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The rot at the top (2).

datePosted on 16:14, October 15th, 2019 by Pablo

Thanks to a report from the Acting Inspector General of Intelligence and Security following a complaint by Nicky Hager, we have come to find out that the SIS illegally spied on Mr. Hager on behalf of the NZDF after publication of Hager’s 2011 book, Other People’s Wars. The NZDF justified its request by arguing that it was investigating potential espionage, although it turns out that it was actually looking for the NZDF source of leaks to Mr. Hager. This occurred when John Key was the Minister of Intelligence and Security, Warren Tucker was SIS Director and LTG Rhys Jones was Chief of the NZDF . Did the SIS and NZDF go rogue or were these individuals aware of the spying?

It seems hard to believe that none of these people were unaware of what their subordinates were doing. The NZDF request might have been accepted as a tasking under the partner agency agreement whereby the SIS assists other government agencies when and where needed. But for this to happen the Commissioner of Warrants or the Minister of Intelligence and Security would have to have approved the request. So the question is: did this happen? Was the request, while done through proper channels, truthful in its justification or was the warrant signed under false pretences? Or, did the NZDF and SIS agree to monitor Mr. Hager’s phone records without authorisation from above? If so, who authorised that action? Mr. Tucker and LTG Jones? Some mid level managers in the NZDF and SIS?

It should be noted that this unlawful spying occurred before the Police illegally searched Mr. Hager’s home and accessed his bank and phone records after the publication of his 2014 book, Dirty Politics. Here too we have the question of who, exactly, authorised the intrusion: the Minister of Police? The Police Commissioner? Someone below that rank? A friendly Justice of the Peace? Was the illegal Police access–again, supposedly to find the hacker called Rawshark who leaked to Hager a rightwing attack blogger’s emails and social media communications–a follow up or in any way connected to the previous NZDF/SIS investigation? After all, security agencies share information even after investigations are concluded or cases closed, so it is not inconceivable that the SIS file on Hager was forwarded to the Police once they opened their investigation into Rawshark’s identity. Ironically, the Police ended up with the same result as did the SIS when looking for Hager’s sources: nothing.

After the Acting IGIS issued her report, the Director General of Security (head of the SIS), Rebecca Kitteridge, issued an apology to Mr. Hager, seven years after the fact. But apologies are not enough. Punitive sanction must be meted, however retroactively, on those who ordered the spying in both the NZDF and SIS as well as those in cabinet who may have been aware of it. Will that ever happen? It is for the current Labor-led government to decide, which means that it needs to seriously think about yet another official Inquiry.

This may seem tedious and burdensome on the taxpayer, but it is now pretty clear that there is a systematic pattern of abuse of authority in the NZ security community. In the last ten years the Police, GCSB, NZDF and SIS have all been found to have committed unlawful acts against NZ citizens and residents. Little to nothing has been done to address, much less correct these institutional excesses, so the opportunity is ripe for a calling to account from those involved. Once the inquiries into Operation Burnham and Christchurch terrorist attacks are finalised and their reports submitted, that can be used as a starting point for a fuller inquiry into what I have previously labeled the “culture of impunity” that pervades the repressive apparatus of the NZ State.

As things stand and unless an investigation is launched into the mechanics of these unlawful and illegal acts, those who ordered the spying are likely to go unpunished. The maximum penalty for the SIS breaking the law is a $5000 fine for the agency, not any individuals employed in it. Key, Jones and Tucker are all retired and unlikely to receive any a posteriori punishment. So unless there is an investigation and subsequent law changes that hold people strongly (and retroactively) accountable for ordering or facilitating illegal acts committed by security agencies, impunity will endure and the institutional foundations of NZ democracy continue to be corroded from within.

The rot at the top.

datePosted on 11:46, September 20th, 2019 by Pablo

When military leaders cover up and lie to elected civilian authorities, the foundation of democratic civil-military relations is undermined because it is those authorities who are entrusted to hold the military accountable to the public that they mutually serve. But this is only true if civilian political authorities take their responsibilities seriously and accept that when it comes to military operations the policy buck stops with them.

The same is true for intelligence agencies in democracies. While specific operational details remain within the agencies involved, the general policy guidelines for how they conduct those operations, and the responsibility for them, rests with a) the legal framework governing their activities and b) the elected civilian governments that are their overseers at any given point in time. For both the military and intelligence community, this means exchanging corporate or institutional autonomy-that, is, the ability to set internal standards, practices and objectives free from political interference–in return for submission to civilian political authority on broad matters of policy and accountability.

In recent weeks we have discovered, thanks to the Inspector General of Intelligence and Security’s report on NZ involvement in the CIA-operated extraordinary rendition/black site/torture program, that the NZSIS and GCSB received and supplied information that was directly linked to detainees who were subject to torture by the US and other allies in the coalition fighting al-Qaeda and the Taliban. The directors of these agencies at the time claim that their agencies did not know about the program even though they worked hand-in-glove with the CIA in Afghanistan and elsewhere and even though knowledge of the extraordinary rendition/black site program and the use of torture was in the public domain as early as 2004. From what is described in the IGIS report, it appears that NZ intelligence bosses had their own version of “don’t ask, don’t tell” when it comes to what the US was up to. As Richard Woods, former NZSIS director general, is quoted as saying in the IGIS report (I paraphrase here), “do you really expect us to ask the US directly about such things and risk our relationships with it?”

When confronted about this discrepancy by the IGIS the former directors maintained the high-ranking government ministers of the day were privy to all of the sensitive information regarding NZ’s intelligence relationships and that as agency directors they had no authority to engage in moral, ethical or legal judgements about what their allies were doing even if these actions violated NZ and international law–all while maintaining that they knew nothing about unmarked airplanes, black sites, torture and suspects being captured (including by the SAS) and then “disappeared” into the covert operations labyrinth.

That broaches the question as to whether former directors Richard Woods and Warren Tucker are simply lying (former GCSB chief Bruce Ferguson was a late arrival to the events under investigation and inherited his situation from Tucker) and prefer to put NZ intelligence relationships with the CIA ahead of their supposed duties to the NZ government and nation as a whole. Or, did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it? It should be noted that Barack Obama ended the extraordinary rendition/black site/torture program shortly after he assumed presidential office in January 2009, so the bulk of NZ’s involvement with it happened under the 5th Labour government.

With regards to the NZDF, thanks to the book “Hit and Run” by Jon Stephenson with Nicky Hager and the ensuing Royal Commission of Inquiry into Operation Burnham (the subject of the book), we now know that the military brass did not inform (at best) or mislead (at worst) senior government officials about the possibility of civilian deaths in that mission until news of it became public (again, mostly thanks to the work of Mr. Stephenson in his series on NZSAS activities in Afghanistan). The NZDF story constantly changed as more was revealed, and the Inquiry has now found out that a critical NZDF document recognising the possibility of civilian deaths was “lost” in a secure safe for three years and that a register of who opened and closed that safe during that time frame somehow went undiscovered until this week. Former ministers in the Key government, which was in office when the mission was conducted, maintain that they were unaware of the existence of anything that would contradict the original NZDF version of events, which claimed that only “terrorists” were killed.

