CLIVE KESSLER. Indefinite Incarceration of Unrepentant Jihadis in Australia?

Feb 20, 2020

The sentences, some of them already further extended, of a number of militant Islamists convicted of terrorist conspiracy are about to expire.

But releasing unreformed or “non-“deradicalised” jihadis back into the community may pose risks. Indefinitely continuing incarceration after a felon has served his time seems bad in principle. But where the risk is a serious one, can it be taken?

We — our country, our political leaders and our judiciaries — now face a fateful question: what are we to do about, and with, still imprisoned convicted jihadis and other violent Islamist militants whose long sentences are now about to expire? (Paul Maley, “Cops’ legal battle to keep terrorists locked up”, The Australian, February 12, 2020 and Mark Schliebs, “Abdul Nacer Benbrika: A terrorist of influence”, The Australian, “Inquirer”, February 12 2020).

Do we treat them in the same way as other, more routine felons and simply say that they have done their time and so should be released back into the community?

To do that seems on basic fairness grounds “the right thing to do”. But it involves a risk. A substantial risk. Is it a risk that we can afford to take? Or is the Australian national community entitled to decide that these are not ordinary wrongdoers, like most who are convicted of more routine felonies, and so should be treated in some special way, appropriate to the appalling nature of their past offences and perhaps still continuing politico-religious commitments? And if we are to take that latter course, on what grounds may we adopt and justify such an extraordinary course of action?

A lifelong radical and principled civil libertarian, I have no hesitation in concluding, and urging others, that we must not gamble on the premature release of convicted jihadis.

Why not? Events in London early this month, when a recently released jihadi still under close surveillance soon had recourse once more to public violence, and other notable atrocities there over the last two years tell you why not. With a fierce clarity.

We should refuse their premature release even if they may have completed their sentences, and even, with subsequent extensions, more than that. So in what sense might their release be deemed “premature”? Their release would be premature, even if they have done their time and taken their “porridge”, should they remain committed jihadis.

There are two difficult practical issues here in determining this matter. First, there is the question of whether such offenders have been “deradicalised”. Deradicalisation, and the deep character reconfiguration and reform that it presumes, is no simple matter. Second, even if such a person has been successfully deradicalised, how can we know and be sure? That too is no easy thing. These questions are not easy to determine authoritatively and with confidence — even for the experts in deradicalisation.

The fault, should they get it wrong, is not simply theirs, a matter of their personal inadequacy or that of their professional methods. The problem itself is literally devilish. The great difficulty here is that jihadis often hold, and are defined by their holding of, views that are also held not by all but by many mainstream, conventional and decently law-abiding Muslims. The view, for example, that Islam is the completed and perfected form of the one true Abrahamic religion; that Judaism and Christianity, the two preceding forms of that same monotheistic revelation, were always, from the outset, incomplete and imperfect and had become doctrinally corrupted in their subsequent evolution and histories; that that the civilisation based upon Islam is therefore superior to, and entitled to prevail over, the civilisations based upon those two earlier, flawed revelations.

This difference has been a matter of longstanding historical confrontation, from before and continuing ever since the Crusades. And in our own time, those who urge us to recognize and uncritically “accept” Islam also urge us, often unwittingly, to accept Islam’s inherent, foundational rejection of Judaism and Christianity and of all, while being distinctively different from Islam, that flows for them: religiously and culturally and socially. They ask us to respect, obligatorily, the inbuilt Islamic disrespect for the rest of us, for all non-Muslims including, especially, Jews and Christians.

It is not only jihadis who hold, insistently or otherwise, these views; many mainstream Muslims, though usually less emphatically, do too. So there is no definitive doctrinal test for identifying jihadis and militant Islamists, for differentiating them from many more conventional believers within the Muslim mainstream. There is no simple litmus test that sets them apart.

The difference is that jihadis and militants take these more general ideas seriously. Really seriously. Taking them really seriously means making them the basis and centre, the overriding organizing logic, of their lives. Taking them really seriously means being deeply committed to them: not just as ideas. It means acting upon them, seeking to implement them, make them real, and in doing so moving from ideas to action, militant and even violent action.

An unreformed, modernity-defying, Enlightenment-rejecting Islam does not make an easy philosophical fit with modern pluralist democracy. Many Muslims know this. But like most of us, they will not do much about their most intractable problems until they have to. And, in an eagerness to get the local Muslim communities and their leaders “on side” on security matters, Australian society and its guardians have not required very much of them in this regard. Not publicly anyway. And the difficulties facing intellectually and socially modernizing Muslims are huge. Especially since so much of their community, religious and educational institutions and arrangements are so heavily dependent upon sponsorship from the Saudi government with its Wahabi orientation. Wahabis are not insurgent jihadi Islamists demanding implementation of Islamic law by a rigorously shari’ah-minded state. They don’t need to be. Entrenched within the Saudi Arabian state, they promote such radical arrangements from the inside.

It would be a brave and also very foolish politician or judge who, in the face of these difficulties, would “take a punt” on urging or authorising the premature release of a still committed jihadi or Islamist militant. If they did so in error, people would never forgive them. And they must know it. One senior judicial figure who recognises the problem and does not shy away from it is retired Justice Anthony Whealy who presided over a major jihadi trial a decade ago. Continuing detention orders are in some cases justified, he holds. “You have to ask which is the paramount interest here, the freedom of the person or the safety of the community? I think when you put it in those terms, you have to say, harsh though it is, it’s necessary for the protection of the public” (“Some terrorists unfit for release, says former judge”, The Australian, February 14 2020).

A civil libertarian must be concerned at the idea of keeping people in gaol after they have fully served their sentences simply on the chance that “things may go wrong”. Continuing incarceration may well be bad “in principle”. But we also live in reality.

The unhappy reality is that those convicted jihadis and violent militants have made their choices. And, like all of us — they are and can be made no exception — they live in a world of consequences. They must live with the consequences of their own bad choices — so long as they cannot prove that they have been completely deradicalised.

There is no point in begging or seeking to cajole convicted jihadis to take the path of deradicalisation. They must choose it for themselves, and do so the hard way. They can be told that if they want to hold to their militant views, they are free to do so. That is their choice. But it may well mean that they will never leave goal. They must be simply left to contemplate that prospect. They must realise and come to understand that, if they do not want to remain in goal indefinitely, they must think seriously about themselves, their past, their choices, and their guiding commitments. And on that basis come, if they can, to a new understanding of themselves. They must completely reconfigure and reform their inner lives.

But, again, how can one ever tell and know when and if they have done so? Jihadis — not all Muslims but jihadis especially — are very adept at fudging. At dissimulation on such matters. More than that, when such finessing of the truth is done to serve Islam — to protect it from perceived harm or to promote its cause — this is for jihadis a pious and virtuous act. One known and doctrinally defended as taqiyya. So, can one ever be sure? Really sure? Rarely.

More, just as there is “buyer’s remorse”— when one comes to regret the money spent on some luxury or indulgence — there can also be “freed jihadi’s remorse”. This can take hold when, under changed circumstances and in a different and more relaxed and permissive social setting than goal, a less than fully or successfully reformed militant comes to regret the concessions or “character conversion” that they accepted, perhaps sincerely at the time — just like the psychologically captive consumer who at the time really and truly wants that desirable personal object — to secure their release.

In short, there should be no release of committed and convicted jihadis without convincing proof of personal reform. Without compelling evidence that they have turned their back upon their former evil way, totally and definitively.

Clive Kessler is Emeritus Professor of Sociology and Anthropology at the University of New South Wales, Sydney. He has been researching and writing about militant Islam, especially in Southeast Asia, since the 1960s.

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