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V. U.S.-Malaysia Counterterrorism Cooperation

With what we’re doing in Guantanamo, we’re on thin ice to push on this.

—Senior U.S. State Department Official, December 2003, explaining U.S. reluctance to speak out on recent ISA arrests¹⁶²

The September 11th attacks on the United States dramatically altered the relationship between the United States and Malaysia.  Previously, the United States had been publicly critical of Malaysia’s human rights record in general, and its misuse of the ISA in particular.  But the U.S. “war on terror” led the U.S. to change its course and dramatically tone down its criticism.

In June 2001, the U.S. government responded quickly to Malaysia’s arrest of the KeADILan activists, saying it was “deeply concerned” over the detentions.¹⁶³  The U.S. also expressed disapproval of the ISA detentions of PAS members that occurred prior to September 11th.¹⁶⁴

But after September 11th, the detentions of alleged Islamic militants elicited no such response.  “We’ve been much less vocal about expressing our concerns about the ISA. That hasn’t been our top priority,” a U.S. government counter-terrorism official told Human Rights Watch.  “That was our underlying concern for our criticism of the ISA in the first place – that it was being used as a political tool,” the official said.¹⁶⁵  Whereas the presumption of innocence and suspicion of ulterior political motives characterized the U.S. response to previous ISA detentions, now the U.S. seems to operate on the presumption of guilt in its assessment.

Indeed, the U.S. has actually praised recent ISA detentions as contributing to Malaysia’s response to the “war on terror” in Southeast Asia.¹⁶⁶  In Washington in May 2002, then-Law Minister Rais Yatim said that U.S. Attorney General John Ashcroft had expressed support for the ISA in a meeting.  “In the context of their own Patriot Act,” Yatim said of Ashcroft, “he endorsed the significance of the ISA.”¹⁶⁷

The widespread U.S. practice of indefinite detention without charge or trial of terrorist suspects in the United States, at Guantanamo Bay, and elsewhere in the world, has undercut its desire and harmed its ability to engage in effective human rights advocacy on behalf of administrative detainees elsewhere. Speaking specifically about the ISA detentions in Malaysia, a State Department official told Human Rights Watch that Guantanamo significantly limited the ability of the U.S. to criticize the Malaysian government for its use of the ISA against alleged militants.¹⁶⁸

For its part, the Malaysian government has wasted no time in exploiting the comparison to Guantanamo to deflect criticism from the international community.  In September 2002, Malaysian Law Minister Rais Yatim made an explicit reference to Guantanamo in justifying the ISA: “It’s just like the process in Guantanamo.  What happened to the cases that are still there and there was no due process?  Similarly we have got the same treatment.”¹⁶⁹

Despite Malaysia’s poor human rights record, U.S.-Malaysian cooperation within the framework of the U.S.-led “war on terror” has been extensive.  The U.S. government assisted Malaysia in the establishment of the Southeast Asia Regional Center for Counterterrorism and has conducted training there for Malaysian government officials.¹⁷⁰  The Malaysian government regularly shares intelligence information with the U.S. government, and has offered the U.S. access to detainees in Malaysia.  When the U.S. interrogated thirteen Malaysian students detained without trial in Karachi, Pakistan, in September 2003, the Malaysian government remained silent rather than protest the detentions.  After U.S. officials completed their interrogations, the Malaysian government detained all thirteen after their arrival in Kuala Lumpur.

Malaysia has been repaid for its cooperation.  Before the September 11th attacks, Malaysia’s relationship with Washington was severely strained over the Anwar affair and the use of the ISA to detain opposition activists.  When President George W. Bush came into office in January 2001, the Malaysian government made repeated attempts to improve relations, sending high-level emissaries to Washington three times in the nine months between President Bush’s inauguration and the September 11 attacks.¹⁷¹  These overtures were largely rebuffed, as the Bush administration made clear to the Malaysian government that it was still deeply concerned over the continued detention of Anwar and the KeADILan activists.¹⁷²

But the September 11th attacks drastically shifted the strategic balance: the U.S., anxious to increase its counter-terrorism cooperation with Malaysia, quickly moved to improve diplomatic ties.  Within weeks of September 11th, then-Prime Minister Mahathir and President Bush spoke by phone, and Mahathir pledged to support President Bush in the newly declared “war on terror.” 

