When military leaders cover up and lie to elected civilian authorities, the foundation of democratic civil-military relations is undermined because it is those authorities who are entrusted to hold the military accountable to the public that they mutually serve. But this is only true if civilian political authorities take their responsibilities seriously and accept that when it comes to military operations the policy buck stops with them.
The same is true for intelligence agencies in democracies. While specific operational details remain within the agencies involved, the general policy guidelines for how they conduct those operations, and the responsibility for them, rests with a) the legal framework governing their activities and b) the elected civilian governments that are their overseers at any given point in time. For both the military and intelligence community, this means exchanging corporate or institutional autonomy-that, is, the ability to set internal standards, practices and objectives free from political interference–in return for submission to civilian political authority on broad matters of policy and accountability.
In recent weeks we have discovered, thanks to the Inspector General of Intelligence and Security’s report on NZ involvement in the CIA-operated extraordinary rendition/black site/torture program, that the NZSIS and GCSB received and supplied information that was directly linked to detainees who were subject to torture by the US and other allies in the coalition fighting al-Qaeda and the Taliban. The directors of these agencies at the time claim that their agencies did not know about the program even though they worked hand-in-glove with the CIA in Afghanistan and elsewhere and even though knowledge of the extraordinary rendition/black site program and the use of torture was in the public domain as early as 2004. From what is described in the IGIS report, it appears that NZ intelligence bosses had their own version of “don’t ask, don’t tell” when it comes to what the US was up to. As Richard Woods, former NZSIS director general, is quoted as saying in the IGIS report (I paraphrase here), “do you really expect us to ask the US directly about such things and risk our relationships with it?”
When confronted about this discrepancy by the IGIS the former directors maintained the high-ranking government ministers of the day were privy to all of the sensitive information regarding NZ’s intelligence relationships and that as agency directors they had no authority to engage in moral, ethical or legal judgements about what their allies were doing even if these actions violated NZ and international law–all while maintaining that they knew nothing about unmarked airplanes, black sites, torture and suspects being captured (including by the SAS) and then “disappeared” into the covert operations labyrinth.
That broaches the question as to whether former directors Richard Woods and Warren Tucker are simply lying (former GCSB chief Bruce Ferguson was a late arrival to the events under investigation and inherited his situation from Tucker) and prefer to put NZ intelligence relationships with the CIA ahead of their supposed duties to the NZ government and nation as a whole. Or, did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it? It should be noted that Barack Obama ended the extraordinary rendition/black site/torture program shortly after he assumed presidential office in January 2009, so the bulk of NZ’s involvement with it happened under the 5th Labour government.
With regards to the NZDF, thanks to the book “Hit and Run” by Jon Stephenson with Nicky Hager and the ensuing Royal Commission of Inquiry into Operation Burnham (the subject of the book), we now know that the military brass did not inform (at best) or mislead (at worst) senior government officials about the possibility of civilian deaths in that mission until news of it became public (again, mostly thanks to the work of Mr. Stephenson in his series on NZSAS activities in Afghanistan). The NZDF story constantly changed as more was revealed, and the Inquiry has now found out that a critical NZDF document recognising the possibility of civilian deaths was “lost” in a secure safe for three years and that a register of who opened and closed that safe during that time frame somehow went undiscovered until this week. Former ministers in the Key government, which was in office when the mission was conducted, maintain that they were unaware of the existence of anything that would contradict the original NZDF version of events, which claimed that only “terrorists” were killed.
That raises a profoundly disturbing possibility whichever way the truth falls in each case. On the one hand, it would appear that senior NZ intelligence and military officials do not inform and in fact cover up controversial operations that occur under their watch. The civilian authorities to whom they ostensibly answer to in the division of labour that constitutes the foundations of democratic civil-military/intelligence relations are deliberately left in the dark. This suggests a level of arrogance and sense of imperiousness that is inimical to democratic governance because there is no regard for personal or institutional accountability embedded in their decision-making. They simply do as they see fit and lie about it afterwards.
On the other hand, it is possible that military and intelligence officials respect the concept of civilian political authority and inform governments of the day of everything that they are doing, including when things go wrong or unpleasant compromises are made in the interest of national security. This can be considered to be a variant of the “no surprises” policy in which governments are informed apriori of controversial decisions so as to not be caught off-balance when said decisions become news. If that is the case, then political managers shoulder responsibility for the policy decisions under which the NZ intelligence community and NZDF operate, including taking the blame when things go wrong or uncomfortable facts are revealed about what NZ security forces are doing at home and abroad.
