Posts Tagged ‘Police’
Amid the flurry of media interviews I did as a result of the Sydney hostage crisis, this one may not have received the attention other outlets have received.
The subject of spying is back in the news this week, but the coverage has been inadequate. Allow me to clarify some issues, first with regard to those who want to join the Syrian conflict and second with regard to politicians trying to ingratiate themselves with Kim Dotcom.
Contrary to the thrust of the coverage, not all those seeking to join the Syrian conflict are Syrian or descendants of Syrians. The Syrian War is a civil war between Shiia and Sunnis, where the minority Alawite-backed Assad regime is fighting to maintain its grip over a majority Sunni population (Alawites are a sub-sect of Shiia Islam). For a variety of affective and strategic reasons Iran (a very large Shiia dominant country) supports the Assad regime while Sunni-controlled Saudi Arabia and Gulf oligarchies back the armed opposition. This opposition is divided into what can be loosely called secular moderates (such as those grouped in the Free Syrian Army) and Islamicists (such as those in the al-Nusra Front and Al-Qaeda in Iraq and the Levant).
The latter have come to dominate the military side of the opposition due to their superior combat skills and determination. Their ranks include Sunni internationalists from all over the world (including New Zealand) who see joining the struggle as a religious imperative. Egyptians, Jordanians, Pakistanis, Britons, Australians and French nationals are among those fighting in Islamicist ranks. That has led to serious clashes with the moderate secularists (who do not have as many internationalists in their ranks, although there are some), to the point that the fighting between the armed opposition factions has allowed the Assad regime to re-gain the upper hand in the overall struggle after being near collapse just six months ago.
Where the armed opposition is winning, it is the Islamicists who are doing so.
In the last nine months the Prime Minister has made repeated reference to would-be New Zealand jihadis joining the fight in Syria. Some are already there and others have been barred from going. They may or may not be Syrian in origin, but his use of the “Syrian trump card” is a naked political ploy designed to use fear-mongering as a justification for extension of domestic espionage and, perhaps, as a way of pre-emptively steeling public opinion against the negative consequences of the inevitable revelations from Edward Snowden about New Zealand’s foreign espionage role within the Five Eyes/Echelon signals intelligence collection network. The trouble with the PM’s ploy is that the proclaimed threat does not match the facts.
According to the government ten New Zealand passports have been revoked since 2005 and a handful of Kiwis are in Syria fighting. The PM makes it sound as if all these have associations with extremist Islam. Perhaps they do, but the Syrian conflict only heated up as of early 2012, so the Syrian card does not explain why passports were cancelled prior to that. Moreover, the PM says that passports were cancelled in order to prevent “radicalized” Kiwis from returning and making trouble at home. That begs the question as to what the frustrated wanna-be jihadis are going to do now that their plans are thwarted and they are forced to remain in the country under heavy scrutiny.
A Syrian community spokesman has said that two brothers had their passports revoked after their parents informed authorities of their plans to travel back home to join the fight. He also accused the PM and his government of “racial discrimination.” The latter claim is ridiculous and shows a gross misunderstanding of how democratic governance works. John Key did not personally order the revocation of any passports nor does he have the power to rescind the cancellation order. New Zealand authorities did not cancel the brother’s passports because they were Syrian but because of their purported intentions. They did not target the entire Syrian community for who they are.
In fact, under current legislation the government is well within its rights to revoke passports on the grounds that the individuals involved intend to become or are part of a criminal enterprise, of which terrorism is one. Since the Islamicists fighting in Syria are considered terrorist organizations by the New Zealand government, any intent to join them could be construed as an attempt to engage in criminal activity. One might argue that the definition of terrorism is too broad (and I believe that it is), but as things stand the government’s concern about returning, combat experienced jihadis is a legitimate motive for canceling passports.
I shall leave aside the fact that the chances of survival of those joining the Syrian conflict is quite low* and they are being monitored in any event, so mitigating the potential threat posed by returning jihadis is not as formidable as Mr. Key implies. There are technical means of tracking the location of passports, and the individuals who are in Syria or want to go there have been identified already via domestic intelligence gathering. In fact, allowing suspects to travel while being secretly monitored is a standard intelligence collection method, so one can reasonably assume that the handful of Kiwi internationalists in Syria as well as their as of yet to travel brethren are the focus of both human and signals intelligence collection efforts by local espionage agencies in conjunction with foreign counterparts.
