No right to know.

datePosted on 13:01, June 30th, 2020 by Pablo

When the Christchurch murderer pleaded guilty to 51 counts of murder and a number of other violent assault charges a few months ago, he effectively closed the door on what the public will know about the lead up to and commission of the event. His plea means that no evidence will be presented in court; that no witness testimony and cross-examinations under oath will happen; that no documentation will be entered into the official record; that no officials will be sworn in and questioned. We will not hear from the killer himself, not will we see senior security officials explain how his murderous plans were not detected and disrupted. Even so, the Crown did not reject the plea. That may have been convenient from the Crown’s point of view, but on the larger issue of finding out what actually happened, the NZ public apparently has no right to know.

This undoubtably suits the NZ Police and perhaps the NZSIS and GCSB (although it is likely that what failures may have occurred were in the real of human intelligence collection rather than with signals intelligence, since the latter would need to be tasked by the former to undertake domestic intercepts and the like). Now they will not have to explain whether there were systemic, institutional and something more than individual failures in the lead up to the attacks. We will never know if they had an institutional bias that blinded them to the dangers posed by violent white extremists, or whether they were aware that white extremisms posed an increasing danger to NZ society or some of its communities but decided not to act to preempt the threat because of other priorities (say, a focus on white gang drug dealing and the use of skinhead informants to that end). They may not have to explain whether they were aware (if true) that the killer had accomplices and enablers who helped him on his path. They will not have to answer as to why they ignored repeated complaints and pleas by the NZ Muslim community to do something about the ongoing and often intimidatory harassment to which many of them were subjected in the wake of 9/11. They will not have to justify why they devoted so many resources to monitoring jihadist sympathisers when in the end no Muslim has ever been charged with, much less convicted of, committing an ideologically-motivated act of collective violence in NZ both before and after 9/11.

Instead, two individuals have been convicted and sentenced to jail terms for possessing and trying to distributed offensive materials in the form of beheading videos, there are a few dozen who have ranted on social media to the point that they have caught the attention of the security services, and there are a small group who have left to join jihadists in the Middle East, some of whom will not be coming back because they are no longer of this Earth. But that is the extent of the Islamicist threat even though much money and resources were poured into the anti-jihadist effort and numerous law changes (Terrorism Suppression Act, Search and Surveillance Act, Intelligence and Security Act) were enacted to give security authorities more powers and leeway in combating them. Now we will never know why some of those resources were not directed into detecting and preventing white extremist attacks even though the NZ racist community was very visible, well-known to be violent and increasingly connected to foreign white supremacist groups via social media. Why were they not on the security services’ radar scope? Or were they?

The Police have admitted that the arms license vetting process to which the killer was subjected was deficient. Beyond confirming the obvious, this also is a classic example of scapegoating the lowest people in the chain of command. The Police also agree that the gun laws prior to March 15 were too lax, but that was a matter for parliament to resolve. When taken together with the guilty plea, what we have here is the makings of an absolution of higher level security service incompetence, negligence, maladministration and bias as contributing factors in the perpetration of the mosque attacks.

It has been announced that the Royal Commission of Inquiry has interviewed the killer. That may elicit some new information from him about his motives and planning, but it appears to be more of a courtesy to the defendant than a genuine fact-finding effort. After all, the Royal Commission should be able to have access to all of the Crown evidence by now. It has interviewed dozens of people (including myself) and supposedly has access to a trove of government documentation relevant to the case.

But therein lies the rub. The terms of reference of the Royal Commission are broad but its powers are limited. It has no powers of compulsion under oath, that is, it cannot demand that sworn witnesses appear before it (all of those who talk with the Commission due so voluntarily as “interviewees”). It cannot order the release of classified material to the commissioners; instead, it is dependent on the goodwill of the very agencies it is supposed to be investigating to provide such documents. It cannot identify any official that is mentioned in the course of the inquiry. It has no sanction powers. In truth, the Royal Commission is toothless.