However, it appears that in NZ there is not only a variant of “don’t ask, don’t tell” operating in the intelligence community, but it is attached to a civilian political management approach whose operating premise is “don’t want to know.” That is, civilian political authorities display willful ignorance in an effort to maintain plausible deniability when things go wrong or prove politically fraught. That may be expedient over the short term but abdicates responsibility when it comes to civilian oversight of the military and intelligence community, thereby tacitly encouraging military and spy agency impunity during and after (often lethal) operations.
Coverage of the Royal Commission on Inquiry into Operation Burnham has focused on the supposed incompetence of senior NZDF officers when it came to document security and disclosure. “Incompetence” is the most generous interpretation of what was at play here. “Conspiracy based on deliberate and coordinated lies and misrepresentations authorised from the top” is an alternative interpretation. The questions now are: which of these two interpretations seems more plausible and will anyone be held to real account in any event? Surely, if the government of the day was deliberately lied to or mislead by the NZDF and was not complicit in the coverup, then there is criminal liability involved.
The same goes for the intelligence agency chiefs who say they did not know what their subordinates were doing during the years in which the CIA-operated extraordinary rendition/black site/torture program was running. If they lied to their political masters about what they knew, then there should be consequences for that even if it has taken time to uncover their deception. If the political authorities at the time knew about NZ intelligence community involvement in the program, that should become a matter of public record even if little can be done in terms of retroactively applying punitive sanctions on their behaviour..
Not to put too fine a cynical point on it, but perhaps there is another hand at play in both instances. The IGIS report on NZ involvement with the CIA extraordinary rendition/black site/torture program speaks at length about managerial misadventure in the NZSIS and GCSB and even “naivety” in the discharge of their duties (when was the last time anyone ever heard the word “naive” associated with spy agencies?). The Inquiry into Operation Burnham has heard about “mistakes” and “oversights” on the part of NZDF senior leaders. It would seem that the common denominator in both is incompetence rather than wilful or deliberate circumvention of ethical norms, legal obligations and constitutional responsibilities.
Could it be that “incompetence” is the ultimate “get out of jail” card for public servants found to have failed in the discharge of their basic obligations and responsibilities?
It is the old story – abdication of responsibility to the military and intelligence experts. The lessons of the consequences of the abjuration of political control and oversight of the generals so painfully learnt in the Great War and which the likes of Peter Frazer were so acutely aware have been totally forgotten.
If you are right then NZ democracy is hollow at its institutional core. It is an axiom of democratic governance that the repressive state apparatuses fully answer to civilian political authority (as per the exchange I describe in the post). If they do not, or the political authorities themselves cast a blind eye on extra-judicial or unethical behaviour by the RSAs, then the country is no longer a liberal democracy because (some of) its core institutions are not bound by the universal rule of law. I find that quite distressing.
” …did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it?”
I came to know Helen Clark quite well in her earlier days as a politician, and I cannot conceive of her agreeing to cover up NZ’s participation in such a programme. It would have gone against everything she believed in and I am sure still believes in to this day.
Yes, it is only my opinion but it is based on reasonably informed knowledge of the person concerned.
A very important and possibly disturbing summation of the events. Thank-you Pablo.
So if New Zealand is no longer a liberal democracy, how can it be described?
There is a voluminous academic literature on this dating to the 1980s. “Illiberal” “limited” and “hollow” democracy are all terms that have been used to describe election-based regimes that fall short of the liberal democratic ideal. That is in contrast to semi-democratic or “hard” democracies, which are on the authoritarian side of the political ledger (these terms have been used, for example, to describe the PAP regime in Singapore because it holds elections and is not overtly repressive). The differences between liberal and other types of democracy have to do with institutional, economic and social factors beyond the nature of electoral systems (although these too can factor into the equation). If you get a chance look up the phrase “democracy with hyphens” or variations thereof, as there ia faascinating range of descriptors attached to what increasingly are viewed as hybrid regimes that mix features of democratic and non-democratic political systems.
Personally I would love to describe New Zealand as a “limited” democracy… a real wake up call to the complacent poltiical elite.
What would you identify as the remaining liberal democracies in the world? I think Ireland is the only one left in the anglosphere.
I agree that Ireland is the closest to the liberal democratic ideal in the Anglophone world. Perhaps Canada can claim second, although it has its issues. Needless to say the Nordic countries fare well on the democratic continuum, although even now they have as much if not more social democratic features as they do liberal traits (and these appear to be under some pressure due to both economic and social change). I am not competent to judge them adequately, but perhaps some of the small Caribbean island states retain liberal democratic features in a measure no longer seen in their colonial masters (be they English, Dutch or French). In Latin America the closest to the ideal is Uruguay, with Costa Rica also exhibiting fairly strong liberal democratic features (even if both tend to be impacted by trends in the countries surrounding them). I understand that Namibia and Botswana are the closest to liberal democracies in Africa, although the latter is currently experiencing its worst political turmoil in over 50 years of independence. It does not appear that any other countries in Africa, the ME Central, east and Southeast Asia are remotely close to the ideal. And of course Australia is far from liberal.
