Making The Terrorism Suppression Act Fit-For-Purpose.

Infamous Day: Tomorrow, 11 September 2021, is the twentieth anniversary of the New York and Washington terrorist attacks. Think of the preliminary steps required to make 9/11 happen. Had they been detected, the tragedy could have been prevented. We need legislation equal to that task. 

HE WAS PROBABLY the smartest student I met during all my years at Otago University. After nights out carousing at the Captain Cook Tavern, he was famous for scribbling out essays in the Gazebo Lounge of the Student Union as the deadline loomed (yes, that’s right, people actually wrote essays longhand in those far-off days!) and receiving the, by then, obligatory A+. This fellow seriously impressed Otago’s Philosophy Department, which was – and still is – an extremely difficult thing to do. As Douglas Adams might have said, he had a brain the size of a planet.

It was always a source of curious consolation to me that after leaving university this guy ended up working in the Parliamentary Counsel Office. That the nation’s laws were being drafted and edited by a top philosophy grad, whose brain was the size of a planet, seemed entirely appropriate. Typical, too, of those far-off, pre-Rogernomics days, when having faith in the nation’s public servants did not seem at all naïve or foolhardy.

God knows what happened to this guy. As with most agencies of the old social-democratic Godzone, the Parliamentary Counsel Office was swept away in 1985 – just one more casualty of the Fourth Labour Government’s blizzard of neoliberal reforms.

Why am I recalling all these memories from forty or more years ago? Well, because how our laws are written matters – a lot. As the late Sir Michael Cullen explained in a speech to mark the retirement of the Chief parliamentary Counsel, George Tanner, in 2007:

“My former parliamentary colleague Sir Geoffrey Palmer once speculated that a junior drafter of laws might be as powerful as the most senior jurist, because a drafter makes so many decisions on constructing policy into statutes and regulations. Both drafters and judges give effect to the intentions of Parliament, but inevitably there are tactical decisions about the best way to approach a problem. A drafter of laws is in a pivotal, influential position.”

Indeed they are. We have only to recall the events of the past week to understand how pivotal and influential. A badly drafted piece of legislation – like the Terrorism Suppression Act 2002 – can produce the most appalling consequences. Indeed, when it comes to forestalling even well-signalled terrorist intent, the Act is so poorly drafted as to be practically useless. So much so, that a judge felt compelled to warn the Government that it could prove to be the “Achille’s Heel” of New Zealand’s national security legislation.

The Judge was right.

What the New Lynn terrorist attack has made agonisingly clear is the need for a legislative formula empowering New Zealand’s national security apparatus to identify words and deeds indicative of a clear and firm intention, on the part of an individual, or group, to execute an act of terrorism.

This is by no means as straightforward as it may sound. Empowering the state to indict a person for the thoughts in his or her head is not something a healthy democracy should lightly endorse. What a person might be thinking is bound, at times, to be entirely unworthy of public scrutiny. As Bob Dylan puts it in “It’s Alright Ma (I’m Only Bleeding)”:

If my thought dreams could be seen
They’d probably put my head in a guillotine.

Well, quite.

In the urgent task of making the Terrorism Suppression Act fit-for-purpose, language and logic must advance in lock-step. Police officers, prosecutors, judges and juries must be able to check-off the necessary mental and physical steps leading towards the commission of a terrorist offence. In addition to intent there must be action. Thoughts must be communicated verbally: either electronically, in writing, or on-line. The wherewithal of terror: knives, guns, explosives; must be acquired and assembled for the explicit purpose of inspiring terror. Purposive preparatory action, preceded by the tangibly expressed intention of carrying out a terrorist act. These are the sort of elements around which the legal draftspersons will have to make their “tactical decisions”.

Tomorrow, 11 September, is the twentieth anniversary of the New York and Washington terrorist attacks. Think of the preliminary steps required to make 9/11 happen. Had they been detected, the tragedy could have been prevented. We need legislation equal to that task. It will require not just legal expertise, but all the philosophical brilliance of that far-off genius in the Gazebo Lounge.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 10 September 2021.

Hollow Laughter, Mixed With Tears.