However, Mr. Key’s repeated public use of the Syrian card certainly has alerted any would-be extremists in the New Zealand Muslim community that they have been infiltrated by the Police and SIS and that there are informants in their midst. In fact, the New Zealand Muslim community is a bit of a sieve since 9/11 because personal, sectarian and financial vendettas as well as legitimate concerns about ideological extremism have seen the accusation of “terrorist” thrown around quite freely within it. This has been well known inside security circles (who have to separate bogus from legitimate accusations of terrorist sympathies), but the PM’s public disclosure has given potential jihadis a clear signal to exercise increased caution and diligence when planning future violence (should there be any).
The most important issue, however, is the selective application of the passport revocation authority. If would-be Islamic internationalists have not been convicted of crimes in New Zealand, and barring clear evidence that they intend to engage in crime abroad, then they should be allowed free passage to travel. If they engage in war crimes or crimes against humanity during a foreign conflict (be it in Syria or elsewhere), they can be charged upon their return, or even detained on the suspicion of complicity in said crimes. This is not a far-fetched speculation because both the Assad regime and its armed opposition have committed a raft of atrocities that fall under both definitions of illegal war-time behavior.
This applies equally to those who may choose to join non-Islamicist groups in other foreign conflicts (for example, by joining Christian militias in the Central African Republic), so specifically targeting those intending to go to Syria to fight is, in fact, selective if not discriminatory application of the relevant law. As far as following the Australian example and making it illegal to join a foreign conflict under penalty of imprisonment or revocation of citizenship, one can only hope not.
The simple fact is that would-be jihadis and other internationalists should be free to join any foreign conflict. They assume the risk of doing so and understand that they give up the diplomatic protections usually reserved for citizens traveling abroad. Should they be deemed a potential threat upon their return (in the event that they do), then it is the responsibility of local law enforcement and intelligence agencies to mitigate that threat within the rule of law. As I have alluded to above, that is not particularly hard to do in the New Zealand context.
As for politicians meeting with Dotcom, the issue is far more simple than sinister. Dotcom is a NZ permanent resident who is a fugitive from US justice still under extradition warrant (which is being argued in court). The authorities may well consider him a flight risk because he certainly has the means to do so. They may believe that he is continuing his criminal associations or practices while his court case is being heard (I shall refrain from making bad jokes about those who have flocked to his side during the GCSB Bill debates, or about the politicians who have knocked on his door). Given his penchant for partying and those he associates with when doing so, they may want to catch him in possession of illegal drugs.
Thus the Police would have legitimate reason to run ongoing surveillance operations on him, and can do so legally with or without the help of the SIS and now, thanks to the passage of the GCSB Bill, the GCSB. In doing so, they would monitor and record the comings and goings of visitors to his mansion, with that information passed up the chain of command.
That is why Mr Key’s version of how he came to know about Mr. Peters’ treks to the Coatesville property is odd. He claims that he got his information about Dotcom’s political visitors from Cameron Slater working with or independently from a Herald gossip columnist. That is troubling.
The Right Honorable John Key is the Minister of Intelligence and Security, so presumably he is aware of the status of security operations and the Dotcom case in particular given its history. But he claims that he received domestic espionage information about Dotcoms’s visitors from a right-wing, admittedly partisan “attack” blogger, rather than from the security agencies for which he is responsible and who have a legal right to monitor Mr. Dotcom. That is a sign of incompetence or willful ignorance on his part.
I have shares in a Bolivian gold mine I am willing to sell at a very affordable price to readers who believe a sociopath was the first source of the Dotcom visit data provided to the PM. Perhaps I am wrong and it is simply too much for domestic law enforcement and intelligence agencies to pursue the monitoring of Dotcom for a supposed copyright infringement when so many Syrian-focused terrorists abound. But given the amount of resources expended and the reputational stakes involved, it would not be surprising and in fact legal for security agencies to do so.
I would suggest that if people like Winston Peters are concerned about being spied on when visiting Mr. Dotcom, then they should look at their own roles in allowing that to happen. Since 9/11 the legal powers and practical reach of the domestic espionage apparatus have been increased incrementally yet extensively under both Labour and National governments. Other than a relatively small number of Left activists and the Green Party (as well as ACT while Rodney Hide was still around to lead it), neither the majority public or the majority of political parties did anything to oppose this extension.
