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Legal Utu in a Colonial Court?

datePosted on 21:30, November 6th, 2009 by Pablo

A little over two years ago the so-called ” anti-terrorism” raids were carried out by the Police against activists in Ruatoki, Wellington and Auckland. The media frenzy that immediately followed focused on reports of “paramilitary” training camps, where, according to Helen Clark, “napalm” bombs were being made, weapons training was ongoing and plots were being hatched against a  variety of political figures, among them George W. Bush. Police affidavits were leaked to the press that detailed the “evidence” collected by covert means, and profiles of the more flamboyant of the defendants were splashed over the tabloids, radio and television. Almost immediately, multiple charges were laid under the Firearms Act 1983, but a few weeks after the raid the Solicitor General decided against laying charges under the Terrorism Suppression Act (TSA) because he deemed the TSA to be “unworkable.” This was a blow to the government’s case because much of the surveillance done in the build-up to the raids was authorised under provisions of the TSA. Even so, the government pressed ahead and in the months that followed arrested 3 more people and (a year after the raids) charged five of the original defendants with the additional count of  “participation in a criminal gang” (Tame Iti, Rangi Kemara, Tuhoe Lambert, Emily Bailey and Urs Signer). What all of the defendants have in common is that they are well-known and often outspoken critics of the NZ state, the US and capitalism in general. Beyond that they are a mixture of anarchist, environmental and indigenous sovereignty advocates (and at least one unhinged individual) united by their common disdain of the status quo. For background on the events and immediate response to the raids, see the trilogy I wrote for Scoop in the weeks that followed: here, here, and here.

With no terrorism angle to report on, the media lost interest and the story died. But what has become of the Urewera 18? (2 of the arrested have been discharged without conviction or had charges dismissed). Here I shall provide a brief update and make note of some ironies.

The Urewera 18 are represented by 14 barristers and numerous solicitors, with Rodney Harrison QC (of Zaoui case fame) recognised as lead counsel and Annette Sykes given special status by the Court with respect to the tikanga of Tuhoe and implied license. Proceedings have dragged on for more than two years, and like the Zaoui case, it is likely that they will continue for at least another year (reports are that the first available trial date is in 2011). Given the numbers of defendants and legal counsel involved, this means that the taxpayer bill for the prosecution of the case will dwarf the NZ$2 million spent in the futile attempt to refuse Ahmed Zauoi political refuge. The cost for the defendants, emotional as well as material, is similarly high.

As for the substance of the case against the Urewera 18, let us begin with the charges. Other than the criminal gang accusation and a common charge of possession of restricted weapons (presumably related to incendiary devices), all else fall under the Firearms Act of 1983. After some legal wrangling, the charges have been bundled together as ‘representative’ charges so as to make the number of charges more manageable. In other words, in early depositions each defendant was charged with possession of each gun at each camp, resulting in hundreds of charges. That has now been amended to a single charge for possession at each camp (.i.e. each individual visit to the Ruatoki bush camp resulted in one firearms charge). As an example, when arrested one defendant originally faced 3 charges, then at depositions the number of charges  rose to 13, but now has returned to the original 3 charges. Even so, the number of individual charges is in the dozens.

With regard to bail. Remember that in their original statements the Police were opposed to bail for the accused, citing the imminent threat they posed to the community. That has all changed. The most onerous bail conditions have been lifted and travel restrictions relaxed although not completely removed. It is my understanding that Tame Iti will again travel to Europe this summer to perform more Shakespeare (Iti was allowed to travel abroad earlier this year in order to participate in theatrical productions in Europe) and Urs Singer has been allowed to visit his ailing parents in Europe as well (the irony of Tame Iti doing Shakespeare in European theaters–as a sort of cultural ambassador, if you will–while on trial in NZ is not lost on me, but I shall avoid mentioning that in my summation below simply because there are other ironies worth noting. But it does point to how serious a threat to the security of Aotearoa he is considered to be by the government).

Then there is the issue of the means by which the case was constructed, to wit, the human and electronic surveillance and wiretaps used to monitor the accused. The Solicitor General’s decision to not invoke the TSA proved to be problematic for the government’s case, since much of the means by which the activists were tracked and evidence gathered were only allowable under the TSA. With no TSA charges on the menu, the admissibility of the evidence collected under its provisions was open to legal challenge. That soon came.

