Some questions about the Stephenson case.

Although it has been shamefully underreported by major media outlets in NZ, war correspondent Jon Stephenson has won his defamation case against the NZDF by forcing a settlement that involves significant compensation and an admission by the military that its defamatory statements about Mr. Stephenson were indeed untrue. It remains to be seen if the Prime Minister will do the same, since he opined at the time the controversy erupted over Mr. Stephenson’s internationally recognised article “Eyes Wide Shut” in Metro Magazine (May 2011) that Mr. Stephenson was, to paraphrase closely, “unstable” as well as “unreliable.” That has been proven to be false and Mr. Key knew at the time he uttered his comments that they were untrue. Let us be clear: Mr. Stephenson may be driven, but unlike his main accusers when it comes to reporting on the NZDF he is by no means unreliable or a liar.

I wrote the following as a comment over at The Standard but feel that it is worth sharing here:

“I suspect that we have only seen the tip of the iceberg when it comes to the unethical behaviour of the NZDF and political leadership in this affair. Remember that there is a MoD involved and the respective ministers then and now (Coleman and Brownlee). There are more officers involved than retired generals Rhys Jones and Mateparae, some who currently hold senior positions within the NZDF. There is the behaviour of Crown Law to consider. There is the slander on Jon’s character uttered by the PM.

I can only hope that the terms of the settlement do not prevent Jon from publishing more details of his case, including the way in which the legal process unfolded, the obstacles to discovery encountered, and the extra-curriculars surrounding them.

Whatever happens, for once in a long time one of the genuine good guys won. Were it that other members of the press corps (Nicky Hager excepted) had the integrity and courage exhibited by Jon both in the field as well as on the home front.

Kia kaha Jon!”

Beyond what I have written above, there are some other questions that arise from this saga.

For example, in 2013 Nicky Hager revealed that the NZDF electronically spied on Mr. Stephenson in 2012 using NSA, GCSB and SIS assets while he was in Afghanistan. At the same time an internal Defense manual was leaked to the media that identified “certain investigative journalists” as hostile subversion threats requiring counteraction because they might obtain politically sensitive information (one does not have to have much imagination in order to figure out who they are referring to). In parallel, reports emerged that NZDF officials were sharing their views of Mr. Stephenson with Afghan counterparts, referring to him in the same derogatory terms and implying that his work was traitorous or treasonous.

Taken together, both the spying on Mr. Stephenson and the characterisation of him passed on to NZDF Afghan allies can be seen as a means of counteracting his reporting. But if so, what national security threat did he really pose? Is politically sensitive information necessarily a threat to national security or is merely a threat to the political actors being reported on? Is intimidation part of what the NZDF considers to be proper counteraction when it comes to journalists plying their trade in a war zone? And since any counteraction or counter-intelligence operations had to be cleared and authorised by the NZDF and political leadership, were both of the types used against Mr. Stephenson authorised by then NZDF Chief Lieutenant General Richard Rhys Jones and/or Mr. Key? They deny doing so but if that is true, who did and how was it passed down the chain of command to the field commanders in Afghanistan (because, at a minimum, the order to “counter” Mr. Stephenson could be construed as illegal and therefore challengeable–but it never was).

Leaving aside the legitimate role of independent journalism in a democracy in holding policy makers–including military leaders–to account, what does it say about the NZDF that it sees such work as subversive? More alarmingly, if the reports are true, what exactly did the NZDF leadership hope to accomplish by telling Afghans, while Mr. Stephenson was in Afghanistan, that he was a threat to them?

Then there is the issue of the lie. General Rhys Jones claimed that, contrary to what was written in his story, Mr. Stephenson never visited the base in which the Crisis Response Unit (to which NZ SAS were attached) was located and did not talk to its commander. That was a direct challenge to Mr. Stephenson’s journalistic integrity. Mr. Stephenson sued for defamation and during the first trial (which bizarrely ended in a hung jury) the NZDF and Rhys Jones himself admitted that Mr. Stephenson’s version was true.