Guarding The Stable Door: In the absence of the hard evidence only an actual terrorist atrocity can supply, the ability of New Zealand’s national security apparatus to pre-empt such attacks is legally and politically compromised. Indeed, even in the aftermath of an all-too-real terrorist massacre, the judicial and bureaucratic machinery of the state proved criminally inadequate to the task of keeping New Zealanders safe.

They all laughed at Christopher Columbus

When he said the world was round
They all laughed when Edison recorded sound.

“They All Laughed”, Ira and George Gershwin, 1937


THERE IS absolutely no humour in the tragic sequence of events that unfolded in the New Lynn mall on Friday. Perhaps the only positive aspect of this latest terrorist attack is that, to date, the only fatality has been the terrorist himself. There was plenty of heroism in the bloody aisles of that Countdown supermarket, however, and plenty of cool professionalism also. On a shaky cellphone video, now viewed by millions, the clearly audible sequence of rapid-fire pistol shots indicated an officer determined to bring the Isis-inspired, knife-wielding perpetrator’s stabbing-spree to a halt.

Why quote the Gershwin brothers, then? What is there to laugh at?

The black humour of this situation derives not from the terrorist attack, but from a review of the way elements of the New Zealand Left have, by turns, scoffed at the very idea that terrorism might constitute a genuine threat to this country’s national security; castigated the national security apparatus for failing to prevent the atrocity of 15 March 2019; and then, reversing direction once again, cautioned against an excessively draconian response to the events of the past few days.

One of the reasons the New Lynn terrorist, Ahamed Aathill Mohamed Samsudeen, was not safely incarcerated on Friday afternoon, is because, as the judge overseeing an earlier trial pointed out, securing a conviction on a charge of planning and/or preparing to carry out a terrorist attack in New Zealand is just too difficult. Only when an act of terrorism has been committed does the law have anything useful to contribute. The judge’s speculation that this weakness in New Zealand’s anti-terrorist legislation might turn out to be its “Achilles Heel” has been dramatically vindicated.

Why nobody spotted this deficiency in the Terrorist Suppression Act 2002, which was passed by the New Zealand Parliament in response to the 9/11 attacks on New York and Washington, remains a mystery. It is, after all, rather difficult to imagine how terrorism might be suppressed if, when preparations for launching a terrorist attack are detected, the loose wording of the Act effectively prevents the authorities from intervening until after the event had taken place. They would have been better advised to entitle the legislation the “Shutting the Stable Door Act”.

It took the curious case of the alleged Urewera military training camps to fully expose the inadequacies of the Terrorism Suppression Act. As things turned out it proved to be next-to-useless in dealing with activities suggestive of a terrorist campaign in its preparatory stages. Alerted to the existence of armed groups engaging in military-style training exercises in the Urewera mountains, the Police mounted an extensive surveillance operation culminating in the arrest of 17 individuals in October 2007.

There were many reasons why the Police’s “Operation Eight” failed. The inadequacy of the Terrorism Suppression Act was one of them; the excessively intimidatory raid on the little town of Ruatoki another. Critical to the whole exercise’s failure, however, was the extraordinarily successful campaign waged on behalf of the defendants by the Far Left.

At the heart of this campaign was the carefully cultivated perception that the whole exercise was farcical – a bit of a joke. New Zealand just wasn’t the sort of place where terrorism was seriously contemplated. The Police had grossly overreacted to what was no more than a bit of harmless play-acting. The only people terrified by Operation Eight were the traumatised Māori residents of Ruatoki. Those in serious search of terrorism need look no further than the racist and colonialist depredations of the New Zealand state.

They all laughed at Police Commissioner Howard Broad and his damned-if-he-did, damned-if-he-didn’t, predicament. The nation’s politicians, however, were quick to draw the obvious lessons.

What the Urewera debacle made clear was that not only will intervention before the fact of a terrorist attack expose the national security apparatus – and its political masters – to the ruthless excoriation of the Far Left, but also, crucially, to serious criticism from the news media. As the Far left critics of “Operation Eight” proved, pre-emptive policing is all-too-easily presented as the action of a “police state” over-eager to put its new-found powers to the test.

