Posts Tagged ‘Ahmed Zaoui’
It should come as no surprise that I disagree with Chris Trotter’s latest piece about the Urewera raids. Don’t get me wrong — I think his assessment of the operational capability New Zealand police and intelligence services are correct. Their actions were strategically and tactically flawed, and they seemed to hold unrealistic expectations of the task they were undertaking. But some of the judgements Chris wraps around this argument are troubling to say the very least.
Not all of them. Some are fine: we need a competent security and intelligence apparatus, and the lack is something that should be rectified. Some are nonsense: a sophisticated left-wing propaganda network (where have they been these past two electoral terms?) and sleeper cells of “sympathetic journalists” (presumably not those who are shills for the corporate élite?). Some are merely distasteful. Others, however, are downright frightening, and the worst of these is the notion that the Crown should not be bound by its own laws when prosecuting dissident citizens.
Let’s not forget that some of this actually happened. Elements of the Crown case actually were leaked to the public, and some suppressed material was published in daily newspapers and was the subject of (unsuccessful) contempt proceedings.* Other elements, having been retrospectively ruled in by a court despite having been collected unlawfully, were used throughout the trial to create a prejudicial atmosphere around the trial.
Given those events, the argument here is essentially that the Crown didn’t leak enough evidence; didn’t act ruthlessly enough and was too heavily burdened with scruples to secure a “right” outcome. The call for an officer of the Crown to wilfully breach the very laws they have sworn to uphold, in the name of their own individual assessment of a complex situation, is extremely concerning. Having failed to conduct their evidence-gathering operations lawfully, and having failed to persuade a judge that, in spite of that, there was still a sufficient reason to admit all the evidence, the argument here is that the Crown should have taken an extrajudicial Mulligan.
When I started writing it this piece was considerably more personalised to Chris, and how his post seems to provide final proof of his degeneration from idealistic radical to authoritarian establishment curmudgeon. The reference in the title is to his now-infamous declaration that Labour’s breach of electoral law during the 2005 election campaign was justified inasmuch as it prevented a terrible counterfactual — a National government led by Don Brash — from coming to pass. I disagree with that argument on the grounds that the integrity of the democratic system as a whole is of greater importance than any particular electoral outcome, and I disagree with his argument regarding the Urewera 4 for the same reasons: the integrity of the justice system is of greater importance than the outcome of any given case.** But I don’t want to dwell on the personal; rather than trading extensive cannonades with Chris (again), I think there’s more value in covering my reasons for holding these views in principle, leaving aside the specific merits (on which we’re never going to agree), or whether I support the principals in either case.***
The first and most obvious argument against this sort of extra-legal recourse is: be careful what you wish for. If you want the Crown to leak, to cultivate sources in the media whom they can trust to run their propaganda for them, and to resort to whatever other means they might need to secure what you think is a “right” outcome, you’d better hope you always agree with them. If you don’t, eventually you’ll find yourself on the wrong end of it. The danger of this for the ideological left in Aotearoa should need little elaboration: almost all the authoritarian cards and most of the ruthlessness in playing them are in the hands of the various factions of the ideological right, and they are constrained more by norms of conduct and the need to appear to be less ruthless than they are than by black-letter law or constitutional barriers. These norms are quite robust, but they essentially all operate on the honour system: they persist because people observe them. If you break the law in the name of the rule of law, you erode the rule of law. If you destroy the village to save the village, you still destroy the village.
This leads into the second point: changing norms of Crown conduct, or what we might call “authoritarian sclerosis”. Norms that constrain what a government, the Crown or its agents may acceptably do are becoming more lax, and have been since shortly after 9/11, when the Terrorism Suppression Act that gave rise to the current farce was hastily passed. In the past two parliamentary terms this has continued to accelerate, partly as a consequence of hysteria around — and blurring of — activism and terrorism more generally. The government, by leave of an increasingly punitive and paranoid populace, can now impose disproportionate punishment on certain offenders via the “three strikes” regime, and indefinite “civil” detention of certain offenders. The infiltration of the security and intelligence apparatus into harmless activist groups such as those that agitate for animal rights has been well-documented in recent years. It has gotten to this point despite the fact that (Urewera case aside) the two most significant threats to our national security in the past decade have been an Algerian theologist who now makes kebabs in a food hall on Karangahape Road, and three Catholic pacifists with agricultural implements. The government can now amend or suspend almost any law or enact almost any measure it likes, with immediate effect and without meaningful judicial oversight, in the service of rebuilding Christchurch. There are laws on the books that shift the burden of proof of innocence for some types of copyright infringement from the accuser to the alleged offender. On US urging, the New Zealand police recently undertook expensive, unprecedented and legally risky operations against a foreign national who had apparently committed no serious crimes against New Zealand law, and it now seems increasingly unlikely that the case will amount to anything. The government may now spend beneficiaries’ money for them. They are are moving to require DPB mothers (and their daughters!) to use long-term birth control, and to force them to work when their youngest is just one year old. The latest proposal is to force beneficiaries to vaccinate their children, in violation of the fundamental right to refuse medical treatment. These latter policies of authoritarian sclerosis disproportionately affect Māori, who are already disproportionately impacted by the state’s historical use of its power via colonialism. I could go on, but you get the point: the door to the police state is not yet open, but it is creaking ajar. Those who benefit from opening it do not need agents of the left nudging that door wider for them, but they will gratefully accept it if some are willing to do so.