In fact, although Labour party figures and Winston Peters joined Kim Dotcom on the stage at various anti-GCSB Bill protests last year, and the bow-tied buffoon with a pompadour posing as a political party objected to having his personal communications accessed during the course of an investigation into leaks of confidential government information, Labour is responsible for the majority of the extensions and Dunne and Peters supported all of them. National has merely deepened the trend towards a surveillance society.
Hence, whatever Labour, NZ First or United Future may say now as a way of partisan point-scoring, they are full accomplices in the erosion of Kiwi privacy rights over the last decade. Any current whinging about violations of their personal and the larger collective privacy should be dismissed as cowardly rank hypocrisy.
In any event, when it comes to intrusions on basic freedoms of association, privacy and travel, not only Syrians living in New Zealand have reason to feel aggrieved.
* This is due to the immutable Buchanan rule of ground warfare: if you are firing your weapon over your head, or firing blindly around corners in the general direction of the enemy, you will not last long once s/he closes in. Should that rule be miraculously violated without consequence, the fifth Buchanan rule of asymmetrical warfare comes into effect: strapping explosives or amulets to your body in the hope of divine intervention is based on a false premise.
On a recent day in New Zealand we were treated to the following news.
A group of rapists who openly bragged about having pack sex with drugged or drunk underage girls on social media were outed by a news outlet, which led to revelations that the police, who have an institutional history of rape of their own, refused to prosecute the rapists even though their identities were well-known (one is the son of a police officer) and four girls complained about the assaults long before the media broke the story. The police apparently questioned the first complainant about her manner of dress and was told that what she wore invited the attack. The cops now argue that there was insufficient evidence to bring charges.
The police initially said that no complaints were laid and that the social media sites were only recently opened by the rapists, then closed. Both of those claims have now been proven to be untrue, so either the police spokesmen were lying (and that includes a senior detective and a district commander), or they were misled by their subordinates for reasons yet to be determined. The police also say that the fact that one of the rapists was the son of a sworn officer was immaterial to the (as of yet nonexistent) case.
That may or may not be true. What is undeniable is that a number of underage females were sexually assaulted by men over the age of consent who made public their exploits (including why they stupefied the girls and why they only engaged in pack assaults on them) and identified the victims as a form of public shaming. The cops listened to four complaints about these assaults, decided that there was no merit to them (or no evidence to substantiate them even though four different girls essentially described enduring the same thing done by the same men), then stood by, watched the social media coverage provided by the perpetrators and did nothing.
At the same time this story unfolded a convicted spouse abuser who claimed in defense that he was provoked by his victim was promoted to the most listened radio sports program in the country, having worked his way back into that format less than a year after his conviction and having had the Prime Minister subsequently grace his studio to exchange banter about laddish things (including Elizabeth Hurley’s “assets”).
Not to be outdone on the victim-bashing front, a few other prominent male radio talkback hosts (two of them Maori) ridiculed and insulted rape victims when discussing the case of the underage girls, essentially telling callers that drinking and wearing provocative clothing was primarily to blame for what happened.
Coincidentally, a misogynist bigot was brought back from foreign television exile after a series of gaffes and embarrassments to host a prime time news show at one of the highest salaries offered to a television host in New Zealand. His forte is adolescent potty jokes, particularly those directed at women.
Rightwing smear merchants and other retrogrades blame the rape club’s actions on liberal society and the pernicious effect of modern popular culture (when not Len Brown, for his adulterous behavior, as if that were comparable to rape). There may be some truth in such views (save the Len Brown example), but there is the small problem that all the other instances cited above involve men of older generations working in venerable public institutions.
Let’s be clear on this: all of the instances cited other than the social media rape club members are not delinquents but well-established members of New Zealand’s institutional elite, and there are plenty of others who share their predilections and positions of esteem (I have chosen only a handful of notorious examples to illustrate the point).
Some of these apologists/pundits keep on calling the rapists “boys” even though the age of consent in New Zealand is 16 (the rapists were and are 17 to 19). That is worth noting because they also argue that at least some of the pack sex with 13 and 14 year old girls may have been consensual, which indicates they have no clue what “age of consent” means in theory or in practice.