The more I learn about NZ the more I believe that it has always been a “limited” or even “hard” democracy because its institutional core and fairly rigid economic/political class overlap belie the egalitarian ethos that supposedly underpins the moral and social values of Kiwi society, which also appear to have eroded in the years that the market-driven experiment has been in place.
I know we have discussed this before, Pablo, but I think you are way too lenient towards the government of Canada and its relationship with its intelligence services. It is just as sclerotic as New Zealand or Australia.
So I guess, in summary, liberal democracies are very few in number, making up not just a minority of countries, but a minority of self-declared democratic countries.
Fukuyama must be very embarrassed these days!
I think that we are seeing the decline of liberal democracy as a political form. It is being replaced by other hybridised forms of democracy, not all of them dedicated to preserving the foundational ideals or freedoms once associated with liberal democracies. Much of that is driven, IMO, by the Right rather than the Left. Which is another reason to hope that there is a dialectical turn away from neocons, populists, Tories and alt-Righters in the near future.
Do you think that, even if the world system turns away from liberal democracy, it may survive in pocketised forms (probably chiefly in smaller western European countries, with a few honourable inclusions in Latin America?)
I think that is a fair call. Places like Estonia are considered to be pretty liberal, and Belgium, the Netherlands and Germany remain on the liberal side of the democratic spectrum in spite of their consociational and neo-corporatist features. Plus, I have a degree of faith in the belief that some relative new or immature democracies will eventually become more liberal as they “mature.” But that is just a statement of faith, not fact.
While I agree on your wider point you are specifically wrong about Estonia – Estonian white nationalists have proven very successful in recent years and now control the Interior Ministry. The prognosis isn’t terribly good for Germany or the Netherlands either – the German intelligence services have behaved very poorly in the war on terror and Germany is the closest thing to being a five eyes member without actually being one. And as we have agreed, a dysfunctional intelligence service means a country is not a liberal democracy, regardless of what other features its democratic system may have.
I think in the future we may well see democratic systems that contain the good points of liberal democracy or even improve upon it. When I say liberal democracy is dead it is not necessarily a prognosis of despair – future forms of democracy will build on liberal democracy, but they won’t recreate it full cloth (except perhaps in the aforementioned pockets where it has hung on).
Unfortunately, this incident smells. Unconscionable things happen in battle grounds.
Wellingtonians may be aware of the distance between the Petone and Avalon railway stations.
SAS claimed they were not in Petone and were in Avalon.
Didn’t Stephenson interview some of the soldiers who conducted the raid for the book. I was under the impression some insiders had blown the whistle because of the bullshit flowing from higher ups.
I believe that is the case. Stephenson has very good contacts in the unit and yes, the main reason people talk to him (besides his basic honesty and decency) is that they do not like the way the brass handle things. Having said that, one of the criticisms that Stephenson received after the book was published was that he did not interview the troopers who were on the raid, but their colleagues elsewhere in the ‘Stan and back in NZ. I am unsure as to who he wound up talking to but I do know that he meticulous in his reporting and would have cross-checked references in any event. And as the adage goes, it is not so much the original sin that matters, but the cover up afterwards. I believe that is the case with Operation Burnham–the circumstances of the raid may have been unfortunate given civilian casualties, but the NZDF attempts to spin the story and deny anything untoward happened turned and example of the messiness of war into a full-blown civil-military crisis.
That’s my recollection as well. I’v always heard Stephensons name said in good regard.
That any information about the NZSAS was allowed to leak out or that anyone would take such a drastic measure as to go against there brothers and sisters is remarkable. That just doesn’t happen. The fact that we are talking about it at all must mean that someone pissed a whole lot of people off.
I don’t believe in conspiracy theories but I can see an argument for people not liking other people who bullshit about murdering children. But what ever it was that made the whistleblowers take this massive step…, the life of an NZDF whistleblower, to say nothing about talking about the SAS, is not a welcoming life so a massive moral crises must have occurred for that to happen.
I would also agree with you that what ever people think about the SAS and there conduct in Afghanistan they did everything we would expect of them. I just remember watching the first images of kiwi personal in Afghanistan driving around in aluminium Toyota pickup trucks and driving past old blown out steel tanks and thinking ‘who’s bloody idea is this, this is going to be a disaster.’ And as it turns out Y’know loads of dedicated professional leaders, Y’know New Zealand’s finest is feeling the shame because no one is taking responsibility for it.
