The “Waihopai 3” have been acquitted. Their act of civil disobedience, which resulted in damage to one of the domes covering eavesdropping equipment at the Echelon Signals Intelligence (SIGINT) gathering station near Blenheim, was deemed by a jury of their peers to be justified because of their sincerely held beliefs that the listening post contributed to human suffering on a world scale.
This is a remarkable verdict. The Plowshares group clearly trespassed and clearly did damage to the dome (they cut through both a perimeter fence and then the dome in order to access its interior). But their motives clearly outweighed, at least in the minds of the jury, the criminality of their actions (the charge of burglary against them was a grave mistake on the part of the Crown). The defendants pleaded not guilty to the charges of trespass, burglary and criminal damage and left the court as free men and as an inspiration to other direct action activists discontented with the status quo. One wonders if this Â decision will establish not only a legal precedent but also encourage others to follow suit in pursuit of anti-status quo objectives.
I must confess to being at a loss for an explanation. As I wrote in “A Brief Comment on Spy Bases and Civil Disobedience” over at Scoop, (http://www.scoop.co.nz/stories/HL0805/S00039.htm), active acts of civil disobedience involving direct action (as opposed to the passive act school of civil disobedience exemplified by Ghandi and followed by his adherents after he was murdered) are most often premised on the perpetrators willingly understanding that their actions are in violation of conventional law, and that their actions will be punished accordingly. More often than not they plead guilty in order to make their political case at sentencing, something that spares the taxpayer the court costs of defending the charges while at the same time providing a courtroom soapbox for dissemination of their claims. Seriously committed activists often/sometimes (depending who is talking) never reach trial because they die trying. None of that occurred in this case.
I am sympathetic to the Plowshares cause although I seriously disagree with their view of the Echelon network. I applaud their willingness to stand up for their beliefs, and their use of unconventional, yet basically peaceful means to make their case. But for the life of me I cannot understand why they were acquitted, and I fear that the verdict has opened a Pandoras Box of unintended and perhaps dangerous consequences. But then again, we are talking about activities that occurred in New Zealand, although to be honest, if this action merited acquittal, what does that say about the case against the Urewera 18, who did not trespass, damage or burglarise anything?
Imagine what the outcome would have been had the Plowshares engaged their direct action in the US, UK or Australia. I reckon the verdict would have been different, and the sentences severe.
It was a jury trial in the District Court, Pablo. Its precedent value will be next to nothing.
It is also a wee bit hysertical to talk about unintended consequences of the verdict. It would have been improper in the extreme for them to consider downstream foreign policy issues in deciding whether or not the elements of the relevant offences were met.
One of the things I like about New Zealand is that even if the verdict had been different, I doubt the sentences would have been severe. Would you prefer that they were?
(Ha! Captcha is Farrar!)
I’ve no expectation of rational NZ law, but I assume the jurors decided the accused believed their actions were justified to prevent further harm. Perhaps this is a good decision, even if not a correct decision.
I doubt the decision is a Pandora’s Box, because such situations depend on the jury’s perceptions of the defendents demeanour and rationale for preventing further harm, solely based on the evidence presented in court. I doubt many accused people in NZ would be able to project the requisite good karma to convince a jury.
It would also be friendly if the NZ Govt paid for all property damage, and perhaps even improved security, as the Echelon installation is legally entitled to protection in NZ.
A similar case was heard in Australia – the man concerned was acquitted in appeal, I believe…
I have to agree with Pablo. While this is a minor case and of low precedent value in strict precedent terms, there’s a great deal at stake in the symbolic, political and civil society aspects of these events which the bare ruling itself doesn’t show. This is one of those rare cases which speaks to the sort of society we have, and the sort of society we are.
The wailing and gnashing of teeth at Kiwiblog (and probably elsewhere, but I’ve not troubled to check) should probably give an indication that — whether or not you think it’s the correct decision* — it is at least a good decision for supporters of principled non-violent protest of the sort the authoritarians would crush in the name of order.