Let me put it more crudely: How is it that a 17 year old is a “boy,” and hence acting impulsively and irrationally when sexually engaging a deliberately stupefied 13 year old female, yet that same female is supposedly capable of consenting rationally, as a woman, to pack sex under the heavy influence of soporific?
Are females who are underage, impressionable, alone, unconscious and/or delirious equally responsible for the acts of male adults behaving soberly, collectively, calculatingly and deliberately when using intoxicants for the purpose of sexual conquest as motive for and product of their behaviour towards said females?
There is a more general point to this reflection. What does this series of coincidental snapshots tell us about New Zealand today? Are these aberrations of the Kiwi male character that somehow have gone unpunished and in fact rewarded in violation of accepted norms, or is Aotearoa not a safe place to be female?
Although I have no technical expertise in the field of unmanned aerial vehicles (UAVs), I have discussed in various fora the military, intelligence, domestic security and political implications of their use now and in the future. The hard fact is that, bad press notwithstanding, UAVs (aka “drones”) are here to stay and will dominate the air space in the years to come. Already the US air force is training more drone pilots than fighter and bomber pilots combined. Ninety percent of what drones do is non-lethal: reconnaissance; surveillance; search and rescue; maritime patrol; signal, thermal, optic and other forms of technical intelligence gathering; geological exploration and terrain mapping–the applications of these types of platform are many and will continue to grow in the years ahead.
The utility of drones is due to a simple calculation: the three “Ds.” They do jobs that are dangerous and/or dirty, and they do them dispassionately. To this can be added the fact that their operational costs of drones are less than those of manned aircraft and they do not expose pilots to the physical risks of flying. That combination guarantees that policy-makers will look to UAVs as the future of military and law enforcement aviation even if manned aircraft remain the bulk of commercial and private aviation for the foreseeable future.
Lethal drones such as the infamous Predators are constantly being refined so that their acceptable Circular Error Probable (CEP)–the chances that a missile fired from the UAV will fall within 100 feet of the target crosshair center–is now greatly increased. Since they loiter at 15,000 feet for up to 36 hours, US drone pilots (who work in 12 hour shifts and who must have experience flying manned aircraft prior to their assignment as drone pilots) spend hours and days watching a potential target before pulling the trigger. The protocols governing the kill shot are quite tight (for example, no shots at family compounds or while the targeted individual(s) is or are in the vicinity of innocents), which contrary to popular opinion has greatly reduced the collateral damage occasioned by drone strikes when compared to the early days of their use.
In fact, manned aircraft continue to cause the bulk of unintended civilian deaths in Central Asia, which most often is the fault of faulty or misleading tactical intelligence on the ground (the use of misinformation by local informants acting for their own purposes has been a major contributor to the unintended civilian deaths caused by air strikes). As a remedy, special forces teams are increasingly being used to track, spot and verify legitimate targets in conflict zones (to include Pakistan, Yemen and Somalia as well as Afghanistan).
Although there have been many protestations about the use of lethal drones (so far the US is the only country to use them in anger), it is interesting to note that Pakistan has never attempted to intercept US drones operating in Pakistani air space even though the latter are slow, not particularly maneuverable and relatively easy to spot by electronic means (the recent downing by Israeli forces of an Iranian drone operated by Hezbollah demonstrates the case). This is not to say that drone incursions into the sovereign air space of foreign countries are always or even generally acceptable. What the different responses suggest is that the Pakistanis may not be aggrieved by US drone operations as they claim to be.
To be sure, the US military has tighter protocols governing lethal drones than does the para-military arm of the CIA. That has led to disagreements within the US security apparatus about who should be in control of lethal drones and under what circumstances are they to be used. The president currently has to authorize the CIA strikes, which are mostly directed at suspected jihadis operating in failed states. The military has a bit more latitude in targeting militants or insurgents in Afghanistan and the tribal areas of Pakistan, although all lethal strikes must be authorized by the chain of command. As of yet, that debate about unifying the command and control of lethal drones is unresolved and both the US military and the CIA continue to deploy armed and unarmed drones in foreign theaters using their own set of criteria (which if largely overlapped are not identical).
