tendency in some accounts to place the blame chiefly on ASIO, and to see these detentions as evidence of an intelligence agency out of control.

For example, following Director-General David Irvine’s testimony to the Joint Select Committee on Australia’s Immigration Detention Network, the President of the NSW Council for Civil Liberties described him as anti-democratic. Similarly, former Commonwealth Ombudsman Allan Asher likened Irvine to J. Edgar Hoover. The Refugee Action Coalition held protests against Irvine when he made a speech at the Sydney Institute. Anecdotally, there is a general impression around that ASIO is responsible for this situation.

This outrage at ASIO is misplaced, for the following reasons:

1. The Department of Immigration and Citizenship (DIAC), not ASIO, is detaining the refugees. ASIO can only detain people by using its counter-terrorism questioning powers, and only for very short periods. According to the annual reports to Parliament, it has only used its questioning powers once in the past six years.
2. ASIO does not decide that they should be detained. It decides whether a person passes a security assessment, but the subsequent visa denial and detention results from the Immigration Act and is implemented by DIAC. An exception here is that ASIO may advise DIAC that someone should remain detained while they are conducting the assessment, but once the assessment is made, ASIO has no say in what happens to them.
3. The lack of an appeals process does not result from any ASIO decision, but from Section 36 the 1979 ASIO Act, which denies most non-citizens the right to appeal an adverse assessment. This section should be amended, as recommended by the Joint Select Committee, but not yet responded to by Attorney-General Nicola Roxon.
4. ASIO is not advocating against an appeals mechanism. When testifying before the Joint Select Committee, David Irvine neither supported nor opposed an appeals process, he simply argued that the law would need to change first and that ASIO would abide by the law.
5. While Irvine did stress that any appeals process should maintain the secrecy of the assessment methods, that is not in itself an anti-democratic notion. It is also the current practice when security assessments of Australian citizens are appealed.

This means the responsibility for this does not lie with ASIO (or DIAC) but with the legislation, and therefore our elected leaders. The key Ministers able, but not yet willing, to do something about this are Nicola Roxon and Immigration Minister Chris Bowen. Ultimately, blame lies with the government as a whole for not yet acting, and the Coalition for outright opposing the Joint Select Committee’s recommendations to end indefinite detention. Blaming ASIO misses the point, because it is not capable of changing the law, and nor should it be. In a democracy, an intelligence agency has no business challenging the legislation that governs it.

Another problem with focusing on ASIO is that defenders of the current policy, particularly Chris Bowen and Shadow Immigration Minister Scott Morrison, are spuriously framing the issue as a dichotomy between security and softness. Attacking ASIO for maintaining the secrecy of its methods plays into that false dichotomy. It’s also unnecessary, as change can be made without making ASIO intelligence or assessment methods public.

This is not to shield ASIO from criticism. It can be legitimately criticised for many things: bungling the Jack Roche case, mistreating Izhar ul-Haque, neglectful behaviour during Mamdouh Habib’s rendition, and more if we look back to the early Cold War period. However, on this issue ASIO is simply following the law, which makes David Irvine the opposite of J. Edgar Hoover.

The problem is that the laws, as currently written, are producing unjust results. Changing this requires pressure on our elected leaders and the opposition, not making a bogeyman of ASIO.

Nicola Roxon’s recent announcement, proposing changes to intelligence agency laws, presents an opportunity. Journalists should ask her why – despite the recommendations of the Joint Select Committee on Australia’s Immigration Detention Network and the clear humanitarian urgency – the proposals do not include an appeals process for refugees’ security assessments.

Update 1: Listening to Triple J’s Hack, I realised this bit in point 2 might be wrong: “the subsequent visa denial and detention results from the Immigration Act”. While the visa denial might be required by law, the detention may not be.

As far as I can tell, the visa denial results from section 202 of the Migration Act 1958, which requires deportation of those who fail security assessments, as well as Public Interest Criterion 4002 of the Migration Regulations 1994.

According to Hack, the Migration Act does not require their detention, which suggests they could be released without passing new legislation (though they would still be in a legal limbo).

Also, page 166 of the Joint Select Committee on Australia’s Immigration Detention Network report gives an example of refugee family in 2002 who failed an ASIO assessment but DIAC chose not to keep them detained. The report states this might have been simply because they arrived by plane rather than boat.