Dissident Solutions: What's Happening To Nicky Hager?

Targeted? The actions of the NZ Police in relation to Nicky Hager are deeply concerning. It is very difficult to avoid the conclusion that the ability of New Zealand's foremost investigative journalist to do his job is being deliberately undermined.

 

MARTYN BRADBURY’S LATEST POSTING on The Daily Blog should give every member of the democratic public serious pause. The allegations levelled at the NZ Police are serious and deeply concerning. It is very difficult, having read Martyn’s post, to avoid the conclusion that Nicky Hager may be the victim of deliberate political persecution, and that among the principal agents of that persecution may be members of the NZ Police Force.

 

With the specifics of the actions taken against Mr Hager forming a significant part of active legal proceedings, it would be improper to rehearse them on The Daily Blog. What can be examined, however, is the enormous risk posed to the integrity of our democratic institutions by the merest suspicion that senior politicians, senior civil servants, senior policemen and senior jurists might be involved in an effort to both frighten and silence what used to be called, back in the days of the Cold War, “political dissidents”.

 

What distinguishes the “political dissident” from the more familiar “political activist” is their specificity. Activists may give public voice to generalised complaints against individuals and institutions, but dissidents sharpen such complaints by supplying the public with hard evidence of specific wrong-doing – often supplied to them by a whistleblower or, in Mr Hager’s case, a hacker. Alternatively, the evidence may simply have been uncovered by applying the techniques of good, old-fashioned, investigative journalism.

 

Liberal democracies have very little to fear from activists. Objections to government policy and/or corporate behaviour based on political ideology or religious belief constitute no real threat to the smooth unfolding of long-prepared strategies and plans. After all, the actions of powerful institutions – be they public or private – are almost always undertaken within the law and are, therefore, extremely difficult to stop. Indeed, it is only when the placard-waving (but otherwise ineffective) activists avail themselves of a lawyer or two that they graduate to dissident status – at least in the eyes of their opponents.

 

Lawyers, like the best investigative journalists, have ways of extracting information the powers-that-be would rather they, their clients, and/or the general public, didn’t see. In the hands of a good team of lawyers, legal discovery can be an immensely powerful weapon. The constitutional separation of powers means that the Judiciary can require the Executive Branch of Government, or a private corporation, to divulge all manner of secret material. Discovery cuts both ways, however, so those who go after the secrets of the powerful must be prepared for the powerful to come after theirs.

 

But if lawyers pose a genuine threat to the secret dealings of the powerful, they are also extremely hazardous to their client’s bank balance. This enables the State, by dint of having its very own “law firm” – Crown Law – and a practically inexhaustible supply of funds, to adopt a strategy of litigation attrition. By extending and multiplying the mechanisms of the Law, the Crown is frequently able to wear down or financially exhaust its opponents. If an out-of-court settlement is arrived at by the contending parties it will almost always contain a comprehensive confidentiality clause. The dissident and his or her lawyers may “win” their case, but the State’s secrets remain just that – secrets.

 

What truly terrifies the wielders of public and private power are processes of “discovery” that owe nothing to the operation of the courts. Edward Snowden was able to use his privileged access to the secrets of the United States’ National Security Agency, to expose its highly questionable (and in some cases illegal) activities to the whole world. The specificity of the information he released (that the US eavesdropped on the conversations of the German Chancellor, for example) produced the most acute diplomatic embarrassment. Likewise his detailed description of the architecture of mass surveillance.

 

Nicky Hager’s book, Dirty Politics, delivered an equally destructive blow to the secret world of right-wing influence peddling and political character assassination. The hitherto unseen architecture of political manipulation in New Zealand was laid bare in a way that caught the subjects of Mr Hager’s investigation completely off-guard. It was the same with his earlier publications: Secret Power, Secrets and Lies, Seeds of Distrust, The Hollow Men and Other People’s Wars. In every case those under scrutiny had no idea that their activities were about to be exposed.

