The SIS: spying on the government's political critics

The big worry about the SIS and GCSB is that they will be used to spy on the government's political critics. Whenever this worry is expressed, the spies and their Ministers say that of course that would never happen. The problem? It has:

Journalist Nicky Hager will receive $66,000 from the Security Intelligence Agency after his phone records were unlawfully spied on.

[...]

The SIS sought Hager’s phone records after the journalist published a book, Other People's Wars, in September 2011. The book contained details of New Zealand's involvement in both the Afghanistan and Iraq wars, obtained from confidential sources.

A particular Defence Force officer was suspected of being Hager's source, but sufficient evidence could not be found and the Defence Force asked the SIS to assist. It gathered metadata from the officer's home phone and cell phone, and tried to link it with two months of metadata from Hager's home phone.

This was unsuccessful, and both the SIS and the Defence Force pursued the investigation no further.

Acting Inspector-General of Intelligence and Security Madeleine Laracy later determined the SIS had no lawful power to investigate.

"I have been unable to find that the [SIS] showed the kind of caution I consider proper, for an intelligence agency in a free and democratic society, about launching any investigation into a journalist's sources," she said.

This was an outright case of the state spying on a journalists who had criticised it. And while this happened in 2011, the current SIS director, Rebecca Kitteridge, defended it to the hilt. Which shows that all their promises of "reform" are lies. They're the same bad old organisation they always were, a threat to our democracy rather than its defender. And it is long past time we disbanded them, or nobbled them so they can never threaten us again.

Interestingly, when I submitted on the Protection of Journalists’ Sources Bill arguing that it needed to be expanded to cover intelligence agencies, DPMC said that it would never be a problem because the purpose of the Intelligence and Security Act's was to "protect New Zealand as a free, open, and democratic society". It turns out they were lying, and that while they were saying this the SIS was covering up exactly the sort of spying on journalists the bill was intended to address. Which tells us that we should never believe anything the government tells us about "national security". Its just self-serving lies from spies.

This is not how you build trust

One of the recommendations of the Operation Burnham inquiry into the killing of civillians in Afhganistan by the SAS was the establishment of a new Inspector-General of Defence to conduct such inquiries in future. Two years on, the government has finally gotten around to introducing the required legislation to the House. Unfortunately, rather than reducing distrust around NZDF and its dirty cover-up habit, it seems purpose-built to encourage it.

The bill is based on the existing provisions for the Inspector-General of Intelligence and Security. Like the IGIS, the new IGDF will likely be dealing with classified information, so you'd expect some secrecy provisions. But the new bill goes well beyond the current IGIS framework in its secrecy provisions, which seems excessive.

The first problem is with the confidentiality clause, which forbids IGDF staff from disclosing material relating to an investigation. This is actually weaker than the equivalent clause for IGIS, in that it only covers material certified as non-discloseable by the Minister. But look at the grounds on which the Minister can make that certification: some definitions which mirror sections 6(a) and 6(b) of the OIA (so unproblematic), plus a new one covering information likely to prejudice "the continued performance of the functions of the Defence Force or the Ministry". Effectively this is the creation of a new OIA withholding ground, and its not hard to see how NZDF would view any disclosure of its wrongdoing as prejudicing its performance (given the Burnham coverup, its clear they already think that).

The new IGDF will also have a new power to make wide-ranging gag-orders on "sensitive" information - supposedly to protect "privacy or condidentiality", but is actually about protecting classified or "sensitive" information, a term which includes that new withholding ground of "making NZDF feel bad". This sortof mirrors the powers of a commission of inquiry, but isn't one we grant to the IGIS, or to the IPCA, Ombudsman or Privacy Commissioner, and it seems purpose-designed to enable NZDF cover-ups. Just ask for an inquiry, get their Inspector-General to make some orders, and suddenly everything is neatly swept under the carpet! Given that one of the aims of this bill is to rebuild trust in NZDF, this seems like exactly the wrong way to go about it.

Breaching such an order will be a criminal offence, but unlike the IGIS legislation, there's no inbuilt protection for disclosures in Parliament. Which kindof tells you who NZDF thinks is in charge here.