Mahathir was even invited to the White House in May 2002 for the first time since Anwar’s arrest. The visit was viewed as a major success for the Malaysian government and cemented Mahathir’s new relationship with the U.S.¹⁷³  During the visit, President Bush praised the prime minister, thanking him for “his strong support in the war against terror” and calling Malaysia a “beacon of stability.”¹⁷⁴  In a departure from previous practice, President Bush did not raise the issue of Anwar’s continued detention during the visit.¹⁷⁵

The United States has used prolonged detention without trial and abusive interrogation tactics in its “war on terror” that are similar to those used by Malaysia.¹⁷⁶  This undoubtedly goes far in explaining the unwillingness of the U.S. government to speak out against current detentions under the ISA.  In refusing to pressure the Malaysian government to put alleged militants on trial or release them, the U.S. government has missed an opportunity to push for an end to arbitrary detention and promote the rule of law in Malaysia.

The scandal over treatment of detainees in U.S. custody in Iraq that broke as this report was being finalized is a sobering illustration of what can happen when interrogators and prison guards are not subject to proper independent oversight.  It is too early to predict what effect, if any, the scandal will have on U.S. human rights diplomacy and the detention practices of other countries around the world.  At the very least, the ability of the U.S. to intervene with other governments on cases of mistreatment in detention, already damaged by U.S. practices at Guantanamo Bay, has been further undercut.

A Case Study: The Karachi Detentions and U.S.-Malaysia Cooperation

The arrests of the so-called “Karachi 13” illustrate the Malaysian government’s willingness to support U.S. counter-terrorism efforts that violate international law and the rights of Malaysian citizens abroad, including children.  The Pakistani government showed a similar willingness to subvert its own law and its responsibilities under international law in order to accommodate the U.S.

On September 20, 2003, Pakistani authorities detained in Karachi, Pakistan, thirteen Malaysian and six Indonesian students on suspicion of involvement in terrorist activity. The students were studying at Abu Bakar Islamic University and the University of Islamic Studies, two schools located in Karachi.  The 13 detained Malaysian students were between sixteen and twenty-five years old.  Four of them are sons of men already detained under the ISA for alleged links to JI.

Soon after the arrests, an official in the Pakistani foreign ministry announced that the students were involved in “undesirable activities prejudicial to the interest of Pakistan,” and that they would all be deported after investigations were concluded.¹⁷⁷

The Malaysian government did not protest the detentions, nor inform the students’ families of the detentions.  According to relatives of some of the detained students, the Malaysian embassy in Pakistan did not respond to queries by families of the detainees.  These families were left to wonder about the fate of their sons until press reports identified the detainees.

One of the Indonesian detainees, Gungun Rusman Gunawan, 27, is the brother of alleged senior JI operative Hambali, who was arrested in Thailand in August and is now in U.S. custody.  According to press reports, the Karachi detentions stemmed from information given by Hambali during his interrogation by U.S. counter-terrorism officials.  The Malaysian government has claimed that the 13 Malaysian arrestees were in training to become the “next generation” of leadership of JI in Malaysia.

The thirteen Malaysians were held by Pakistan’s Federal Investigation Agency for roughly seven weeks.  The conditions of detention were poor: the students were taken blindfolded from their school in a police van, and then initially placed in solitary confinement in 4x6 foot cells that had little more than a mattress to sleep on.¹⁷⁸

Three of the detainees, Noorul Fakri Mohamad Safar, Mohamad Termizi Nordin, and Faiz Hassan Kamarulzaman, were under 18 at the time of arrest. 

One of the detainees described his arrest to Human Rights Watch:

I was in class. I was called to the teacher’s room, roughly 12 of us were there, on September 20. Pakistani police came in.  One came in, the others not.  They said, “We want to take you to the Malaysian embassy,” but didn’t take us there, they took us to the lockup.  The first day five of us were in the lockup. We were kept in separate cells, side by side, with a grille on top so we could talk.  After midnight prayers we were called and questioned by an American interrogator. I knew from his tone, his skin, that he was American. 