 

This “ambush” strategy has been criticised by Mr Hager’s opponents as unethical and contrary to the “rules of good journalism”. What it achieves, however, is the unimpeded distribution of his publications. Had the subjects of Mr Hager’s investigations been alerted to the fact that a book was in preparation, or, about to be published, it is highly likely that they would have attempted to legally injunct its release. Rather than offer his subjects the traditional right-of-reply, therefore, Mr Hager exhaustively checks and re-checks his facts to ensure that there is no possibility of legal restraint. That he has never been successfully sued bears testimony to the thoroughness of this pre-publication scrutiny.

 

What does a government “do” about a dissident of such consistent effectiveness as Nicky Hager? How reassuring it would be if we could answer, simply, that the powers-that-be, both public and private, redouble their efforts to conduct themselves ethically and openly. The revelations contained in Martyn Bradbury’s blogpost, however, strongly suggest that their reaction has been very different.

 

It’s as if someone, somewhere, has echoed the anguished cry of King Henry II.

 

When confronted with further evidence of the Archbishop of Canterbury’s, Thomas Becket’s, political and religious defiance, Henry bellowed: “Will no one rid me of this troublesome priest!” Did Henry know that four of his knights had taken him at his word and were on their way to slay the Archbishop before his altar? We shall never know. He always claimed ignorance of his men-at-arms’ intent, and did penance for the crime his words inspired. At the end of the day, however, his problem had, actually, been solved.

 

Rogue elements in the Police Force? Or a carefully devised plan to bring down a dissident? Either way, the outlook for the democratic public is grim.

 

This essay was originally posted on The Daily Blog of Monday, 13 July 2015.

In A Weakened State

Insufficient Evidence: The failure of New Zealand's national security apparatus to acquire the human intelligence (and thus the eye-witness evidence) to convince a jury of the defendants' guilt in the Urewera Terror Trial has exposed serious weakenesses in the protective institutions of the New Zealand State.

Salus populi suprema lex
The safety of the people shall be the highest law
Cicero

THE DECISION NOT TO RE-TRY the “Urewera Four” sets the capstone on a comprehensive failure of New Zealand’s national security apparatus. At almost every level, the public has witnessed examples of ignorance, indecision and incompetence that agencies similarly placed in poorer and more marginalised countries would look at askance. After the Urewera debacle, it is debateable whether New Zealand even has a national security apparatus. That twenty or so highly politicised individuals could be observed undertaking military training with lethal weapons, on tribal lands with a long and strong tradition of resistance to the New Zealand state, for close to a year, and still manage to escape serious convictions, certainly argues against the proposition.

At the heart of this failure lies a paucity of intelligence. (And I’m using the word here in its double sense of intellectual sophistication and useable knowledge.) New Zealanders have been seriously let down by the tradition of anti-intellectualism that pervades our security services. It has fostered an institutional environment in which anyone possessing a sophisticated understanding of this country’s history and culture is treated with hostility and suspicion. Doubly so, if that knowledge extends to anything more than a superficial grasp of left-wing and/or right-wing theory and practice. It’s an environment in which the received “wisdom” of our (often even more ignorant) American and Australian allies counts for much more than specialised local knowledge.

Assistant Police Commissioner, Jon White’s, operationally brutal and strategically idiotic raid on the sleepy Tuhoe village of Ruatoki destroyed any chance the Crown might have had of mounting a successful prosecution of the fledgling Urewera guerrilla force. The NZ Police utterly underestimated the vigour and sophistication of the Left’s propaganda capabilities and, from the very beginning, were forced to play “catch-up” in the struggle for hearts and minds.

The other fatal flaw in Operation Eight was its (no doubt US inspired) fascination and reliance on technologically acquired intelligence. Neither the Police Security Intelligence Unit (PSIU) nor the Security Intelligence Service (SIS), appear to have anything remotely resembling an effective spy network. Indeed, in this regard, New Zealand’s private sector intelligence gatherers seem to be well ahead of the State’s. This lack of human intelligence drove the Police to what were subsequently deemed to be reckless and illegal attempts to acquire persuasive evidence of criminal intent.