One bit of good news is that the IGDF - unlike IGIS - will be covered by the Ombudsmen Act, and therefore the OIA. But new information relating to IGDF investigations held by them and other agencies will be excluded from the definition of "official information". This isn't so problematic for IGDF material while inquiries are ongoing. But for completed inquiries, and for other agencies, it means that their response to an inquiry and its recommendations - e.g. summaries, legal opinions, reports on where the hell that file went or how people in Defence HQ were operating their own parallel filing systems - will be forever secret. Which, again, given the trust issues, seems counterproductive.

Overall, it looks like NZDF has taken exactly the wrong lessons from the Operation Burnham inquiry. Where there was a clear need for more transparency to rebuild trust, they have opted for secrecy at every turn. Unless the bill is significantly modified to correct this, we should treat their new "Inspector-General" as just an agent for further coverups.

Utterly reprehensible

Declassified Australia has published a new piece by Nicky Hager on New Zealand and Australia's spying on the Pacific. Most of it is a summary of past revelations from the Snowden leaks, but there is something new: the New Zealand navy spies during aid missions:

The surveillance includes “COMINT [communications intelligence] operators on navy ships, locked away in a two-man room just behind the bridge”. They eavesdrop on South Pacific countries during regular port calls.

The officer described how all military staff on aid, disaster relief and training deployments are also sent with “intelligence collection tasks”. They are debriefed by intelligence officers on their return “to find out what they’d learned and what we could turn into intelligence”.

“They told us it was for humanitarian aid missions. But why do we need to know how many weapons they have, and what are the routine guard patrols, and how high are the fences?” This intelligence collection activity described by the contact also includes “Tonga, Tuvalu, Niue, not the Cook Islands. Fiji – Fiji they’re always very interested in.”

This is utterly reprehensible, akin to hiding an intelligence operation under the guise of a medical facility in wartime (which would be a war crime). Its made worse by the fact that the victims are our Pacific whanau, countries who are our closest friends. And it obviously has consequences, in that governments may be less willing to accept New Zealand disaster relief if it comes at the cost of spying.

The New Zealand government needs to stop this practice immediately, and destroy all the data it has collected. Anything less is an abuse of our friendship with these countries.

This cannot stand

Having previously been found to have misled Ministers and the public over its revenge raid in Afghanistan, NZDF has now been accused of misleading the Ombudsman:

The chief ombudsman has opened an investigation into whether the Defence Force deliberately misled him during an inquiry into civilian deaths in Afghanistan.

The investigation follows a complaint by journalist Nicky Hager.

Hager alleges NZDF withheld crucial information from the Ombudsman, whose Operation Burnham investigation into New Zealand-backed strikes found the military suppressed information to Ministers and the public.

The Ombudsman is taking this extremely seriously, as he should. If agencies can simply lie to the Ombudsman, then the office is about as credible as the IPCA. OTOH, even if he finds that they have, the maximum penalty is only a $200 fine. Which suggests that maybe we need to set some real incentives for agencies to obey the law?

NZDF gives the finger to the Burnham inquiry

Last year, the inquiry into Operation Burnham reported back, finding (among other things) that SAS and NZDF officers had deceived Ministers and the public, and that NZ soldiers had assaulted a prisoner. So will anyone ever be held accountable for that? Of course not:

Two soldiers at the centre of the Operation Burnham inquiry have escaped punishment by the Defence Force, including a Special Air Service soldier who assaulted an Afghan detainee.

Former SAS commander Brigadier Chris Parsons would not face disciplinary action after he had committed an “administrative failing” in a report, Chief of Defence Air Marshall Kevin Short said in a statement.

The SAS soldier that was found to have punched a detainee, who was not named throughout the inquiry, would not be censured because the matter was not properly investigated at the time, he said.

[That "administrative failing" was deliberately misleading the Defence Minister about whether the Operation Burnham raid had killed civilians, and then doctoring records to cover it up].

This is basicly NZDF saying "fuck you" to the entire inquiry, and to the public concern which led to it. They've been clear throughout this entire debacle that they don't think anyone did anything wrong, and now they're using their own coverup and years of delay as an excuse to ensure that those responsible are never held accountable. Rather than being dishonourably discharged and stripped of their honours as they deserve, the criminals at the heart of this will continue to serve, and by their presence continue to corrupt our defence force. And NZDF's senior leadership is perfectly happy with that.