In August, applications  were made by the defense that all search warrants, in-person covert surveillance (conducted by the Police Special Tactics Group) and stationary covert cameras were illegal. By and large, the defendants won that part of the argument. In September the presiding judge declared at least 6 of 9 warrants illegal, specifically declaring illegal all in-person covert surveillance and stationary cameras. The latter was deemed illegal because the police trespassed onto private land in order to install the cameras (it is not currently possible to get a warrant for surveillance cameras on private property in NZ). The Police Special Intelligence Group tried to justify its actions by claiming in retrospect that they sought judicial oversight in doing so (presumably with reference to the TSA). In reality, they knew at the time that they couldn’t get warrants for such activity without the TSA, but did so anyway. Now that evidence is inadmissible. Even so, the government won on excluding text messages, and it remains to be seen whether the defense will challenge that ruling in the Court of Appeal. (A good summary of the decision is available here).

 The second stage of this application was heard in September and a decision is still pending. Under Sec 30 of the Evidence Act, in order for evidence to be ruled inadmissable, it must be found to be both illegal and unreasonable. This differs greatly from the US where it follows quite logically that activity which is illegal is by nature unreasonable, but the police in NZ are given a much greater benefit of the doubt on this matter. This is an important distinction, because that means that even if the evidence is deemed to have been illegally obtained, it still can be ruled admissible in a NZ Court if it is deemed “reasonable.” QC Harrison has consequently made submissions about why inclusion of this evidence was unreasonable. The main thrust of his argument is that the police’s trespass was sustained, deliberate and knowing. It happened over a period of nearly a year on land that was clearly private property. The judgement is still pending on this part of the defense motion. Whoever loses is very likely to appeal because the case could well hinge on the disputed evidence.

In the last weeks  the defense has making an application for a stay of the proceedings based on pre-trial publicity. In essence, that the case has been so prejudiced that the Urewera 18 cannot get a fair trial. Interestingly, the most recent  precedent for such an application was made by the same two lawyers on behalf of the two suspected Mossad agents who
were arrested for attempting to procure false passports in 2005.

The defendants are next due to appear in court in Auckland in mid-December. For those interested, the hearings are open to the public but those attending should expect increased security measures and the possibility of Crown objections to their presence if it is considered injurious to their case (the Crown has already objected to filming of the hearings for documentary purposes).

So what are the ironies of the case so far? Well, for starters there is the parallel with the Zaoui case. In both instances the government began by throwing out unfounded accusations of “terrorism,” only to see their case for it crumble under legal scrutiny.  For all the talk of terrorism, it was the Police Special Tactics Group, not the counter-terrorism component of the NZSAS or the specifically-trained Counter Terrorism Tactical Assault Group (CTTAG) who conducted the surveillance and led the raids (which indicates that the government did not take the threat of terrorism seriously enough to justify use of the forces designated for that role). The money spent on the prosecution and legal defense of both cases is also on a par, if not more in the latter instance.

Another irony is that the arms dealer who (allegedly) supplied information to some of the defendants about how to construct silencers, on how to modify a starter’s pistol into a real weapon, and who allegedly provided instruction on how to convert flare grenade launchers into the real thing, has not been charged with a single offense (reportedly due to his being a Police informant).

For its part, rather than strengthen criminal law to deal with politically-motivated criminal conspiracies in light of the “unworkability” of the TSA (thereby avoiding the authoritarian penchant to create a different category of “political” crimes labeled as “terroristic”), National has re-introduced a Search and Surveillance Bill first proposed by Labour last year in which powers of search and surveillance would be expanded dramatically (to include warrantless searches, eavesdropping and tapping of computers and phones) by a broader range of government agencies–including local administrative authorities! The irony is that, rather than use the Urewera case as an example of how NOT to conduct a criminal investigation against political dissidents, the government has instead moved to relax legal restrictions governing covert monitoring of suspects, including on private property (i.e., the exact practices that were deemed illegal in September by the presiding judge in this case).

But the ultimate irony may be this. According to defendant Omar Hamed, “October 15 was a reminder that the state is not our friend. It is a violent, colonial, racist institution that serves the interests of the corporations and the ruling class. Well organised, anti-statist, defiant communities pose a threat to the state and colonial capitalism…” (taken from a passage included in the exhibition catalogue for the Arts auction “Explosive Expression” held to raise funds for the Urewera 18 on October 16, 2009 in Wellington). And yet it is this purported colonial, racist and corporate justice system that has allowed the Urewera 18 to formulate and fund a defense that has successfully challenged the case against them so far. It would seem that, at least in this case, utu  (as both justice and revenge) does in fact come in colonial garb.

My view is that by the end of the process a majority of the defendants will be acquitted and only a handful will be convicted of minor firearms violations. It will be left for the NZ public to decide whether the entire affair was worth the effort, and whether indeed, if ever, there were the makings of a terrorist plot percolating in the Ureweras.

PS: I have some inquiries out at the moment that might allow me to update the status of the case. If so, I shall do so post haste and append a notification at the end of this post.

PPS: This post has been updated to reflect my remembering of another irony regarding the government response to its failures in this case (see irony #3 above) as well some fine points regarding the charges.

