Lawyer tells court Habib case outside its jurisdiction

as posted here

THE Federal Court is being asked to decide what comes up trumps in the torture case of former Guantanamo Bay inmate Mamdouh Habib: Australia's relations with foreign states or its laws against torture.

Mr Habib is suing the Federal Government for damages over his alleged torture in Guantanamo Bay, Egypt, Pakistan and Afghanistan while he was being held as a suspected enemy combatant.

He says Australian Federal Police and ASIO officers aided and abetted the torture and were present on some occasions, such as when he was threatened with rape by a US marine.

Government lawyers urged the court yesterday to stay out of the dispute. The Commonwealth Solicitor-General, Stephen Gageler, SC, said an established "act of state" doctrine urged courts not to pass judgment on the actions of foreign government agents in foreign lands.

Compensating Mr Habib could "vex the peace" between Australia and the US, Mr Gageler said, and was not within the court's jurisdiction.

But Robert Beech-Jones, SC, counsel for Mr Habib, said Parliament made the Crimes (Torture) Act applicable outside Australia so that it would apply to cases like Mr Habib's.

Mr Beech-Jones said the law formalised a clear international standard to which the US had signed up. Courts had made exceptions to the act of state doctrine for grave violations of international or human rights. "[The Parliament] has said no matter who does it, no matter where it's done, it's unlawful," he said.

Mr Habib was arrested in Pakistan less than a month after the September 11, 2001, terrorist attacks on the US and taken to Egypt, then Afghanistan, for interrogation before being moved to Guantanamo Bay, Cuba, where he was held until 2005.

He was never charged and says he was in Afghanistan on a business trip when accused of training with al-Qaeda.

The hearing continues.

as posted here