AMERICAN lawyers are asking for Australia’s help to save the life of alleged Bali terror mastermind Hambali, amid moves to transfer him from Guantánamo Bay to Malaysia to face execution.
Hambali, 52, or Riduan Isamuddin, is accused of orchestrating the deaths of 88 Australians and 114 others on October 12, 2002, by financing the attack through Osama bin Laden’s al Qaeda network.
Hambali has spent 10 years in Guantanamo without charge. His lead lawyer, Ohio-based public defender Carlos Warner, says US authorities are trying to offload him to Malaysia, knowing he can never be tried in America.
“We’ve been advocating for a long time, mostly behind closed doors, for him to go to Australia,” Mr Warner told News Corp, saying it was the only place where Hambali could get a fair trial.
“We think that Australia is the right place for him to be because of the nature of the allegations. We also respect the due process that’s provided by Australian courts.
“Given what’s going on in Guantanamo, we have more faith in your courts than ours.”
Hambali was Jemaah Islamiah’s senior operational leader, based in Malaysia, from where he allegedly organised Bali, the 2000 Jakarta church bombings, the 2003 Jakarta JW Marriott bombing, and numerous other plots, including advance knowledge of 9/11.
Mr Warner is right that Australia’s legal system is among the most respected in the world, and the home of the majority of Bali victims; but love of due process and public tolerance has limits.
News Corp has been told the Australian government would flatly refuse to entertain a local trial for Hambali; and would make no interventions on his behalf were he sent to Malaysia.
Nor would Indonesia, which has said it does not want to take Hambali back for trial.
Australian survivors have expressed frustration with Guantanamo’s legal limbo. Some, like Peter Hughes, see the terror prison as a form of “safe haven” because it has prevented Hambali from answering for Bali.
Hughes, 56, who helped others escape the blast zone despite suffering serious burns, is just back from another regular visit to Bali (“I go sit on the beach, have a few beers, it’s all good”).
“The whole reason for Guantanamo was to get information,” he says. “They’ve exhausted all the information they can get from him and he’s worth nothing.
“Malaysia or Indonesia, it doesn’t matter. They’ve both got the death penalty — but in Indonesia, he might be treated as a hero. Get him to Malaysia and get him killed, simple.”
Though Hambali is Indonesian, he spent years in Malaysia, where he came under the influence of now-jailed JI mentor Abu Bakar Bashir, then on the run from Indonesia. He allegedly gave his blessing for Hambali to take al Qaeda’s money for a South-East Asian terror program.
Hambali, who fought the Soviets in Afghanistan and joined the Filipino Islamist insurrection, allegedly dealt directly with Khalid Sheikh Mohammad, also in Guantanamo, accused of devising the 9/11 attack and taking it to bin Laden for approval; and of providing money to Hambali for Bali.
Hambali was arrested in Thailand in 2003 and moved about in secret CIA rendition prisons where he made admissions under torture. He arrived at Guantanamo in 2006. Then president George Bush, admitting he was in detention, called him “one of the world’s most lethal terrorists”.
It has been reported that US authorities flew to Malaysia in early November to discuss repatriating detainee Zubair, a former member of JI who is prepared to testify against Hambali and another Malaysian detainee, Lillie, in return for serving time at home.
Mr Warner says it is part of a strategy to offload Hambali to Malaysia, where he would likely face summary execution.
Mr Warner says the US will not risk putting Hambali on trial, fearing the evidence would fail before a judge because it is tainted by his torture, detailed in the US Senate Select Committee’s 2014 report into the CIA’s illegal rendition program.
It also fears that key prosecution witnesses would be exposed as fellow jihadists who’ve done deals to save themselves. Mr Warner believes the Malaysian judiciary would overlook such concerns.
“I am convinced forces in the United States would like to see my client executed, or severely punished, that’s why it’s not going to happen in the US,” said Mr Warner. “It will happen in another country.”
Hambali faced a periodic review in September and was deemed a “significant continuing threat” to the US. He was recommended for ongoing indefinite detention under the Law of War.
US military guards reported Hambali had “emerged as a mentor and teacher to his fellow detainees, seemingly exerting influence over them and has been heard promoting violent jihad while leading daily prayers and lectures.”
US authorities, who have long been denounced for holding prisoners for years without trial, may have found an ideal Malaysian Solution.
President Barack Obama promised to shut Guantanamo upon taking office. He failed. President-elect Donald Trump said on the campaign trail: “We are keeping it open and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.”
Yet there is no apparent reason why Trump, as president, would object to a Malaysia deal.
Though Hambali can remain at Guantanamo indefinitely, the US has been forced to confront the extrajudicial problems of its offshore Cuban prison. It has transferred or released all but 60 of the 780 men who have been held since the facility began filling with terror suspects in 2002.
International law expert, Professor Ben Saul, from the University of Sydney, said the Terrorist Bombings Convention gave Australia jurisdiction over foreign terrorists who have harmed our citizens, meaning Hambali could face trial here.
“International counter-terrorism law requires the US to prosecute Hambali or extradite him to a country, like Australia, that has jurisdiction,” he says.
“Indefinite detention without charge is a denial of justice to his victims and their families, and a lost opportunity to punish and stigmatise terrorist offenders as criminals.
“Australia is well positioned to prosecute because of its proximity to the crime, the many Australian victims, and its close cooperative relationship with Indonesian law enforcement. Australia should show leadership in bringing terrorists to justice.”
Counter-terror experts Greg Barton and Dr Clarke Jones said there were arguments for bringing Hambali to Australia for trial, but warned we lacked the facilities and management systems for a prisoner who is regarded as a “legend” in jihadist circles.
“If there’s a chance to bring Hambali to proper justice — and locking him in Guantánamo Bay is not proper justice — it would bring a lot of closure to Australians,” said Dr Jones.
“However, if we do that and bring him back, are we creating a rod for our backs?” He is especially concerned that young radicals not mix with the likes of masterful indoctrinators such as Hambali.
Professor Barton said there were “moral, legal and practical aspects” to ensuring Hambali faced trial but also worried about his influence in prison.
“There’s merit in the case that Australian lives were lost and he be prosecuted here but we need to think beyond that as to how you’d handle him.”
We may never need to worry about handling Hambali, but with more foreign fighters expected to return, and the terror threat now steady at “Probable”, the experts warn we will need to confront how we hold people of his