That raises a profoundly disturbing possibility whichever way the truth falls in each case. On the one hand, it would appear that senior NZ intelligence and military officials do not inform and in fact cover up controversial operations that occur under their watch. The civilian authorities to whom they ostensibly answer to in the division of labour that constitutes the foundations of democratic civil-military/intelligence relations are deliberately left in the dark. This suggests a level of arrogance and sense of imperiousness that is inimical to democratic governance because there is no regard for personal or institutional accountability embedded in their decision-making. They simply do as they see fit and lie about it afterwards.

On the other hand, it is possible that military and intelligence officials respect the concept of civilian political authority and inform governments of the day of everything that they are doing, including when things go wrong or unpleasant compromises are made in the interest of national security. This can be considered to be a variant of the “no surprises” policy in which governments are informed apriori of controversial decisions so as to not be caught off-balance when said decisions become news. If that is the case, then political managers shoulder responsibility for the policy decisions under which the NZ intelligence community and NZDF operate, including taking the blame when things go wrong or uncomfortable facts are revealed about what NZ security forces are doing at home and abroad.

However, it appears that in NZ there is not only a variant of “don’t ask, don’t tell” operating in the intelligence community, but it is attached to a civilian political management approach whose operating premise is “don’t want to know.” That is, civilian political authorities display willful ignorance in an effort to maintain plausible deniability when things go wrong or prove politically fraught. That may be expedient over the short term but abdicates responsibility when it comes to civilian oversight of the military and intelligence community, thereby tacitly encouraging military and spy agency impunity during and after (often lethal) operations.

Coverage of the Royal Commission on Inquiry into Operation Burnham has focused on the supposed incompetence of senior NZDF officers when it came to document security and disclosure. “Incompetence” is the most generous interpretation of what was at play here. “Conspiracy based on deliberate and coordinated lies and misrepresentations authorised from the top” is an alternative interpretation. The questions now are: which of these two interpretations seems more plausible and will anyone be held to real account in any event? Surely, if the government of the day was deliberately lied to or mislead by the NZDF and was not complicit in the coverup, then there is criminal liability involved.

The same goes for the intelligence agency chiefs who say they did not know what their subordinates were doing during the years in which the CIA-operated extraordinary rendition/black site/torture program was running. If they lied to their political masters about what they knew, then there should be consequences for that even if it has taken time to uncover their deception. If the political authorities at the time knew about NZ intelligence community involvement in the program, that should become a matter of public record even if little can be done in terms of retroactively applying punitive sanctions on their behaviour..

Not to put too fine a cynical point on it, but perhaps there is another hand at play in both instances. The IGIS report on NZ involvement with the CIA extraordinary rendition/black site/torture program speaks at length about managerial misadventure in the NZSIS and GCSB and even “naivety” in the discharge of their duties (when was the last time anyone ever heard the word “naive” associated with spy agencies?). The Inquiry into Operation Burnham has heard about “mistakes” and “oversights” on the part of NZDF senior leaders. It would seem that the common denominator in both is incompetence rather than wilful or deliberate circumvention of ethical norms, legal obligations and constitutional responsibilities.

Could it be that “incompetence” is the ultimate “get out of jail” card for public servants found to have failed in the discharge of their basic obligations and responsibilities?

A fraught inquiry.

datePosted on 16:21, June 20th, 2019 by Pablo

The inquiry into whether the SAS acted illegally during a nighttime raid on a suspected insurgent’s hideout in Afghanistan in 2010 (code named Operation Burnham), which resulted in six civilian deaths and serious wounds to 15 others, is slowly coming apart. This is unfortunate because the NZDF, which has allocated NZ $8 million to its representation at the inquiry, looks likely to be let off the hook even though the inquiry has revealed a pattern of lying, deception and cover up on its part. The issue transcends the actions of the SAS and allied forces on the ground and moves into the behaviour of the NZDF chain of command in Afghanistan and NZ after the first reports of civilian casualties came to light. Unfortunately, it now seems that will be whitewashed into oblivion.

So far the Inquiry (chaired by Sir Geoffrey Palmer and Sir Terence Arnold) has revealed that contrary to NZDF statements, civilians were known to be killed from the beginning and that at least some of them were “MAMs” (military aged males) who were unarmed. It also revealed that, again contrary to earlier NZDF reports, a US AC-130 gunship was involved in the operation and hit targets as they fled the villages in which the operation was conducted. Some of these may have been women and children, although the NZDF changed the identification of civilians to possible “INS” (insurgents) once the raid became a matter of public attention. The after-action reports demonstrate that little difference was given to suspected INS and MAMs when calling in air strikes, and that the AC-130, which is a rather blunt instrument when used on people out on open terrain, was the primary instrument of death. Only one person was killed by an SAS trooper, that being a hapless unarmed shepard who stumbled towards a SAS sniper position providing cover from a ridge line above the villages.

The NZDF’s (unnecessary, in my opinion) deception and cover up will largely remain lost because of two things: there secrecy in which the Inquiry has been shrouded; and the tactics of some of those who brought the matter to public attention. Let me explain.

The Inquiry was set up as a result of the allegations in a 2017 book by Jon Stephenson and Nicky Hager titled “Hit and Run.” The book followed a series of magazine stories by Mr. Stephenson about the SAS in Afghanistan and the Operation Burnham raid. Mr. Stephenson did almost all of the field research and original writing that went into the book, with Mr Hager joining later in order to add weight to the venture and bring it to quick publication in an election year. Although Mr. Hager got first author treatment on the cover page and in the media, the truth is that Mr. Stephenson was responsible for the majority of what was written in it.

As can be expected given their different roles in the project, the authors differed on some key issues, including the use of non-military maps to illustrate the location of the targeted villages and the tone of some of the language used to describe the SAS’s actions (which have been described by some as “war crimes” committed in revenge for the death of a NZDF soldier weeks earlier). One bone of contention was whether in fact any Taliban associated with the deadly attack on the NZDF land convoy were present in the village of Naik. That matters because the NZDF said that there were and that justified the raid. As it turns out, Mr. Stephenson subsequently reported that indeed, two Taliban commanders–the objectives of the “kill or capture” SAS-led mission–were present in the village but left before the raid commenced. However, the book claim is that no insurgents were present, apparently because none were found by the SAS in the targeted villages and Mr. Stephenson had not yet been able to secure interviews with the escaped Taliban commanders before the dateline for publication. The discrepancy does not invalidate the many other claims in the book but points to differences in journalistic approach between the two Hit and Run authors–differences that, along with other errors in the book (such as location errors on the maps used in the book), the NZDF and its supporters have been quick to seize upon.