* Although, being duly found by a properly-constituted jury, I think it’s hard to argue this is an incorrect decision on any meaningful real-world basis.
Wait. You say that and you agree with Pablo? I read the Pablo’s post as lamenting the fact they weren’t found guilty. Which would Pablo on the “crush” side of your binary :P .
I agree with Pablo that it’s an important verdict.
I read his post as being in two minds: happy with the verdict’s embrace of principles of civil disobedience and the triumph of political rights over property rights — and disappointed because he views the group as somewhat misguided in terms of its motivations, and disagrees as to whether Echelon is a good or a bad thing — and also concerned about what might occur as a result.
(Pablo, please don’t let me misrepresent your position.)
Lew: I could do a lot worse than having you “misrepresent” my position. In fact, you have not.
My view is this: I am pleased by the verdict but surprised that it happened as it did. Since I know Peter personally, I am aware of and admire his integrity and conviction. As should have been clear from my post, I believe in the fundamental right to direct action civil disobedience (and then some, given my history).
What I did wonder about in the post is the precedent. If neo-Nazis truly believe that NZ’s Anglo-Saxon colonial heritage is under siege, does it justify commiting crimes to symbolically make a stand against it? If anti-abortion protesters blow up wimin’s health clinics, is their commitment to their ideals a sufficient defense? If animal rights activists terrorize the families of animal science researchers in pursuit of their ideals, is that grounds for acquittal? If Palestinian sympathizers attack NZ synogogues in sincere protest against the occupation drives of the Israeli state, is that worth a legal pass in the form of a non-guilty verdict (or selective non-prosecution)?
What is interesting is that the most polemical part of the post–my reference to the fate of the Urewera 18–has passed unnoticed by these informed commentators. Why is that? Is not the parallel apparent?
A lot of people may consider the parallel falls down because those charged following Operation 8 had guns.
No. At least not on the legal basis on which this defence was argued. This defence was argued as a case of “claim of right”: that defence only applies to property crimes.
Graeme: The Urewera 18 had guns but were doing what any farmer, hunter or bogan might do in the bush given an idle moment. What is the difference? Their radical speech?
And even if they concede that their activities were unlawful and they talked in a militant way, could they not “claim of right” to justify their activities? Afrer all, other than the damage done by the police to the private property of the defendants, no damage was done to anyone, anywhere. What danger existed only did so in the minds of those who chose to make a case of it, invoke the TSA then rescind it, and who now are reduced to laying minor firearms and conspiracy charges that will come to trial one month short of four years after the defendants were arrested. Does that seem like justice to you? At least that much is consistent: it took 23 months for the Waihopai defendants to see trial.
I say that, given this verdict, the Urewera 18 will walk with all but a couple of defendants convicted of minor firearms charges. That makes the waste of taxpayer dollars on their prosecution all the more onerous, but is an encouragement to anyone who is determined to make a personal sacrfice in pursuit of political objections/objectives.
In light of the above, Dare I say it? Yes I do: “Power to the People!” Silly and trite, indeed, bit oh so true….
I’m thankfully not a lawyer, but I understand that this case sets no precedent. It was merely the jury’s perception of the facts of the case. It’s no more than that. The specific law was already used regularly in property cases.
I’m very doubtful that the Urewera 18 will appear as benign and full of good karma. They may walk free, but probably not via this law, but because of the shoddy laws and the actions of the police surrounding their alleged activities.
Why would you assume the same jurors would hear that case?
Claim of right is available for property crimes only. It’s standard use is when you thought that you had some right to the property – you can’t steal something that you own – but were mistaken, but it can also be used in other circumstances. One might be:
you come across a car with all the windows closed on a really hot day, itâ€™s obviously really hot in the car, after some minutes you look in the car and see a dog that has passed out from the heat. You yell out and no-one owns up to owning the car, so you break a window to provide help to the dog (criminal damage), and find that itâ€™s actually a dead dog that has been stuffed.