That being the case, I think we need to admit that NZDF as an institution is unsalvageable. They are committed to unaccountability and deceit. And since all they actually do in practice is drag us into other people's wars, maybe we should just do away with the entire organisation, and replace it with a civilian civil defence and foreign aid corps, freeing it up to focus on its core - and valued - competencies: rescuing lost trampers, sandbagging stopbanks to limit flooding, and rebuilding schools after tropical cyclones.

Amnesty International on transparency

Over on The spinoff, Amnesty International's Meg de Ronde has a response to Friday's release of the Hit and Run report. And in response to Attorney-General David Parker's claim that the government was being "transparent" by releasing the report, its titled "we shouldn’t have to work this hard to get transparency from our government". De Ronde points out that NZDF and the government in fact fought against transparency every step of the way, first opposing an inquiry, then ensuring it was held in secret, and all the while releasing as little information as possible and trying to discredit those who had exposed their crimes. And they have some pointy things to say about that culture of secrecy:

I have big concerns that if we don’t work hard, the current government and future governments will only pay lip service to the word transparency. My team and I are fighting constantly to get access to basic information about what the state is doing. The Official Information Act process is seemingly treated with disdain by many government departments and officials. We’ve had requests for basic information denied on spurious grounds or delayed for ridiculously long periods. Meanwhile, we don’t have access to data on the use of force by our police or on the lockdown hours in our prisons. It’s a waste of our time and resources. This information should be accessible.

A functioning freedom of information regime (or better, proactive disclosure) is a basic safety mechanism against government abuse. Our current regime was used to keep abuse hidden. The fact that that was legal represents a failure of the OIA regime, and correcting that failure should be the starting point for any reform.

Vindicated

So, the Hit and Run inquiry has reported back, and found some appalling shit at NZDF and NZSIS. And while they quibble a few of the details - the name of a dead child - they basicly uphold Hager and Stephenson's version of events. The SAS went to those villages. Civilians were killed. A man was beaten by NZ soldiers and then handed over to the Afghans and tortured. And then, to cap it all off, NZDF misled the people of New Zealand and its own Minister about this, in a shoddy effort to protect the reputation of a unit of professional killers.

I have not read the full report yet. But a few things which stand out from the media coverage:

• The inquiry exonerates the killings as collateral damage in a "legitimate" military operation. An establishment inquiry which didn't even talk to the victims was never going to do anything else. Meanwhile, while they play legal games over the laws of war, the key fact - NZDF killed civilians - is swept under the carpet. But we should neither forget nor accept it.
  
• A number of SAS and NZDF officers are named as having misled Ministers and the public, or as effectively looking the other way on past deceit. Which obviously undermines the principle of civilian control of the military, striking at the heart of our democracy. These people need to be held accountable, dishonourably discharged and stripped of their honours, pour encourager les autres. Careers need to end over this, otherwise there is no incentive for NZDF not to do it again in future.
  
• The Inspector-General of Intelligence and Security has found a sucking moral void at the senior levels of the SIS, whose response to credible reports of torture raised with them by their subordinates was to use the "intelligence" and say nothing about how it was acquired. These people also need to be held accountable for their failure to uphold kiwi values. They need to be fired, stripped of their security clearances, and never work in government again. Because someone who looks the other way on torture is unfit to be a human being, let alone a public servant in a position of trust.
  
• Wayne Mapp's extraordinary admission that he just "forgot" about civilian casualties is absolutely damning, and shows that he should never have been a Minister. But it also highlights a problem with a culture of secrecy and oral-only briefings which enabled this to occur. NZDF and SIS love the mystique of "too important to commit to paper", but if something is important enough to tell the Minister, it is important enough to write down and give to them so they don't forget about it in future. And if an agency doesn't want to write it down - that is, document it for future investigation, not to mention comply with their legal obligations under the Public Records Act - Ministers should immediately assume manipulation and start asking pointy questions. The problem, of course, is that Ministers often are willing to collude in poor record-keeping (AKA "crime") if it keeps their names off controversial material. Which is why we need robust, independent random audits, and a few prosecutions, again pour encourager les autres. Because if we let agencies and Ministers disappear stuff down the memory hole this way, they get away with e.g. killing children, and we all lose.
  