Small wonder, then, that both major parties became extremely wary of displaying too much interest in correcting the all-too-obvious defects in the Terrorism Suppression Act.

How differently New Zealanders might have responded to “Operation Eight’s” videos of armed individuals moving stealthily through the Urewera bush if they had been recorded subsequent to the terrible events of 15 March 2019. By then, of course, the notion that domestic terrorism was a bit of a joke had been tragically and decisively dispelled. Fortunately for the Left, those twelve-year-old Urewera images had been largely forgotten – along with the Far Left’s insistence that they conveyed nothing sinister.

Harmless Play-Acting? “Operation Eight” surveillance footage of military-style training exercise in the Ureweras, 2007.

Indeed, within days of the Christchurch Mosque Massacre, the Far Left’s position had changed dramatically. Not only was the threat of terrorism dangerously real, but it was also latent in a colonialist Pakeha population fatally tainted with both the legacy and the actuality of “white supremacy”. The cry from the Far Left, now, was not that the national security apparatus was too heavy handed, but that it was not heavy-handed enough. Why had the SIS not subjected the Alt-Right and militant ethno-nationalist groups to the same oppressive surveillance it reserved for Muslims?

The Māori Party demanded to know why the Police and the SIS weren’t working together to root out the white supremacist threat. Radical leftists called for the curtailment of “hate speech” – especially against New Zealand’s Muslim population. The Labour Government promised to oblige.

Which was odd. Because long before Brenton Tarrant unleashed terror in Christchurch, Ahamed Aathill Mohamed Samsudeen had been giving the government of Jacinda Ardern nightmares. Ever since 2016, three years before Tarrant’s attack, New Zealand’s national security apparatus had been grappling with the clear and present danger of a dangerously radicalised Islamist who made no secret of his support for and admiration of the actions of the murderous Islamic State. If Tarrant slipped past the SIS, GCSB and Police Intelligence watchers, it was for the very good reason that they had another predator in their sights. What’s more, they could not be absolutely sure that Samsudeen was the only Isis-inspired “lone wolf” in the forest.

George and Ira Gershwin’s 1937 hit, “They All laughed”, concludes with the lines:

Hee, hee, hee!
Let’s at the past laugh
Ha, ha, ha!
Who’s got the last laugh now?

Faced with the Far Left’s cynical gyrations on the subject of terrorism, and whether or not it poses a threat to ordinary New Zealanders (like Muslim New Zealanders at Friday prayers, or the seven unsuspecting Kiwis stabbed in the aisles of their local supermarket as they innocently shopped for groceries on a Friday afternoon) the answer to the question “Who’s got the last laugh, now?” offers a variety of answers.

First and foremost, the last laugh belongs to those who, fourteen years ago, attempted to protect the New Zealand public from terrorism, only to discover that, in the absence of the evidence only an actual terrorist atrocity can supply, the ability of the national security apparatus to pre-empt such horror is legally and politically compromised. Indeed, even in the aftermath of an all-too-real terrorist attack, the judicial and bureaucratic machinery of the state proved criminally inadequate to the task of keeping New Zealanders safe.

Also entitled to a final, grim chuckle, are those stalwarts of the Old Left who never wavered in their conviction that the infliction of violence for political purposes must never be treated as a purely tactical issue. The Far Left’s argument that: in one context, training with weapons in the bush can be forgiven as harmless play-acting; but, in another, treated as evidence of the criminal plans and preparations of murderous white supremacist terrorists; must be rejected as ideologically-driven moral relativism of the worst kind.

Finally, a rough grunt of vindication is due to all those who have argued consistently that no matter what the location: Central Christchurch or West Auckland; the paying of History’s debts with innocent blood is always and everywhere a crime.

But, when these principled New Zealanders laugh at the Far Left’s tawdry equivocations on who is, and who isn’t, a terrorist; that laughter will not be light or mirthful. It will be hollow, filled with rage, and mixed with tears.

This essay was originally posted on The Daily Blog of Tuesday, 7 September 2021.