http://www.atimes.com/atimes/Southeast_Asia/MG08Ae01.html
Jul 8, 2011
Osama ally stuck in legal limbo
By Jacob Zenn
JAKARTA - Osama bin Laden confidante and Indonesian terror suspect Umar Patek
remains in Guantanamo-like legal limbo in Pakistan since his arrest in
Abbottabad in late January, amid concerns that he would not be successfully
prosecuted in Indonesia.
Patek, an alleged explosives expert with the Jemaah Islamiyah (JI) terror
group, was one of Indonesia's most wanted terror suspects before his capture by
Pakistani forces in the same town where United States commandos killed bin
Laden in a raid on the al-Qaeda founder's hideout. Patek stands accused of
being involved in the 2002 Bali bombing, in which more than 200 people, mostly
foreign tourists, were killed. Until his capture six months ago, Patek was one
of the few suspected JI masterminds of those attacks still at large.
Pakistan has been pressured to stall the return of Patek to Indonesia despite
having offered Jakarta the first opportunity to try him. Top Indonesian
officials have expressed doubts that local courts would be able to prosecute
him if tried at home and that his radical supporters could stir unrest and
exploit the trial as a propaganda vehicle.
Pakistan has given Indonesian officials access to interrogate Patek. During
Pakistan's own interrogations, Patek reportedly confessed to involvement in the
Bali bombing and supplied information related to planned terrorism plots in
Australia and other countries. Although the United States' Central Intelligence
Agency (CIA) provided intelligence that led to Patek's arrest in Pakistan,
American officials have not sought to interrogate him.
Pakistan does not share an extradition treaty with Indonesia, so Islamabad is
not legally bound to hand Patek over to authorities in his home country. Apart
from Indonesia, the US, Australia, the Philippines or Pakistan are all possible
venues for his eventual trial.
The US and Australia can claim the right to try Patek because many of their
citizens died in the 2002 Bali bombings in 2002. (Nearly half of the victims
were Australian nationals and seven were Americans.) The Philippines could
potentially try him over allegations he set up terrorist camps in Mindanao, the
war-torn southern island where militant recruits were supposedly trained in
explosives and organized several bombings in the country.
In Pakistan, Patek faces charges ranging from the illegal possession of weapons
to resisting arrest to carrying a forged passport. The monitored movements of
Patek and his facilitators helped lead US investigators to Bin Laden's compound
in Abbottabad.
Certain Indonesian officials have said that trying Patek at home could cause
more problems than it would solve. Chairul Akbar, the first secretary of the
National Anti-Terrorism Agency, has said he does not want to try Patek in
Indonesia because a trial will provide ammunition for radical Islamic groups
that sympathize with JI.
While Indonesia has notched many counter-terrorism successes, the terrorist
threat is still clear and present. Earlier this week authorities arrested seven
terror suspects on charges of smuggling weapons into the country from the
Philippines through Malaysia.
Last month, police arrested 16 terror suspects behind an alleged plot to poison
police personnel with cyanide by sabotaging water bottles at station canteens.
Recent anonymous bombings, including one at a church on the outskirts of
Jakarta, have been attributed to Islamic militant groups.
Even if Indonesia has the will to prosecute Patek, substantial legal hurdles
must be jumped. The head of Indonesia's National Anti-Terrorism Agency, Ansyaad
Mbai, has expressed doubts whether Patek can be convicted in Indonesia because
the country's Anti-Terror Law of 2003 cannot be applied retrospectively for
Patek's alleged role in the 2002 Bali bombings.
Partial justice
To be sure, Indonesia has a mixed record in prosecuting terror suspects. In
November 2008, Indonesian police carried out death sentences on three convicted
Bali bombers by strapping them to poles and shooting them in the heart. Despite
fears of reprisal attacks and rallies by supporters of the bombers in their
hometowns, there was no violence in the aftermath of the executions.
Other verdicts have been less resounding. An Indonesian court convicted Islamic
cleric Abu Bakar Bashir for conspiracy in connection with 2002 Bali bombings
but sentenced him to a lenient 30 months in prison minus 10 months for time
served during the trial. In April 2003 he was also charged with immigration
violations and served 18 months in prison, but was found innocent of the more
serious charge of treason. The US and Australia expressed disappointment at the
verdicts, decisions that have no doubt influenced their stand on Patek's
extradition.
More recently, however, Bashir was found guilty and received a harsh sentence
for sponsoring a terrorist cell in Aceh province that was allegedly planning
Mumbai-style attacks with suicide squads targeting Westerners, embassies and
political leaders, including president Susilo Bambang Yudhoyono. Militants
arrested in the raid on the camp testified that they were given military and
weapons training and that Bashir had raised more than US$100,000 for guns,
ammunition and equipment.
The 15-year sentence handed down in June was shorter than the life sentence
prosecutors sought, though it is tantamount to a death sentence for the
72-year-old Bashir. Unlike the previous trials that left victim nations
disappointed, there were no complaints from the US or Australia. Bashir's
prosecution has helped to restore a measure of international confidence in
Indonesia's ability to bring terrorists to justice, though clearly has not
resolved the stalemate over whether Patek should be extradited to Indonesia.
A series of book bombs contained in parcels mailed to liberal Muslim leaders
during the final stages of Bashir's trial in March this year was not
conclusively connected to his case. However, the attacks - which were the first
letter bombs sent in Indonesia - showed the potential for home-grown extremists
to diversify their methods and retaliate in defense of their comrades.
If Patek were put on trial in Jakarta, hundreds of his supporters from
different radical organizations would be expected to swarm outside of the
proceedings to put pressure on judges - as they did during Bashir's recent
trial, when ahead of the verdict more than 3,000 soldiers, including snipers,
were deployed to the courtroom and its surrounding areas.
The underlying legal issue on Patek's case is that he will not be subject to
the same Anti-Terror Law of 2003 that was used to convict and execute the three
Bali bombers. Masykur Abdul Kadir, who was sentenced to 15 years imprisonment
by the Denpasar District Court in Bali for assisting them, challenged in July
2004 the constitutionality of a retrospective clause in the Anti-Terror Law.
By a five to four majority, the Constitutional Court held that the clause,
which was introduced to allow acts related to the 2002 Bali bombings to be
tried under the Anti-Terror Law of 2003, was unconstitutional. The three
bombers' convictions stood because the court in 2004 found that its ruling did
not apply to their conviction in 2003, but that it would in related cases
brought in future - potentially including Patek's.
That means that Indonesian prosecutors and investigators would not be able to
take advantage of the greatly expanded evidentiary powers, including evidence
acquired by wiretapping and other communication intercepts allowed for in the
Anti-Terror Law 2003, against Patek. Given those legal weaknesses and US and
Australian concerns, Patek is expected to remain in legal limbo in Pakistan and
outside of Indonesia's courts for the foreseeable future.
Jacob Zenn graduated from Georgetown Law as a Global Law Scholar in 2011 and is
currently based in Indonesia. He can be contacted at [email protected]
(Copyright 2011 Asia Times Online (Holdings) Ltd. All rights reserved. Please
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