• Pretty obviously, NZDF would find it a lot harder to kill children if we weren't constantly involved in other people's wars. The best way to stop it from happening again is to not fight such wars. And the best way of doing that is to make them incapable of doing so. Take their toys away, and disestablish the SAS, and we'll be a lot safer.
  

Will any of this happen? Not if NZDF can help it. But to point out the obvious, there's an election coming up. We should demand candidates hold NZDF and SIS accountable for their actions. If they refuse, we should vote for someone who will.

Bullshitting the Minister

On Monday, the Hit and Run inquiry heard from NZDF's former director of special operations, who claimed that the defence Minister knew everything about the Operation Burnham raid. Today, the inquiry heard from that (former) Minister - and it turns out that he didn't know nearly as much as NZDF claimed:

Mapp – who the Minister of Defence from 2008 until late 2011 – on Friday told the inquiry he had been briefed about the report in the Beehive in September 2011.

"I now have a fragmentary memory of being told … that there was no evidence of civilian casualties but that it was possible that civilian casualties may have been caused during Operation Burnham," he said.

But he said because there had been no detailed evidence to confirm the deaths, he had never passed the information on to former Prime Minister Sir John Key's office.

"I was not left with any reason to think I had to take further action … I thought, on the basis of what I've been told, I can't take this matter any further, because there was no actual evidence," Mapp said.

Which sounds like Jim Blackwell, the former director of special operations, bullshitted the Minister, minimising the contents of the report, and then lied the inquiry about it afterwards in an effort to cover his own arse. But it also sounds like Mapp failed to exercise proper supervision of his agency, in that they (correctly) thought they could do this without getting caught.

There's a lesson in this: Ministers should never trust anything NZDF ever says to them, because they demonstrably will lie and obfuscate and exaggerate to cover their arses and get their way. That's not a basis for a healthy relationship, but what else can Ministers do when an agency has been caught doing this?

Passing the buck

Last month, NZDF's shoddy coverup of what it knew about civilian casualties in Operation Burnham began to fall apart, with the revelation that a report on the matter, which NZDF claimed not to have, had been sitting in an NZDF safe for the past nine years. Yesterday, the man responsible for putting it there was finally questioned on the issue, and adopted a new line: the Defence Minister knew everything. But oddly, the records which would prove (or disprove) this story had been deleted:

Blackwell's memory was questioned by lawyers. He had initially told a Defence Force lawyer he had no memory of the report, but recent media reporting had rekindled his recall.

He specifically remembered receiving the report by email, and speaking to [then-Defence Minister Wayne] Mapp. But his records, including emails, calendars and other operational documents had been deleted since he left the military.

Why emails and records from others who held this position were available to the inquiry was an open question.

How convenient. Meanwhile, its worth noting that none of this fits with Mapp's public statements on the issue that he found out about civilian casulaties from a 2014 TV documentary, and that he has absolutely no reason to lie about this. So on the face of it, it looks like another attempt at passing the buck by NZDF, another attempt to avoid accepting responsibility. And for an organisation which supposedly prides itself on integrity, that is simply contemptible.

The SIS unlawfully spied on Nicky Hager

Back in 2011, journalist Nicky Hager published Other People's Wars, an expose on NZDF's activities over the previous decade of the "war on terror". NZDF didn't like this, and especially didn't like the fact that it was based on leaks from their own. So, they had the SIS investigate him for "espionage" in an effort to uncover and punish his sources. In the process, the SIS acquired two months of his phone metadata (more on that later). Now, the Acting Inspector-General of Intelligence and Security has ruled that it their suspicions were absurd and the entire operation unlawful:

The Acting Inspector General of Intelligence and Security has upheld a complaint by investigative journalist Nicky Hager against the New Zealand Security Intelligence Service for unlawfully attempting to uncover his journalistic sources.

[...]

The SIS sought to justify this use of its powers against Mr Hager by claiming that it was investigating espionage. However, the Acting IGIS found that the SIS had no reasonable grounds for suspecting that any espionage had occurred.

In her report, the Acting IGIS wrote that, “NZSIS provided that assistance despite a lack of grounds for reasonable suspicion that any activity had occurred that was a matter of national "security'”. She also concluded that she had “been unable to find that the Service showed the kind of caution I consider proper, for an intelligence agency in a free and democratic society, about launching any investigation into a journalist's sources.”