The same detainee reported that on one occasion he was interrogated by American and Pakistani agents in English and Urdu, respectively—languages that he did not understand.

While the Karachi students were in detention, however, they were apparently mainly questioned by U.S. interrogators, who asked them about their connections to Gungun and their alleged involvement in JI.¹⁷⁹

One of the detainees reported that he was threatened with being sent to Guantanamo Bay if he failed to cooperate:

They told me, if you don’t cooperate, we will send you to Guantanamo. There were other threats.  They also said that if I didn’t cooperate, my family would suffer.  They said that I should cooperate for my mother.  They said that she had been crying this whole time and that I should pity her.¹⁸⁰

The U.S. interrogators also threatened the detainees with physical violence:

They threatened me with physical abuse.  They said that if I didn’t cooperate that they would hit me. But they didn’t hit me.¹⁸¹

The treatment of the students by U.S. and Pakistani officials was in violation of Pakistani law and international human rights law.  Not only did the Malaysian government not object to the students’ mistreatment, but it did not even take the most minimal steps to assist them or their families.  The Malaysian government rebuffed calls for assistance from families who suspected that their son might be among those detained, and the Malaysian embassy in Islamabad was similarly unresponsive.  Many of the families did not learn for certain that their son had been arrested until after they were flown back to Malaysia on November 10, 2003, and the Malaysian media published a list of the detainees the next day.¹⁸²

It is unclear whether Pakistan or the U.S. flew the students back to Malaysia. Once the thirteen students were flown back to Kuala Lumpur, the Malaysian authorities immediately detained them under section 73 of the ISA. Local human rights groups and others criticized the use of the ISA against the students, urging that the young men be either tried or released. But Prime Minister Abdullah Badawi defended the detentions, saying that they were necessary counterterrorism measures.  “Understanding that they may be JI cadres who are to be given training in Pakistan and to continue with the activities of the JI today, it is important security-wise to investigate the extent of their involvement,” Abdullah said.¹⁸³

Contrary to prior practice, the government allowed some of the detainees limited access to family members and attorneys within ten days of their detention in Malaysia.¹⁸⁴  Interviews with released students and family members who had visited the Karachi students in detention, as well as conversations with lawyers seeking to represent the students, showed that authorities engaged in the same pattern of intimidation, coercion, and interference with the Karachi students as they had with the earlier ISA detainees. 

The coercion began almost from the moment the students arrived in Malaysia. Special Branch interrogators questioned the students for hours at a time, and usually for several days in a row.  Interrogators directly threatened the student detainees:

I was threatened.  They told me that they wanted me to cooperate.  They said if you don’t cooperate, we’ll strip you naked.  If you don’t cooperate we’ll send you to Kamunting.  They also threatened to torture me, but they never actually hit me.¹⁸⁵

Although they were given access to their family members fairly early on, the students were apparently as heavily coached for these meetings as other ISA detainees.  Special Branch officers heavily monitored family visits and visits by lawyers.  Family members reported seeing similar signs of fear.  They also reported that their sons made similar statements praising their conditions of detention. Rohaimah Salleh, the mother of nineteen-year-old detainee Mohamad Radzi Abdul Razak, herself on the verge of tears, told reporters after meeting with her son that he showed clear signs of intimidation:

He told me that he was treated well but when I held his hand, I knew immediately that he was afraid. His hand was shaking the whole time.  I didn’t believe that he was well at all.¹⁸⁶  

Another mother of one of the Karachi students reported that her son gave clearly planted responses to her queries:

It seemed as though he was following a script.  I was shocked when he said out of the blue that the ISA is not so bad.  He said that he was lucky that the Malaysian police brought him back here, that he wanted to be back in Malaysia.  I kept looking at my daughter, wondering why he would say things like this.¹⁸⁷

The authorities also interfered with the students’ access to legal counsel in a number of ways. In order to dampen the prospects of any legal challenges, the Special Branch discouraged family members from hiring an attorney.  One detainee’s mother was told by the authorities that getting a lawyer was “a waste of money” and that she shouldn’t get one.  Lawyers also had a list of restrictions placed on them: meetings with the student detainees were often limited to as little as twenty minutes, and requests for meetings were regularly denied.¹⁸⁸  Meetings with attorneys were heavily monitored, with several Special Branch officers present.  Officers would often sit at the table with the individual detainee and his counsel, taking notes on the conversation.