I hope that I am wrong and that it will be able to answer many of the questions posed above because it has secured full voluntary cooperation from the security agencies that failed to detect and prevent the massacres. I hope that it is able to offer recommendations about review and reform of procedures, protocols and processes governing approaches to the NZ threat environment, including about the priority hierarchy given to potential, possible and imminent threats of any nature (for example, the relative priority given to gang criminality versus potentially violent political activism). It might even call for a major shake-up of the way in which Police and other intelligence agencies approach the issue of domestic terrorism. But that is just speculation, and may be no more than wishful thinking on my part.

One can only hope that in exchange for the guilty plea, the Crown and Police got something in return from the killer. Perhaps there was a quid pro quo involved whereby he offered information to the authorities that they otherwise could not obtain in exchange for better conditions in jail, sentence reduction, possibility of parole, etc. I am not familiar with the legal intricacies behind guilty pleas but I doubt that the murderer decided to do so out of the kindness of his heart, to spare the victim’s relatives further grief or to save the NZ taxpayer the costs of a trial. To my mind there had to be something in it for him.

In any event, the people who benefitted the most from the guilty plea are the NZ Police and intelligence agencies. They will not be held to account in a court of law, and instead can define the terms of the narrative constructed in the Royal Commission report so that it downplays or exonerates command and cultural failures while blaming lower level individuals, lack of resources, heavy workloads and other extraneous matters for the failure to prevent NZ’s worst act of terrorism.

Rather than a moment of honest reckoning, we could well get a whitewash.

That is not good enough.

PS: In the wake of commentators disputing some of has been said above, I have attached the Terms of Reference (with Schedule) and following minutes: Minute 1, Minute 2, Minute 3.

19 Responses to “No right to know.”

  1. Graeme Edgeler on June 30th, 2020 at 16:56

    The Royal Commission most definitely has the power to compel evidence, including evidence under oath.

  2. Görkem on June 30th, 2020 at 19:10

    I agree with Graeme – the Royal Commission has exactly the powers to do what you are calling for. The purpose of a trial is not to uncover flaws in the law or its execution, but the guilt or innocence of an individual. Even if the shooter had plead guilty, there is no real guarantee or even likelihood that the trial would have covered the issues. Whether or not the NZ police dropped the ball is not a question that is relevant to the question of the shooter’s guilt or innocence.

    Having the trial determine the fate of the shooter (and with the guilty plea, there is not much to determine except for the exact sentence) and having the Royal Commission cover the wider questions of whether the law or the executive agencies (including the police and SIS) were competent is exactly how it is supposed to work. Whether it will work that way is another matter, of course.

  3. Pablo on June 30th, 2020 at 19:26

    Both you and Graeme are wrong, but it may be because neither of you paid as much attention to the original RC remit last year as I did. I therefore have no interest in detailing at any length why you are in error other than to refer you to this earlier post: http://www.kiwipolitico.com/2019/05/hamstrung-from-the-start/.

    The limits to the RC’s work are mentioned there.

    The key to the trial was in the cross examination and calling of witnesses by the defense. While the Crown could bring witnesses in to attest to the killers motivations, plans, preparations and other issues relevant to the execution of the attacks, any competent defense counsel would ask who knew what and when, then ask why the killer was not identified and intercepted earlier. Plus, as I have already said and in contrast to Graeme’s comment, the RC has no powers of compulsion under oath, so only a trial would force witnesses to risk perjuring themselves rather than tell the truth as to what was known about him in the lead up to the event. Not only do I know that because of the Minutes attached to the Schedule outlined in the Terms of Reference updated in May 2019, but because I was told so directly by the RC when I was interviewed by them.

  4. Görkem on June 30th, 2020 at 20:53

    I disagree re: a competent defense council. Even if the defense can establish that the police were extremely negligent in their failure to prevent the crime, this does not negate or even ameliorate the criminal’s guilt. Any competent judge would strike down such a line of inquiry for lack of relevance.

  5. Smithers on July 1st, 2020 at 09:23

    You are most definitely wrong about the powers of the Royal Commission. It can summons people and require evidence under oath and it has done so. See their update 15 on their website. The powers are available under the Inquiries Act and are not ousted by the terms of reference. There would in fact be no point in appointing a Royal Commission and then excluding those powers. The RC does not have to issue summons however where there is no need to do so and it sought and received a large number of voluntary submissions, including apparently from you. But just because you were not summoned and required to speak on oath does not mean others have not been.

