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.

On Sunday the Sydney Morning Herald reported that “al-Qaeda has named Australia as a prime target for terrorism by firebombing in an online terrorism and bomb-making magazine.”

This was in reference to Inspire magazine, an English language publication by al-Qaeda in the Arabian Peninsula, which attempts to incite jihadist sympathisers in the West to carry out violence. The latest issue (9) provided instructions on how to start bushfires, and mentioned Australia both as a target and as an example of the damage bushfires have caused.

Alongside a picture of the Sydney Opera House were the words:

On December 2002 and in the south of Australia, flames of fire caused the eruption of 79 conflagrations in New South Wales, it spread to its environs. There were more than 4500 firefighters struggling to stop fires burning. Those crews were even backed up with helicopters’ support. It is considered the worst event of wild fires during 30 years. 19 houses were damaged at first and then, the fire went towards Sydney city where a firestorm erupted. It burnt down more than 500 houses. In that horrifying day, this firestorm released a heat energy equal to that of 23 nuclear bombs.

Later on the article broadly described the best times and places to start fires in several countries, including Australia.

It’s important not to make too much of every perceived threat. In 2009, there was completely unfounded speculation that terrorists were behind the Black Saturday bushfires. Victoria Police had to step in and debunk these claims.

Inspire produces these articles not just to incite attacks, but to generate fear. It’s already partly achieved that. By not mentioning any other threatened countries, the Sydney Morning Herald gave the misleading impression that the Inspire article was focused only on Australia. Inspire listed the prime targets for pyro-terrorism as the US, UK and Israel, followed by NATO countries. It was not aimed only at Australia as the Herald’s coverage implied.

Given the risk of the Inspire article creating further unnecessary fear, this post explores the likelihood of an al-Qaeda inspired bushfire attempt actually happening here.

Calls to attack the West with bushfires are not new; they have occasionally featured on jihadist internet forums since at least 2006.  One widely-cited example is a posting that called for jihadists to light bushfires in “the United States, in Europe, in Russia and in Australia”. That posting attributed the idea to renowned strategist Abu Musab al-Suri, who had been an influential figure for many in the movement (including some Australian jihadists arrested in 2005*).

Jarret Brachman said of this, “We’re definitely going to see more of calls for these kinds of operations in the future….The question that American security professionals and first responders will have to wrestle with is whether anyone will be answering these calls.” So far, the answer is few or none.

Dozens of jihadist plots, possibly over a hundred**, have occurred in the West over the past decade. Of these plots, there does not appear to have been a single proven case of an attempt to light bushfires.

One possible exception is that in 2003 a jihadist detainee in FBI custody claimed there was a plan to start simultaneous bushfires in several US states. But to my knowledge (I am very willing to be corrected here) no jihadist in Western Europe, North America or Australasia has actually been convicted, or even charged, of planning to light one.

Israel has faced terrorist-lit bushfires, but it is in a very different situation facing a different movement. Pyro-terrorism certainly exists, but it has barely featured in the al-Qaeda inspired global jihad. Despite urgings for bushfire attacks, the foot soldiers proved reluctant to actually try it.

Based on the writings of several specialists, we can gather some likely reasons for this.

Adam Dolnik has pointed out that lighting fires was “generally not considered a glorious type of attack” in the global jihadist movement. Jihadists see themselves as warriors, and lighting bushfires is very un-warlike compared to bombings and shootings (even of civilian targets).

Killing civilians at all is a difficult step to take. Many jihadists first try to fight on battlefields in Afghanistan, Iraq, Chechnya, Bosnia and elsewhere. They often turn towards attacks on the West after being redirected by leaders at training camps, or after finding they can’t reach the battlefield.

Even then, a significant number are hesitant to carry out the sort of attacks al-Qaeda calls for – bombings of civilian targets with high symbolic or economic value, like mass transit facilities. As J.M. Berger has shown, a third of all jihadists in the US during the post-9/11 decade were plotting to attack military targets at home or abroad, even though jihadist leaders urged otherwise.

If killing civilians is itself a difficult threshold to cross, it should not be surprising that very few jihadists cross the threshold of trying to kill them in the blatantly un-warlike ways that Inspire magazine suggests. We have also not seen jihadists welding blades to trucks as suggested in the second issue of Inspire.

Another reason is that promptings for these type of attacks have not come from the highest levels of al-Qaeda. According to the CTC analysis of the recently al-Qaeda documents, bin Laden was not impressed by the unconventional attack methods proposed by Inspire.

A further reason, raised by Anthony Bergin in the Sydney Morning Herald article, is that jihadists would be concerned that a bushfire attack would have little value as the state could just deny terrorists were responsible.

Last, Adam Dolnik’s excellent book finds a key factor prompting innovation in terrorist groups is the repeated experience of failed operations, forcing them to adapt. While al-Qaeda as an organisation has experienced many failures and adapted to them, the typical jihadist in the West is not an experienced veteran. These foot soldiers tend to be newcomers to violence, without a record of involvement in earlier, failed attacks. As a result, they tend to be imitative rather than innovative, and hence stick to bombings and shootings.

So what does this tell us?

Basically, it’s not a big threat. Jihadist bushfire plots in Western countries have been extremely rare, possibly non-existent, in the past. Future trends cannot be assumed to resemble past trends, but if the likely reasons for the rarity of these attacks remain valid, bushfire terrorsm in the West will be very rare for the near-future.

If some of the above reasons become invalid – for example, if more senior jihadist figures urge pyro-terrorism – this will likely have less impact in Australia than in the US and Europe, as they have a much greater frequency of jihadist plots.