The full report is here, and it is very interesting reading. Some highlights:

• The ruling depending heavily on the definition of "security" in the old New Zealand Security Intelligence Service Act 1969, which specifically referred to protection from "espionage". While the report does not include a timeline, presumably the complaint was in the system when the new Intelligence and Security Act 2017 was being drafted. Which explains why the government at the time was very keen not to define "national security": so the SIS could interpret it to mean whatever they wanted it to mean, and legitimise this behaviour. So once again, the spies have been allowed to rewrite the law to legalise their behaviour after being caught out.
  
• The Inspector-General finds that, given its seriousness, imputing a motive of intending to prejudice the defence and security of New Zealand (a necessary requirement for espionage) requires some actual foundation, and neither SIS nor NZDF had anything of the sort. Along the way, they also pour scorn on the SIS's theory that any publication of classified information is communication with a foreign power and therefore criminal. That is simply not a construction supported by the law (so I guess we can expect the SIS to push for changes to that as well). Incidentally, that's the argument used by the SIS's foreign partners against publishing leaks, and its good to see that our oversight agencies think it is bullshit.
  
• It is unclear from the report how the SIS acquired Hager's phone metadata. There are a number of options here: they could have acquired it using an intelligence warrant, or they could have acquired it simply by asking his phone company (Hager being a New Zealander and the government having denied mass-surveillance, presumably they didn't get it from the GCSB or their foreign "partners"). If they got it under warrant, then that warrant would have had to have been signed by the Minister - who at the time was none other than John Key, which given his role in Dirty Politics again raises the issue of government use of spies for persecution. OTOH, if his phone company provided it without any lawful authority to do so, then given the lack of any basis for the investigation, that seems like a violation of the Privacy Act, just as was committed by his bank when they provided information on request to the police. And hopefully he'll go after them as well, pour encourager les autres.
  

The Inspector-General has recommended that the SIS apologise. I'd go further: they invaded Hager's privacy, and should be paying damages. And I'd hope that the staff who approved this baseless and intrusive investigation will be facing employment consequences, assuming they're still around. We trust our spies with tremendous powers. We must hold them properly to account when they abuse them. Update: The complaint was not made until 2018, after the Intelligence and Security Act was law.

An increasingly shoddy coverup

The Operation Burnham inquiry continued to question senior NZDF staff today, and their shoddy coverup over their knowledge of civilian casualties continue to fall apart. If you recall, first, we were asked to believe that it was all a series of "mistakes and errors": a senior officer with multiple degrees "misinterpreted" an acronym which he never misinterpreted anywhere else. Then of course there was the report itself, which NZDF categorically swore it didn't have, only to admit that they'd had it all along. But they claimed to have no idea who read it. But it turns out they were lying about that too:

However, the inquiry's chairman, Sir Terence Arnold, on Thursday morning raised the possibility of a second register – asking the Defence Force to get a copy immediately.

A barrister assisting the inquiry, Lucila van Dam, said they had not been aware of the existence of the alternative log.

The inquiry was told it took about 15 minutes to find the file and heard the entry said the ISAF report had been checked in on September 1, 2011 by the director of special operations.

It sounds like the inquiry should be asking some pointed questions about why there was even a second register in the first place, and why they weren't told about it earlier. And it sounds like they should be putting the former director of special operations on the stand to ask him some questions about the report and who he informed about it. Of course, he's described as having "a high level of integrity" by a former defence force chief - and if so, I'd expect him to answer. But sadly, given how other people similarly described have fared in this inquiry, I'm beginning to think that NZDF has a different definition of "integrity" to the rest of us.

Meanwhile, the standard of shit NZDF is expecting us to believe is becoming truly outrageous. And with every further piece of bullshit, the alternative explanation becomes more and more compelling: NZDF lied, and lied all along, to protect their reputation.

Covering up the cover-up

Yesterday NZDF officials were put on the stand about the lies they had told over Operation Burnham, making implausible claims that it was all a big mistake. But along the way, we learned they had already been put on the spot about it by a previous Defence Minister, who had effectively accused them of a cover up. And outrageously, they attempted to hide this from the public:

A note made as the Defence Minister raked senior military officials over the coals shows concern the SAS were being shielded of allegations of civilian deaths.

