Operation Burnham Inquiry To Proceed Under Cover Of Darkness.

Hit & Miss: The Coalition Government should have done everything in its power – up to and including the passing of special enabling legislation – to ensure that the military was prevented from hiding behind the smoke-screen of “national security”. To preserve public confidence in the decency and honesty of the NZ Defence Force it is imperative that everything the military knows about Operation Burnham, the people of New Zealand should know also.

THAT MOST OF the Operation Burnham Inquiry will be closed to the public is deeply troubling but hardly surprising. From the moment of its announcement by Attorney General David Parker, the inquiry had about it an air of reluctance and limitation. As if the entire exercise was in some way illegitimate: the product of forces which had usurped the natural order of things and were being placated only because failing to do so would undoubtedly make matters worse. The heavily armed guardians of our society neither encourage nor welcome scrutiny. On the contrary, they expect the state to keep them safe from citizens’ prying eyes. From the outset, it was clear that the public (and its proxy, the news media) would be prevented from seeing and hearing anything it hadn’t already seen and heard about Operation Burnham.

It is worth asking why political parties so sharply critical of Operation Burnham when they were in Opposition have been so ready to accede to the demands of the New Zealand Defence Force (NZDF) now that they’re in government. The Inquiry is, after all, being held to ascertain the truth or falsehood of allegations levelled against the NZDF in the book “Hit & Run” by investigative journalists Nicky Hager and Jon Stephenson. Was the NZDF responsible for the deaths of six Afghan citizens – including a little girl – or wasn’t it? Did our Special Air Service hand over captured Afghan insurgents to the Afghan security forces to be tortured – or didn’t it?

Such questions put the decency and honesty of the New Zealand military squarely in the cross-hairs of public scrutiny. Surely, a government determined to have a decent and honest defence force would not only move heaven and earth to have these questions answered, but also to have them seen to be answered. To that end, the Government should have done everything in its power – up to and including the passing of special enabling legislation – to ensure that the military was prevented from hiding behind the smoke-screen of “national security”. To preserve public confidence in the decency and honesty of the NZDF it is imperative that everything the military knows about Operation Burnham, the people of New Zealand should know also.

Naturally, the NZDF’s defenders have objected that the idea of politicians sending civilian investigators to rifle through the military’s files is outrageous. How can our allies trust the NZDF with their secrets if at some future point they could be revealed for all the world to see? The problem with that question is the implied assumption that there are some secrets that the world has no right to see. Like the video recording handed over to Wikileaks by Private Bradley (now Chelsea) Manning showing innocent Iraqi civilians being gunned down by the crew of an American helicopter gunship. But why should evidence of a war-crime be hidden beneath the shrouds of national security? What sort of military hides proof of murder?

A decent and honest NZDF would not have the public doubt in any way its willingness to co-operate fully in an inquiry into whether or not it deliberately gunned down unarmed civilians? After all, a military that could collude in suppressing evidence of murder could collude in all manner of crimes. It could be guilty of commissioning perjury, or conspiring to pervert the course of justice. It could be guilty of crimes so numerous and so serious that its commanders can only tremble at the thought of civilian investigators applying the disinfectant of sunlight to the accumulated reek of its misdeeds.

Which is why the fact that most of the Operation Burnham Inquiry will be carried out in the dark is so concerning. What sort of inquiry grants the legal representatives of interested parties only “summaries” of the evidence presented? What sort of a judicial officer submits to a “security clearance” before being allowed to view that evidence? And, when did the doctrine of national security override the right of the people to see justice done?

Two thousand years ago the Roman poet Juvenal asked: “Quis custodiet ipsos custodes?” “Who will guard the guards themselves?” In relation to the Operation Burnham Inquiry the answer would appear to be: Not the Government. And, not the Inquiry heads; Sir Terence Arnold and Sir Geoffrey Palmer.

In New Zealand, the guardians have no guards.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 28 September 2018.

Defining Dirty Politics

Permanent Interests: If the "Intelligence Community" ever came to the conclusion that an actual, or potential, prime minister is implementing, or, intends to implement, policies inimical to the general and permanent interests of the Crown, then their reaction might very well be to designate the Prime Minister/Leader of the Opposition a “threat to national security” and act accordingly.

 

LOOKING BACK over the most tumultuous election year in our recent history, one phrase in particular stands out: “dirty politics”. Yes, it was the name of another of Nicky Hager’s journalistic interventions, but it quickly became something more than that. For close to half the voting public, “dirty politics” became shorthand for everything that’s gone wrong with New Zealand’s political life.