Also lacking were the reliable media “assets” so highly prized by the British security services. Individuals to whom key elements of the Crown’s case might have been judiciously leaked as a way of counter-acting the Defence’s extremely skilful use of sympathetic journalists strategically located throughout the news media. Our own security services appear utterly unaware of the role social media and the Internet play in shaping public opinion. Where, for example, was the Crown’s equivalent of Wikileaks? Clearly no one was prepared to play the role of Private Bradley Manning by dumping all the evidence denied to the Prosecution on a suitably insulated and legally untouchable website.

From the very beginning of Operation Eight it should have been clear that the Crown was engaged in a full-scale political battle with the individuals behind the Urewera Training Camps and their supporters in the wider left-wing community. Every one of the agencies tasked with protecting our national security: the PSIU, the SIS, the Officials Committee for Domestic and External Security Co-ordination  (ODESC) and the Combined Threat Assessment Group (CTAG) individually and collectively failed to meet this political test.

Bluntly, the accused’s’ defence team and their tireless army of propagandists ran rings around the Crown. They not only won a significant political victory in terms of the “Urewera Four” case, but their undeniable success in making the Crown look both weak and stupid will very likely deter its servants from attempting anything similar for many years to come. It will require a very brave Police Commissioner indeed to repeat Howard Broad’s gutsy call of 2007.

Nor will Tuhoe, and the Maori nationalist movement generally, be content to rest upon their laurels. Already we’re hearing demands for a Crown apology to, and massive compensation for, the traumatised residents of Ruatoki. Pressing forward from one victory towards another has always been an intelligent strategy – both politically and militarily. The Crown, already in full retreat, will be harried unceasingly by a Tuhoe nation intent on reclaiming as much lost land and mana as possible.

The New Zealand State has been seriously weakened by its failure to convince a jury that what was happening in the Ureweras constituted a clear and present danger to our national security. The Crown’s prosecutors appeared almost entirely ignorant of the philosophical, ideological and historical arguments which have, in other parts of the world, persuaded hitherto peaceful individuals to embrace the theory and practice of political violence. Where were the Crown’s expert witnesses? Why were no academics from the USA or the UK called to tell the Jury how and why people become terrorists? The defence team’s carefully fostered notions that Tame Iti and his comrades posed no sort of threat to the Queen’s Peace, and that the charges levelled against him were farcical, were never adequately challenged by the prosecution – and they stuck.

Partly, this is explained by the failure of the Police to supply the Crown with the right sort of evidence. But the prosecution’s ham-fisted use of the evidence it did possess reflected the susceptibility of even the Crown’s lawyers to the “two worlds” argument advanced by the defence. The latter insisted, with all the silky conviction a skilful barrister can muster, that events which looked like military exercises when viewed through Pakeha eyes, appeared no more dangerous than a job creation scheme when viewed through Maori eyes.

To insist that people running around with guns and balaclavas were terrorists, warned the defence, was to revisit upon these noble Maori “reformers” all the sins of our colonial fathers. According to their lawyers, the accused weren’t training to be terrorists. No, they were training to be security guards in Somalia and Iraq! This preposterous argument convinced not only at least one of the jurors, but also, seemingly, the Crown itself. Guilty verdicts on the most serious charges, it was cleverly insinuated, would be proof positive that Pakeha racism had triumphed. Not surprisingly, on the most serious charge - belonging to an illegal organisation - the Jury was hung.

Russel Fairbrother, Tame Iti’s lawyer, has hailed the Crown’s decision not to re-try his client as a victory for the New Zealand justice system. But there is another, much less sanguine, way of looking at the Crown’s capitulation. If, under the rubric of “national security” one includes the preservation of New Zealand as a unitary, constitutionally-coherent state in which the safety of every citizen is guaranteed by the rule of law, and where the state, and only the state, is permitted to maintain and train armed forces, then the Crown’s decision, and the lamentable way it has conducted itself throughout the entire Urewera affair, gives cause for grave concern.