The Defence Force attempted to suppress public discussion of the note, written by the military's chief of staff, at a public hearing for the Operation Burnham inquiry.

The note, from the 2014 meeting with Jonathan Coleman, defence minister at the time, read: "SF [special forces] are not fallible ... No question of their core skills, but political judgment, lack of insight and confused desirability of their actions having a certain shielding ... SAS credibility at risk".

[...]

Lawyer for the Defence Force, Paul Radich QC, argued the note should be suppressed due to it revealing "free and frank" advice from the Government minister.

Which is both a perfect example of how the "free and frank advice" clause of the OIA is abused, and of NZDF's attitude to this whole affair. Their first response to bad news is to cover it up, not because there is any "national security" or other public interest at stake, but merely because it is embarrassing to them and damaging to their reputation. But if the Defence Minister has criticised the military for attempting a coverup, that seems like the sort of thing the public has an absolute right to know.

NZDF should be ashamed. But more than that, they need to be held responsible for their coverups.

"Mistakes and errors"

Current and former NZDF top brass are being publicly grilled this week by the hit and run inquiry over their public responses to allegations of civilian casualties. Previously, they've claimed there were no casualties, a position which led them to lie to Ministers and to the public. Now, they're saying that position was all due to a series of unfortunate mistakes:

A critical report detailing possible civilian casualties in a SAS-led raid was overlooked and left in a Defence Force safe in a claimed accident.

The Defence Force's explanation for repeated denials of possible civilian deaths, a story of repeated errors and mistakes by senior military officials, has come during the first day of a week-long Operation Burnham inquiry hearing.

Among those "mistakes": that ISAF report into civilian casualties they swear they never had? It turns out they had it all along. And the SAS officer who sent the initial report on its contents "misinterpreted" it as clearing the unit and operation he led. Convenient, neh?

But even if you believe all that, NZDF then doubled, tripled, and quadrupled down on those mistakes, apparently without ever checking the facts. At the very best, it makes them look like utter incompetents who shouldn't be trusted to run a children's birthday party, let alone an organisation which kills people. Less charitably, it just looks like yet another lie in an organised strategy of deceit. Whether they get away with it, well, I guess that's up to us.

NZDF are murderers

That's the only conclusion that can be drawn from the NZDF's latest admission to the Operation Burnham inquiry:

An SAS sniper killed an Afghan target without identifying if the person was armed during a controversial night-time raid.

The New Zealand Defence Force (NZDF) made the admission in a memo to the Operation Burnham inquiry published this month, after asserting the person was an insurgent carrying a weapon.

"It is not possible to determine conclusively whether or not the insurgent observed by the [remotely piloted aircraft] was armed at the moment he was engaged."

The Government inquiry, at a third public hearing on Monday, heard the killing of civilians is prohibited under international humanitarian law, and suspected combatants should be treated as civilians if there is doubt.

NZDF clearly did not do that, and appears not to have even tried. The latter turns this from (most charitably) a horrible accident in the heat of battle to depraved indifference. As for the shooter, they should be prosecuted for murder and/or war crimes.

Accountability?

When allegations emerged that civilians had been killed during an SAS raid in Afghanistan, NZDF was absolutely unequivocal in its denials, both the Ministers and the public. Since then, we've learned that they were well aware that there were reports that people had been killed. Whether they knowingly lied to us to protect their reputation is one of the central questions the inquiry is supposed to answer. And the inquiry is sufficiently uncomfortable about the evidence it has that rather than doing it all behind closed doors, it is going to force NZDF to face public cross-examination about its honesty:

The Inquiry into Operation Burnham issued an order for NZ Defence Force to appear during five days of public hearings and explain discrepancies which have emerged in its evidence.

[...]

The discrepancy was such the Inquiry said evidence about what NZDF knew, and what it then relayed to the Beehive, should be examined in public hearings.

The Inquiry said NZDF "made firm statements publicly that no civilian casualties occurred" and went on to support ministers making similar statements.

"These actions were taken despite the repeated allegations of civilian casualties in the media and elsewhere from immediately after the Operation until the present.