 

But what actually constitutes “dirty politics”? Are we talking about the normal cut-and-thrust of political existence? The wrong-footing of opponents? The strategic shifts of internal support that mark the rise and fall of party leaders? The calculated exploitation of one’s opponents’ personal weaknesses to demonstrate their unfitness to hold political office? The private, off-the-record and entirely unattributable briefings of journalists to effect any or all of the above? Or, are we talking about something else? And, if so – what?

 

I believe that Nicky Hager’s book, Dirty Politics, was written to highlight something more than the normal cut-and-thrust of political life. In my view, Mr Hager’s intention was to draw the public’s attention to the deliberate use by an incumbent Government of its institutional and bureaucratic power to thwart, mislead and, if necessary, disrupt and discredit its political opponents.

 

The politicisation of our supposedly neutral civil service would be a grave development under any circumstances, but the gravity of such behaviour would increase exponentially should the institutions so politicised turn out to be the armed forces, the security services and/or the police.

 

It is especially important that those state institutions whose fundamental remit is the maintenance and protection of “national security” remain utterly aloof from party politics. Precisely because such institutions have privileged access to extremely sensitive and confidential information, any pursuit of their own or somebody else’s private political agenda could easily result in constitutional catastrophe. Those targeted for destruction would be most unlikely to see it coming and, after the event, would have next to no chance of discovering (let alone proving) from whence it came.

 

The constitutional dangers notwithstanding, there is considerable historical evidence that the national security apparatus of the State is particularly prone to developing and following its own political agenda. In the United Kingdom and its former “Dominions” (Canada, Australia and New Zealand) this propensity to politicisation may be traced back to the relationship of the “Crown” to the elected government of the day. The interests of the latter are particular and transitory, while those of the Crown are general and permanent.

 

What’s more, because the UK, Canada, Australia and New Zealand are “realms”, ruled (at least nominally) by the same royal family, the relationship between those pledged to maintain and protect the general and permanent interests of the Crown isn’t simply constitutional – it’s personal. Governors-general, military commanders, directors of intelligence agencies and commissioners of police all swear to “bear true allegiance”  not to the Prime Minister of the day, his or her government, or even to the people of New Zealand – but “to Her Majesty, Queen Elizabeth II, her heirs and successors”.

 

That may appear to be a purely formal constitutional distinction, but should the protectors of national security come to the conclusion that an actual, or potential, prime minister is implementing, or, intends to implement, policies inimical to the general and permanent interests of the Crown, then their reaction might very well be to designate the Prime Minister/Leader of the Opposition a “threat to national security” and act accordingly.

 

“Dirty politics”, in the form of a series of “dirty tricks” conceived and carried out by the security services and/or their agents and “assets” would be the result.

 

In practical terms, this “top-down” variety of dirty politics would entail the security services feeding their own highly disruptive and reputationally destructive material into the normal processes of party-political competition. “Politics-as-usual” is, of course, the perfect cover for such extraordinary interventions. Those who object are easily dismissed as naïve, or even hypocritical. “All politics is dirty politics”, becomes the stock reply: “Everybody’s at it.”

 

Ideologically speaking, such top-down interventions are, almost without exception, the work of the Right, and their principal target is almost always the Left, or those disposed to offer the Left meaningful support. These latter targets may include trade unions; a minor political party willing to enter into a coalition with the dominant left-wing party; a newspaper or broadcasting network commissioning investigative journalism to the Left’s advantage; as well, of course, as the unionists, journalists and/or whistleblowers causing all the trouble.

 

From the Zinoviev Letter to Watergate; from Norman Kirk’s “sinister scheme” to the former SIS Director, Warren Tucker’s, 2011 lapse of judgement; dirty tricks have a way of influencing political outcomes.

 

Dirty politics is more than “politics as usual”. Its true purpose is to make sure that ordinary politics is never seriously threatened by the success of extraordinary politics – or politicians.

 

This essay was originally published in The Press of Tuesday, 30 December 2014.

Failing The Crown

Propaganda Gift: The ill-conceived Police raid on Ruatoki gifted the defenders of the "Urewera Four" with a defining image of the whole botched "Operation Eight". Both the Police, in their gathering of evidence, and the prosecuting attorneys, in their presentation of it, were guilty of failing the Crown.

A DISASTER from beginning to end. It is difficult to draw any other conclusion from the Crown’s $4 million failure to secure the conviction of the Urewera Campers.

The failures began with the Police decision to rely upon technological, rather than human, evidence gathering. If ever there was a case that warranted the insertion of an undercover policeman or woman, or the ‘turning” of one or more of the participants, this was it. The activities being contemplated, discussed and planned for by the Campers were, above all, political. Securing any kind of serious conviction would, therefore, be based on the defendants’ ideas, and the lengths to which they would go to turn those ideas into reality.