The book came out, a furore ensued, the NZDF pretty much denied everything, then slowly began to correct its narrative and admit to much of what was written, and an Inquiry was eventually launched once the Labour-led government was installed (the previous National government refused to launch an inquiry and accepted the NZDF version of events).

The scope of the Inquiry was initially narrowly construed: determine what happened and whether the SAS and its Afghan and US partners contravened the laws of war. This is what led to the near-blanket extension of secrecy to the evidence and testimony given before it, as multiple agencies such as the GCSB and SIS had some involvement in the affair, SAS personnel are normally given anonymity during official investigations, and sources, methods, tactics and the names of individuals could be compromised if transparency was faithfully observed. This has led to disappointment in some quarters and increased tension between the Inquiry leaders and the accusers over the lack of transparency.

The bottom line is that whatever the legitimacy for the rationale behind keeping much of the Inquiry secret, its primary focus was always about the how Operation Burnham unfolded as a combat event. Questions about NZDF post-event misrepresentation could only be addressed once the facts on the ground were established.

I am ignorant of the exact timing of their entrance (perhaps even from the onset), but at some point the much celebrated team of Deborah Manning, Rodney Harrison QC and Richard McCleod (of Ahmed Zaoui fame) were invited to represent the victims of the raid in the Inquiry. It was at that point that things began to fall apart. The reason is that adding the villager’s perspective into the mix at the same time as responsibility was being determined muddled the Inquiry by stretching its terms of reference. Again, the original scope of the Inquiry was to determine what happened, whether illegal acts were committed and to attribute responsibility if so. Once that was established then the issue of reparations, compensation and other forms of victim redress could be discussed because it would be clearly established how they were victimised.

This is an important distinction. It is appropriate for the villagers to testify as witnesses. It is another thing to have them testify as victims. The former seeks to uncover other points of view on what was a chaotic nighttime operation. The latter presupposes culpability and concentrates on the matter of redress. Yet, judging from the legal team’s statements, it is this second matter that appears to be the focus of the villager’s representation in the Inquiry.

Under such conditions allowing villager legal representation to sit alongside the book authors who made the claims against the NZDF in the first instance is akin to putting the cart before the horse. To phrase it in political science terms, it is a case of methodological inversion because the focus on the villagers-as-victims selects on the dependent variable (the situation after the raid) rather than on the independent and intervening variables leading to the outcome (the reasons for and conduct of the raid). Put even another way: Yes, we know that innocent people died and were wounded in the raid and that the NZDF attempted to cover it up. But the question is whether they were killed unlawfully, and if so, by who, exactly? It is only when those questions are answered that discussion of what to do by way of redress can begin.

Unhappy with the proceedings, the villager’s legal team has quit the Inquiry (there is much talk about the villagers being disillusioned with the Inquiry but one has to wonder how much agency did they have and how conversant with the proceedings were they given the fact that they are largely illiterate peasants living in remote valleys 14,000 kilometres away from where the Inquiry is being conducted). Now Mr. Stephenson has publicly revealed that, based on interviews with them, two Taliban commanders were in Naik after all. That is problematic because it contradicts the villager’s original testimony as claimed in the book (which stated that no Taliban were present in the villages before the raid) and Mr. Hager’s supporting remarks to the Inquiry (which Mr. Stepehnson apparently contradicted in his testimony to the Inquiry months ago, where he left open the possibility that Taliban were present in the village before the raid but which he did not confirm publicly until recently). This still leaves a lot yet to be determined but certainly gives the impression that all is not well on the accuser’s side of the table.

I believe that the thrust of the book is correct even if mistakes were made on details and the language in it is a bit strong at times. Although controversial, Mr. Hager’s previous writing on matters of NZ security and intelligence have largely been proven correct. I have a ton of respect for Ms. Manning and Mr. Stephenson in particular, both of whom I know socially. I also believe that the SAS are very professional and are not prone to killing people for the sport of it. What I do not have much regard for is military superiors using secrecy and public relations to spin stories that evade the truth and which serve to shirk responsibility when things go wrong.

Alas, the NZDF brass may prevail in this instance. Most of those in leadership positions at the time Operation Burnham was conducted have moved on to other pastures and would not face punitive sanctions in any event. A few middle ranking soldiers might be called to account but it is doubtful that anything career threatening will happen to them. The soldiers who conducted the raid are very unlikely to be found to have committed illegal acts given the fog of war in difficult circumstances (I say this having read a number of the after-action summaries provided to the Inquiry).

Perhaps I am wrong and the Inquiry will find that the NZDF falsified documents and mislead the civilian leadership of the moment as to what actually occurred that night (one should recall then Defense Minister Wayne Mapp’s statements immediately following the raid versus later, once the book was published and he was revealed as a source for it). In that case perhaps some heads will roll. But I find that prospect unlikely.

What I do find likely is that, undermined by competing agendas amongst the principles involved in confronting the NZDF and shrouded by the mantle of secrecy afforded to it by the Inquiry, the military will pay no price even in the event that mistakes were made and innocents hurt as a result of them. I hope to be proven wrong and stand to be corrected if any of the above analysis is faulty, but at this juncture I think that in more ways than one the NZDF may well have dodged a bullet.

Hamstrung from the start?

datePosted on 09:47, May 30th, 2019 by Pablo

The Royal Commission of Inquiry into the Christchurch terrorist attacks has begun its work. This represents an extraordinary moment in which to examine the mechanics of the event, i.e., how it was planned and prepared, who may have been involved beyond the perpetrator, the timeline that led him to the Masjid Al Noor and Linwood Islamic Centre on that fateful afternoon on the Ides of March, and who dropped the ball when it came to preventing the attacks.

The inquiry represents an opportunity to uncover the systemic, institutional and individual errors that together combined to produce a catastrophic intelligence failure on the part of New Zealand’s security authorities—not just the Police but the dedicated agencies that together make up the larger New Zealand domestic security community. These include the SIS and GCSB as lead intelligence agencies but also intelligence “shops” in places like Customs and Immigration, all of whom failed to see or ignored warning signs in the accused’s movements in and out of the country during the last five years and who may have been organizationally blind to or dismissive of the threat that he represented to New Zealand society.

The inquiry is needed because the Christchurch terrorist attacks represent the worst act of ideologically-motivated non-state violence in New Zealand’s history. March 15 was not a normal day in Aotearoa and it should not serve as a baseline for a “new normal” in the country. A fully transparent and in-depth investigation into the acts of commission and omission that contributed to its terrible success should be of utmost priority.

The two commissioners, Sir William Young and Jacqui Caine, a former High Court Justice and diplomat, respectively, have seven months in which to conduct the investigation and return their findings. These will include the details of what they uncover as well as recommendations for remedies and future action. Their terms of reference include provisions for consultation with the NZ Muslim community and others who have a civil society stakeholder’s interest in the inquiry. The scope of the inquiry is broad, and includes examination of all potential contributors to the chain of events leading up to March 15.

