Tag Archives: Jon Stephenson

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 Jonâ€™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, Â 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.

Long and short of the NZDF spying scandal.

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Accusations that the NZDF may have been spying on journalist Jon Stephenson during or after he was in Afghanistan researching what turned into a series of very critical stories about the actuality of SAS operations in support of the elite Afghan counter-terrorism Crisis Response Unit (CRU) have sparked both public outrage and government backlash. Numerous media entities and civil libertarians have protested the alleged spying as an infringement on press freedom, with the story now picked up by the US press because Mr. Stephenson was working for a US based news service when the spying supposedly occurred, and the spying may have been carried out by US agencies.

It is early days yet in the development of the story, but there are numerous angles that if explored could lead to a can of worms being opened on the NZDF and NZ government as well as the US administration.Â More immediately, if what has been made public so far is accurate then there are some NZ-focused issues to ponder, which can be broadly divided into matters of short and long-term consequence.

The specific accusation is that NZDF obtained meta-data about Mr. Stephenson’s phone records from US intelligence sources while he was in Kabul. This meta-data included the phone numbers of those he contacted or who called him while in theater, which could be “mined” and subject to network analysis in order to create signal maps and flow charts of the patterns of communication between them as well as with Mr. Stephenson (what have been called signals meta-data “trees”).

Implicit in the original story by Nicky Hager is the possibility that the content of Mr. Stephenson’s conversations and possibly his emails were accessed by the NZDF, or at least by foreign partners who then shared that information with the NZDF.

This is the short aspect of the story. Mr. Hager believes that Mr. Stephenson was subject to an NSA signals trolling scheme akin to that done by the PRISM program, and that the NZDF may have requested that Mr. Stephenson be surveilled by the NSA as a result of Stephenson’s investigation but also because the NZDF could not spy on him directly. However, since the SIS and GCSB had officers on the ground in Kabul and shared workspace with NSA and CIA personnel, the possibility was raised that they were somehow involved in the electronic monitoring of Mr. Stephenson, either has initiators or recipients of the NSA meta-data mining of his communications.

This may or may not prove true. The government and NZDF flatly deny that any spying, whether by the NSA, GCSB or NZDF, was done on Mr. Stephenson. Mr. Hager claims to have evidence that NZDF personnel obtained Mr. Stephenson’s telephone meta-data (presumably he has at least been shown that data by the NZDF personnel who are his sources).

One of these versions is apparently false, although there may be a twist to the story that bridges the veracity gap between them.

Since Mr. Stephenson was in a declared conflict zone in which a multinational military coalition was engaged, he was inevitably subject to military intelligence collection. Military organizations and their various service branches maintain human and signals intelligence collection units that focus on tactical aspects of the conflict zone. That would, at a minimum, include canvassing local telephone and email networks for information on potential threats and contextual background. Such collection is designed to facilitate “actionable” intelligence: information that can be used to influence the political environment as well as the kinetic operations that occur within it.

It is possible that Mr. Stephenson’s phone records were collected by an ISAF military signals intelligence unit. It probably was that of a US military unit. That unit may have identified Mr. Stephenson as a New Zealander and passed his information on to one of the intelligence shops located at Bagram Air Force base or elsewhere for sharing with the NZDF as a professional courtesy and a “head’s up” on who Mr. Stephenson was involved with.

If this is true, then Mr. Hager’s NSA/PRISM/GCSB/NZDF spying scenario is wrong. However, the issue does not end there. The big questions are whether the NZDF requested that an allied military signals intelligence unit spy on Mr. Stephenson, or if not, what it did with the information about Mr. Stephenson volunteered to it by its ally.

If the latter is the case, then it is possible that the NZDF took no action because it either considered the information marginal to its intelligence concerns or improper for it to receive and use. That in turn could have led to the destruction of that meta-data after it was received.

On the other hand, if the NZDF requested said information about Mr. Stephenson from a military intelligence partner, that would make any subsequent meta-data record destruction an attempt to eliminate evidence of that request or the use to which the data-mining was put.

It should be noted that such spying in conflict zones is usual and to be expected by anyone operating with them, journalists and non-journalists alike. Moreover, it is perfectly legal as well as reasonable for the NZDF to share information with its military intelligence partners, even if it includes information about unaffiliated NZ citizens operating in conflict zones in which the NZDF is deployed. Thus it would not have been unlawful for the NZDF to obtain Mr. Stephenson’s electronic meta-data whether it initiated its collection or merely received the results.