Do you own the car? No. Do you believe you own the car? No. Was your damaging the car necessary for some greater purpose, like saving an animalâ€™s life? No. But you believed you were justified in damaging the car for some greater purpose. You have a claim of right.
I’m not saying it really applied to the Waihopai attack, but the existence of the argument was enough to be able to get the jury to acquit, at the very least.
Bruce is right. There is next to no precedent here. The next idiot to try it may sound like a complete prat who’s just making stuff up to try to get acquitted.
I’m not so sure about the Urewera 18 going free. The symbolic matters of the two cases are different, even if there’s a similarity in motivation — the spectre of nationalist separatism will prevent juries from viewing this in the light of earnest, slightly eccentric, well-meaning principled protest.
If they get off it’ll be in spite of a jury’s misgivings, not due to their sympathy, and will require some serious legal heavy lifting. Fortunately, they have some pretty heavy lifters.
Edit to add: Gordon Campbell seems to think along the same lines:
There is absolutely no parallel, Pablo, between the Ploughshares defendants and the Urewera 18.
The former are both religiously and politically committed to non-violence, the latter (and here I am quite consciously basing my comments on your own formula of “radical speech + firearms”) were not.
I would be very interested to learn what advice you would give to the Police in a situation where they are in possession of evidence that a person or persons are combining “radical speech + weapons” in ways that pose a credible threat to public safety.
Would you counsel them to wait until the weapons are used? Or, would you advise them to act preemptively – using one of the few pieces of legislation on our statute books which explicitly sanctions anticipatory law enforcement?
If it’s the former, I’d like to know what you’d say to the victims’ families.
And, if it’s the latter, why on earth are you going in to bat for the Urewera 18?
Chris, if you’re concerned about the nexus of firearms and radical speech, it’s the libertarians and various other teabag-esque groups who should bring you the most concern; not the tino rangatiratanga movement, which with very isolated exceptions is committed to nonviolence and due process.
Still, the one good thing to come out of the forthcoming Urewera Terra prosecution is that we’ll see what a full-scale long-term multi-agency counterterrorism investigation in this country amounts to, and (if Jackson, Sykes, etc. have their way), a full and very public examination of the issues in play.
Lew, would you support anti-abortion activists damaging abortion clinics?
Neil, no, but having done so, I would support them being able to stand up in court and argue their justification, having fully admitted their actions.
and for them to get off?
That’s part of living in a civil society.
Part of living in a civil society is holding responsible people who commit crimes on the basis of religious/political beliefs.
I think that religious + political is worrying no matter which part of the political spectrum it comes from. Nothing like religion to cure self-doubt about ones actions
True. But I trust civil society institutions (such as juries, and the public discourse going on here, to an extent in the media, and in the pubs and cafes and workrooms around the country) to navigate the maze of complexity which these sorts of cases throw up.
This is not to say I always agree with them ( I certainly wouldn’t have if the H debate outcome had been different, for instance), but that I’m prepared to accept civil society’s failings in exchange for its more numerous successes.
I’d say the law needs to be changed to prevent this sort defense.
They would have received light sentences, of anything at all.
Thanks all, for the informative discussion. I stand educated on the lack of precedent set in this case, and on the claim to right (cheers for that, Bruce and Graeme).
I reiterate my view, however, that given the disposition of this jury, it is likely that the Urewera 18 jury will hear the defense of moral necessity (especially with regard to the conspiracy charges against a handful of the defendants in that case). That could well prove important in determining if a criminal conspiracy did in fact occur, or if it is simply a case of politically like-minded people getting together to practice survival training in the bush in a sincere belief that citizens have a right to defend themselves against oppressive government. The fact that the Police laid the conspiracy charges over a year after the initial arrests suggests that their case is weak in any event.