This is all bad enough in itself, but as well as eroding the norms of what is acceptable, authoritarian sclerosis makes it more difficult to erect robust black-letter or constitutional safeguards against undue exercise of power by the state over its citizens, making it more likely that the norms which are being undermined are all we will be able to rely on in future. Again: be careful what you wish for.
Perhaps more important than all of that, though, is the incentive that the Mulligan creates within the organs of the Crown responsible for implementing the policies outlined above. If you make excuses for underperforming or incompetent agencies, if you cut senior officials slack when they or their subordinates fail to discharge their duties adequately, when they bring into question the good standing of their departments; if you seek to tailor laws and regulations to them rather than requiring them to work within the existing bounds of proper conduct, then you produce agencies which are dependent on special pleading and special treatment. When you select against competence, independence, resourcefulness and strategic thinking by allowing “right-thinking” loyalty and patronage to thrive, you breed pampered inbred poodles reliant on favour from political masters, rather than vigilant, independent watchdogs of civil society.
Multiple layers of dysfunction contributed to the Crown’s failure to convict on substantive charges in the Urewera 4 case. They started with the drafting of the Terrorism Suppression Act, which Solicitor-General David Collins declared “unnecessarily complex, incoherent, and as a result almost impossible to apply”. Court interpretations giving the police permission to undertake surveillance operations that were later ruled illegal also contributed. Police culture and operational capability, and a lack of both strategic and tactical awareness also contributed strongly, and Crown Law’s failure to make best use of the meagre evidence that derived from those preceding actions was merely the last in a long chain of failures.
If you want to make a system stronger, the solution is to genuinely strengthen it, making it better, by having those agencies take their lumps and learn their lessons, by punishing failure and rewarding success; by staffing it with better people, better trained and with greater strategic vision. I want an intelligence/security and police apparatus and a justice system good enough that it doesn’t need to be oppressive to be effective. One that I can trust to keep society safe, and to not persecute me while doing so. That can’t happen if we erect a scaffold of legal or extra-legal privilege beneath the sagging edifice, pretend there’s nothing wrong, and call it a win. It didn’t work for the investment banks, and it can’t work here.
* Chief High Court Judge Randerson and Justice Gendall found that the publication had not “caused a real risk” of prejudice, so fair enough. But they also stated that “The breaches of suppression orders and the unlawful conduct of a major news organisation and a senior newspaper editor should have resulted in their prosecution” by the Police, and that the court was “at a loss to understand why these breaches were not prosecuted.” While they raised the point that the penalties for such breaches are risibly small, it’s also hard to avoid the conclusion that the Police were simply reluctant to punish actions that might have helped their case.
** In principle, there is a time for extrajudicial action, for exercise of the reserve powers or of the almost-limitless authority of the sovereign parliament, or for rebellion by the people. Desperate times may call for such measures. These are not such times.
*** For the record: Of course, I did not support the 2005 National party. I am satisfied with the Urewera 4 verdicts since they accord with what I know about the case, though I also would not have been averse to a retrial and an opportunity for them to clear their names more forcefully.
I struggle to believe the National party that read and led the public mood so well for most of the previous six years has so spectacularly lost its way. Recent months, and the past few weeks in particular, have been the government’s hardest, and only part of that is due to ministerial incompetence and bad optics. Part of it is because they have chosen policies that contradict the very narratives Key and his government have so carefully crafted.
This can’t be accidental. I think the fact that they barely won a majority despite the worst performance in a generation by the Labour party has convinced Key that this term is probably his last, and he intends to make best possible use of it. This is good strategy for them. It’s a strategy I’ve been writing about since Key was in opposition, and one that the Labour party ignored, to their detriment, until late in the last term. John Key is no mere smile-and-waver, but a man of action who, when the time is right, will act ruthlessly and decisively. He has spent his five years as leader earning the trust of the electorate, gaining a mandate, and now he intends to put that mandate to work. This country will not be the same in three years.
