The Conversation recently published an op-ed of mine about proven refugees being detained indefinitely after receiving adverse security assessments from ASIO. It was kindly republished by the human rights volunteer organisation Right Now.

That article focused on the unjust nature of indefinite detention, the denial of a right to appeal, and the weakness of the national security arguments used to justify it. This post looks at another aspect: a common misunderstanding of ASIO’s role.

For those new to the story, the basic issue is that around 48 people, found to be refugees, are being detained indefinitely thanks to decisions made in a closed, non-reviewable process. This is largely unprecedented in Australia, and has led to at least one suicide, many attempted suicides, and has torn families apart. New reports on Lateline have helped the story gain momentum, leading to a spate of recent articles, but there is no sign of impending change.

This reprehensible situation resulted from decisions made by past Australian governments, and the unwillingness of the current government to change it. However, there is a tendency in some accounts to place the blame chiefly on ASIO, and to see these detentions as evidence of an intelligence agency out of control.

For example, following Director-General David Irvine’s testimony to the Joint Select Committee on Australia’s Immigration Detention Network, the President of the NSW Council for Civil Liberties described him as anti-democratic. Similarly, former Commonwealth Ombudsman Allan Asher likened Irvine to J. Edgar Hoover. The Refugee Action Coalition held protests against Irvine when he made a speech at the Sydney Institute. Anecdotally, there is a general impression around that ASIO is responsible for this situation.

This outrage at ASIO is misplaced, for the following reasons:

1. The Department of Immigration and Citizenship (DIAC), not ASIO, is detaining the refugees. ASIO can only detain people by using its counter-terrorism questioning powers, and only for very short periods. According to the annual reports to Parliament, it has only used its questioning powers once in the past six years.
2. ASIO does not decide that they should be detained. It decides whether a person passes a security assessment, but the subsequent visa denial and detention results from the Immigration Act and is implemented by DIAC. An exception here is that ASIO may advise DIAC that someone should remain detained while they are conducting the assessment, but once the assessment is made, ASIO has no say in what happens to them.
3. The lack of an appeals process does not result from any ASIO decision, but from Section 36 the 1979 ASIO Act, which denies most non-citizens the right to appeal an adverse assessment. This section should be amended, as recommended by the Joint Select Committee, but not yet responded to by Attorney-General Nicola Roxon.
4. ASIO is not advocating against an appeals mechanism. When testifying before the Joint Select Committee, David Irvine neither supported nor opposed an appeals process, he simply argued that the law would need to change first and that ASIO would abide by the law.
5. While Irvine did stress that any appeals process should maintain the secrecy of the assessment methods, that is not in itself an anti-democratic notion. It is also the current practice when security assessments of Australian citizens are appealed.

This means the responsibility for this does not lie with ASIO (or DIAC) but with the legislation, and therefore our elected leaders. The key Ministers able, but not yet willing, to do something about this are Nicola Roxon and Immigration Minister Chris Bowen. Ultimately, blame lies with the government as a whole for not yet acting, and the Coalition for outright opposing the Joint Select Committee’s recommendations to end indefinite detention. Blaming ASIO misses the point, because it is not capable of changing the law, and nor should it be. In a democracy, an intelligence agency has no business challenging the legislation that governs it.

Another problem with focusing on ASIO is that defenders of the current policy, particularly Chris Bowen and Shadow Immigration Minister Scott Morrison, are spuriously framing the issue as a dichotomy between security and softness. Attacking ASIO for maintaining the secrecy of its methods plays into that false dichotomy. It’s also unnecessary, as change can be made without making ASIO intelligence or assessment methods public.

This is not to shield ASIO from criticism. It can be legitimately criticised for many things: bungling the Jack Roche case, mistreating Izhar ul-Haque, neglectful behaviour during Mamdouh Habib’s rendition, and more if we look back to the early Cold War period. However, on this issue ASIO is simply following the law, which makes David Irvine the opposite of J. Edgar Hoover.