A group of armed individuals, who gave every appearance of levying war against the Crown, have somehow escaped serious convictions. This entirely unsatisfactory outcome sets an extremely dangerous precedent. We should not feel in the least bit reassured that, ultimately, the guerrillas in the Urewera mist failed to inflict any harm on their fellow citizens. Next time (and given the extraordinary failings of our national security apparatus a ‘next time’ cannot be discounted) we may not be so lucky.

This posting is exclusive to the Bowalley Road blogsite.

Undoing The State

Nation Building?: If a state is merely the institutional expression of territorial seizure, then the law is merely the state's way of justifying and entrenching the land-grab which gave it birth. By this reckoning, any State which recognises (let alone responds to) the claims of those who inhabited the territory prior to its seizure (viz The Marine & Coastal Area Bill) is committing an act of pure folly.

WHAT IS THE DEBATE over the foreshore and seabed really about? Is it simply an argument over who has the best claim to ownership (and, therefore, right-of-access) to New Zealand’s beaches? A dispute over the precise nature of "Customary Title" – driven by a dispossessed indigenous minority desperate to retain this last, vestigial margin of their patrimony? Or is it about something altogether more profound? Is the debate over the foreshore and seabed really about the nature of law, and the future of the state which enforces it?

Let’s not forget that this whole debate began when the Court of Appeal, overturning decades of what was believed to be "settled law", ruled that the customary rights of Maori to the resources of the foreshore and seabed had not been extinguished by the Crown. If those rights could be legally established, said the Court, full ownership of the designated land and resources could pass to the claimants.

The rest of the story is well known to us all, so let’s pause here and ask ourselves what, exactly, the Court of Appeal thought it was doing – or more accurately undoing.

A majority of the judges of the Court were clearly of the view that the New Zealand State was conceived in law and remains subordinate to legal principles and precedents. According to this view, the ownership rights of a country’s aboriginal inhabitants, if not formally and explicitly extinguished, remain in force.

But, as the excellent docudrama, Waitangi: What Really Happened, broadcast on Waitangi Day makes hilariously clear, New Zealand wasn’t conceived in anything except utter confusion. Such law as there was existed only where there was both the will and the means to enforce it. Hone Heke’s axe spoke eloquently and repeatedly on this subject.

Indeed, one could argue that the law – as a tangible and enforceable set of rules – only acquired a purposeful existence after the concrete foundations of the New Zealand State had already been laid.

That didn’t happen at Waitangi – or even at the inaugural meeting of the first New Zealand Parliament in 1854. New Zealand, in the sense of a related and co-ordinated set of institutions operating beyond the effective challenge of any other entity organised within the same territorial space, only came into existence when the settlers, assisted by several thousand imperial troops, invaded the lands and extinguished the authority of the Maori King.

That moment has been described by the legal historian, Professor Jock Brookfield, as "a revolutionary seizure of power" by the Settler State. Professor Brookfield’s description is consistent with the school of jurisprudence which holds that only when there is no other source of legitimate authority to challenge the means of its enforcement does law become real. In other words, law is a consequence – not a precondition – of state creation.

According to this view, the state is born out of what is essentially an act of territorial seizure: not to put too finer point upon it – a land grab. The whole state-building process being nothing more than an elaboration of the means required to hold onto and then manage the territory seized. The mechanisms we construct to do this are dignified by the name of "law". It is, however, dangerous to construe a legal system as anything other than the State’s creature. The law is only ever accidentally about justice. It’s always about politics.

Helen Clark understood all this very well. Her Foreshore & Seabed Act, which Maori quite accurately described as another raupatu – forcible seizure of territory - not only reiterated the "legitimacy precedes legality" formula for the benefit of the Court of Appeal, but also reaffirmed the brute historical reality that "New Zealand" was made by Pakeha, for Pakeha. If Maori were willing to become Pakeha, they could belong. If not – there’d be trouble.

I wonder if the Prime Minister fully appreciates what his Attorney General is undoing with the Marine & Coastal Area Bill – and how difficult it will be to refasten.