There are many possible examples here: privatisation of state assets is the most obvious, but is well-covered by others more informed than I am. I’ll cover three more recent topics: two are bad politics, but I can see the point to them; the last is simply a terrible idea that, if not abandoned quickly, will have profound implications for the future of New Zealand’s political discourse.
Paid parental leave
The decision to call an immediate veto on Sue Moroney’s private member’s bill extending paid parental leave was badly handled. If it were to be done, it ought to have been done immediately the bill was drawn, in an offhand way so as to frame the veto as inevitable; as it was, sufficient space was left for the idea to take root in the collective imagination of the electorate, and now the use of the veto looks anti-democratic; signalling it before it has even been debated looks doubly so, and leaves about a year for sentiment to continue to grow.
Of course, the government has the procedural right to take this action, if perhaps not the moral right to prevent Parliament from passing something that a majority of its members supports. But it chips away at the Key government’s carefully-framed appeal to being pro-middle-class, pro-family, pro-women. Unlike welfare reform, this is not an issue that only impacts people who would never vote for the National party anyway. Paid parental leave predominantly benefits middle-class (rather than working-class) families, and especially middle-class women — those who, for five years, the government has been reassuring that we are on your side. Key is personally very popular among women, and this has been central to National’s success. It looks like the government are prepared to sacrifice this on the altar of fiscal responsibility. The comparison to Barack Obama’s strategy to win a second term on the basis of strong opposition to GOP misogyny could hardly be more stark.
This is in spite of the argument on the merits: a low-cost policy that yields considerable long-term benefits of the sort the government has been anxious to create (or invent, if need be). And the arguments being levied against the scheme are particularly weird: “Is it about labour force participation, or about women spending more time with children?” Well, yes. “It’s discriminatory against non-working mothers!” Well, yes, but I don’t see any of the people making that argument supporting a Universal Motherhood Entitlement, and in fact, I distinctly remember some rhetoric about “breeding for a business” whenever such ideas are raised.
A possible reason for this bad veto call is that it foreshadows a future softening of National’s position on the topic; as Key did with the Section 59 bill, when it looks close to passing the government will signal support, in the spirit of bipartisan cooperation.
Or, maybe it’s just that they don’t care any more — so they’re unpopular, so what?
The latter argument also explains the decision, announced today, to limit the availability of student allowances and require higher repayments of student loans, although not completely. This is bound to be popular with those who have forgotten (or who never experienced) how hard it was to undertake tertiary study and build a career without Daddy’s cash and connections, and those of the generations who had it all laid on for them by the taxpayers of their day. But it will be less popular among the growing ranks of young voters, and it will be less popular among the parents of those young voters, who are having to provide financial support to their kids through their 20s and in some cases into their 30s, because said kids are finding the economic dream is more rosy than the reality.
This policy is also anti-middle-class, anti-family, and anti-women: because the middle class includes most of those who can afford to (and have the social and cultural capital to) undertake tertiary study; because it places an additional burden on their parents, and because women are already disadvantaged in terms of earning power, and therefore have less ability to avoid or pay back loans. It also erodes National’s aspirational, high-productivity, catch-up-with-Australia narrative, by raising the barrier to becoming qualified to do the high-productivity jobs that such a goal requires. More crucially, it erodes National’s “money in your pocket” narrative by imposing upon borrowers a higher effective marginal tax rate — over and above the existing 10% higher effective marginal tax rate — making it harder to survive on the wages that come with those jobs.
It could be worse. They’re not reintroducing student loan interest. But it is only the first budget of the term, and the same reasoning — this is good because it allows borrowers to pay off their loans sooner, and it will provide cost savings for the government — is true in spades when you charge interest. People can already pay their loans back more quickly if they choose — it is easy to do. People don’t, because wages are low and the cost of living is high, so the government wants to force them to do so. So much for choices.
Although I disagree with them, there is some political justification behind both these previous positions. But nothing explains the government’s decision to take a harder stance against asylum seekers. In the Australian context (and in the USA and the UK, although I know less about these), immigration and the treatment of asylum seekers is a political bonfire. This is most obvious in terms of human life and potential. Able, resourceful and motivated people are imprisoned for months or years, barely treated as humans, and allowed to become disenchanted and alienated while hostile bureaucrats decide their fate, and cynical politicians on all sides use them as ideological tokens in a dire game — before being released into society to fulfill the grim expectations that have been laid upon them. But it is also a bonfire for political capital — the more you chuck on, the brighter it burns — and for reasoned discourse. Politicians, commentators, lobbyists and hacks of all descriptions dance around this fire like deranged cultists which, in a sense, they are.