However, there are causes for concern that suggest that the Commission’s work might be hamstrung from the beginning

First, there is the short time frame. Seven months is an inadequate period in which to conduct a thorough investigation into all of the contributing factors. That is complicated by the accused terrorist’s trial being held concurrently with the inquiry, with the Crown’s case overlapping with and mirroring the work of the Commission. Rather than separating the inquiry’s two investigative streams—one focused on the killer’s actions prior to the attacks using evidence from the trial and the other focused on broader factors that contributed to the successful execution of the attack—the inquiry will have to do both simultaneously while the trial runs in parallel (and perhaps beyond the December 10 deadline for the Commission to present its report). Assuming that the Commission will not be sharing evidence with the Crown while the trial is underway, this could limit the scope of the its work.

The second concern is the lack of intelligence-related experience and limited powers of the Commissioners in a context of official secrecy. Although well-respected in their fields, neither Sir William or Ms. Caine have experience with intelligence collection and analysis. They undoubtably have been consumers or evaluators of intelligence reporting in past roles and they certainly are able to keep secrets. But that may not be enough to resist push-back or “bureaucratic capture” by the agencies they are charged with investigating. This is facilitated by the Terms of Reference and its Minute One (“Procedures for gathering Information and Evidence”), which outline why most of the Commission’s work will be done in private on national security grounds. This is permitted by Section 15 of the Inquiries Act 2013 and justified by Clause 10(3) of the Terms of Reference and Section 202 of the Intelligence and Security Act 2017.

The agencies that have been granted secrecy include the SIS, GCSB, Police, Customs, MBIE, DPMC, Justice, MFAT and the Inspector General of Intelligence and Security. No foreign derived information will be revealed in public. A blanket ban has been placed on identification of employees of these agencies whose names turn up in the investigation. In practice, that means that there will be no public accountability for those who may have contributed to the attacks via incompetence, bias or myopia. More broadly, the move to secrecy means that whatever skeletons are uncovered will remain buried away from public view.

The Commissioners do not have powers of compulsion or the ability to veto an agency’s decision to withhold classified materials. That leaves them at the mercy of those they are investigating when it it comes to access to sensitive data, even if what is “sensitive” about the data is not related to national security but to the reputations and orientation of individuals and institutions.

This is not unusual: security agencies under the spotlight often resort to a “get out of jail” card in the form of claiming that open discussion of their actions will compromise sources and methods that are vital for ensuring national security. But the truth that needs to be uncovered in this instance does not involve national security secrets but the derelictions, biases or pressures that might have contributed to the failure to detect and prevent the attacks.

Efforts to limit the openness of the inquiry and the accountability of those that are its subjects must be resisted. The Commissioners need to have powers to compel documents, data and answers from those in positions of authority within the NZ security community and they need help from experienced intelligence overseers when doing so. The Inspector General of Intelligence and Security is one such person, assuming that there would be no conflict of interest involved (since the IGIS has no operational role and hence would not have been part of the command chain that failed to detect and prevent the attacks). A panel of experts with the IGIS, an IGIS representative, or another retired official as chair would be a good compromise option between utter secrecy and full transparency.

A third source of concern lies in the staffing and budget allocated to the inquiry. At $8.2 million the allocated budget is adequate only if it goes towards the investigatory aspects of the inquiry and not public relations or administrative expenses. The Department of Internal Affairs is the host agency of the Commission, so it will be its staff that does most of the logistical footwork underpinning its work. Here again the question of expertise and powers afforded investigators remains an open question.

Another potential problem is the nature of the Commission’s victim outreach program, called the Muslim Community Reference Group. Divisions have emerged over who and how many people should be included in this advisory body. Concerns have risen that self-proclaimed community “leaders” are being shoulder tapped for official interlocutor roles without proper consultation with their purported constituents. This may be due to expediency given the time constraints operative, but it also follows a historically “thin” approach to stakeholder consultation by the NZ State, where what passes for outreach has traditionally been more symbolic than substantive.

Either way, the process of establishing the Reference Group augers poorly for the representative transparency or inclusiveness of the process, something that is acknowledged in the Commission’s Minute One. Plus, the relationship between the Reference Group and the investigation streams is unclear at best but, given the veil of secrecy wrapped around the inquiry, is likely to be little to none.

Finally, the scope of external input into the inquiry, while theoretically extensive, appears destined to be limited in nature. Few invitations have been issued to civil society stakeholders to testify before the Commission, no public meetings have been scheduled and no written submissions solicited (although all have been promised). Along with the mantle of secrecy, this will limit the amount of public review and consultation. That skews the investigation in favour of those under scrutiny.

In effect, on paper the terms of reference for the Commission look thorough and broad. In reality, its work could well be stunted at birth. With limited experience and powers on the part of the Commissioners, a lack of pertinent expertise to help them, unrepresentative liaison with the victims, limited budget and staff and statutory permission for the agencies under investigation to restrict public knowledge of their actions, both the transparency of the inquiry and its ability to identify sources of accountability are compromised.

It is therefore incumbent upon the Commissioners to broaden stakeholder participation in the inquiry, strengthen the Commission’s powers of compulsion, and extend the deadline for submission of its report. It is within their powers to do so even if a court challenge to secrecy clauses in the Inquiries and Security and Intelligence Acts is required. The question is, will they? At the moment that prospect looks unlikely.

UPDATE (June 14): The killer has just plead not guilty to 51 counts and denies being the Christchurch terrorist. His trial date is set for May 4 next year and scheduled to last 6-12 weeks. The nearly year-long delay in bringing him to trial means that the Royal Commission will have done its work and issued its report six months prior to the trial. What that means for the execution of justice and the content of the Commission’s report is unclear but at a minimum it removes court testimony under oath from the inquiry. Given what I have outlined above with regards to secrecy and the inability of the Commissioners to compel testimony under oath or the surrendering of classified material, the lack of access to court testimony and evidence weakens the inquiry even further.

NZDF links in the Iraq “kill chain.”

datePosted on 11:27, February 27th, 2018 by Pablo

When discussing military activities we often hear about the “tip of the spear.” The analogy is a bit overdrawn but points to the fact that the killing head is a relatively small part of the enterprise, and there is not only a long logistical line behind it but also elements of will, volition, intelligence, targeting and discipline in the use of the weapon.

In the modern military vernacular, the process behind the application of lethal kinetic force is known as the “kill chain.” It is worth disaggregating its core elements, starting from the spear tip.

Combat roles are those involving the direct application of force. This involves those pulling triggers on the enemy: infantry, armour, artillery, naval gunnery, tactical and strategic air strikes, special operations reconnaissance, forward air control and hunt and destroy missions. All of these roles involve engaging the enemy by kinetic means.