The problem is that the laws, as currently written, are producing unjust results. Changing this requires pressure on our elected leaders and the opposition, not making a bogeyman of ASIO.

Nicola Roxon’s recent announcement, proposing changes to intelligence agency laws, presents an opportunity. Journalists should ask her why – despite the recommendations of the Joint Select Committee on Australia’s Immigration Detention Network and the clear humanitarian urgency – the proposals do not include an appeals process for refugees’ security assessments.

Update 1: Listening to Triple J’s Hack, I realised this bit in point 2 might be wrong: “the subsequent visa denial and detention results from the Immigration Act”. While the visa denial might be required by law, the detention may not be.

As far as I can tell, the visa denial results from section 202 of the Migration Act 1958, which requires deportation of those who fail security assessments, as well as Public Interest Criterion 4002 of the Migration Regulations 1994.

According to Hack, the Migration Act does not require their detention, which suggests they could be released without passing new legislation (though they would still be in a legal limbo).

Also, page 166 of the Joint Select Committee on Australia’s Immigration Detention Network report gives an example of refugee family in 2002 who failed an ASIO assessment but DIAC chose not to keep them detained. The report states this might have been simply because they arrived by plane rather than boat.

On Sunday the Sydney Morning Herald reported that “al-Qaeda has named Australia as a prime target for terrorism by firebombing in an online terrorism and bomb-making magazine.”

This was in reference to Inspire magazine, an English language publication by al-Qaeda in the Arabian Peninsula, which attempts to incite jihadist sympathisers in the West to carry out violence. The latest issue (9) provided instructions on how to start bushfires, and mentioned Australia both as a target and as an example of the damage bushfires have caused.

Alongside a picture of the Sydney Opera House were the words:

On December 2002 and in the south of Australia, flames of fire caused the eruption of 79 conflagrations in New South Wales, it spread to its environs. There were more than 4500 firefighters struggling to stop fires burning. Those crews were even backed up with helicopters’ support. It is considered the worst event of wild fires during 30 years. 19 houses were damaged at first and then, the fire went towards Sydney city where a firestorm erupted. It burnt down more than 500 houses. In that horrifying day, this firestorm released a heat energy equal to that of 23 nuclear bombs.

Later on the article broadly described the best times and places to start fires in several countries, including Australia.

It’s important not to make too much of every perceived threat. In 2009, there was completely unfounded speculation that terrorists were behind the Black Saturday bushfires. Victoria Police had to step in and debunk these claims.

Inspire produces these articles not just to incite attacks, but to generate fear. It’s already partly achieved that. By not mentioning any other threatened countries, the Sydney Morning Herald gave the misleading impression that the Inspire article was focused only on Australia. Inspire listed the prime targets for pyro-terrorism as the US, UK and Israel, followed by NATO countries. It was not aimed only at Australia as the Herald’s coverage implied.

Given the risk of the Inspire article creating further unnecessary fear, this post explores the likelihood of an al-Qaeda inspired bushfire attempt actually happening here.

Calls to attack the West with bushfires are not new; they have occasionally featured on jihadist internet forums since at least 2006.  One widely-cited example is a posting that called for jihadists to light bushfires in “the United States, in Europe, in Russia and in Australia”. That posting attributed the idea to renowned strategist Abu Musab al-Suri, who had been an influential figure for many in the movement (including some Australian jihadists arrested in 2005*).

Jarret Brachman said of this, “We’re definitely going to see more of calls for these kinds of operations in the future….The question that American security professionals and first responders will have to wrestle with is whether anyone will be answering these calls.” So far, the answer is few or none.

Dozens of jihadist plots, possibly over a hundred**, have occurred in the West over the past decade. Of these, there does not appear to have been a single proven case of them attempting to light bushfires.