That is what brings me to the major point of this post: the fact that the legal apparatus governing the employment of drones in the international as well as the domestic arenas is very underdeveloped when compared with the technologies themselves. Already 60 countries employ drones, and domestic security agencies in a host of countries have explored their usage. The US uses them for border control and Coast Guard purposes, and true to form, some police department in Texas is reported to have expressed interest in a lethal version that could also dispense non-lethal crowd control justice from above.
Yet in no case are the legal protocols governing the use of drones in domestic arenas as well developed as are those used by the US military when engaged in foreign conflicts. This is worrying because the potential for abuse is great. UAV technology has outpaced the legislative framing of their fair use not only in undemocratic states but in liberal democracies as well.
New Zealand is not different in this regard. The Army and Navy are exploring drone technologies, as are other non-military government agencies. The Department of Conservation already has deployed a drone for geothermal and geographic research. The police are interested in UAV platforms as a substitute or complement to helicopters and terrestrial patrol vehicles. It is only a matter of time before drones are a regular presence in New Zealand skies, and the Civil Aviation Authority is already being tasked with drafting technical regulations governing their operations.
Even so, the legal structure governing the why, when, how and by who of UAV use in NZ is virtually nonexistent. Parliament appears disinterested in the subject and the agencies who would have the most use for drones have not been particularly proactive in drafting guidelines for their use. It is time that they did.
One reason is because the future of drones is not only in their greater use but in their increasingly varied configurations, to include miniaturization based on developments in nano technology. Consider this gem:
Sent to me by a friend borrowing from an unnamed source, the following blurb came with the photo.
“Is this a mosquito? No. It’s an insect spy drone for urban areas, already in production, funded by the US Government. It can be remotely controlled and is equipped with a camera and a microphone. It can land on you, and it may have the potential to take a DNA sample or leave RFID tracking nanotechnology on your skin. It can fly through an open window, or it can attach to your clothing until you take it in your home. Given their propensity to request macro-sized drones for surveillance, one is left with little doubt that police and military may look into these gadgets next.”
UPDATE: The source for the photo is this: http://www.snopes.com/photos/technology/insectdrone.asp
In light of the implications of developments in UAV technology and the growth in their employment, it seems appropriate that New Zealand confront the legal aspects of said use. New Zealand could, for example, be the first country to prohibit the use of lethal drones either in foreign conflicts or for domestic security (no other country has of yet discounted the use of drones for lethal purposes). Likewise, because there are no regional or international protocols governing their use, New Zealand could try to introduce resolutions in international and regional bodies that would lead to the regulation of UAVs on a broader level. At present the field of UAV operations is basically uncharted, much less regulated, so the opportunity now exists to try to match advances in UAV technology and deployment with advances in the legal architectures governing them.
Since New Zealand has in the past shown initiative and boldness in enacting policy with both domestic and international import, the field of UAV regulation might be another way in with it can demonstrate its fore-sightedness when it comes to areas of universal concern.
I was interviewed by the RNZ Nine to Noon program on the subject of the GCSB involvement in the Kim Dotcom case. Nicky Hagar followed me. Although it now has been confirmed that the Police misled the GCSB as to the residency status of Dotcom and his associates, the dates of the awarding of residency status to at least some of the group, including Mr. Dotcom, is somewhat nebulous in the MSM reporting. This is being clarified as the media dig into the issue, but my initial comments before yesterday’s revelations might be of interest to some. They are here.
In the past few weeks coroners have been in the news. The investigations of the disappearance of an emotionally distraught woman at Piha, the Kahui twins murders and the death of a cyclist on Tamaki Drive have seen a surprising, some would say unusual, level of coroner opinion voiced on sensitive issues, some of which verges on editorializing.
For example, in the Piha case the coroner placed some responsibility for the young woman’s death on a couple of good Samaritans who tried to shelter and comfort her for four hours after she asked them not to call the police because she feared that the cops were angry at her. The coroner ignored the actions of seven other people who also interacted with the victim, including those who last saw her alive–naked and delirious talking to a light post–but did nothing and those at the house that she had fled from fearing sexual assault. He also downplayed the gross negligence of the police, who called a taxi rather than send a patrol car in response to the original 111 call from the distressed woman (the taxi driver was clueless and went to Onehunga rather than Piha). The coroner’s bottom line is that civilians should leave the handling of emergencies to professionals even if that means ignoring the wishes of those at risk. The implicit message could well be “do not get involved.”