Combat support roles are those that directly facilitate the application of force. Intelligence collection and analysis, including that which leads to the preparation of target “packages” (usually consisting of a small array of priority and alternative targets and the suggestions about preferred kinetic means to be employed) are key combat-support roles. So are armorers. transporters and tankers providing the weapons, food, equipment and fuel to be deployed in theatre. Likewise, military mentors serving in “advise and assist” roles where they go into the field with foreign partner units are key combat-support roles that often morph into combat roles in the heat of battle. The same applies to combat search-and-rescue units. The key distinction from combat roles is that while they are not designed for or tasked with immediate involvement in the application of force, they are essential to doing so and are in close proximity to or overlapped with those who do. They are the eyes, ears, mind and body that inform the moment when the spear is thrown or trigger is pulled.

Non-combat roles are those that are not involved in the application of force on the enemy. These can be training units operating “behind the wire” in secure installations, mess hall and logistical services away from conflict zones, non-combat search-and-rescue, recruiting and foreign liaison duties, military diplomacy, unarmed humanitarian operations, military band and parade duties and other “meet and greet” PR exercises. Although all helpful to combat missions in an indirect way, none of these roles are absolutely required for successful completion of them. That is what differentiates non-combat from combat-support roles.

Many readers may find all of this obvious and not worth belabouring. But I do so because in New Zealand the  distinction between these roles appears to have been overlooked in official staments about what the NZDF is doing in Iraq (and previously in Afghanistan). From the moment NZDF troops were committed to the fight against Daesh in Iraq in May 2015, the government and military command have defined the mission as a “non-combat” training role. But there appears to be more to that mission that what has been acknowledged, and the NZDF has either been disingenuous or has deliberately misled the public on the true nature of it.

It was only last year that the National government admitted that NZDF personnel were engaged in  “advise and assist” roles and were operating on bases other than Camp Taji, the main training facility north of Baghdad. To this day its successor has refused comment on the nature of NZDF operations outside the training role (now into its fourth year). More tellingly, especially in view of the fact that there are credible reports of NZDF and civilian intelligence personnel being involved in the collection and analysis of actionable tactical intelligence at forward bases in northern Iraq and elsewhere in the regional theatre as well as NZSAS involvement in the fight for Mosul and attendant operations, both the former and the present government continue to maintain the line that the NZDF mission in Iraq is of a non-combat nature.

Not only does that dichotomise and oversimplify what are in fact a range of overlapping military operations, it serves as a semantic trick that, by using a very narrow definition of “combat” and a very broad definition of “non-combat,” reduces the former to only those who pull triggers and the latter to everyone else in uniform. Since combat-support roles are the largest part of the “kill chain,” this false dichotomy hides the very real possibility that the NZDF is in fact very actively involved in and around combat operations in northern Iraq (and perhaps Syria). Much like what eventuated in Afghanistan, it seems that the NZDF has, for its own reasons, decided to hide or misconstrue the multifaceted  nature of the deployment in Iraq and successive governments have gone along with the deception.

I am not sure why this is so.  Other than the Greens and some pacifists in Labour, no political party is going to oppose what the NZDF are doing in Iraq because the general consensus amongst the political elite and public is that the fight against Daesh is just. New Zealand is fulfilling an international obligation by joining in that fight (remember that “price of the club” remark made a few years ago by a senior decision-maker), and its soldiers (all volunteers) gain experience of real battlefield conditions and joint force operational integration with foreign military partners. Daesh already knows about the NZDF role in the so-called “Crusader Coalition” and has called for attacks on NZ soil. So on moral-ethical as well as practical grounds, it would seem that it is safe for the NZDF to be honest about what it is doing abroad.

Of course, as I wrote in a previous post, denying involvement in combat-support and combat roles allows the government and NZDF some measure of plausible deniability in the event that thing go wrong. But if that is the case, then why allow the mission in Iraq to broaden into roles that might incur that chance? Beyond what has been reported about NZDF activities in Iraq in the foreign (including allied military) press, circumstantial evidence at home indicates that the NZDF brass are very deliberate in their concealment of the facts on the ground. How else to explain the extraordinary secrecy demanded of deployed troops even upon their return, to include not telling their families of basic aspects of the deployment, when other members of the anti-Daesh coalition allow their troops to speak freely about non-sensitive operational matters?

A basic tenet of leadership is that responsibility for taskings is assumed by those making decisions. Why has the NZDF decided to engage in combat-support (and likely combat) operations but deny responsibility via the misleading claims about the NZDF non-combat role? Is that not a dereliction of duty and an abdication of command responsibility? Evidence is mounting that NZDF personnel are being put in or near harm’s way and yet the NZDF leadership insist that they are not. Why the continued NZDF  adherence to this ruse, and why does the new Labour government continue to tolerate it?

One thing is certain whether the NZDF and Labour government care to admit it (and with apologies for the mixed analogies): when it comes to the kill chain being used on Daesh in Iraq, the NZDF link runs the full length of the spear, from throw to catch.

In Iraq, the NZDF is there but not “there.”

datePosted on 11:22, February 12th, 2018 by Pablo

Recently I was approached by reporters to comment on a report by Harmeet Sooden that reveals that NZDF activities in Iraq extend well beyond what has publicly been acknowledged.  You can read his report here. My back and forth with the reporters eventuated in an op ed (ironic, given the content of my previous post), the gist of which is below.  As readers will see, my concerns are not so much about the mission as they are about the lack of transparency on the part of the NZDF and the previous government as to what the deployment really involves.

Ethically and practically speaking, there is no real problem with what the NZDF is doing in Iraq, including the undisclosed or downplayed aspects. It is a way for the NZDF to hone its skills (to include combat skills), increase its capabilities, enhance its professional reputation and more seamlessly integrate and operate with allied forces and equipment, as well as demonstrate that NZ is willing to do its part as a good international citizen. The cause (fighting Daesh) is just, even if the context and conditions in which the war is prosecuted are prone to unintended consequences and sequels that blur the distinction between a good fight and a debacle. The issue is whether the benefits of participating in the anti-Daesh coalition outweigh the costs of being associated with foreign military intervention in a region in which NZ has traditionally been perceived as neutral and as a trustworthy independent diplomatic and trading partner. The statements of coalition partners (especially the ADF) demonstrate that they believe that the mission has been worthwhile for the reasons I noted.

Some will say that the disclosure of the NZDF “advise and assist” role in Iraq is evidence of “mission creep.’ In reality this was envisioned from the very beginning of the NZDF involvement in the anti-Daesh coalition. The training mission at Camp Taji, although a core of the NZDF participation in the coalition, also provided a convenient cover for other activities. These were generally disclosed in the months following the first deployment (TGT-1) in theatre, and it was only during TGT-5 and TGT-6 in 2016-17 that the advise and assist role was openly acknowledged. In practice, military training such as that conducted by the NZDF in Iraq does not stop after six weeks behind the barbed wire at Taji, so some advise and assist operations in live fire conditions were likely conducted before what has been publicly acknowledged (perhaps during the battles of Tikrit and Falluja or other “clearing” missions in Anbar Province).