One possible exception is that in 2003 a jihadist detainee in FBI custody claimed there was a plan to start simultaneous bushfires in several US states. But to my knowledge (I am very willing to be corrected here) no jihadist in Western Europe, North America or Australasia has actually been convicted, or even charged, of planning to light one.

Israel has faced terrorist-lit bushfires, but it is in a very different situation facing a different movement. Pyro-terrorism certainly exists, but it has barely featured in the al-Qaeda inspired global jihad. Despite urgings for bushfire attacks, the foot soldiers proved reluctant to actually try it.

Based on the writings of several specialists, we can gather some likely reasons for this.

Adam Dolnik has pointed out that lighting fires was “generally not considered a glorious type of attack” in the global jihadist movement. Jihadists see themselves as warriors, and lighting bushfires is very un-warlike compared to bombings and shootings (even of civilian targets).

Killing civilians at all is a difficult step to take. Many jihadists first try to fight on battlefields in Afghanistan, Iraq, Chechnya, Bosnia and elsewhere. They often turn towards attacks on the West after being redirected by leaders at training camps, or after finding they can’t reach the battlefield.

Even then, a significant number are hesitant to carry out the sort of attacks al-Qaeda calls for – bombings of civilian targets with high symbolic or economic value, like mass transit facilities. As J.M. Berger has shown, a third of all jihadists in the US during the post-9/11 decade were plotting to attack military targets at home or abroad, even though jihadist leaders urged otherwise.

If killing civilians is itself a difficult threshold to cross, it should not be surprising that very few jihadists cross the threshold of trying to kill them in the blatantly un-warlike ways that Inspire magazine suggests. We have also not seen jihadists welding blades to trucks as suggested in the second issue of Inspire.

Another reason is that promptings for these type of attacks have not come from the highest levels of al-Qaeda. According to the CTC analysis of the recently al-Qaeda documents, bin Laden was not impressed by the unconventional attack methods proposed by Inspire.

A further reason, raised by Anthony Bergin in the Sydney Morning Herald article, is that jihadists would be concerned that a bushfire attack would have little value as the state could just deny terrorists were responsible.

Last, Adam Dolnik’s excellent book finds a key factor prompting innovation in terrorist groups is the repeated experience of failed operations, forcing them to adapt. While al-Qaeda as an organisation has experienced many failures and adapted to them, the typical jihadist in the West is not an experienced veteran. These foot soldiers tend to be newcomers to violence, without a record of involvement in earlier, failed attacks. As a result, they tend to be imitative rather than innovative, and hence stick to bombings and shootings.

So what does this tell us?

Basically, it’s not a big threat. Jihadist bushfire plots in Western countries have been rare, possibly non-existent, in the past. Future trends cannot be assumed to resemble past trends, but if the likely reasons for the rarity of these attacks remain valid, bushfire jihad in the West will be very rare for the near-future.

If some of the above reasons become invalid – for example, if more senior jihadist figures urge pyro-terrorism – this will likely have less impact in Australia than in the US and Europe, as they have a much greater frequency of jihadist plots.

True, a jihadist bushfire could happen here, and of course security agencies and emergency services should be prepared for every conceivable contingency. But it is a safe bet that the next jihadist plot in Australia won’t be an attempt to start bushfires, and that the next bushfire will not be lit by a jihadist but by your run-of-the-mill freak.

*For al-Suri’s influence on some Australian jihadists see paras 457, 503, and 549 of Benbrika & Ors v The Queen [2010] VSCA 281 (25 October 2010) and paras 33.3, 33.18, 33.21, and 45(d) of R v Benbrika & Ors (Ruling No 1) [2011] VSC 76 (11 March 2011) including footnotes.

**The number depends on how a plot is defined, as different writers use different criteria to decide what constitutes a plot. See the incident databases here.

Update 1: Thanks to @El_Grillo1 for pointing out that bushfire threats had been on the forums since at least 2006, not 2007 as I originally wrote.