The coroner in the Kahui twin case basically fingered the father for the murders. Since the father was acquitted of murder by a jury in a well-publicized trial, it will be interesting to see if the case is revived by the Police. The coroner’s verdict is clearly an instigation to do so.
The coroner in the Tamaki Drive cycle death case has suggested that it be mandatory for cyclists to wear high visibility clothing and to ride in cycle lanes where available. However, the cyclist was killed in daylight after swerving to avoid an abruptly opened door from a car parked immediately at the end of an irregularly marked cycle lane, on a notoriously tight corner. He ignored suggestions by bicycle advocates that the Auckland Council’s failure to remove parking along narrow stretches of Tamaki Drive contributed to the accident (which it did two days after the accident), or that the truck that killed her failed to adhere to the 2 meter gap rule (which ostensibly is the distance that should be maintained between cyclists and motor vehicles on roadways and which is in the road code). He reiterated a juries’ verdict that the motorist who opened the door without first looking behind him was not at fault. In effect, he blamed the cyclist for her own death.
I am curious about this. I am not an expert on Coroner’s courts or investigations, but I had thought that they were focused on the facts of the case in order to determine causality via a chain of events or circumstances. In this cases outlined above, the scope appears to have been expanded into opinionating and assigning blame rather than simply recommending improvements and safeguards to avoid similar occurrences. Have I got this understanding wrong or is this unusual?
I must confess that I live near Piha and have some local insight into the circumstances of the young woman’s disappearance. I am also a former recreational, commuter and competitive cyclist who has ridden on numerous occasions on Tamaki Drive (too flat for serious training unless it is a time trial, and only “safe” on early weekend mornings). I do not much care for infanticide regardless of who does it. So perhaps I am reading too much into these coroner’s reports, but from what I have seen it appears that in these cases they were interested in more than establishing the facts of the matter at hand.
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.
Former Police Minister Annette King says that she and her cabinet colleagues were not informed about Operation 8 until the night before the dawn raids. She says this after stating that the Solicitor General advised the Police at the time to charge those arrested under the Terrorism Suppression Act, only to change his mind after the raids were completed.
Annette King expects us to believe that she, as Police Minister, had no clue about a police operation that was going to invoke the TSA for the first time, not against foreign terrorists but against a collection of well-known domestic dissidents with long histories with the Police. She expects us to believe that Helen Clark, the micromanaging, all-knowing Prime Minister and Minister for Intelligence and Security, had no clue about Operation 8 even though the TSA was used to justify the electronic surveillance of the suspects a year before the raids, that SIS assets were used to that end, and that the raids would be carried out on Tuhoe land as well as in cities (a delicate political issue, to say the least). She expects us to believe that Phil Goff, the Defense Minister, was clueless about the operation even though, as the foremost counter-terrorism unit in the country, the NZSAS could be called into action should the situation warrant (which would require some advance notice). She expects us to believe that the Combined Threat Assessment Group (CTAG) was not involved in the build up to the raids, or if it was, that this inter-agency task force did not inform any senior government minister until the night before the doors were kicked down. She wants us to believe that then-Police Commissioner Howard Broad, well known for his ties to the the Prime Minister, did not utter a word about who was targeted and why until less than 12 hours before the cops rolled.
She would like us to believe that with the possible exception of the PM, no one in the 5th Labour government was aware of Operation 8 until October 14, 2007. This, even though multiple agencies were involved and the lead-up to the raids was over a year in the making.
Whatever your opinion regarding the Urewera Terror raids, you have to admit that the Police and Crown Law have failed.
The so-called “Urewera 4″ were convicted on about half of the least-serious charges brought, and the jury was hung on the more serious charges of participation in an organised criminal group. The defendants may be retried on these latter charges, and they may yet be found guilty. But the paucity of the Police and Crown Law operation is pretty clear regardless.