The extended advisory role “outside the wire” is particularly true for small unit counter-insurgency operations. That was known from the start.  So it is not so much a case of NZDF mission creep as it is planned mission expansion.

NZDF collection of biometric data is only troublesome because of who it is shared with. The Iraqi authorities are unreliable when it comes to using it neutrally and professionally, so sharing with them or the ISF is problematic. Biometric information shared with NZ intelligence agencies can be very useful in vetting foreign travellers to NZ, including migrants and refugees. But again, whereas the use of such data can be expected to be professional in nature when it comes to NZ and its military allies, the whole issue of biometric data sharing with any Middle Eastern regime is fraught, to say the least.

The reasons for the National government’s reluctance to be fully transparent about the true nature of the NZDF commitment in Iraq are both practical and political.

Practically speaking, denying or minimizing of NZDF involvement in combat activities, to include intelligence and other support functions, is done to keep NZ’s military operations off the jihadist radarscope and thereby diminish the chances that New Zealand interests abroad or at home are attacked in retaliation. This goes beyond operational and personal security for the units and soldiers involved as well as the “mosaic theory” justification that small disclosures can be linked by enemies into a larger picture detrimental to NZ interests. All of the other Anglophone members of the coalition (the US, UK, Australia and Canada, as well as others such as France and Spain) have suffered attacks in their homelands as a direct result of their public disclosures. NZ authorities undoubtedly see this as a reason to keep quiet about what the NZDF was actually doing in theatre, and they are prudent in doing so.

However, foreign reporting, to include reporting on military media in allied countries, has already identified NZDF participation in combat-related activities, so the desire to keep things quiet in order to avoid retaliation is undermined by these revelations. Likewise, Daesh and al-Qaeda have both denounced New Zealand as a member of the “Crusader” coalition, so NZ is not as invisible to jihadists as it may like to be. Even so, to err on the side of prudence is understandable in light of the attacks on allies who publicly disclosed the full extent of their roles in Iraq.

The other reason why the National government did not want to reveal the full extent of the NZDF role in Iraq is political. Being opaque about what the NZDF is doing allows the government (and NZDF) to avoid scrutiny of and deny participation in potential war crimes (say, a white phosphorous air strike on civilian targets in Mosul), complicity in atrocities committed by allied forces or even mistakes leading to civilian casualties in the “fog of war.” If there is no public acknowledgement and independent reporting of where the NZDF is deployed and what they are doing, then the government can assume that non-disclosure of their activities gives NZDF personnel cover in the event that they get caught up in unpleasantness that might expose them to legal jeopardy.

It is all about “plausible deniability:” if the NZDF and government say that NZ soldiers are not “there” and there is no one else to independently confirm that they are in fact “there,” then there is no case to be made against them for their behaviour while “there.”

In addition, non-disclosure or misleading official information about the NZDF mission in Iraq, particularly that which downplays the advise and assist functions and other activities (such as intelligence gathering) that bring the NZDF into direct combat-related roles, allows the government some measure of insulation from political and public questioning of the mission. NZ politicians are wary of public backlash against combat roles in far off places (excepting the SAS), particularly at the behest of the US. Although most political parties other than the Greens are prone to “going along” with whatever the NZDF says that it is doing during a foreign deployment, there is enough anti-war and pacifist public sentiment, marshaled through a network of activist groups, to pose some uncomfortable questions should the government and NZDF opt for honesty and transparency when discussing what the NZDF does abroad.

However, in liberal democracies it is expected that the public will be informed by decision-makers as to the who, how, what and why of foreign military deployments that bring soldiers into harm’s way. After all, both politicians and the military are servants of the citizenry, so we should expect that transparency would be the default setting even if it does lead to hard questioning and public debate about what is a “proper” foreign military deployment.

The bottom line as to why the NZDF and political leaders obfuscate when it comes to foreign military operations is due to what can be called a “culture of impunity.” This extends to the intelligence community as well. They engage in stonewalling practices because traditionally they have been able to get away with them. Besides public ignorance or disinterest in such matters, these affairs of state have traditionally been the province of a small circle of decision-makers who consider that they “know best” when it coms to matters of economic, security and international affairs. Their attitude is “why complicate things by involving others and engaging in public debate?” That tradition is alive and well within the current NZDF leadership and was accepted by the National government led by John Key.

It remains unclear if there will be a change in the institutional culture when it comes to disclosing military operations abroad as a result of the change in government, with most indications being that continuity rather than reform is likely to be Labour/NZ First’s preferred approach.

 

An earlier version of this essay appeared in The Dominion Post on February 12, 2018. (https://www.stuff.co.nz/national/101327837/advise-and-assist-in-iraq-was-always-part-of-the-plan-for-nz-defence-force).

A walking Tui ad?

datePosted on 06:57, October 20th, 2017 by Pablo

The election turned out OK as far as I am concerned. My decision to support Labour after years of supporting the Greens seems to have paid off as they are now leading the new government. The Greens were punished for their shift from red to blue at their core and for bringing in neophytes onto their list, but not too much (although I still have serious reservations about their ideological direction and one of their new MPs). Save for ACT the various useless parties disappeared. And the Nats got what they deserved, which was the boot, even if it took that old dog Winston to apply his toe to their posteriors. As for NZ First, time will only tell if they are the fly in the ointment or the straw that stirs the drink.

When it comes to how the new government will be organized, I am very curious to see who will be appointed Minister of Defense. Ron Mark is a likely candidate, and I have no problem with him in that role in spite of his otherwise reactionary views (apologies if the list of Ministers is out and someone else is the new MoD). With the exception of Phil Goff he will be the most informed person to assume that portfolio in the last 18 years, which is good because the NZDF have some major decisions to make when it comes to upgrading and configuring the force.  There are issues of equipment purchases, recruitment and retention, foreign alliance commitments and the overall thrust of NZDF operations that need immediate addressing. He has been critical of the lack of strategic vision on the part of NZDF and MoD leaders, so my hope is that he will push for an overhaul in the strategic thinking underpinning NZDF operations that goes beyond the periodic exercises known as Defense White Papers. And he will have to address the problem of drug abuse within the NZDF, which has been kept largely under wraps but which is large enough to run the real risk of jeopardizing operational security and/or getting someone killed.

However, when it comes to intelligence matters and the general subject of security, I have concerns about the ability of the new government to impose its will on the intelligence community and Police as well as avoid so-called “bureaucratic capture:” the situation where the lack of experience in a subject field by new overseers or managers allows career bureaucrats to shape the former’s views of the subject in ways that serve the entrenched interests of the latter. I do not see anyone in the top tiers of Labour, the Greens or NZFirst who display particular fluency in matters of intelligence and security, and when it comes to direct political oversight of the NZ intelligence community, the lack of expertise is dire.