This extends to its use of the SIS or GCSB to assist in said collection, since the SIS is empowered to spy on NZ citizens and the GCSB was working in a foreign theater in which Mr. Stephenson was working for a “foreign entity” (McClatchy New Service), therefore making him a legitimate target under the 2003 GCSB Act. Whether one or both of these agencies was involved in the spying on Mr. Stephenson, should it have occurred, the eavesdropping could legally be conducted without warrant, again owing to situational circumstance.

However, just because something is legal does not make it right. This is where the long of the story comes into play.

Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation.

Whether it was included in the original version or added some time later (perhaps very recently), that definition of subversive threats is astounding. The language used borrows directly from the lexicon of the Pinochet dictatorship and Argentine Junta. It completely ignores the concept of press freedom in a democracy, which is premised on the autonomous separation of the media and the military as institutions. It lumps in so-defined subversive threats with physical threats to operational security in the field. That makes those identified as subversives enemies rather than adversaries, which allows them to be treated accordingly.

The wording of the passage about subversive threats in this manual says more about those who drafted it and the NZDF leadership that allowed it to become doctrine than it does about any real threat posed by journalists to the NZDF or government. Being embarrassed by critical reporting is not akin to being shot at. Even if written in the fevered years immediately after 9/11, the authors of that passage (and presumably others in the manual) display an authoritarian, anti-democratic mindset that is fundamentally inimical to democratic civil-military relations and, for that matter, democratic military professionalism.

Chris Trotter has noted that the NZDF, as a military organization, is authoritarian in nature and thus inherently un-, if not anti-democratic. I respect his view but disagree to an extent. Virtually all social organizations are hierarchical in nature–families, churches, private firms, unions, schools, bureaucracies, political parties and yes, the armed forces, police and intelligence agencies. That makes the egalitarian bases of democratic political society unlike virtually all other forms of social organization.

In other words, we are socialized in a hierarchical world and it is democracy as a political form that is the unnatural outlier.

Even so, although hierarchy can and often does tend towards authoritarianism, in democracies social organizations that are hierarchically constructed bow to the egalitarian meta-logic that posits that in their political interactions they are bound by notions of mutual respect, independence, corporate autonomy and non-interference. That is, they practice at a meta-level what they do not at the macro or micro-levels: in their interactions with each other groups forgo the hierarchical disposition that characterizes their internal governance.

This is important because the NZDF field manual that Mr. Hager exposed and whose existence is now confirmed by the government displays an authoritarian mindset and operational perspective that transcends the necessary hierarchy of NZDF organization. The NZDF is not inherently authoritarian because it is hierarchical in nature, but because, if the spying allegations are correct in light of the manual’s language about threats requiring military countering, its leadership displays an authoritarian disposition when it comes to things it finds objectionable, including pesky reporters (I shall leave aside Mr. Trotter’s remarks about military allegiance to the Queen rather than government or citizenry, although I take his point as to where its loyalty is directed and the impact that has on its transparency and adherence to democratic norms).

In sum: Consider what the manual says with regards to subversive threats in light of the well-publicized NZDF attacks on Mr. Stephenson’s professional and personal integrity that resulted in the defamation trial recently concluded (attacks that could well fit within the “counter-intelligence operations” recommended in the manual). Add in the claims by Mr. Stephenson that a senior military officer uttered death threats against him (the subject of a police complaint in 2011 that was not actioned). Factor in the NZDF admission in the defamation trial that it tracked Mr. Stephenson’s movements along with the possibility that the NZDF did acquire and utilize Mr. Stephenson’s telephone communications records in a capacity other than to detect tactical threats to units in theater. Further include Mr. Hager’s findings in his book Other Peoples Wars, in which the NZDF was seen to disregard government instructions regarding its conduct in foreign theaters and collaborated extensively with US intelligence (both military and civilian) in places like Bamiyan in spite of its repeated denials that it was doing anything other than building schools and roads in that province.

The conclusion?Â In light of this sequence of events it is very possible that the NZDF Â has systematically operated in an unprofessional and anti-democratic fashion for at least a decade, and particularly with regard to Mr. Stephenson.

This is a serious matter because it gives the impression that the NZDF has gone rogue (assuming that the governments of the day were, in fact, unaware of the language in the field manual or of the alleged spying). Rectifying this institutional anomaly is important. How to do so is critical.