Convincing evidence of this kind can only be gathered and presented by people who were actually there when such discussions were taking place. The successful prosecution of pre-emptive anti-terrorism charges will always turn on the state of mind of the terrorist; on why he or she was willing to acquire the skills necessary to carry out terrorist acts – and apply them. It was the failure of the Police, and all the other agencies of our national security apparatus, to understand this crucial aspect of the case (not to mention their inept and apparently illegal use of surveillance technology) which largely explains the Crown’s inability to secure a conviction.

The State’s failure was compounded by the decision of the Assistant Police Commissioner for National Security, Jon White’s, decision to mount a full-scale anti-terrorist operation at Ruatoki. Once again, this represented a failure of human intelligence-gathering (most of the homes raided produced no evidence of terrorist intent). But, much worse than this, it reflected White’s utter incapacity to understand how the brutal actions of his force would be interpreted by Tuhoe, Maoridom and the wider New Zealand population.

The televised images of Police officers, clad all in black, wearing helmets and body armour, and carrying automatic weapons, essentially invading a sleepy little Bay of Plenty village, was an absolute gift to the accused’s defence team – and they made full use of it. From the very beginning, it drew people’s attention away from the Campers and their actions, and focused it, instead, on the behaviour of the Police.

A cleverer man than White would have sent a small – lightly armed – group of Police officers into Ruatoki, and only to those places where they had rock-solid intelligence that illegal weapons were being stored. These officers should have been under strict orders to get the hell out of town at the first sign of serious trouble and call for back-up. That way, the presence of Police “ninjas” would have made some tactical sense. The public would have seen them responding to terrorism – not initiating it.

The Police’s next mistake was relying on the hurriedly drafted Terrorism Suppression Act for the their main prosecutorial weaponry. The quality of legal advice supplied to Commissioner Howard Broad was clearly remiss in this regard – something which should give his successor, Peter Marshall, serious pause for thought.

It’s one of those delicious historical ironies that the Police were unable to charge the accused with sedition. This is because, just nine days after the 15 October arrests, the New Zealand Parliament, in its infinite wisdom, voted to remove sedition from the statute book. Had that tried and tested (if somewhat archaic) offence been available, the Police would’ve been required to prove only that the Urewera Campers intended to “incite, procure, or encourage violence, lawlessness, or disorder”. Such a charge would also have stripped the case of its unhelpful associations with 9/11 and Osama Bin Laden.

With their clients charged with sedition, and denied the propaganda value of the Ruatoki raid, the defence team would have faced an altogether more daunting task.

Which brings us to the final and most serious failure of the Crown’s servants: the actual prosecution of the case.

The Crown Prosecutor’s, Ross Burns, strategy seems to have been one of “show and tell” – and that’s about it. In the reported parts of the trial it did not appear that any of the Crown’s lawyers understood the faintest thing about left-wing revolutionary theory, or had even the most rudimentary grasp of recent left-wing history. Nor did the Crown appear to have any idea why Tuhoe might have a grievance against the Crown, or what the historical precedents might be for the Tuhoe people taking up arms against Pakeha rule.

To the Jury, it must have seemed as if the Crown was asking them to believe that one day a group of Pakeha pacifists and war-resisters simply got out of bed and decided the armed struggle was the way to go. And that Tame Iti suddenly decided that shooting flags was old hat, and that, henceforth, he’d shoot people. Not surprisingly, they didn’t buy it.

How different the outcome of this historic trial might have been if the Crown had used it as a means of educating New Zealanders about the psychological stages through which hitherto peace-loving people are led to embrace the cause of revolutionary violence. How unquestioning support for an oppressed people and their struggle for reparation and cultural autonomy can lead ordinary middle-class kids all the way to terrorist training camps.

Had the Crown Prosecutor, equipped with eye-witness accounts from people who had participated in all the debates and discussions, and joined in all the “training”, taken the Jury into the minds of the defendants; allowed the jurors see how, in the absence of an active and effective public conscience, violence becomes more than an option for the revolutionary; it becomes a duty: well, he just might have secured a “Guilty” verdict.

Perhaps we should all be glad that the New Zealand State’s national security apparatus, and its prosecutors, are so utterly inept in the arts of espionage, propaganda and the successful prosecution of “activists”. The evil agents of “State Terrorism” in the USA and the UK are obviously made of sterner (and certainly more competent) stuff.

But those on the Left who are celebrating the outcome of this trial as some sort of “victory” should think again. The public has been treated to a risible defence. The very idea of dedicated peace activists and anti-imperialists training in the Urewera bush so they could join the mercenary army of private security-firms contracted to the US and NATO occupiers of Iraq and Afghanistan, is so absurd as to be laughable.