Although both family members and lawyers reported various forms of interference, the focus of the authorities’ attention seems to have been the detainees themselves.  According to the lawyers handling their cases, the students showed clear signs of being coerced and coached before meetings, making meaningful dialogue between attorney and client almost impossible.  “You know that they’re not so free to express their views.  This is a major impediment to their defense,” one of the defense attorneys said.¹⁸⁹

After meeting with their clients, the lawyers have reported that the students were intimidated, often disorientated, and regularly gave scripted statements about their well-being.  Rather than answering questions from lawyers directly, the students would look to Special Branch officers before responding, and sometimes openly acknowledge that some questions were off-limits.  “They’ll tell us, I’m so sorry I can’t answer your question,” one of the lawyers said.¹⁹⁰ 

The coercion and intimidation seem to have had their desired effects on the five students remaining in detention.  In a statement released just after meeting with their student clients, the lawyers for the detainees made note of the transformation that their clients had undergone while in detention:

The students appear to have been “mentally and emotionally disfigured” by their continued detention since 20 September 2003.  The persons we met on 21 November 2003 and 4 December 2003 are not the same persons we met on 2 January 2004.  The exertion of continuous interrogation by the authorities ha[s] “turned over” the students in which we have witnessed an almost complete mental and emotional transformation, institutionalization and reliance on the police.  This is hardly surprising when the lives of the students have been and are now on a daily basis monitored and controlled by police personnel.¹⁹¹

Some of the detainees told their lawyers that they provided false confessions as a result of the constant interrogation and intimidation they faced:

At our meeting on 2 January 2004 . . . one of the students broke down and cried to say that although he was not involved with JI and AQ [al Qaeda] as alleged, he nevertheless would just accept what his captors would tell him to say, do or agree to as he has lost all hope in gaining his freedom.  He complained about how the frequent interrogation and questioning by the authorities had in [a] sense “broken him down” as a person.  He continued to tell us that he is resigned to his fate in captivity as he feared and was told even if he would be freed, the Malaysian and American authorities would track him down and find ways/reasons to incriminate and detain him again.¹⁹²

The government issued a two-year detention order on the remaining five detainees on December 8, 2003, just days before their first scheduled court hearing.  The issuance of the Section 8 detention order ensured that the students would not be able to win their release in the courts.  Furthermore, the government did not transfer the students to Kamunting Detention Center, instead housing them in an undisclosed location.  Lawyers for the students have suggested that the authorities decided against moving them to Kamunting because they wanted to continue to isolate the students, making them easier to control.¹⁹³ 

To date, neither the Pakistani nor the Malaysian government has brought forth any information to substantiate the allegations of the students’ affiliation with JI.  The Malaysian government has not provided any detailed information about the allegations against the students beyond the links to Hambali’s brother Gungun.  According to the Malaysian government, two of the student detainees heard sermons by Osama bin Laden himself in Kandahar, Afghanistan, before the September 11, 2001, attacks on the United States, but little additional information has come out. These connections do not constitute illegal acts.  The Malaysian government should immediately charge or release the remaining five Karachi detainees in order to publicly establish their guilt or innocence.

Three of the original thirteen detainees were children entitled to the protections of the Convention on the Rights of the Child (CRC), to which Malaysia is a party.  The CRC prohibits arbitrary arrest and detention of children, and also guarantees the right to a fair trial with adequate legal representation.¹⁹⁴  States are under a positive obligation to protect children in detention from torture or other cruel, inhuman or degrading treatment.¹⁹⁵  The Malaysian government’s use of threatening, coercive, and intimidating interrogation tactics on children casts doubt on its commitment to its obligations under the CRC.