This essay was originally published in The Dominion Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Star of Friday, 18 February 2010.

No Second Term For "Efficient Totalitarians"

George Orwell's Chilling Image: "If you want a picture of the future, imagine a boot stamping on a human face— forever." With his latest legislative assault on our civil liberties, the Minister of Justice, Simon Power, has not only pulled the boot onto his foot, he's lacing it up.

A SECOND TERM for National? Not if we’re serious about protecting our civil liberties.

On Monday, 15 November 2010, the Justice Minister, Simon Power, secured Cabinet approval for the introduction of the Criminal Procedure (Reform and Modernisation) Bill – his 526-page "reform" of the way the State treats New Zealanders accused of a criminal offence.

If that last sentence jars a little in your ears, it’s because the State generally prefers to describe the citizen’s experience of criminal prosecution as "The Justice System".

But "Justice" is the outcome we all hope the process will deliver. The process itself is an altogether different phenomenon. And, as anyone who has ever been arrested and brought to trial will tell you, it is far from pleasant.

The first thing that strikes you upon being arrested is the extraordinary disparity, in both power and resources, between you, the citizen, and the State agencies into whose hands you have fallen.

And those "hands" are anything but metaphorical. Police officers really do lay hands on you. You’re tossed into a malodorous concrete cell, a steel door slams in your face, and you’re "held in custody" until such time as they, or a judge, decide to let you go.

No one who’s ever suffered this deprivation of personal liberty ever forgets it. To say it inspires something close to pure panic seriously understates the experience of being locked up. Some people simply cannot endure it – as the grim tally of holding-cell suicides attests.

And have you ever wondered why they call what happens next a "trial"?

When you, "the accused", enter a courtroom the first thing that strikes you is how many people there are NOT on your side.

There are the Police officers, of course, the ones responsible for your arrest and detention. There’s the Crown Prosecutor – surrounded by a team of thin-lipped lawyers and clerks. Assisting these formidable-looking personages is another team of austere court officials. And presiding over them all is the Judge – another lawyer who, prior to being "elevated to the bench" by a bunch of politicians, was probably also a Crown Prosecutor.

And what have you, "the accused", got? Who’s on your side?

Strange as it may seem, the most important thing you’ve got on your side is history: the long history of ordinary people’s struggle against the overwhelming power of the State. Hundreds of years of subjects and citizens imposing upon the agencies of Crown and State a set of rules designed to protect all those unfortunate enough to fall into their hands.

Rules that make it possible, at least some of the time, for the outcome of these grotesquely unequal struggles between ordinary people and the State to be worthy of the name "justice".

Like the rule that the accused must be considered innocent until the State is able to prove him guilty. Or the rule that no accused person can be forced to incriminate, or testify against, himself. Or the rule that the State must disclose to the accused all the evidence which it claims to have against him. Or the rule which says that the accused must be permitted to confront his accusers. Or the rule that says he is entitled to professional legal counsel.

Or the most ancient and important rule of all: the rule which says the accused is entitled to be judged by a jury of his peers.

Because if anyone is on the accused’s side in a court of law it’s the twelve ordinary people sitting in the jury box. The twelve ordinary people the State is required to convince "beyond reasonable doubt" that the accused is guilty.

The twelve ordinary people which Simon Power, in the name of efficiency, is proposing to remove from the courtroom for all but the most serious crimes.

Mr Power is also proposing to dilute many of the hard-won protections against arbitrary state power described above.

Small wonder that Dunedin lawyer and Vice-President of the New Zealand Law Society, Anne Stevens, told the Otago Daily Times that the Criminal Procedure (Reform and Modernisation) Bill, introduced to Parliament on Monday, sets up the "efficient regime totalitarians dream about".

Re-elect a regime of efficient totalitarians?

Not if the Criminal Procedure (Reform and Modernisation) Bill goes through unamended.

Not in the thousand years it took us to win our rights and freedoms.