It’s sad in a way. From the very beginning, the defence team’s strategy was to paint these representatives of the New Zealand Left as a bunch of bumbling Walter Mittys; people who played at revolution because they hadn’t a hope in hell of ever mounting a really serious challenge to authority. The whole point was to sell the defendants to the Jury as a quartet of harmless little do-gooders who’d picked up guns and Molotov cocktails for reasons that, like the peace of God, passeth all understanding.

I do not blame the defence lawyers for keeping their clients off the witness stand. When the Crown’s case was being presented so incompetently, it was, undoubtedly, the smart thing to do. That being so, however, the only conclusion which can reasonably be drawn is that the accused escaped conviction on the most serious charges brought against them because those whose responsibility it was to prove their guilt failed the Crown.

The accused’s moral responsibility: to explain to New Zealand exactly what they were doing in the Ureweras, and why; remains similarly unfulfilled.

This posting is exclusive to the Bowalley Road blogsite.

The Operation That Failed

Vales of Secrecy: What the Urewera "campers" were doing up there in the bush, and to what end, seems destined to remain hidden behind the mountains' swirling mist.

IT IS WITH genuine reluctance that I once again broach the subject of the Urewera 17. Not only is the legal process still in play, but such is the intensity of emotion surrounding this case that it has become practically impossible for those holding opposing views to engage in calm and rational debate.

But, the Crown’s decision to abandon its prosecution of 13 of the 17 persons accused of firearm’s offences, and the spin applied to that decision on the part of the accused’s legal counsel and supporters, has made some sort of response to the Defence’s version of events inevitable.

Hampering a clear elucidation of the issues by both sides is the continuing suppression of the Supreme Court’s judgement as to the inadmissibility or otherwise of much of the Crown’s evidence. A simple exercise in deduction, however, would suggest that the justices’ decision pertains to the considerable body of evidential material gathered under the Terrorism Suppression Act and whether the crown is entitled to make use of that evidence when prosecuting persons under another statute, in this case the Arms Act.

From what the Prosecution has already placed on the public record, it is relatively straightforward to deduce that the Supreme Court has denied the Crown the use of this evidence, thereby making a successful prosecution of those individuals charged with arms offences alone highly unlikely.

The Supreme Court’s decision highlights (and not for the first time in this case) the many and serious inadequacies of the Terrorism Suppression Act. From the very beginning of “Operation Eight” the TSA’s shortcomings have led the forces of the State from one misjudgement to another. These misjudgements have, in turn, provided those organising the defence of those arrested with a public relations bonanza, which they have exploited ruthlessly – and with considerable success.

From the moment in 2006 when two hunters stumbled on to what they told the Police looked like some sort of military training camp, the ill-fated “Operation Eight” became inevitable. With knowledge of the Urewera activity “out there” in the possession of civilians, there was the ever-present risk of it finding its way into the news media (which is what did, eventually, happen).

Astonished hunters aside, it is probable that the Police were already aware that something was up in Tuhoe country. Information about the “military training camp/s” could have come to them from at least two other sources.

The first, and most likely, institutional source would have been the Police Strategic Intelligence Unit (PSIU) which had (following its establishment in 2002, and taking a leaf out of the US and UK intelligence playbook) been running a number of spies and informants in the radical anti-war, anti-mining and Maori nationalist movements. It is probable that at least one of these informants attended the very first gathering of the radical clans in Tuhoe country and reported its proceedings back to their controller/s in the PSIU.

The other probable source is the Security Intelligence Service (SIS) which, like the PSIU, maintains a watching brief on radical individuals and organisations – especially those whose activities impinge even slightly on matters relating to the so-called “Global War on Terror”.

Both agencies would have immediately reported the Urewera activities to their bosses: the PSIU to the Commissioner of Police, Howard Broad; and SIS agents to the Service’s then Director, Richard Woods. These two gentlemen shared membership of a number of committees and groups pertaining to national security. Both belonged to “ODESC” – the Officials Committee for Domestic and External Security Co-ordination – which reports directly to the Cabinet Committee on Domestic & External Security, chaired by the Prime Minister. Broad and Woods were also members of “CTAG” – the Combined Threat Assessment Group – alongside representatives from the New Zealand Defence Force.

From the outset, therefore, it is highly probable that the activity taking place in the Ureweras was viewed almost exclusively through the prism of national security and subjected to the same kind of threat assessment which, in other jurisdictions, is regularly applied to suspected terrorist activity. In such circumstances it is simply inconceivable that the then Prime Minister, Helen Clark, and her Cabinet Committee on Domestic & External Security were not kept fully briefed on developments.