It is not enough to blame the previous government and retired NZDF commanders for the manual, then excise the offending passage while maintaining that no NZDF records of spying on Mr. Stephenson exist. Instead, the NZDF leadership during this time period needs to be held accountable for allowing anti-democratic attitudes and practices to take root within it and, if need be, action needs to be taken against those who authorized the language of the manual and/or the spying if it happened. Only that way can confidence in NZDF accountability and commitment to democratic principles be restored.

In order for any of this to happen, yet another inquiry needs to be launched. Given the debates about the GCSB and TICS Bills and ongoing concerns about Police and SIS behaviour, that says something about the state of New Zealand’s security community at the moment.

Supporting independent investigative journalism.

NZ Govt Memo: When caught out, shoot the messenger.

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Helen Clark understood well the axiom that in politics the best defense is a good offense. She was a master of the art of character assassination and discrediting the opponent. This was particularly true when the opponent was not a politician but someone from outside of the partisan divide who pointed out a dubious policy decision or raised ethical questions about the behavior of her government. I know this first-hand, because I was the subject of one of her attacks (with regard to the role of former ambassador Richard Wood, then director of the SIS, in the Ahmed Zaoui case). She also knew the value of having everyone in her government play off of the same sheet of music when it comes to cover-ups, hence the “lying in unison” refrain. Love her or hate her, Ms. Clark knew how to play dirty.

When National came to office it argued that it was going to end the sort of practices Ms. Clark was so adept at. But as it turns out, it has done exactly the opposite and instead deepened the dark “art” of shooting the bearer of bad news. The latest instance of this is its treatment of independent war correspondent Jon Stephenson. Mr. Stephenson is by all objective accounts a remarkably brave and serious journalist. He is also a thorn in the side of the NZDF. The reason is because he travels independently to conflict zones in which the NZDF is deployed, foregoes the embedded journalist niceties that accrue to the likes of TV talking heads, and asks hard questions about the actions of Kiwi soldiers as well as the polices and rules of engagement under which they operate. That line of inquiry does not conform to the scripted narrative that the NZDF would prefer that NZ audiences consume, so it makes the Defence brass uncomfortable. Â As a result some of the NZDF and Defence leadership are antagonistic towards Mr. Stephenson. The irony is that such antagonism does not extend down to the rank and file troops, many of who candidly share their views with Mr. Stephenson under conditions of anonymity. In fact, they are often the source of his insights into how the NZDF operates in combat environments. For his part Mr. Stephenson has repeatedly voiced his high regard for the integrity and professionalism of Kiwi soldiers, those in the SAS in particular. The animus, in other words, is not mutual.

In April Mr. Stephenson published an article in Metro magazine titled “Eyes Wide Shut.” In it he writes that in its previous and current deployments in Afghanistan the SAS transferred and continues to transfer prisoners to US and Afghan forces that have been implicated in abuses of the Geneva Convention. He makes very clear that the SAS does not abuse prisoners, although–contrary to the National government’s initial assertions–the SAS takes a lead role in counter-terrorism and search and destroy missions, kills adversaries as a matter of course (some of whom it turns out were not hostile but either misidentified or the victims of faulty intelligence), and detains and transfers prisoners to Afghan and US custody as part of its standard operating procedures. The trouble for the government is that after Labour withdrew the SAS from Afghanistan in 2005 in part because of concerns about the treatment of prisoners initially detained by the elite force, National turned around and re-deployed them in 2009 without getting ironclad assurances from either the US or the Karzai regime that prisoners detained by the SAS would be treated in strict accordance with the Geneva Convention. The lack of such assurances are what have forced UK forces serving in Afghanistan to refuse to hand over prisoners to the Afghan government and played a part in the Danish decision to withdraw their special forces from ISAF, so the concerns are wide-spread and well known. Yet, rather than wrestle with the ethical dilemmas involved, it appears that the NZ government has repeatedly misrepresented what the SAS is actually doing in Afghanistan, and on at least one occasion has played loose with the truth when asked about that role, to include, specifically, whether the SAS leads combat missions and takes prisoners on its own.

Mr. Stephenson’s article raises all of these troublesome points. Its well researched account of incidents in 2002 and 2010 raises questions about what National agreed to in 2009 that Labour could not stomach in 2005. It specifically questions General Jerry Mateparae, former NZDF head, current GCSB director and Governor-General-designate over his statements to parliament in 2010 that the SAS does not detain prisoners and does not lead combat engagements. It is damning stuff that should be the subject of an independent inquiry.

