Mamdouh Habib came home yesterday after three years in prison in Guantanamo Bay. Lacking the courage or evidence to put him on trial, the US Government has decided to set him free.

What happened to Habib is appalling and defies everything a civilized society stands for. The US trampled on 800 years of human rights progress when it held him incommunicado, assumed his guilt and denied him his day in court. From the Magna Carta of 1215 to the Universal Declaration of Human Rights, civilized nations have moved to protect individual liberty from exactly the sort of arbitrary imprisonment the US Government has inflicted on Habib and the other inmates of the Cuban jail.

Whatever terrible scars Habib will bear, he is free. He can see his wife and children, and get a chance to rebuild his life.

There is another detainee who faces a much bleaker future. He languishes not in Guantanamo Bay but in the Baxter detention center in South Australia. His name is Peter Qasim. He has been locked up for 6 years even though he has committed no crime, faces no charges and is not considered a terrorist, an "enemy combatant" or a danger to Australia. This detainee, virtually unknown outside a small circle, faces lifelong detention.

From Indian-occupied Kashmir, Qasim came to Australia as an asylum seeker. His father, a separatist activist, was murdered and Qasim tortured by Indian security forces. His application failed. The Government wanted to deport him to India. Eventually, he volunteered to return. Anything was better than dying in detention. But Qasim has no papers, no proof he is Indian, and India will not take him. He is stateless. So he remains locked up year after year, living in a hellish limbo. Australia doesn't want him. But because no other country wants him either, the Government won't set him free.

Even the famous Iranian asylum seeker Mehran Karimi Nasseri - the inspiration for Tom Hanks' character in The Terminal - was allowed to set up home in Charles de Gaulle airport in Paris after he arrived there in 1988 with no papers or passport. France didn't want him, nor any other country, but it didn't lock him up and eventually gave him his freedom.

Qasim should be a household name in Australia. He has spent twice as long in detention as Habib and David Hicks even though he is not suspected of terrorism. It is our own Government that placed him in a situation similar to the detainees in Cuba - one of utter despair with no apparent exit route. Qasim has not been tortured - though severe depression landed him in hospital for months. And unlike Habib, he has visitors and phone calls.

But in other ways his situation is grimmer. While the US Supreme Court has opened the door to legal challenges by the Guantanamo Bay detainees, the High Court in Australia has declared that our Government's actions are legal. By a bare majority (4-3) it ruled last August that failed asylum seekers who have nowhere to go and who pose no danger to the community can be in immigration detention indefinitely. However, even one of the majority judges called the situation "tragic" and said it showed Australia needed a bill of rights.

Indefinite detention may be legal, as things stand, but it is not moral.

This month the US Supreme Court, in a case separate from Guantanamo Bay, also considered the issue of indefinite detention of illegal immigrants - mainly Cubans. It ruled 7-2 that the Bush Government cannot indefinitely hold illegal immigrants. It said that six months was the maximum "reasonable" period of detention.

The Cubans in question were part of a wave who fled after Castro briefly opened the gates in 1980. Many were criminals, released from Cuban jails, who were quickly locked up in the US while others committed crimes in America before their legal residence was established. They have done their time but remain in prison. The US doesn't want them and Cuba won't take them back.

As a defense lawyer said, it was "unpalatable and untenable" to sentence people by default to life in prison simply because their home country did not want them back. The Supreme Court had the gumption to agree.

There was once a time when Liberals in Australia believed in liberty. The freedom of the individual was precious. The core of liberty is that citizens cannot be imprisoned indefinitely at the will of the government. Qasim, now 30, has already spent most of his twenties locked up. He is lost in a bureaucratic quagmire. There is no pressure on the Department of Immigration officials - certainly not from the Labor Party - to resolve the issue speedily. Qasim's last hope is that the Immigration Minister, Amanda Vanstone, will use her discretion to give him his freedom.

Yes, we live in the age of terrorism. But Winston Churchill's words are relevant. At the height of World War II, anticipating public opposition to the release of British fascist Sir Oswald Mosley, Churchill said: "Nothing can be more abhorrent to democracy than to imprison a person or keep him in prison because he is unpopular."

The foundation of "all totalitarian regimes, whether Nazi or Communist", he added, was arbitrary imprisonment without trial. Only in times of extreme danger to the nation could such action be excused, and once the danger had passed the person must be released.

Peter Qasim's long stretch is out of proportion to the danger he presents. Freeing him will hardly endanger Australia's image as being hardhearted towards asylum seekers.

© 2005 Sydney Morning Herald