Let’s put this in context. The Crown sought initially to lay dozens more charges against many more people than the four who eventually stood trial; leave to bring charges under the Terrorism Suppression Act was not granted, and most of the other charges were dropped after the Supreme Court ruled that the evidence upon which they were founded had been illegally obtained. A year of fancy intensive surveillance; an extreme and unprecedented police assault on an unsuspecting community, including violent treatment of old people and children; four and a half years of lawyering comprising the most expensive trial in New Zealand history, held almost as far from the homes of the defendants as is possible; leaks and publicity tactics designed to bring about a de-facto trial-by-media — and the best they convict on is Arms Act offences such as about half the adult male population of rural New Zealand would be guilty of at some time or other? This, we are supposed to believe, is Aotearoa’s finest at work.
Not only did they fail at the nominal objective of securing convictions, they totally failed at the personal, punitive motive of punishing Tāme Iti and shaming him before his people. Iti has been literally the face of Māori activism, at least since Hone Harawira took the institutional path, and it is impossible to see this trial as anything other than utu for his temerity in escaping conviction for previous acts of defiant political theatre, most notably shooting a flag at a Waitangi Tribunal hearing in 2005. By going in loud and heavy, attempting to show them uppity Māoris who was boss, the Crown set themselves an ambitious target: they had to actually show who was boss. By failing to convict him on the serious charges at a canter, they failed. Tāme Iti is now a celebrity. His mythology is greater than his deeds, except inasmuch as resisting such a legal and ideological onslaught with dignity is a significant deed in itself. He has, in the view of a significant minority of the population, been victimised by the system, and that victimisation provides proof of Crown oppression he had previously struggled to demonstrate. For the rest of the population, Iti represents a brown, tattooed bogeyman, an object of fear, and of loathing that ranges from mild to virulent depending on who you talk to. Iti isn’t standing for office, he doesn’t need to be loved by 50%+1; he just needs to engender fervent support among an active minority, and vague feelings of unease in the rest. Notoriety differs from fame only in its polarity. The Police and the Crown have granted Tāme Iti this sort of fame. He should probably thank them for it.
As if the particular and the personal weren’t failures enough, the Crown also failed at the strategic project of redefining “activism” as “extremism”. Despite all the preceding factors weighing in the Crown’s favour, that a heavily-vetted jury was split indicates that they have failed to blur this crucial distinction, and failed to reframe left-wing and Māori activism* as a threat to civilisation, rather than a legitimate expression of dissent in an open society. This suggests that, in spite of years of Police infiltration and surveillance, of decades of stigmatisation and propagandisation of groups from Ngā Tamatoa to Ploughshares to SAFE, in spite of the better part of two centuries of official attempts to elide the gulf between dissent and insurrection, the public doesn’t really buy it. The jury — and, I would suggest, the people of Aotearoa — quite like and value that distinction and although it is been somewhat eroded, there it remains.
For that finding alone, and regardless of the result of any retrial, yesterday was a good day.
* Māori and leftist because, let us not forget, the Right Wing Resistance are free to continue with their training camps and their pseudo-secessionist projects, unmolested.
Judging from the media coverage of the Urewera 4 trial, including video and audio evidence given by the Crown to the press, the prosecutorial strategy is quite clear. It consists of three interwoven strands that together offer a narrative about politically-motivated armed criminal conspiracy. The first is to say that the activities depicted in the evidence were serious military-style (paramilitary) training. The second is to characterize the exercises as, in the words of the Crown Prosecutor, “training for…guerrilla warfare,” something that implies a target and an objective. The third is to claim that this training constituted a clear and present danger to the New Zealand public, or at least to the political elite who the defendants in the alleged conspiracy commonly oppose. Although the usual sub judice protocols are said to be in place, selective leaking of the video and audio tapes (whose legality is in dispute) helps the Crown backdrop its case, in a form of trial by media in which there is no right to rebuttal. The release of the audio and video evidence was done for prejudicial reasons, not because the Crown had to.
The problem for the Crown is that the video and audio evidence covertly collected by the Police suggest something less than dangerous proficiency on the part of Tame Iti and his activist comrades. There is no doubt that the camps had a paramilitary flavor to them. So do hunting camps, paintball competitions, male-bonding sessions and survivalist exercises. More tellingly, the video shows rank amateurism and indifferent commitment by the people involved. As an example, Omar Hamed, an original defendant who is not on trial, is seen in close up video coverage looking like an excited 12 year old with his first rabbit hunting.22 (which was the actual weapon he was holding) as he stares directly but obliviously at a surveillance camera a meter away (which suggests a lack of situational awareness given that the Police claim that Mr. Iti repeatedly warned his activist colleagues to beware of “eyes and ears” on their activities). His pea shooter may or may not have been loaded. Mr Iti’s concerns, as it turns out, were justified.