So why didn’t the trial stop right there? The moment the truth of Mr. Stephenson’s story was admitted by Rhys Jones, it was supposed to be game, set and match to the journalist. But instead the Crown spent hundreds of thousands of taxpayer dollars continuing to litigate in that trial and then the follow-up court process that was ended by the recently announced settlement. Why so?

The answer to the last questions seems to be that, like in the Zaoui and Urewera 18 case, the Crown prefers to bleed its adversaries emotionally and financially even when it knows that it can not win. This death by a thousand cuts approach, courtesy of the taxpayers largesse, is as unethical as it is cynical and undermines the belief that justice in New Zealand is blind and universal.

There are many other questions that need to be answered about the treatment of Mr. Stephenson. Is it true that media outlets were pressured to not accept his work on penalty of getting the cold shoulder from the government? Did NZDF officials physically threaten Mr. Stephenson in New Zealand? Did the intelligence services spy on Mr. Stephenson above and beyond what was reported by Mr. Hager, both at home and abroad, and are they doing so now, and on what grounds if so? Did NZDF and/or MoD and/or PMDC and/or Crown Law officials conspire, either solely or together,  to cover up, obstruct, alter, destroy or otherwise impede the release of evidence to Mr. Stephenson’s lawyers at any point in the legal proceedings?

My sincere hope is that the settlement agreed to by Mr. Stephenson and NZDF does not preclude the former from writing about his experiences with the NZDF, both in Afghanistan and during the trials. Hopefully he will be able to answer some of the questions I have posed above. I say this because something stinks about the way this affair has been handled at the highest levels of government, which is not only a stain on the individuals involved but a direct affront to basic tenets of liberal democracy.

7 thoughts on “Some questions about the Stephenson case.

  1. Pingback: Paul Buchanan Unanswered Questions About the Jon Stephenson V NZ Defence Force Case | Evening Report

  2. It is a war on dissent. It has always been a war on dissent, waged by special units of the police, the security services, the military, on behalf of the political and financial establishment, National and Labour, and assisted by an obsequious media.

    You are 100% correct in pinpointing their main weapon – attrition by legal fees. Ruining people financially and ridiculing them in the media to deter others a la Operation 8. Full credit to Jon Stephenson for taking them head on and winning. Though as you say, hardly anyone would know or even care

  3. well said Paul, there is a lingering injustice about this whole affair, particularly the PM’s comments, the “Whalerider” Key loves to personally denigrate literary types that have dared to hold his class to account–e.g. Hager, Catton, Greenwald, and play to the oafish kiwi gallery

    and it goes further than these apparently casual barbs, (they are not of course casual–“unreliable” did not come from Key’s imagination), politically instigated police raids on media offices and Nicky Hager’s house and security agency surveilling are as blatant as it gets

    journalists and writers worthy of the title get a dose of Nat neo McCarthyism while frauds like Mr Slater go largely unmolested by the cops and courts

  4. TM and Stephen:

    Good points by both of you. Aggregating them, what I see here is the confluence of four negative trends: 1) the treatment of independent (read: non-fawning) reporting as dissent; 2) the treatment of dissent as treasonous; 3) the criminalisation of dissent because it is considered treasonous; and 4) the use of the criminal justice system, courts and security apparatus as instruments of intimidation for those who dare to dissent or report against the government line.

    But there is an Achilles heel in this approach, demonstrated by the Stephenson settlement. The resort to intimidation, overt manipulation of legal processes (including contempt of court) and refusal to follow good governance standards of institutional practice may well involve criminal behaviour on the part of those doing so. That is something that my questions are designed to elucidate.

    Three other things come to mind. Where are Labour and other political parties on this? Why are they silent in the face of what is a clear assault on press freedom? Why is the compliant media, including the right wing shills, not grasping the fact that if left unchallenged the precedent established by the assaults on Jon Stephenson and Nicky Hager (because that is exactly what they are) can be used against any of them at a future point should their views or reporting run afoul of the government of the day?