It can of course be argued that a jihadist bushfire could happen here, and certainly security agencies and emergency services should be prepared for many conceivable contingencies. But it is a safe bet that the next jihadist plot in Australia won’t be an attempt to start bushfires, and that the next bushfires will not be lit by jihadists.

*For al-Suri’s influence on some Australian jihadists see paras 457, 503, and 549 of Benbrika & Ors v The Queen [2010] VSCA 281 (25 October 2010) and paras 33.3, 33.18, 33.21, and 45(d) of R v Benbrika & Ors (Ruling No 1) [2011] VSC 76 (11 March 2011) including footnotes.

**The number depends on how a plot is defined, as different writers use different criteria to decide what constitutes a plot. See the incident databases here.

Update 1: Thanks to @El_Grillo1 for pointing out that bushfire threats had been on the forums since at least 2006, not 2007 as I originally wrote.

The Age reported yesterday that 350 Victorians have been compelled to answer questions about drug trafficking, murder and corruption before a government-appointed Chief Examiner. This little-known body was set up to investigate Melbourne’s gangland killings, and people who refuse to answer questions can face five years in jail.

Civil libertarians and legal bodies objected strongly, arguing that the right to silence is one of our most fundamental rights.

This had me wondering: is the right to silence a fundamental human right? Or is it a lesser right, which is ok to override at times?

Put another way, if you have information that can help stop murderers, why should you have the right to keep silent about it? But also, is it dangerous to give the state the power to coerce information out of you, and what if you don’t actually have the information they think you do?

There is no widely accepted view on this. The right to silence does not appear in the Universal Declaration of Human Rights, but it does sort-of appear in article 14(g) of the International Covenant on Civil and Political Rights, which specifies the right to “not to be compelled to testify against himself or to confess guilt.”

This demonstrates the most common argument in favour of the right to silence, which is the protection against incriminating yourself, so that police and prosecutors can’t coerce or trick you into making a false confession.

When pondering this on Twitter, some Tweeps kindly raised a second objection: that arguing the state has the right to coerce information out of people is one step towards justifying torture.

However, the right to silence has often been denied without resulting in anything approaching these disaster scenarios. One example is ASIO’s questioning powers, the most controversial coercive questioning powers in this country.

Currently, if ASIO believe you have information relevant to a terrorist act, they can detain you for questioning, and threaten you with five years of jail for refusing to answer. However, if they intended to mistreat you or induce a false confession, they would face the following hurdles:

–          They must get approval from the Attorney-General before questioning you.

–          They must get further approval from an independent issuing authority, which will be either a judge or magistrate from a federal court.

–          Another independent authority, usually a retired superior court judge, will monitor the entire interrogation. They must ensure you are aware of your right to complain to the Inspector‑General of Intelligence and Security, the Ombudsman and to a police complaints agency.

–          The interrogation must be videotaped.

–          You can have a lawyer with you, though it might not be the lawyer of your choice.

–          Anything you say cannot be used in a prosecution against you, though it may influence the direction of an investigation.

(These are detailed in section 34 of the ASIO Act, and the Independent National Security Legislation Monitor Annual Report. It’s worth remembering that many of these safeguards were not in the original ASIO amendments introduced after 9-11, and it was the ALP under Crean and Beazley who forced the Howard government to include these protections.)

The ASIO example suggests the right to silence can be overridden while still protecting the right against self-incrimination and mistreatment. And if those crucial rights can be protected, it is hard to see why the right to silence should be considered a fundamental human right that trumps the need to tackle serious crime.

As for Victoria’s Chief Examiner, I’m not sure if its questioning powers are constrained by as many safeguards as ASIO’s are. Also, it has used its powers much more frequently than ASIO, having coercively questioned 350 people since 2005, while ASIO has coercively questioned 11 people since 2004-2005 (judging by its annual reports to Parliament).

So it would be good to know more about what the Chief Examiner is up to, but it’s unlikely to be very sinister. The Age article points out that the Chief Examiner requires Supreme Court approval before using its special powers, that the Special Investigations Monitor gave it a clean report, and that none of the 350 people coercively questioned lodged a complaint.

Lastly, denying the right to silence when investigating serious crimes is not a radical step. Bret Walker SC, the Independent National Security Legislation Monitor, has pointed out that “powers to compel persons to attend and answer questions concerning the suspected wrongdoing of others” are common, and have been used by “bodies such as the Australian Crime Commission, the Australian Competition and Consumer Commission, the Australian Securities and Investments Commission, the Independent Commission Against Corruption and the New South Wales Crime Commission.”

Given this, my view is that the right to silence is not a fundamental human right. It is a procedural right, which has developed in our legal system for very good reasons, but is not inviolable. It can be justifiably denied in some circumstances, as long as there are safeguards to protect the truly fundamental rights.

I’ve started a blog to express thoughts on terrorism, security, human rights and other issues, usually with an Australian focus.

My main job is being a researcher at Monash’s Global Terrorism Research Centre. I’ve been inspired to start blogging by my friends’ blogs, the difficulty of engaging in in-depth discussions over Twitter, and a recent Lowy Interpreter debate over why academics rarely engage in blogging. Specifically, I was prompted by a contribution made by Alex Burns, who argued in favour of “semi-digested thought bubbles” and stated that blogging “can help you to self-reflect and to write more productively.” Hopefully, this is what will happen. Reflection and productivity are my key goals, and critical feedback on any posts is most welcome.

The site is bare-bones for now. Blogrolls, categories, RSS feeds, pictures and such will come later if I keep up regular posting.