Or let me put it in this way:

Deja Vu all over again?

datePosted on 15:26, July 2nd, 2017 by Pablo

According to press reports US Defense Secretary James Mattis is considering sending between 3000-5000 additional US troops back to Afghanistan to bolster the 13,450 already there. Last week he is reported to have asked NATO members and non-NATO military partners to commit additional troops up to the desired threshold of 1,200. Fifteen NATO members and partners have apparently committed to the task, with the UK (which has nearly 600 troops in theatre) promising an additional 100 soldiers and Norway and Lithuania publicly stating their intention to do likewise (without revealing numbers or units involved). Given that New Zealand has non-member partner status with NATO, is a member of the International Security Assistance Force (ISAF) in Afghanistan and is a bilateral US military partner that earlier agreed to a request to send a handful of soldiers back to Kabul, it is certainly possible that it has also been asked to consider bolstering its presence in that country. Mattis conceded that in retrospect the earlier US drawdown of troops from Afghanistan was too large and too sudden given the prompt resurgence of the Taliban (especially in Kandahar province) and the rise of Daesh as a new adversary in theatre. So what he is asking is for reinforcements to re-stem the extremist tide and continue the mentoring and advising that, along with selected hunter/killer missions, have been the mainstay of the ISAF role since the drawdown began a few years ago.

The question is: has NZ agreed to this latest US request to send more troops back to Afghanistan and if so, in what capacity? Given Donald Trump’s demands that US military allies “do more and pay more” for their common “defense,” is it prudent for NZ to refuse the US request?

On a related topic, reports are now regularly surfacing that Iraqi troops and federal police are committing war crimes on a significant scale in the battle to push Daesh out of the country, including torture and summary executions of unarmed suspects. Many of the war crimes are being committed by Shiia members of the Iraqi armed forces, who see their acts as revenge for the atrocities committed by Sunni Ba’athists during and after Saddam Hussein’s regime (since many Daesh fighters in Iraq are Iraqi Sunnis with ties to the deposed regime). No mention has been made of where these personnel were trained, but given the urgent need to commit troops to battle, is it not possible that some of the 20,000 Iraqis trained by NZDF personnel at Camp Taji outside of Baghdad since 2015 might be involved in these war crimes? (the NZDF is now in its fifth rotation at Camp Taji and claims that its training involves instruction on “fundamental human rights law and the Law of Armed Conflict”). This question is particularly relevant given that the NZDF admits that most of the soldiers it has trained have been committed to the battle for Mosul where war crimes have recently been documented (WARNING: the link contains nasty imagery).

Given that the NZDF has in the past had problems with some of its foreign security partners with respect to the treatment of prisoners (such as the NZSAS handing over detainees to the Afghan secret police, who then tortured and purportedly killed some of them), is it not possible that its combat training at Camp Taji (which emphasises infantry skills) has overshadowed the ethics training component of the mission given the urgent need to commit Iraqi troops to battle? Or do the Iraqis simply ignore the ethics part of their training or go rogue afterwards? Could this have contributed to the commission of war crimes by graduates of Task Force Taji’s training program? Since a NZDF officer is serving as a spokesperson for the anti-Daesh coalition in the battle for Mosul (and has had to explain the use of white phosphorous munitions in urban areas), and NZSAS personnel are believed to be serving as intelligence gatherers and target designators in the theatre, it is likely that the NZDF would know if its Task Force Taji graduates are involved in committing war crimes.

The culture of secrecy and denial within the upper ranks of the NZDF will make finding honest answers to both sets of questions difficult, but they are certainly worth asking.

 

PS: I shall leave aside the incidental question as to why a senior NZDF officer is serving as the Coalition spokesperson for the Battle of Mosul when the ostensible role of the NZDF in Afghanistan is limited to training Iraqi soldiers at Camp Taji and a few other bases.

What price for “friendship?”

datePosted on 13:34, May 31st, 2017 by Pablo

Donald Trump’s classless lecturing of NATO leaders on the need to increase defense spending, and his subsequent refusal to endorse the alliance’s collective defense policy (“an attack on one is an attack on all”), should serve as a warning to New Zealand policy makers. Coming after his calls for Japan and South Korea to increase their defense spending less their security ties with the US be reviewed, Trump’s attitude towards US security alliances is a sobering reminder that New Zealand is not immune from his bullying.

Trump specifically wants US security allies to spend 2 percent of GDP on “defense.” The US currently spends 3.6 percent of GDP on military expenditures, including 14.5 percent of the federal budget. European Union countries spend 1.4 percent and 4.1 percent of GDP and central administrative expenditures, respectively, on defense. Overall, NATO countries spend 1.5 percent of GDP on their militaries, with only five member states (including the US) spending two percent or more. As for other US security partners, Australia spends two percent (and envisions future spending increases), South Korea spends 2.6 percent, Japan spends one percent and New Zealand spends 1.2 percent of GDP on defense (the same as Germany).

The 2 percent of GDP benchmark for individual member contributions to NATO’s defense was an aspirational goal first raised during the Cold War and periodically reaffirmed thereafter. In February 2017 US Secretary of Defense James Mattis made the goal a requirement extended to non-NATO US security partners as well, warning that the US “would moderate its commitment” to them if they did not meet the threshold by the end of this year. This runs counter to the overall trend of the past decade, where with the exception of frontline democratic states like Estonia, Poland and South Korea, military expenditures have fallen throughout the liberal democratic world, terrorism notwithstanding (which cannot be fought by conventional military means anyway). In fact, the only regions that have seen increases in military spending over the last decade are the Middle East, North Africa and Central Asia, all active conflict zones dominated by authoritarian regimes.

Should Russia continue to encroach on NATO borders or hostilities between the West and China and/or North Korea increase, that might change, but the truth is that unlike the US most liberal democracies put the welfare of their subjects before war preparations, which means that they largely spend more on health, education and welfare as a percentage of central government budgets than the US does, while the US, in turn, spends more on “defense” than most of its democratic counterparts and, in fact, most authoritarian states as well (China, for example, spends 1.9 percent of GDP and 16 percent of central government expenditures on “defense”, while Russia spends 4.9 percent and 15.9 percent, respectively).

Contrary to what some US pundits allege, there is no free-riding and nothing parasitic about the contributions to collective defense of most NATO members and other US security partners–they are simply paying the amount that their priorities deem to be appropriate. The US wants to maintain its global military dominance in a world of rising new and old powers, so it spends more and wants those in its alliance networks to do likewise. But that does not mean that the latter could or should do so given their domestic priorities and threat environments. The “one size fits all” approach to collective defense does not account for the particular circumstances of individual countries, something that Mr. Trump fails to understand.