"Given that the statements of NZDF and ministers were made publicly, the Inquiry considers that they should be explained publicly."

Good. Though it will be interesting to see whether it is just the current NZDF leadership, or those who were in charge at the time (including former Governor-General Lt General Jerry Mateparae) who will face questioning. And it will also be interesting to see whether they answer, or try to hide behind another wall of bullshit.

Meanwhile, if you read the briefing to the Prime Minister in that article, their description of Operation Burnham claims that NZ troops were actively opposed by "a large number of armed insurgents, operating in small groups" who "attempted to outflank the force and fire on it from high ground". Which doesn't seem to fit with any description of what happened at all. Were NZDF talking up their raid to make themselves seem more heroic as well? And if they do such things, how can any of us trust them about anything?

Did NZDF lie to Ministers?

When Nicky Hager revealed US footage of the Operation Burnham raid, obtained under the US Freedom of Information Act, one of the obvious questions was whether Ministers had seen it - and in particular, whether they'd been told that it was edited and that warnings about the presence of women and children had been removed. The Herald (paywalled) got on to this, and the answer seems to be "no":

When launching the inquiry, Parker said he had been shown footage which showed people in the village were armed. He has now refused to comment on whether he was told of the deleted scenes and the US investigation.

Mark told the Herald he was aware the footage had been edited but had no recollection of being told about the missing 12 seconds or the US investigation into it being deleted.

Mitchell has confirmed he was not told of the missing 12 seconds or that an investigation had taken place into the deleted content. He said the footage he did see supported what he had been told about armed insurgents in the village and no inquiry was needed.

Brownlee said he believed he had been told. "As far as 12 seconds being removed, I have a recollection of reading that. I had that report at the time, I think."

English and Key have not responded to requests for comment.

The Inquiry into Operation Burnham has also refused to comment on whether NZDF informed it about the US investigation.

So two Ministers out of four say they weren't told, three refuse to say, and only one says they were. The inquiry I hope will be investigating this, but its looking like NZDF's post murder-spree spin-job, aimed at convincing Ministers that there was no need for an inquiry, tried to bullshit them. They may also have tried to bullshit the inquiry by keeping the US investigation secret (in that if they had informed the inquiry about it and provided the documents, the inquiry would simply have said so). And if any of this is confirmed by the inquiry, then there needs to be heads on spikes at NZDF - because lying to your civilian superiors is absolutely unacceptable in a military organisation, and that shit needs to be stomped on hard.

So that's what they were trying to hide

Nicky Hager has released the previously classified US video footage of the Operation Burnham raid, and it shows that civilians were shot at by American helicopters the SAS called in for air support:

The video shows three men - said to be described as insurgents, but not visibly armed - being shot by exploding rounds while climbing a hill above village Khak Khuday Dad.

Another clip from earlier showed two men were visibly carrying weapons - a rifle and a rocket propelled grenade launcher - when emerging from a building that is said to have included a woman.

The building was the home of an insurgent being targeted by the NZDF which claimed it was a weapons cache, Hager said.

Hager asserted the presence of a woman seen leaving the building showed it was a home to unarmed civilians.

The first is simply murder. As for the second, NZDF's rules of enagement are clear that merely carrying a weapon is not proof that someone is directly participating in hostilities. US-style policies which classify all "military-aged males" as "hostile insurgents" to be murdered are neither legally nor morally acceptable.

And then there's this bit:

Among the release was a report by US 'initial assessment team" that found a video taken by an Apache helicopter had been altered to remove 12-seconds of audio, in which the presence of a woman among a huddled group 200 metres in front of the ground patrol is relayed to the New Zealand officers.

He said the Defence Force had not admitted the existence of this inquiry.

I guess this is what NZDF wanted to hide: evidence that there has already been a coverup, and that they knew they were attacking civilians.

What are they trying to hide?

When the NZDF was asked to release US information on Operation Burnham which would have revealed how the villagers died, they refused, claiming that the US objected. So, Nicky Hager and Deborah Manning requested it in the US, under that country's Freedom of Information Act. Unlike New Zealand, the FOIA is enforced through the courts, so when the US refused, they took the government to court. And they won:

The information will be of interest to the Operation Burnham inquiry, which is inspecting allegations made in Hit & Run that Special Air Service troop killed six civilians and injured 15 in a 2010 raid.