I reject the view that radical speech+firearms=criminal activity. As I have said at some length elsewhere, not only was no one hurt and no property damaged by the Urewera 18, there was also no plan, no preparation, no targets involved. From reading the police wiretap transcripts what radical speech did occur came from just a few individuals, some of whom were quite possibly intoxicated at the time they made their comments. Thus, given that they did no damage to anyone anywhere, the majority of the defendants are likely to walk or at best have minor firearms charges upheld. No one will do jail time.
In my opinion, the best outcome in this case would have been for the Waihopai 3 to plead guilty to the damage charges and be ordered to pay for the cost of repairing the hole in the perimeter fence. If nothing else, that would send a message to the GCSB that it should have been a bit more rigorous in its security around the listening post while at the same time making the point that even if minimal, there is always a cost to direct action civil disobedience in a country where universal laws apply and where justice is supposedly blind.
Not good enough, Pablo. You can’t pass off what was happening in the Ureweras as “survival training” – unless by “survival training” you mean training to survive a full-scale firefight a la the SAS.
I, too, have read the transcripts, but, unlike you (I suspect) I have also been briefed by a senior police officer closely involved with the case, and have spoken to a person closely associated with the contemporaneous media investigation into the Urewera training-camps.
And, quite simply, Pablo, you’re wrong. What was going on in the hills above Ruatoki was far too serious for the Police to ignore.
That many of the defendants may, indeed, “walk” is both a tribute to the public relations and political skills of their legal team, and an indication of just how difficult prosecuting the Police case became once the Solicitor-General ruled that the charges laid under the Terrorism Suppression Act could not proceed.
So, while I commend your Second Amendment enthusiasm, I do wonder – given your billing as a “threat assessor” – at your unwillingness to recognise a potentially lethal combination of idealism and small-arms training when it’s staring you in the face.
Chris, the two points you make here — what they were doing in them thar hills was serious enough to merit the sort of counterterrorist action which occurred, and yet the cops will have a hard time prosecuting because the TSA charges were ruled out — seem difficult, if not impossible, to reconcile given the facts in the public view.
I look forward to more facts being brought into the open during the trial, though.
Chris: We are going to have to disagree, and I shall let slide your personal dig at me. I too have spoken to a very senior police official who was directly involved in the case. I have also had some dealings with some of the legal defense team. From all that I know–and I am happy to entertain the idea that you might know more than me, although I doubt it–the activities in Ruatoki were no where close to being a coherent armed threat to NZ society. That does not mean that a nutter with a gun is not dangerous. What it does mean is that the Urewera 18 fall short of an armed conspiracy against the state. They may have aspired to be so; they may have pretended to be so; but they were not.
You know as well as I that there were political motivations behind the October 15 raids. That is why the TSA was initially invoked when it should not have been. The SG was correct in his decision to withdraw it. If the situation was what you believe it was, then surely the Police would have ample evidence to prosecute the entire group for something more than one firearms charge apiece and one five person charge of criminal conspiracy (which involves the guns, not the political motivations of the defendants).
I am surprised that you would take your Police confidant’s remarks at face value. Surely you are not that naive. One thing about doing threat assessment is that one looks at the issue from all possible angles, focusing on objective facts involving mixed motivations, concrete capabilities and evidence of intent on all sides (among other things). By that criteria what was going on in the hills might be alarming, but was not criminal. As I said to the Police officer involved with the case at the time, what was there in this instance that was not happening on a regular basis in neo-Nazi camps in the South Island? His answer was revealing: there was nothing really different, but that his orders came from above and outside the Police.
I tend towards Chris on that one. At the time most of the people I know who knew Tama Iti were right behind him.
But over time that opinion shifted more to he was naive and being manipulated. There were some very unsavoury characters he got mixed up with including that really crazy pakeha who was busting to get into a gun battle with the police.
It had all the hallmarks of a folie Ã famille.
The reason that no charges were laid under the Terrorism Suppression Act was that there was no prospect of their succeeding. That might be because the law was shoddily-drafted, but even if the charges had proceeded, that problem would have raised itself at trial.