In the video some people march purposefully and some shuffle listlessly and mill about while others converse and apparently shoot at unspecified targets. Some give instructions. Some wear balaclavas. A car bonnet is used to prop up a shot. There is rudimentary martial arts training seen in the video, but it is farcical given the skills of the people involved (in a creepy sidebar with relevance to this aspect, it is suggested in some quarters that Mr. Hamed is more dangerous to activist Left women than he is to the status quo). Audio of cluster fire (cluster fire is the overlapping of multiple shots from several weapons in order to saturate a target area) does not identify who was doing it or what they were shooting at, and the presence of spent cartridges under a pock-marked tree tells little in light of the amount of hunting that occurs in the Ureweras.
Frankly, I would be more concerned if the videos showed the activists on a boar hunt, slitting the throats of piglets while yelling “death to imperialism!” The activities shown are far from that and much more about make believe. From what I have seen, the NZ public have little to worry about from this crowd.
As I have said before, it is not a good look for anti-war, Maori and environmental activists to be playing at commando. But it is not a crime to do so–many other people do–so the prosecution’s case is built on a grand exaggeration. It attempts to show a level of competence, organization and training focus to the paramilitary exercises that simply was not there. If anything, the video evidence is an embarrassment to those in them, whether or not they had a political motive for being at the camps. That is curious because neo-Nazi groups do the same type of “training” with a better (yet pathetic) level of competence and a definite, publicly stated political goal of preparing for racial conflict, yet somehow have avoided being the subject of a Ruatoki-style Police response and four year Crown prosecution.
The Crown exaggerates its case not only to secure convictions but also to smear and deter. Mentioning the phrase “guerrilla warfare” indirectly introduces the word terrorism into the juries’ minds. By overlapping the two concepts the prosecution smears a certain type of Left activism with the dreaded “T” word. Even those not on trial–we should remember that all charges were dropped against 13 defendants–are tainted by their association with that word even though no formal charges of terrorism have been laid against any of them. The purpose of raising the specter of guerrillas in our midst is clearly to smear the defendants, but also to deter others on the Left who might wish to add paramilitary skills to their activist inventory.
The Crown imputes coherent motive to the defendants when it speaks of guerrilla warfare. It claims that it has evidence of such. But even if a common motive was established (perhaps hatred of “Da Man”), the inference is that this motive was focused on preparing to use armed violence against specific targets in pursuit of a unified goal. That is a stretch, not only because of the varied causes that the original group of defendants espoused, but also because of the clearly different levels of enthusiasm and combat skills they exhibit, none of which come remotely close to credible guerrilla organization and tactics.
Thus, from what the press coverage has been so far, the Crown prosecution of the Urewera 4 is much ado about nothing. The process is the punishment, because after four plus years of uncertainty, expense and de facto restrictions on their movements (some of the original defendants have been refused entry to foreign countries, which means that their names are on an international security list very likely provided by the NZ authorities), those on trial today, their Urewera colleagues and others on the activist Left (since the neo-Nazi Right appears to be immune) will think twice about making like Warriors even if this trial results in acquittals (the most likely case for conviction will be firearms law violations). Regardless of the outcome of the trial, in that regard the Crown prosecutors and the Labour and National governments that have overseen them will have won. Engaging in procedural delays, legal manipulation of charges and prosecutorial exaggeration is a successful Crown strategy regardless of the formal outcome.
That is the most troubling aspect of the entire affair. By stretching the definition of what constitutes a serious threat of domestic guerrilla warfare in order to prosecute a well-known group of Left-leaning fantasists (who may or may not have had wanna-be militant ambitions), in what appears to be a specifically targeted vendetta, the Crown has played loose with the basic rules of democratic jurisprudence. In doing so fairness and justice in the legal system has been sacrificed at the alter of political opportunity, which is a far worse outcome than the individual fates of the accused.
There may be new and alarming revelations to come that would substantiate the Crown’s case against the Urewera 4. But from where I sit, using what is currently in the public domain, this appears to be a prosecution based on malice, not facts.