This is why New Zealand needs to prepare for pressure from the Trump administration on matters of mutual security. The Wellington and Washington bilateral agreements bind New Zealand to the US as a military ally in everything but name only. It is a first tier US intelligence partner given its membership in the “5 Eyes” signals intelligence collection alliance that includes Australia, Canada, the UK. It is a NATO associate. It is therefore likely that the US will demand that New Zealand “lift its game” to the 2 percent of GDP mark, especially given that Australia already has.

Trump’s nominee to be ambassador to New Zealand is a portent of things to come. Former Massachusetts Senator Scott Brown, an unremarkable politician except for the fact that he once posed nude for a lady’s magazine and is an open advocate of torture as an interrogation technique, is slated to take up the post in Wellington by the end of this year, pending Senate confirmation. Given Mr. Trump’s advocacy of torture and his musing about re-opening the CIA-operated extraordinary rendition/black site kidnapping and secret detention program, it is possible that Mr. Walker will be the bearer of bad news in the form of demands for New Zealand to increase security budgets to US satisfaction and toe the new line when it comes to extrajudicial approaches towards terrorism.

This pressure must be resisted. Although it can be argued that New Zealand’s strategic position and threat environment may not readily accord with its current security posture or spending (for example, by having an Army-centric military and limited blue water patrol capability in a maritime nation), it is also clear that New Zealand’s security interests do not uniformly coincide with those of the US and more importantly, the Trump administration approach to fundamental norms such as the Laws of War and Geneva Convention. Moreover, New Zealand’s trade position is more vulnerable than that of its larger military partners, which makes blind compliance with US security demands risky when these involve antagonizing economic partners such as China.

When the subject of the two percent threshold was raised earlier in the year, former Defense Minister Gerry Brownlee dismissed the notion that New Zealand would raise its spending in response to US demands. It remains to be seen if his assurances will hold over the longer term. As it stands, New Zealand’s spending on intelligence and security, including the NZDF, has increased over the last decade and is high when compared to the 1990s and early 2000s. Current spending priorities are on cyberdefense, counter-terrorism and equipment upgrades for conventional forces. These can all be addressed for less than two percent of GDP.

In the wake of Mr. Trump’s remarks to NATO and the G7 Forum, German Chancellor Andrea Merkel warned Europeans that they could no longer rely on the US on matters of security and trade, and that they needed to look to themselves when determining their fate. New Zealand needs to heed that advice. One way of demonstrating resolve in the face of US pressure is to declare Mr. Walker persona non grata in light of his support for torture and the emerging Trump security doctrine. The opportunity to do so arrives next week in the person of US Secretary of State Rex Tillerson, who will be on his first official visit to NZ. Declaring  Mr. Brown unwelcome may result in some diplomatic discomfort, but if New Zealand is to maintain its reputation as an honest broker and independent actor in international affairs, it is a small way of demonstrating that when it comes to its security the price of partnership is not up for negotiation.

A shorter version of this essay appeared as an opinion piece in the New Zealand Herald, June 2, 2017.

“You can’t handle the truth!”

datePosted on 15:07, April 4th, 2017 by Pablo

Well, no one should have been surprised that the government opted to not convene an inquiry into the allegations made in the Hager/Stephenson book Hit and Run. It preferred to let those accused “investigate” themselves and come up with an exoneration, then let the PM bad mouth the authors while wrapping himself in pseudo-sentimentality about the impact the accusations had on military families. SOP from National and the NZDF, especially in an election year.

Even though they may have forced a delay in ascertaining the truth as to what happened that August night in Afghanistan, they may have set themselves up for a bigger fall, albeit one that will cost taxpayers far more than if the inquiry had been done under the aegis of the Solicitor General, Inspector General of Intelligence and Security or some other reputable and independent local jurist. That is because if a state refuses to investigate allegations of war crimes committed by its troops, then that bumps up the matter to the International Criminal Court in The Hague. The ICC can be petitioned to open an investigation and launch prosecutions against those suspected of war crimes if a state refuses to do so, and that may eventually be the case here.

The government strategy at this point seems to be to refuse an inquiry and force interested parties to make a case under the Inquiries Act, in the courts under one or more Acts, or in international bodies like the ICC. That is expensive and time consuming, so those willing to challenge the NZDF’s self-exoneration must be well resourced and prepared for a lengthy legal battle. In the meantime crucial evidence may disappear, sources for the allegations may change their minds out of fear of reprisal, material inducements for non-cooperation with investigators may be offered–no one should be so naive as to think that those under potential scrutiny would not stoop to such things.

The government is also clearly banking on political pressure for an independent investigation waning rather than increasing in the weeks and months ahead. It is confident that political parties will focus on the election and the media will move on to other things over the next few news cycles and that the claims will be forgotten by the public in short course. There are grounds to believe that it may be correct in these assumptions, but that depends on how interested parties feel about matters of truth and accountability in public institutions such as the military.

The government could well be daring the likes of Rodney Harrison QC, Deborah Manning and Richard McLeod, who are representing the survivors of the alleged attacks and who successfully represented Ahmed Zaoui against the then-government’s mischaracterisation and detention of him as a dangerous terrorist, to take the case to the ICC. That is because although New Zealand is a member of the ICC, the US is not. Since the US Army provided the close air support for the raids and is implicated in the killings of civilians in the Hit and Run narrative, this means that a key part of any investigation–US complicity in the killing of innocents–will not receive US support or cooperation. In fact, the US is not a member of the ICC precisely because it does not want to see its soldiers or the authorities who command them ever face prosecution in The Hague. And without US participation, the presentation of the NZ side of the story would be incomplete at best, and thereby not a full account of what went down that fateful night. It is hard to mount an investigation or a prosecution, much less secure a conviction, without the participation of one of the principles involved. For a case to stand up in court a partial account of events is simply not enough without corroboration by others involved in the actions in question. This may be true for NZ courts as well as the ICC.

Even so, I am not sure that banking on US non-membership in the ICC is a winning strategy even if it adds to the costs and delays involved in establishing the truth and achieving justice for those needlessly harmed without cause. Refusal to participate in an ICC investigation could be worse for NZ’s reputation than agreeing to it and finding out that not all was as depicted by the NZDF version of event–even if war crimes were not committed.

The bottom line is that the government appears to be running scared with its quick acceptance of the NZDF clean up job. One video from a US helicopter and the NZDF report on the raid–a chronicle of events that leaves numerous questions unanswered, as pointed out by Selwyn Manning in the previous post–is all that it took to convince PM Bill English that all was hunky dory that night. Given that there were likely to be multiple camera angles and audio communications recorded during the raid by both the NZSAS as well as US forces for after-action de-briefings, the fact that just one served to convince the PM of the veracity of the NZDF account leaves me with only one simple conclusion with regard to Mr. English. In the words of Jack Nicholson playing a Marine Colonel under investigation for covering up a homicide at the Marine detachment stationed at Naval Base Guantanamo in the movie “A Few Good Men:”

YOU CAN’T HANDLE THE TRUTH!

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