12 Responses to “Legal Utu in a Colonial Court?”

  1. SPC on November 7th, 2009 at 11:42

    Well earlier the case of the police informant spying on environment groups informed us that environment activist groups (and Maori activists groups) had been seen as threats by police (by association with other environment groups who have broken laws at protests).

    Now we find that environment group activists have been upgraded to the threat level of potential terrorist (to take advantage of the increased powers obtained in the war against terrorism).

    This is a form of intimidation of such activism – and it’s little wonder those involved can say that the state is a creature of elite interests threatened by their dissent. And it leaves some in the public wary of increasing powers held by the police.

  2. Pablo on November 7th, 2009 at 12:18

    SPC:

    The issue, at one level, is that the Police have too much power under the law to classify who is and who is not a “threat” to society. One wonders why the powers of the Combined Threat Assessment Group (CTAG, an interagency vetting organisation that answers to the PM) would not have a greater say in who is and is not a threat to NZ (since it brings in views from agencies other than the Police).

    On the other hand, the trouble with claiming that the state merely reflects the interests of the corporate ruling class is that it is too instrumental and simplistic when applied to advanced democracies, particularly one that reflects the peculiar characteristics specific to Aotearoa. Put another way, even if authoritarian states may indeed be a tool of the ruling elite and its support base, such a vulgar Marxist view is inapplicable to democratic states simply because the latter enjoys a degree of autonomy from class interests in order to help reproduce the class compromise that is the foundation of democratic capitalism. That includes, at a formal level, separation of powers etc., but more importantly it involves the relative autonomy of the judiciary from both formulative and implementory agencies like parliament, the PM’s office and the Police. All of this has been covered extensively in the dedicated literature so is not worth belaboring here. My point is that there is irony in activists holding such a simple adversarial view of the NZ state, yet being utterly reliant on its good offices to defeat the (to my mind largely bogus) case against them.

  3. George D on November 7th, 2009 at 18:53

    Thanks for an informative summary, Pablo.

    Insofar as they have challenged the sovereignty of the state by (apparently) engaging in practices which are solely the domain of the state to engage in and delegate, they have been targeted. This is incidental, however. The real reason is that they were seen to be a threat to security by particular agencies.

    Placing the events within a simple binary framework, and expecting support for that framework seems to be important to the way the support network for these people operates.

  4. SPC on November 7th, 2009 at 21:11

    Pablo:

    I suppose the difference, between the state in some countries and the state in other countries, is that the authority of the state is exercised via due process.

    But when the exercise of the authority of the state does seem to target the powerless rather than the powerful, some will with reason wonder whether the state is trying to intimidate dissidents.

    Sure the right to their day in court via due process is a way to restrain that intimidation, but that is not revenge and nor is restitution from any injustice. And the message is still sent, activists in those two areas are subject to surveillance and the full force of the law, and this is only subsequently restrained – limited in effect by due process.

  5. Pablo on November 7th, 2009 at 21:18

    SPC:

    I hear what your are saying, and it is reasonable. But here there are two angles embedded in the story narrative: 1) the cops and Labour govt abused their authority in persecuting these people because they were “pain in the arse” dissidents as opposed to real imminent threats to the community (unlike NZ Neo-Nazis who run their paramilitary camps, issue threats and attack those they hate with relative impunity, especially on the South Island); and 2) for those exonerated of serious charges (or the whole lot, for that matter), there are civil remedies (i.e. law suits) that can be filed against the police under “colonial” law that will allow these folk to gain some measure of redress for the emotional and material distress suffered, as well as for the injury to their mana. And I strongly suggest that those legal remedies be pursued to the fullest against the architects of the Oct 15 raids once the verdicts are handed down (this is not to say that some of the defendants did not engage in activities that were dodgy. What it does say is that most of them did not and they should sue as a result).

  6. cowbell on November 9th, 2009 at 19:30

    I have read the leaked surveillance transcripts, and I am utterly convinced that those guys were up to no good, stockpiling weapons, training people how to use them and making plans to kill innocent people. However they appear to be extremely incompetent – most of their cellphones weren’t even pre-pay, buying weapons on trademe, etc

    Yes, the police raids were unnecessarily heavy handed and yes the terrorism law was obviously terribly made, but there was something very wrong going on up there in the bush and I’m glad it got stopped.

  7. Pablo on November 9th, 2009 at 20:19

    cowbell:

    I too have read the transcripts, and while there is the occasional fierce talk, there is no plot, planning, or anything close to a terrorist event in progress. Moreover, much of the fierce talk may well have been said while the speakers were intoxicated, which coupled with the other details I mentioned in my trilogy would indicate that this was a far cry from something serious. Meanwhile, neo-Nazis and white supremacists run their own survivalist camps, complete with weapons, with impunity even though they have documented records of violence against those they do not like. One has to wonder why they have not been targeted for similarly spectacular raids, and whether there is a double standard at play when it comes to dealing with Left versus Right militant dissenters.