The government response has been to take a page out of Helen Clark’s book on character assassination, and then attempt to write it more crudely. Prime Minister John Key, current head of the NZDF Lieutenant General Richard Rhys-Jones and Minister of Defense “Dr.” Wayne Mapp have all attacked Mr. Stephenson as being “non-credible” and of having an anti-NZDF bias. Military sycophants like Ron Smith of Waikato University (who is reported to have a personal connection to General Mateparae) have accused Mr. Stephenson of having a “hidden agenda,” with the insinuation that the agenda is pro-Taliban as well as anti-NZDF. Although General Rhys-Jones has disputed some facts in the Metro article, Mr. Mapp has been forced to admit under questioning in parliament that the SAS does in fact lead combat missions, does detain prisoners and does indeed hand them over to Afghan or US authorities without proper follow up monitoring (worse yet, Mr. Mapp initially claimed that the NZ government has an arrangement with the Red Cross for the latter to monitor prisoners captured by NZDF forces once they are handed over to the Afghan authorities, but the Red Cross denies any such agreement exists, among other things because it only signs agreements with the governments holding prisoners, not with those who may have initially captured them). Â

The result of Mr. Stephenson’s reporting and its follow ups reveals that in effect, the National government re-committed the SAS either ignorant of what its operations would entail or fully cognizant of them, but then lied to the NZ public rather than admit the truth (or has the NZDF lie on its behalf). Either way it is not a good look.

Rather than own up to what was agreed to in 2009, the government is pursuing a campaign of character assassination against Mr. Stephenson. It cannot argue his facts so it is playing him instead. It is not surprising that a money-changer like Mr. Key would not have a strong ethical compass, or that a career politician like the good “Dr.” Mapp would weasel rather than front on the ethical dilemmas involved in the deployment. But it is unfortunate that the top military brass have joined in the campaign, regardless of whether or not they are simply trying to close ranks around General Mateparae. They of all people should know that the integrity of the force should come before politician’s political machinations.

If there are reasons of state behind the decision to commit the SAS back into Afghanistan under less than optimal ROEs (at least with regard to the treatment of prisoners), then they should be stated clearly and openly. It is quite possible that a majority of New Zealander’s would have no problem with the mistreatment of prisoners initially captured or detained by the SAS. However, if there are domestic political considerations behind the government’s apparently duplicitous approach to revealing the considerations involved and the terms under which the SAS was re-deployed, then the NZDF should not carry the water for it. Responsibility for the decision lies with the civilian command authority to which the uniformed crowd are ultimately subordinated, and if the NZDF has been asked to misrepresent the terms and conditions of the re-deployment, that is unethical as well as injurious to morale. Troops do not like to be pawns in some political game played by people with no experience in soldiering and no regard for their individual fate, which is why the NZDF leadership should come clean on what it has been asked to do and not do when it comes to its commitment of troops abroad.

In reporting on what the SAS does in Afghanistan, Jon Stephenson was just doing his job, in the time-honoured fashion of war correspondents. In that he is a rare bird in NZ, where flak-jacketed and helmeted media figures “report” in hostile theaters from “sanitised” positions miles away from the action that are surrounded by layers of armed security (i.e. these journalistic poseurs are kept away from real harm and instead are the guests of government-orchestrated field trips in the proximity of battle zones). It is because he adopts the independent, non-scripted line that Mr. Stephenson is being attacked, and in the measure that a democracy is only as good as the free flow of information allows it to be, the actions of this government against him are not only despicable, but a clear sign of the ingrained authoritarian (some would say bullying) ethos that permeates the NZ political elite.

The Greens have called for an independent inquiry and sensing a chance to wound National, Labour has joined them (since it can now use its 2005 decision to not continue the SAS deployment and objection to the 2009 re-deployment as ammunition against the government). Mr. Key has refused to agree to the demands, insisting that he is satisfied with NZDF explanations about the incidents Mr. Stephenson has reported on. What he really means is that he is applying the first rule of bureaucracy when it comes to handling prickly issues: CYA (Cover Yer A**e).

As a political community we should not allow the government to get away with such a cynical response, nor allow its slander of Jon Stephenson to go unchallenged. After all, basic principles of democratic accountability and NZ’s international reputation as a defender of human rights are at stake, as is Mr. Stephenson’s career.