    Finally, it is my understanding that Transparency International may be completing a review of the ethics and honesty of New Zealand’s security services, including the NZDF and intelligence community. It will be very interesting to see what that review has to say in light of the Stephenson case and some of the other transgressions and misbehaviour exhibited by the NZDF and intelligence agencies over the past few years.

  5. Pablo:

    This may sound cynical, but are you really surprised that Labour or any other political party didn’t weigh in on this?

    The security services and the military are, far more than any other aspect of general government, instruments of the status quo. Their very job descriptions (if read between the lines) if not also in their actual practice, is to defend the powers that be.

    And while there are well meaning individuals in those organisations who want nothing more than to protect the nation or serve the common good through their work in those organisations, the organisations themselves are there for one reason and one reason only, defence/protection of the powers that be (in the form of the state).

    In that instance why would any political party, another vessel for those who seek power through the status quo, seek to cross swords with these organisations? It would not help their chances at all as they need protection as much as the next politician.

    But you are right, they do need to be held to account. But since these organisations are as close to the govt bosom as possible and very much the praetorian guard in this day and age it wont be the government that will be doing that and nothing in the history of these organisations in NZ indicates that this will change anytime soon.

    As for the media, again what do you expect? NZ media is subservient and outright spin at worst or marginalised (if it dares speak out) at best.

    But the key to all of this is the NZ public, we want nothing more than what is pasted up on Stuff or blathered out at 6PM on TV. We tolerate the behaviour of these organisations for reasons to big to go into here.

    It sounds pessimistic I know but to expect these organisations to be held to account for anything less than the grossest of transgressions in this day and age is folly.

    The irony being that their failure to adapt and change will eventually be their very down fall, or at least their embarrassment. Neither the security services nor the NZDF do anything really in line with their publicly acknowledged functions. Hence why they are almost always reactionary to threats and often unable to comprehend threats outside their narrow risk profiles. They get so caught up on protecting the powers that be that they often fail to see the real threats coming.

    Their unspoken, yet explicit functions, on the other hand (protect the powers that be) they do and they do well, as the Stephenson case shows, despite his win.

    I’d be interested as well to see what Transparency International would come up with but I doubt it would bring any significant change, if any.

    The only thing that can uproot such entrenched organisations is a monstrous scandal or dismantling from without (read revolution/overthrow etc). And compared to some of the security services and militaries that exists in the world today, and the activities they undertake, we should be happy with our clubby little security services and military with their little brother subservience to the US, UK and OZ. At least their bumbling and sycophancy is minor compared to elsewhere.

    In one area I do fully agree with you and that’s the idea that they see dissent itself is bad and probably a fairly good sign that democracy in NZ is in trouble when genuine dissent (not some sort of dissent over what brand of beer or sports team dissent) is being actively punished.

    What I wonder is why they were so vigorous in this case as was it really going to be such a threat that some report from Afghanistan was going to be published? If I was to take an educated (and somewhat experienced) guess I would say that it boiled down to egos and that various egos didn’t want to look stupid in front of their paymaster (ie the govt).

    Any thoughts?

  6. Thanks Daniel, for the thoughtful comment.

    I was being more rhetorical than practical or hopeful in asking the questions in my previous comment.

    I agree that there is a fair degree of institutional mutual support within the state and between the state and political parties. Although I think that there is a bit of truth to “deep state” theories I also believe from experience with the US security community that their leash is only so long as the political elite allow it to be. That can vary with the nature and disposition of those in power (e.g., Reagan and Bush 43 let them run riot while Clinton and Carter tried to reign them in).

    The major concern is that the manipulation of supposedly apolitical state agencies by political parties in government for personal as well as partisan reasons is corrosive of the institutional foundations of democracy. So while I am not surprised that Labour would say nothing regarding the abuse of process in this case because it could well do (and has done) the same when in government, in this particular instance I believe that its reluctance to say anything is because some of the NZDF transgressions and deceit started under their watch (Nicky Hager covers this in Other People’s Wars). They do not want to open that can of worms by commenting.

    In that regard the issue appears to be that government and ministers prefer not to be told about the details of controversial security operations (in a variant of plausible deniability) and the security agencies prefer to sugar coat or outright mislead the civilians who they are supposedly subordinate to.

