In the past week, the Abbott government has revealed a new package of anti-terrorism laws targeting Australian jihadists returning from Iraq and Syria that aroused the resentment of several Islamic community representatives. Recently, ASIO chief David Irvine decided to meet with a team of Arab-speaking journalists in Sydney in an attempt to communicate his message, which centred on the distinction between a War on Terror and a War on Islam.

The number of Australians fighting in the Mesopotamia plateau has been estimated to be as high as 150, though there are about 60 estimated to be fighting in Syria and Iraq. In order to deal with the potential threat posed by these 150 radicals and radical wannabes, the Coalition has promised ASIO and other intelligence agencies $630 million. It has also proposed a set of measures that would enlarge the already extensive powers of the whole security apparatus.

In the parallel media frenzy, dual citizens and young Australians with a Middle Eastern background have been under the spotlight, to the extent the government is contemplating the possibility of revoking the Australian citizenship of those who join proscribed foreign terrorist groups.

But what about national armies? A legal loophole — generated by the distinction between terrorist organisations and national armies — seems to allow an Australian to fight with the Israeli Defence Forces or the Syrian Arab Army and return home, after having received much more professional training than he or she would as a militant from the Islamic State (IS) in Iraq.

“That’s true,” Irvine told those assembled, including your correspondent. “But if you raise the case of the Syrian army specifically, that’s a problem, because the Syrian government is operating under the UN sanctions and it would be a crime for an Australian to break those sanctions.” Whereas in the case of the Israeli military, the unlikelihood of any UN sanction imposed on the Jewish state would preserve it as a free port for Australian volunteers. “The Israelis are not yet under sanctions,” Irvine clarified. “If there were UN sanctions to be imposed on the Israelis … and I don’t know whether it would happen … then there could be a problem.”

The veteran ASIO chief brought along the legal text with the clauses relevant to the ban on Australians wishing to join foreign national armies under UN sanctions. Irvine specified that “the Iraqi government is not subject to sanctions, so if you have a dual Australian-Iraqi citizenship, you could go there and join the Iraqi armed forces.”  The Shiite militias known for committing crimes under the cloak of the Iraqi military are consequently allowed to recruit Australian militants.

In the broader picture affecting all Australians, the new anti-terrorism laws could allow up to two years of retention of the metadata stored by internet and telephone companies in order to make them available to the intelligence agencies. This has predictably ignited fears about ASIO abusing its monitoring powers to violate civil liberties.

At the roots of such concerns, there are actually some disturbing precedents like the so-called Five Eyes Agreement revealed in 2013, when former NSA contractor Edward Snowden leaked documents related to a meeting held by British, American, Canadian, Australian and New Zealand intelligence agencies in 2008. In the views of the ASIO chief, however, Australia’s legal system prevents its intelligence agencies from abusing their powers and makes them different from the American NSA with regards to mass surveillance programs. “Our legal system is different, the rules according to which I can get information on citizens are different from the US,” says Irvine. “We call it the principle of proportionality: for me to intrude into your private life, I have to be very convinced that you’re of concern and that allows me to get that far into your private life.”

The top spy is in a good mood and he goes on explaining the controversial issue of metadata retention on a blackboard. “There are two forms of data: this is the envelope and those are the data contained in the letter,” says Irvine while sketching on the white surface, “the information contained in the envelope is very important, because if I see a known terrorist is in communication with another Australian, that other Australian becomes very interesting to me for obvious reasons.”

“Now these metadata are actually kept by the telephone company, in the United States they are kept by the government,” explains Irvine, “I have the right to go to the telephone company and ask to look at that particular piece of information and I don’t need a warrant for that.”

A neat presentation about metadata clarified on a blackboard: the message conveyed looked like “It’s all so simple, nothing hidden, you just have to trust us.” In Irvine’s words, the historical curriculum of ASIO stands as a guarantee that its powers will remain subject to the rule of law. “We are not creating a police State, also because we already have extensive powers and in the ten years that we’ve had those powers [since 9/11] we’ve never been accused of abusing them. We’ve never been proved to have abused them.”

David Irvine’s proud reference to the last ten years stands in contradiction with ASIO’s history, including its kidnapping and false imprisonment of the medical student Izhar Ul-Haque in 2007, who was under investigation for allegedly training with a proscribed Pakistani terrorist group. Even when ASIO did not enjoy these “extensive powers”, between the ’50s and the ’70s, the files the agency opened on “students, unionists, Aboriginal activists, and writers and as many as half a million other citizens” could hardly be classified as anything other than an abuse of power to monitor political dissent. Needless to say, this was not included in Irvine’s presentation.

Peter Fray

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