The problem is not with the SAS troopers, who do the jobs that they are told to do and then to shut up about them. The problem is with a chain of command that refuses to take responsibility for the orders they give and then try to cover up, whitewash and spin when things are discovered or go wrong. Since the NZDF ostensibly fights on behalf of the NZ public, and for its interests, one would think that the military brass would be more transparent and forthcoming when they put soldiers in harm’s way. But nooooooo…
Maybe the system where the SAS troopers accept their orders without considering their legality isn’t the best system…
Unlike Prussian-style military organisations, where vertical command hierarchies lead to unquestioned following of orders from above, UK (collegial) style military organisations such as that of the NZDF allows for subordinates to seek advice on legality of orders from outside their immediate chain of command. Not that such would happen in the SAS ut in this instance it did not apply. The order to conduct Operation Burnham was legal even if there was an element of utu involved. Intelligence had identified Taliban suspects connected to lethal attacks on NZDF patrols and these were legitimate targets of a “kill or capture” mission. The intelligence turned out to be faulty on the exact location of the suspects and the raid into the main village was run under confusing circumstances that led to the Close Air Support (CAS) gunfire that caused the most casualties, but the operation itself was legal under jus in bello standards. In fact, if I remember correctly two people were killed by the SAS, and the rest of the casualties came from the Spectre and Apache gunships circling above. Whether or not the CAS controllers adhered to ROE targeting protocols is another thing–it appears that they identified all ‘military aged males” (MAMs) as insurgents (INS), which led to all such people in the vicinity of the villages being targeted from above. That is worth investigating but should not amount to a war crime given the context in which the raid was carried out.
The real problem is the coverup orchestrated by the NZDF in the aftermath, which included once again attacking Jon Stephenson and his co-author in personal terms, and the outright lies that military commanders fed to their civilian political overseers about what went down that night. The latter is grounds for punitive sanction even if applied ex post.
Hi Pablo. I know you are an acknowledge academic expert in international military law, and I am not, so I accept your assertion as to the legality of these actions. But to me, as just a regular Joe, if the law states that killing all military-age males is legal, I think there is an urgent requirement for the law to be amended.
Also, if what you are saying is true, then we have a classic case of a government covering up something that doesn’t even need to be covered up – since no war crime was committed, there was nothing to be lost by sharing information. Typical Kuiwi bureaucratic incompetence!
As to a different command structure or cultural shift with in NZDF. I think; war is the final result when problems can not be solved any other way. That’s understood by Clausewitz, Sun Zu, the military and parliament.
What would go along way in explaining is that capitalism produced two World Wars. They where wars between capitalist nations for what they thought was necessary for there survival. How ever it happens, the people that make up capitalist economies get it into there heads that they need to destroy something that is vital for there survival. But I think it’s a paradox that the New Zealand Parliament would want cut NZDF funding and as Eisenhower warned if you build a military and hold it this long then your economy is going to build a dependency to it.
I often think of Germany before their system broke down in the 1920’s and shake my head at all the scientific and cultural advances they where able to make before something inside broke and they all started looking at the world as if they’re out to get Germany and for the survival of the Fascist state millions of people had to die and no alarm bells went off.
I don’t think for a moment that this psychopathic behaviour is limited to Nazi Germany. In New Zealand we can have an institution like The Ministry For Children that can place children outside the care of normal kids, and no amount of pleading can cut through the rage this organisation has built up to protect itself. And the youth suicide rate is off the chart. It’s a disaster in New Zealand and there’s no end. The policies that make New Zealand worse are still in place and there’s no self reflection that this can’t go on and there’s no systemic awareness that there is even a system that could be otherwise.
We’ve given a free pass to the system because we’ve been afraid to debate it and when we give any free pass we create the conditions for the system to breakdown and I think that is what’s happening.
The targeting of military aged males at night in the course of a capture or kill mission in hostile territory would be determined by the theater commander, who could well have been a US officer. The rules of engagement (ROE) would be determined by this officer, and it is known that the US had looser ROE than was is customary for the SAS (although the SAS is reported to have been eager to please its US counterparts). In any event, targeting of MAMs would be legal so you are right, no war crimes were likely committed insofar that is concerned (or in the killing of a MAM by an SAS sniper positioned on a ridge above the villages). That makes the coverup all the more perplexing and unnecessary.
Sam: If you have not already, I would suggest reading Nicos Poulantzas on competition between ascendent and descendent capitalist nations and the role of weak links in the imperialist chain in early to mid 20th century conflicts. Good stuff.
I will just say again for emphasis for any third parties reading this – while the killing of men who are of a military age may be legal under current international law, this practice is immoral and the law should be changed so it is illegal.
Perhaps the links below are an American version of
” Rot at the top ”