Charges of participating in a terrorist group have a whole bunch of things that need to be proved (my post here http://publicaddress.net/default,4574.sm#post at the time of the raids looks into this), and the Solicitor-General – almost certainly correctly, I think – found that at least one mandatory component of charges under the Terrorism Suppression Act couldn’t be proved.
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Once again, Pablo, not good enough.
By your reasoning, the only time the Police could have legitimately intervened in this story is either, as one of your “survivalists” was raising their weapon to fire, or, after they had done so.
A group does not have to pose “a coherent armed threat to NZ society” to warrant the intervention of the Police – merely a credible threat to one or more of its citizens.
And, I’m sorry, but if you genuinely believe that your informant’s orders came from “above and outside” the Police, then I believe it behoves both him – and you – to say who issued them.
Constitutionally, and operationally, the NZ Police are their own masters. Other than in the circumstances of a declared State of Emergency, they cannot be “ordered” to do anything.
The most obvious source of an illegal (but hard to refuse) “order” would be the Prime Minister’s Office – but if that is what you believe happened then you should be prepared to say so – and wear the consequences.
Otherwise, you are simply doing the Defence legal team’s job for them.
All along they have attempted to portray the arrest of their clients as evidence of some dastardly “Edge of Darkness”-type plot instigated without justification from the highest levels of government to reaffirm New Zealand’s bona fides in the Global War Against Terror.
My own understanding of what happened is a little less dramatic. It begins with the activities of a small group of “persons of interest” to the SIS which became sufficiently alarming for the Police to be notified. The Anti-terrorism Unit then became involved and, as a result of their investigation and surveillance, the matter was passed on up the Police chain-of-command.
The final decision to start arresting people was made by New Zealand’s most senior police officers. The question they asked themselves was: “Is anyone here satisfied that if nothing is done, nothing will happen?” When no one was willing to give an affirmative answer, the operation was set in motion.
“Above and outside” didn’t get a look in.
I repeat: we disagree. The decision to trial the TSA on the Urewera 18 would have to had come from the PMs office. The SG would not have been informed in advance. Hence the screw up.
I hold no brief for the defendants and certainly am not shilling for them. So lets agree on this: we wait for the trial, see and hear the evidence, and then decide which of our perspectives is more accurate.
This strikes me as unlikely.
The likelihood of the police getting a search warrant listing the Terrorism Suppression Act without getting advice from a Crown Solicitor/Crown Law is almost nil.
The PM’s office would be breaking the law, and the police would be breaking the law, if the decision was made there: section 30(4) of the Policing Act 2008 (which is effectively the same as the old law) reads:
No Police employee may, when exercising any power or carrying out any function or duty, act under the direction, command, or control ofâ€”
(a) a Minister of the Crown…
If you’ve evidence that this was ignored in this case, I like to think you’d do something about it.
Graeme: My supposition with regard to decision-making involvement outside of the Police is based on hearsay (as I believe that Chris’s is). The law is one thing, but political machination is another. Absent a paper trail there is now no way of determining who decided that this group were to be the first on which the TSA would be invoked. I remain skeptical that this call would have been made solely by the Police, or that the SG was involved from the beginning (otherwise why would he have turned around after the arrests and decided against using the TSA?). Given that the Minister for Intelligence and Security would have been informed about the case from the get-go, it is not a stretch to think that she might have had an opinion about the feasibility of the operation as a first test of the TSA. As it stands, the Police remain the fall guys in this affair and that, I believe, is a matter of their carrying the can for others. But you and Chris might be right–I could be completely wrong in my assumptions.
Like most, I am not privy to “private briefings” by anyone, but I do have a view from the outside.
The anti-terrorism unit was trained and primed to go, and desperately seeking a reason to act. A disparate few playing games in the bush provided that and the fact that they were mainly Maori was the icing on the cake – prejudice is still alive and well in New Zealand. And it was very handy for the then PM to flaunt some “tough on Maori” credentials with the propensity of the then opposition to play the race card still seared in her consciousness.
