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.