Counter-Terrorism, Interviewing & Investigative Relationships: The ul-Haque Case Study Dr Mark Nolan ANU College

1. ANZAPPL Counter-Terrorism, Interviewing & Investigative Relationships: The ul-Haque Case Study Dr Mark Nolan ANU College of Law The Australian National University Nolan ANZAPPL 18 Aug 2009

2. ANZAPPL • Nolan (2009) 16(2) PPL 175-190 • R v ul- Haque [2007] NSWSC 1251 • The Street Review (March 2008) • <https://www.afp.gov.au/__data/assets/pdf_file/71833/The_Street_Review.pdf> • The Carnell Report (November 2008) • < http://www.igis.gov.au/inquiries/docs/ul_haque_asio_2003.pdf > Nolan ANZAPPL 18 Aug 2009

3. ANZAPPL • s 102.5(1) Criminal Code Act 1995 (Cth) • training with LeT in Pakistan for 21 days • on return to Sydney • seizure of property at customs • neither arrested nor detained for questioning • person of interest to ASIO b/c Lodhi connections • ASIO interviews unlawful and improper, contaminating the quality of the subsequent AFP interviews • prosecution terminated after inadmissibility ruling Nolan ANZAPPL 18 Aug 2009

4. ANZAPPL • ASIO did not use powers in Division 3, ASIO Act 1979 (Cth) • Justice Adams notes that the new ASIO powers not used • former ASIO officer Ian Wing asked why powers not used: • The Canberra Times ‘Extra Powers of ASIO Need Scrapping’ (18 November 2007) Nolan ANZAPPL 18 Aug 2009

5. ANZAPPL • train station car park • brother Izaz left stranded unable to drive • to park • to house for interview “under colour of a search warrant” • round trip from home to train station car park to home • return to home • interview from midnight to 3.45am with some breaks • ASIO intel gathering becomes AFP evidence gathering Nolan ANZAPPL 18 Aug 2009

6. ANZAPPL Invitation to a Voluntary Interview? ASIO Officer’s version: “We wish to discuss a very important matter with you and we require you to be honest with us and we require your full co-operation with us in investigating this matter” Nolan ANZAPPL 18 Aug 2009

7. ul-Haque’s version: “You’re in serious trouble. You need to talk to us and you need to talk to us now . . . we are doing a very serious terrorism related investigation and we require your full co-operation and it’s in your own benefit to talk to us . . . We need to have a discussion with you and we need to have it right now and you need to come with us... We are taking you somewhere to have a private discussion and to talk to you.” ANZAPPL Nolan ANZAPPL 18 Aug 2009

8. ANZAPPL Drawing the “Y” in the Dirt: “[the difficult path involves] stand[ing] here putting these questions to you like this, having you tell us things which we know to be untrue . . . [or] we can take a less difficult path which would involve you co-operating and providing truthful answers to our questions and assisting us in resolving our concerns” Nolan ANZAPPL 18 Aug 2009

9. ANZAPPL Drawing the “Y” in the Dirt: “Izhar, you need to be honest because we have a lot of information about you and we need your full answers. You should know why we are here.” Nolan ANZAPPL 18 Aug 2009

10. ANZAPPL Justice Adams criticizes the “considerable prompting” method: “So what happened was, he would make some statement, you wouldn’t believe it, you’d tell him that you didn’t believe it and tell him to tell the truth, you would presumably repeat what you knew to be false, and then reluctantly, you would give him a snippet of information enough to suggest to him that your disbelief was reasonable and that he should therefore, tell the truth.” Nolan ANZAPPL 18 Aug 2009

11. ANZAPPL “the accused was told that he must tell the truth; he believed that some unspecified but possibly dire consequences might flow if he did not tell the truth; the ASIO officers told him when they thought he was not telling the truth and told him, or suggested, what the truth was; the inducement to say that what the ASIO officers told him was the truth, perhaps with elaboration, was a powerful one.” Nolan ANZAPPL 18 Aug 2009

12. That is, of course, why police who question a suspect will not use this method. It is calculated to obtain what the suspect believes the interrogator wants to hear.” ANZAPPL Nolan ANZAPPL 18 Aug 2009

13. Dominant, condemning, coercive, and confession-seeking styles of interacting should be avoided as they produce more denials and interfere with rapport between interviewer/ee U Holmberg & S-A Christianson, ‘Murderers and Sexual Offenders Experience of Police Interviews and Their Inclination to Admit or Deny Crimes’ (2002) 20 Behavioral Sciences and the Law 31. ANZAPPL Nolan ANZAPPL 18 Aug 2009

14. training ASIO & police interviewers with same interview techniques seems key to interoperability though not clearly recommended by Street Review • aim for an “ethical conversation” as in Shepherd’s conversation management technique: “challenges should not be seen as a presentation of alternative facts and not an attempt to gain a confession at all costs; and do not misrepresent the strength of any contradictory evidence [as inadmissibility may result]” (Ord, Green & Shaw, 2004) ANZAPPL Nolan ANZAPPL 18 Aug 2009

15. Carnell Report • dislikes Justice Adams ruling that ASIO officers committed trespass, false imprisonment, kidnapping, and coercive interviewing . . . • BUT, suggests that ASIO officers: • not use the word “require” • explain the legal powers ASIO • avoid interviewing during execution of search warrants • avoid techniques such as the ‘Y’ technique ANZAPPL Nolan ANZAPPL 18 Aug 2009

16. ANZAPPL The ul-Haque case is a reminder that, alongside debates about use of torture and coercive interviewing, we have seen intel officers whose interviewing violates basic best practice police interview standards, which are based on psychological theories and research. That is a concern for national security and for civil and political / process rights alike. The intel officer who gathers information from a person of interest must be aware that one day that information may become evidence in a prosecution. Nolan ANZAPPL 18 Aug 2009