So stitch together phrases from a few separate text messages and phone conversations, and, secure in the knowledge that in any remote rural area there will be unregistered firearms, and you have your excuse to terrorise and humiliate an entire local population.
The “really crazy Pakeha” did not require this overreaction to be dealt with.
In the meantime, amidst the hysteria, the genuine grievances of Tuhoe, that it has long been deliberately marginalised and that it should be accorded a degree of autonomy, remains unaddressed.
And I wonder how many “secret witnesses” will be required to stitch this one up?
I don’t think that these people did “stand up for their beliefs”. I think they did something they knew was wrong and lied their way out of it. I think of non-violence and I think of Gandhi. In similar circumstances he would have committed the act of disobedience; then when charged would have said he did wrong and should be punished according to the full weight of the law. It was the effect of the unjust punishment that served to deliver the moral message. That has been lost in the present case because of the acquital.
My guess: there was advice from Crown Solicitors/Crown Law, and while the Solicitor-General knew about it, he wasn’t deeply involved in the warrant decision, because he knew of the role he might play later.
But even if he was involved throughout, he might have turned because the evidence just wasn’t there. It entirely possible that before the raids there was enough evidence for search warrants, but in the end those search warrants didn’t turn up enough evidence from charge Terrorism charges could be laid.
The legal standard for getting a warrant (reasonable grounds to believe you’ll find evidence of a crime punishable by imprisonment) is much lower than the prima facie evidence of guilt required to commence a prosecution.
I suspected something along the lines you describe, and therefore take note (again!) of the clarification. Much appreciated.
In this article Dr Buchanan is concerned about precedents set by civil disobedience. His paper “Shadow Wars” (NZIA October 24,2001) advocates rather un-civil disobedience on the part of the State however:
“Confronting the internal threat requires more of a militarized, covert approach, which will undoubtedly impact on civil liberties for both the few and the many. Yet with proper legal demarcation and the use of
temporary exceptional rules of internal control, the infringements on the rights and movement of the general population can be minimized. The key to success is to specify targets with absolute certainty, act decisively and without equivocation, and only in the instance of absolute mistake apologize and compensate. Read differently: if you are hanging out with the wrong crowd and a Delta Force squad ruins your day, your survivors need to remember that you were only as a good as the company you kept. The inevitable lawsuits over mistakes can be dealt with by legal limits on liability for actions undertaken in combating the terrorist threat and a whole lot of â€œsorry.â€
One wonders what the fate of the the â€œWaihopai 3â€³ would be under the kind of regime he espouses in that paper.
Joseph P. Your selective quotation devoid of context is both irrelevant and silly. The focus of that essay was on terrorists, not pacifists and was specifically directed at an imminent, clearly present danger. Geez, do you ever have an axe to grind! BTW– Are you the stalker weirdo who has been mentioning this quote in a variety of forums for the last 8 years? I suspect so.
“The focus of that essay was on terrorists”
My bad. I guess you covered “pacifists” when you stated:
“The inevitable lawsuits over mistakes can be dealt with by legal limits on liability for actions undertaken in combating the terrorist threat and a whole lot of â€œsorry.â€“
Joseph: No, what I covered in that essay were people who willingly collaborated with terrorists who might have been caught up in an armed raid. Your obsessive focus on that one quote says more about you than me.
Between you and Chris Trotter, I have the middle, reasonable-progressive ground pretty much covered. You two need to meet.
The problem with your thesis Dr Buchanan is the small matter of “mistakes”. It is because mistakes are all too common that, in this country, we do not sanction arbitrary killing. Not yet anyway.
Anyone who believes a covert agency of the State should have powers to put a label on its citizens, ie. “terrorist” then blast them to hell and gone has no claim to “the middle, reasonable-progressive ground”.
Likening the Urewera 18 gun-toters to avowed pacifists Peter Murnane, Adrian Leason and Sam Land; accusing the PM’s office of ordering the October ’07 arrests; this constitutes “the middle, reasonable-progressive ground”?
I-don’t-think-so Pablo. Not really.
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