    That way, should s**t hit the fan, the former can deny knowledge of details and the latter can lie and engage the type of coverup campaign waged against Mr. Stephenson. Usually they win via the bleeding strategy I have outlined in the post, to which can be added the criminalisation of reporting-as-dissent mentioned in the comments. To that can be added John Key’s penchant for attacking the messenger with insults and slander.

    In my previous academic life I wrote a fair bit about civil-military relations and military professionalism. In fact, one of my jobs in the Pentagon was to craft a military assistance and training program that was designed to professionalize Latin American militaries and democratise Latin American civil-military relations in the wake of authoritarian demise. In light of that background, what is troubling for me to see is that the NZDF does not completely subordinate itself to the civilian leadership, yet does so with the approval and complicity of that civilian leadership regardless of who is in government. That is to say, its lies and misdirections are countenanced if not explicitly approved by the civilians who should be running the show.

    The bottom line is that in NZ civil-military relations and military command perspectives are deeply authoritarian at their core. The military are given a significant measure of carte blanche in what they do given the broad geopolitical parameters outlined by the governments of the day, and civilian authorities such as current Minister of Defense Brownlee are selected regardless of their unfamiliarity with defense and security matters and in fact precisely so because that war they will not get too “hand on” in their approach to the portfolio. All of this has been exacerbated with the signing of the Wellington and Washington agreements that make us close military partners of the US, UK and OZ.

    Where they go, we go, and what they do, we do. That lies at the root of the Stephenson case.

    As for the corporate media. As I said in the comments, they should realise that their silence means complicity, and that complicity today can turn into victimisation tomorrow should the political winds shift against them. More than any other sector in society, it is the press that should be most visibly exercised about this case.

  7. Good points Pablo and I did figure you where being somewhat rhetorical in your post but who could pass up a chance to play devils advocate or just stir the pot. Sorry.

    I know that a Smith’s Dream style state in NZ will never really come about but your right about the inevitable erosion of democratic rights/freedoms under the current setup. Where it leads I don’t know.

    I also agree with your points about various leaders holding the services more accountable than others. Regan pretty much let them off the leash during his term while Carter did try and bring them in but in the US it seems that there is a much greater oversight mechanism than here in NZ and Watergate was so openly heinous that it left a lasting stain on them so that the public has never really forgotten.

    No such in NZ.

    what always amuses me no end is that in almost every other sector of government there is a move to outsource to private contractors/suppliers/consultants etc and the introduction of various management speak/thought into the workplace yet while there have been some areas overseas where subcontracting intel work happens (the US in particular) here in NZ it seems that they (the security services) have been spared this while most other government departments get positions slashed/rearranged, fixed term contracts and managerial (sometimes too much) and public scrutiny (if not always accountability) in spades.

    I think protection from these practices (while not endorsing the practices themselves) is a big part why the services here are still 30 plus years behind the times.

    The other thing which makes me laugh is the almost pathological refusal to openly embrace Open Source Intelligence practices (OSI) while often making covert use of them is various roles and the attendant security bloat as nearly everything passing across their desks get classified (often far higher than it should) and then lost in the great maze of files/info/data that builds up.

    I suppose without their reliance on “secrecy” to protect and justify their work some of them would well be out of jobs.

    And that’s the cruel paradox of it all. Secrecy protects them from greater oversight and helps cover their failures but also lead to a blinkered mind-set and information overload through inadequate (or unfocused) collection methods.

    OSI on the other hand would remove the protection of secrecy but also make them much more nimble and responsive and enable a much more targeted approach to collections.

    The best work these services ever do (and the various histories of services both here and overseas repeat this theme) is when it’s done in concert with openly stated larger plans and goals and with the attendant oversight and focus in their work.

    I would never argue that a state does not need some form of security service but the best are those which are more ad hoc and adaptable to the real threat rather than ideologoical dinosaurs lumbering around trying to justify their existance. Perhapes if NZ actually had some credible and proximate threats rather than existential and far removed worries.

    Too much tail wagging the dog methinks.

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