It is also highly likely that Police Commissioner Broad, aware that the eyes of the nation’s national security apparatus were on him, had no alternative except to hand over responsibility for keeping the Urewera campers under close surveillance to his responsible subordinate officer, Assistant Police Commissioner for National Security, Jon White.

According to the investigative journalist, Nicky Hager, White had a reputation among the activist community for heavy-handedness, and was seen as one of the drivers of what many radicals regarded as a rising level of authoritarian and anti-democratic policing in New Zealand. White had also attended a number of anti-terrorist seminars in the United States and the United Kingdom. He was, in short, a “hard-ass”.

When “Operation Eight” was finally launched on 15 October 2007 the images it supplied – of armed police officers, clad all in black, masked, helmeted and wearing Kevlar body-armour – provided the accused’s defence team with all the images of state repression they could use. White’s deployment of his men in and around the tiny Tuhoe settlement of Ruatoki carried an equally potent reminder of the tragic history of the Crown’s interaction with the Tuhoe people. That White either did not know – or simply didn’t care – that he was re-enacting scenes from the Iwi’s troubled past, was, from a strategic point of view, fatal. The propaganda war was lost by the Police on Day One.

Losing the legal war would take a little longer.

Given the national security environment in which he found himself enmeshed, Broad had little option but to rely on the Terrorism Suppression Act (2002) as the legal foundation of the Police operation. In this he was aided by Crown Law, which continually reassured him and White that the appallingly drafted piece of legislation, hurriedly cobbled together in the wake of the 9/11 attacks, was fit for purpose.

It was not.

When the Solicitor-General, David Collins, announced that, contrary to the advice given to Police by lawyers in the Crown Law Office, it would not be possible to charge those arrested in “Operation Eight” with offences under the TSA, the Police were left in an untenable position.

After twelve months of surveillance, during which the campers’ “training” had allegedly familiarised them with weapons and techniques of increasing sophistication and lethality, and the anxiety of the watchers had steadily mounted, Broad and his colleagues had been left with no choice but to act. Now, having acted, they’d been informed by no less a person than the Solicitor-General that the entire operation had been erected on the legal equivalent of quicksand.

For the Defence it was now open season. Not content with winning the propaganda war, they proceeded to launch a full-scale legal assault upon the evidentiary basis of the Crown’s alternative charges. What followed was a legal war of attrition, ascending through the High Court, the Court of Appeal, all the way to New Zealand’s highest seat of judgement – the Supreme Court.

Following the judgement of the Supreme Court, only four defendants remain in the Crown’s prosecutorial sights. Tame Iti, Te Rangikaiwhiria Kemara, Emily Bailey and Urs Signer are charged with participation in an organized criminal group under s98A Crimes Act and unlawful possession of firearms and restricted weapons under s45 Arms Act.

According to the Crown Solicitor, S J Eisdell Moore:

“As a consequence of the Supreme Court decision, it would have been necessary for those charged solely under the Arms Act to have been tried separately to those charged under both Acts. It would not be practical for any such trials to proceed prior to the main trial in February, and were any such trials to proceed after the main trial, then the main trial would need to be the subject of wide ranging suppression orders.

The effect of the delay would be that those accused facing Arms Act charges alone would not be tried for a period of at least four and a half years from the date of their arrest. Further, they were remanded in custody for a period of time following their arrest, and they have been on restrictive bail conditions through much of the time since their release. Taking these matters into account together with findings made by the Supreme Court about the seriousness of their offending, it is the Crown decision that the continuation of proceedings against them would not be in the public interest.”

A “hard-ass” Assistant Police Commissioner’s gross insensitivity to his own country’s history, coupled with his utter failure to understand the key strategic importance of political imagery, lost the propaganda war ignited by “Operation Eight”.

For a Police Commissioner desperately concerned to do the right thing, and the Crown prosecution his decisions set in motion, the problem was an appallingly drafted act of parliament and shoddy legal advice.

For us, the public, these two failures raise the very real possibility that we may never know what those two hunters stumbled into; the PSIU’s spy heard discussed; the SIS interception warrants revealed; and the Police’s listening devices and videos recorded.

New Zealand is one of the world’s oldest democracies: a nation committed to the rule of law. The Urewera 17 (or, at least 13 of them) have escaped prosecution and possible conviction because of that commitment. They have taken full advantage of the presumption of innocence, and have strenuously exercised their right to silence.

What they were doing up there in the bush, and to what end, remains hidden in the swirling Urewera mist.

This posting is exclusive to the Bowalley Road blogsite.