The immigration debate in Australia, though it barely deserves that name, is toxic, internecine, and intractable; it has been propagandised to the point where it is practically useless as a policy-formation tool, or as a means of gauging or guiding public sentiment. It sets light to everything it touches; people take leave of their senses and run around shrieking whatever slogans fit their lizard-brain prejudices. The word “sense” is used so often it ceases to have any meaning: all is caricature, and in keeping with this, other ordinary words also lose their value: assurances that asylum seekers will be treated “fairly” or that systems will be “efficient” would not be recognised as such by an impartial observer. Somehow, it becomes possible to simultaneously believe that the policies are targeted against “people-smugglers”, while being fully aware that the punitive costs imposed by such regimes are suffered by the smugglers’ victims. Otherwise-reasonable people resort to idiotic bourgeois framing such as “jumping the queue” — as if it’s OK to escape from political or religious persecution, if only you do so in a polite and orderly fashion. Mind the gap!
What makes it all the more stupid is that a brown tide of refugees in rusty boats is not even an issue for us: we are simply too isolated, and surrounded by waters too hostile, to be a viable destination. Unfortunately this fact will not be sufficient to prevent people from getting worked up about it, and demanding that Something Be Done. Someone on twitter recently said that anyone who could get a boatload of people here from the third world deserved a beer and our congratulations, and I couldn’t agree more. We need people with the degree of daring, toughness and pioneer spirit to make such a journey, and qualities such as these were once most highly prized.
This policy also undercuts National’s mythology about itself, most assiduously cultivated over the past year in preparation for the sale of the Crafar farms and other assets — of New Zealand as a land of opportunity, welcoming to outsiders and open for business. National have been swift to condemn any deviation from this line as xenophobic, and yet this is somehow different. It is worse than a solution in search of a problem — it is a cure that is far more harmful than its ailment.
What’s more, while I can see the underlying political reasoning behind the two other policies I’ve discussed here, I can’t see the reasoning for this one. Most likely it is an attempt to cultivate some love in redneck-talkback land; to shore up slipping sentiment among the culturally-conservative base that National used to own. But even in this it is misguided: this is not a debate that does any major party any good. It is an opportunity for extremists to grandstand, to pander to society’s most regressive elements. It crowds out meaningful discussion of other matters, it makes reason and compromise impossible, and what’s worst: it never dies. We saw a glimpse of this with the Ahmed Zaoui case; by fearmongering about boatloads of Chinese en route from Darwin on the basis of just one isolated case National runs the risk of admitting this sort of idiocy to the national conversation permanently.
And that might be this government’s legacy. The former two topics, while they will change New Zealand’s politics in meaningful ways, are essentially part of the normal partisan ebb and flow. Asset sales is much bigger; other topics, like primary and secondary education reform and the proposal to cap government expenditure will also have longer-term and more profound impacts. The National government has a mandate, and they are using it while they can, in the knowledge that you can’t take it with you when you go. That is understandable, if perhaps regrettable.
But to use such a mandate to permanently poison New Zealand’s discourse, willingly driving it towards a permanent state of cultural war is a different sort of politics altogether — deeper, more ancient, harder to control, and much more dangerous. I hope I’m wrong.
We’ve had comments around the Zaoui debacle on a couple of threads, so I thought I would try to pull together some things I think the government (public servants and politicians) should have learned from it:
What have I missed?
Anita’s thread on the failures of the 5th Labour government got me to thinking about the criminalisation of political dissent during its tenure. That in turn got me to wonder about whether there have been politically-motivated incarcerations in recent (since 1995) times. I can think of three, but since I am a relatively new immigrant (currently in economic exile of sorts) and new to the intimacies of New Zealand political life, I am not sure if there have been others.
Ahmed Zaoui was clearly a political prisoner. He posed no threat to anyone, much less the security of NZ. Yet he was incarcerated for over two years, including one year in solitary, because of what he represented–the face of political Islam that was not a lapdog of Western (read in this case French) interests. Right wing troglodytes and bigots may not like it, but he committed no crime in NZ and he never committed an act of violence against anyone, anywhere. Yet the Labour government saw fit to violate his civil rights in order to curry favour with the French and look good in the war on terror (at least in the eyes of the US, Australia and the UK). Shame on Richard Woods (SIS director general at the time), Lianne Dalziel (Immigration Minister at the time), and Helen Clark for orchestrating this farce–remember “lie in unision?” Praise Allah for Deborah Manning, Rodney Harrison and Richard McLeod for speaking truth to that abuse of power.(Note to retrogrades: Allah means God so chill on the pro-terrorist accusations).
Tim Selwyn spent more than year in stir having been found guilty of sedition. Read the rest of this entry »