  6. Pablo on July 1st, 2020 at 09:43

    You are correct that the RC can take evidence under oath, but that is not an absolute norm and there is no (apparent) powers of compulsion under oath to make people or documents available to it. Also, the extensive use of national security provisions to deny public knowledge of testimony etc. means that the RC report will be a sanitised version of events.

    I’ll double check the fine print of the Minutes to the Schedule issued in early May 2019 where the exceptions to the powers of the Inquiries Act are outlined. That is the interesting part, because as I mentioned in the “Hamstrung” post from May last year it undercut the powers of the RC. And as I said before, I spent 1.5 hours talking to the RC in July 2019 and outlined my concerns to them. They agreed that the terms of reference and addenda limited the what they could do and that the (then) six month timeframe for completing the report was, to put it charitably, unrealistic if a complete accounting was the intention.

    The only means for them to see classified information was to designate a qualified person to vet requested documents on national security grounds. I suggested then Inspector General of Intelligence and Security Cheryl Gwyn. I am not sure if she was used for that purpose and she was removed from/promoted out of the IG post late last year.

    In any case, I have posted relevant Minutes as postscripts to the post.

  7. Edward Main on July 3rd, 2020 at 16:38

    ” even though much money and resources were poured into the anti-jihadist effort and numerous law changes (Terrorism Suppression Act, Search and Surveillance Act, Intelligence and Security Act) were enacted to give security authorities more powers and leeway in combating them ”

    So even with more laws…. nothing changed.
    Now that is SAD

  8. The Veteran on July 4th, 2020 at 11:43

    Pablo … I can only assume you have not read the Commissions of Inquiry Act in making your comments.

  9. Pablo on July 4th, 2020 at 14:52

    Veteran:

    Take a look at the exceptions to the depth of the inquiry outlined in the Minutes I linked to in the postscript, which supersede straight application of the Inquires Act to this investigation.

  10. The Veteran on July 4th, 2020 at 15:12

    Pablo … with respect. Minutes cannot trump (bad word) the Act.

  11. Pablo on July 4th, 2020 at 20:15

    Vet:

    The Minutes detail all of the reasons why certain aspects of the Act cannot be followed in this particular inquiry, national security reasons being foremost amongst them. Taken together, the exceptions limit the ability of the RC to delve at any depth into institutional and systemic failures that contributed to the attacks and shield security officials from public accountability for sins of commission or omission.

  12. The Veteran on July 5th, 2020 at 11:10

    Pablo … I have had some small experience with CoI and they are very much the masters of their own destiny with the caveat that it is up to the members to decide who much they want to ‘push’ the issue.

    The Minutes provide a guide but they are not absolute. I do however understand your concern.

  13. Pablo on July 5th, 2020 at 11:59

    Thanks Vet.

    I hope that you are right and I my fears are unfounded and I am proven wrong. It would be great if the RC used the opportunity to force a thorough review of how threat assessments are handled by the NZ security community (among other things). In any case I have heard rumours that the Christchurch RC is a bit of an omnishambles, so I shall keep my expectations in check.

  14. Görkem on July 6th, 2020 at 11:30

    Where did you hear these rumours?

  15. Pablo on July 6th, 2020 at 19:16

    From your Mum.

  16. Görkem on July 6th, 2020 at 20:05

    There is no need to get personal Pablo, it was a serious question :-/

  17. Pablo on July 7th, 2020 at 13:42

    Ask a silly question, get a silly answer. More to the point: why should I answer you? I heard a rumour and mentioned it. End of story.

  18. Görkem on July 7th, 2020 at 20:09

    Why is it a silly queston to ask sources? During my university years source analysis was fundamental to academic enquiry.

  19. PGM on July 8th, 2020 at 13:25

    Having a quick skim through the Inquiries Act 2013, the terms of reference and those minutes, there’s nothing to suggest that the RC doesn’t have the power to compel evidence. Whether it will, and to what extent it does, is another question of course.

    They could well delve deeply into the matter, but it’s quite likely the public will never know a significant portion of their findings and recommendations.

    I guess I find it hard to imagine a report that isn’t redacted like an OIA release from Min Judith Collins.

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