Hager said the New Zealand Defence Force had opposed the evidence being obtained, saying it could not be released to the pub[l]ic.

But he said it was provided "promptly and without fuss" by the US military after a freedom of information court case - similar to New Zealand's Official Information Act.

In a statement, he said: "Secret evidence has been a huge obstacle in the current government inquiry into Operation Burnham."

"The US court decision sets a precedent for New Zealand freedom of information as it shows that what was declared impossible by NZDF and the Ombudsman has turned out to be possible as a relatively routine release of public information in the United States."

Part of the problem is that the Ombudsman is simply unwilling to thoroughly investigate "national security" claims, because the law does not require them to be balanced against the public interest. So if NZDF says "a foreign country gave this to us and they would object to its release", that's it, its secret, no saving throw - even if that country would be forced to release it themselves if requested.

The lesson in this is that the "national security" clauses in our Official Information Act are broken, and allow agencies to hide too much. They need immediate reform. And the obvious one is to introduce a public interest test, requiring the interest in secrecy to be balanced against the public interest in release, as there is for other withholding grounds. The way legal advice is handled shows it is perfectly possible for the Act to accommodate varying strengths of interest in withholding and balance them appropriately with the public interest in transparency and accountability that comes from release. And there's no reason - other than the reflex, authoritarian secrecy of the defence establishment - that we can't do this for s6 withholding grounds as well.

(Hager and Manning will release the information tomorrow. It will be interesting to see what it reveals, and what NZDF has been desperately trying to hide).

The whitewash becomes a farce

The government's Operation Burnham whitewash has become a farce, with the SAS's victims refusing to participate any further:

Afghani villagers are turning their backs on a Government inquiry into allegations six civilians were killed and a further 15 injured in a botched New Zealand SAS raid.

Human rights lawyer Rodney Harrison QC said the villagers did not want to take any further part in the inquiry.

Harrison told a press conference on Tuesday the villagers were "completely disillusioned" by the process that has heard the vast majority of evidence behind closed doors.

[...]

Harrison said a key reason the villagers wanted to pull out was the inquiry's decision to hear evidence without them or their lawyers being present.

I don't blame them. With secret "evidence", an initial refusal to even hear from the the victims, and an ongoing refusal to allow them to participate as anything other than show-ponies, the "inquiry" was very obviously shaping up to be a whitewash aimed at publicly exonerating NZDF and defending their reputation. Continued participation simply lends credibility to this abusive process. Better to walk away and pursue justice through the courts than have anything to do with it.

Meanwhile, the public should be asking what the point of an "inquiry" which refuses to hear from victims is, and what is wrong with our political and judicial establishment that they think that that is acceptable, useful, or remotely credible.

A British-style whitewash

Last year, the government announced that they would hold an inquiry into Operation Burnham, the SAS operation in which six Afghan civilians were killed, including a child. But now, it looks as if the "inquiry" is instead becoming a British-style whitewash:

"The ultimate objective is to get to the truth."

Sir Terence Arnold made this commitment as he opened the only hearing of his Operation Burnham inquiry so far held in public.

After hearing arguments on whether proceedings should be held in secret, Arnold and his co-chair Sir Geoffrey Palmer retreated behind closed doors. And that is where they have stayed.

The inquiry was due to finish in April. Instead, key witnesses have walked away, and some of its core participants are disillusioned, with one understood to be on the verge of taking legal action.

The core problem is secrecy, who gets it and who doesn't. Everything NZDF says will be secret, its witnesses protected from scrutiny and challenge. Meanwhile, the whistleblowers who provided information to Nicky Hager and Jon Stephenson, the journalists who exposed this crime, will be expected to give evidence in public and so be exposed to official and unofficial retaliation. And so unsurprisingly, they've decided that the cost of participation is too high. The result will be a one-sided inquiry which makes no effort to get at the truth - basicly an official whitewash for the NZDF. But the result is that whatever the inquiry concludes will simply not be seen as credible, and the taint will linger.

The lesson is clear: the New Zealand political system is incapable of providing justice by official inquiries, at least where the defence and security establishment is concerned. People who want it will have to use leaks and direct court cases instead.