Biographical Note: During the 1981 Springbok Tour, Chris Trotter was arrested, charged, photographed, fingerprinted, held in a cell for six hours, released on bail, eventually brought to trial and triumphantly acquitted of the heinous crime of "Obstructing a Footpath".

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 19 November 2010.

Losing Something Precious

The Rights and Liberties of Freeborn Men: New Zealanders are on the verge of surrendering legal rights that date all the way back to King John's issuing of the Magna Carta Libertatum (The Great Charter of Freedoms) in 1215.

AMIDST THE CACOPHONY of angry voices calling for tougher penalties and diminished rights for criminals, something very precious is being lost. Like most precious things, it took many years to create, and the price was very high. Losing this precious thing is likely to prove a mighty tragedy – the full dimensions of which will only become apparent when it’s gone.

This precious thing is, of course, the protective shield of legal rights and privileges which safeguard the citizen against the massive, potentially obliterating, power of the State. It is a shield which took many centuries to fashion, and was purchased at the cost of countless lives.

Of what is this shield composed? Nothing less than the ancient rights and privileges of the subject/citizen – stretching back to Magna Carta and beyond.

The right to be presumed innocent until proven guilty. The right of habeas corpus (no detention without trial). The right to swift, open and dispassionate justice. The right to face one’s accusers. The right to know the nature and full-extent of the charges brought against one. The right to prepare and present an adequate defence. The right to silence. The right to be judged by a jury of one’s peers. The right to have the State’s case proved beyond reasonable doubt. The right to a unanimous verdict. The right to protection against "double jeopardy" (being tried repeatedly for the same offence).

The State hates this shield: as it hates everything which limits and constrains its power; and will seize upon the slightest opportunity to abridge, weaken, or eliminate entirely the rights wrenched from its grasp by the people.

For example, there’s the consistent failure of successive governments to adequately fund the courts. This has required those accused of wrongdoing, and its victims, to wait longer and longer for their cases to be heard. As the old saying goes: Justice delayed is justice denied.

And only last year, Parliament overturned the long-standing legal prohibition against double jeopardy. The right to a unanimous verdict, an ancient and extraordinarily important safeguard against prejudice and pressure, disappeared at the same time.

And just this week, the Minister of Justice, Simon Power, announced plans for a further round of legal "reforms" – changes which could strip away even more of our rights.

At risk is the presumption of innocence (through tougher bail laws) the right to silence (by re-writing the rules of evidence) the right to a full and adequate defence (by cutting back on legal aid) the right to face one’s accusers (through the introduction of courtroom "teleconferencing") and the right to be judged by a jury of one’s peers (by introducing the European system of "inquisitorial" justice for rape cases).

It is ironic that these "reforms" are being contemplated by a National Party cabinet minister. As New Zealand’s leading conservative party, founded in 1936 to restrain state power and protect the rights of the individual citizen, National should be the most avid defender of the ancient rights and privileges of the people. Sadly, on matters of law and order, National long ago surrendered to the irrational populism of the Mob.

There is irony, too, in the Mob’s determination to throw away the legal rights their ancestors fought so hard to secure. After all, those who subscribe to the "eye-for-an-eye, tooth-for-a-tooth" philosophy of the Sensible Sentencing Trust, are the very same people who loudly condemned the depredations of the "Nanny State", and voted overwhelmingly for the right to raise their children as they saw fit – free from government interference.

So thoroughly have criminals been demonised by the Right that a huge number of otherwise sensible and compassionate people are no longer able to see that, for all but a few moments of life-transformingly bad decision-making, most lawbreakers are indistinguishable from themselves. They also seem to have forgotten that policemen, prosecutors – even judges – frequently get things wrong.

With a citizen’s liberty at stake, isn't it entirely reasonable to require the State to establish its right to lock him up "beyond reasonable doubt"?

Those who talk glibly about the pendulum having swung too far in favour of the rights of the accused, would sing a very different tune were they to find themselves suddenly – and unjustly – handcuffed in the dock.

Better to let ten guilty men walk free than imprison an innocent man.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 9 October 2009.