  8. Chi on November 10th, 2009 at 13:09

    ““October 15 was a reminder that the state is not our friend. It is a violent, colonial, racist institution that serves the interests of the corporations and the ruling class.”

    Err, the State also has the fundamental responsibility of protecting its citizens regardless of colour or creed.

    Talk of shooting pakeha farmers & killing people for practice, throwing Molotov cocktails into gas-filled buildings, blowing up power stations, assasinating John Key, doing what the IRA did in Britain, practising vehicle ambushes, throwing molotov cocktails, extracting colleagues under rifle fire and using guerilla warfare do appear to pose some potential threat to citizens.

    http://tumeke.blogspot.com/2007/11/and-backlash-begins-in-5-4-3-2-1.html

  9. Chi on November 10th, 2009 at 13:31

    “One has to wonder why they have not been targeted for similarly spectacular raids, and whether there is a double standard at play when it comes to dealing with Left versus Right militant dissenters.”

    If you’ve got some evidence of other groups discussing how to remove farmers, assassinate politicians, or engaging in the type of activities noted above please provide it. Otherwise it seems you are blowing smoke to distract from what was pretty disturbing activity.

  10. Pablo on November 10th, 2009 at 13:48

    Chi:

    You do not have your facts straight. There are no claims in the Police affidavits that the Urewera 18 were “throwing Molotov cocktails into gas-filled buildings,” “extracting colleagues under rifle fire,” or “practicing vehicle ambushes.” You seem to have a very vivid and selective imagination.

    As for the NZ neo-Nazis–just look at their websites.

  11. Chi on November 10th, 2009 at 16:27

    Ok. will check out those sites later.

    The allegations are set out in Tumeke link I provided above.

    In relation to the molotov cocktails, I said they were talking of that. Here are the bugged conversations from the above link – intoxicated or otherwise they are pretty disturbing.

    Suspect tells another it would be good to kill Pakeha to get trainees used to killing. Also suggests making their own tracer ammunition and using tungsten projectiles to go through a cop vest and through his f…… mate.

    Bug in vehicle, recorded April 6, 2007.

    Get someone to assassinate the prime minister, the new one, next year’s one. Just been in office five days, bang … Yeah. John Key … just drop a bomb … Just wait till he visits somewhere and just blow them … They won’t even find you.

    Two suspects in bugged vehicle, August 17, 2007.

    They want to start blowing shit up. You know, they want to blow up power plants, gas plants, Telecom, petrol f…… places and shit like that.

    Two suspects in bugged vehicle, June 23, 2007.

    You know like the IRA in England … it’s gonna happen here … I’m ready to die, mate. I’m gonna hurt this country, I’ve had a gutsful … I wanna leave this planet making sure that I’ve done a f…… huge amount of harm to this country.

    Suspect recorded on bugged phone, May 26, 2006.

    It’d have to be a, some sort of f……, sudden f……, because what it’ll do, it’ll come down on the thinking of the people, they’ll think it’s al Qaeda … It’s gotta be sudden and it’s gotta be brutal.

    Other suspect says: Don’t piss around with cities or doing the bush thing … just go to Parliament.

    Two suspects in bugged vehicle, August 17, 2007.

    I heard you talking about the napalm shit. Response from unknown man: I’ll make some and bring some next time round, show everyone how to make it.

    Conversation in bugged vehicle, September 16, 2007.

  12. Pablo on November 10th, 2009 at 16:41

    Chi:

    Just a few points in reply: 1) I would not use Tumeke as a source for any of these claims. As decent as that site is, Bomber went way out on a limb with his early commentary about the case, much of which is now quite disputable. 2) The comments you quote above were all made by the mentally unstable individual who is Pakeha and not actually involved in progressive activist causes. His mental state will undoubtably come up in his defense IF the bugged evidence you cite is deemed admissible–which so far it has not been, as I explained in the post. 3) Talk is talk–nothing of the above conversations ever translated into anything practicable. I suggest, again, that you read the linked articles I wrote at Scoop so you can get a better idea of what it takes to make a real terrorist plot.

    Lastly, I will have to consult with the colleagues in this weblog collective and some others who are closer to the case than I am to determine if your citing the bugged conservations is a breach of any suppression order. If it is I will have to delete your comment. Please do not take it personally if so. In fact, should I have to delete the post I am doing so to protect you from legal action in the event that your comment is in fact in breach of a court order.

    Hence, although I would prefer to keep the debate as it is, legal protocols may preclude that. At this point I simply do not know and will ask others for advice.

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