Stealing from their victims

Between 1950 and 1993 the New Zealand government tortured and abused up to 250,000 children in residential care facilities. Following decades of cover-up and denial, dragging out cases, slandering their victims, and denying redress, the government finally gave a two-faced "apology" last year. You might think that that would mean they'd finally provide proper compensation for their victims, but no - that would cost money. So instead, they're spending two-thirds of their announced $774 million package on "administration" - that is, on denying claims:

Less than a third of the government's $774 million abuse in care redress package will end up in the pockets of survivors.

Figures obtained by RNZ revealed only $205m was earmarked for paying new claims with $52m to go towards topping up previously closed claims.

In defence of the figures, Erica Stanford, the Minister leading the government's abuse in care response, said redress payments were not the most important thing for some survivors and some of the $774m in this year's Budget was going towards changing the care system and providing other supports.

However, $92m was for the civil servants who administered the redress funds and another $37m would pay for operating costs like premises and IT.

So basically they're stealing from their victims, while bundling up other costs to make a Big Number for PR purposes. Its revolting, the sign of a government driven more by austerity and PR concerns than by righting its past wrongs. And combined with the news that none of the public servants identified as being responsible will ever be held accountable, it makes it crystal clear that this government does not give a single sloppy shit about its victims.

The rotten, unaccountable crown

Between 1950 and 1993 the New Zealand government tortured and abused up to 250,000 children in residential care facilities. They then proceeded to cover it up in order to minimise their liability, dragging out cases, slandering their victims and ultimately denying redress. In its final report, the Inquiry into Abuse in Care declared that this policy was wrong, and named specific public servants who were responsible. Some of those public servants - including Solicitor-General Una Jagose - are still employed in positions of responsibility. But now, the government has decided none of them will ever be held accountable:

After examining its own conduct, the state has decided it will not take any action against public servants named or implicated in the landmark Royal Commission of Inquiry into Abuse in Care.

[...]

Public Service commission deputy chief executive in charge of policy and integrity Hugo Vitalis told Newsroom he did not believe the behaviour of those identified amounted to ‘misconduct’ or ‘historical misconduct’.

“Nevertheless, in all cases the commission considered the commentary, discussed the matter with the relevant employer and was satisfied that no further action was required.”

I guess they've decided to accept Jagose's "befehl ist befehl" argument.

So, we have a huge crime by the state and its agents, and the state just washes its hands of it, holds no-one accountable, and refuses to compensate its victims properly. Apparently people are just meant to be happy with a bullshit, two-faced "apology". And then they wonder why public trust in them is declining. This is why. Because a state which outright refuses to hold itself accountable for torturing children is basically a criminal regime, and unworthy of trust or respect.

Corrections is torturing prisoners again

In 1998, in the wake of the Paremoremo Prison riot, the Department of Corrections established the "Behaviour Management Regime". Prisoners were locked in their cells for 22 or 23 hours a day, with no fresh air, no exercise, no social contact, no entertainment, and in some cases no clothes and no toilet paper. Over 200 people were treated like this, all for a minimum of 2 weeks, and some for years. If this sounds like cruel, inhuman, and degrading treatment, you're right - the Supreme Court found that it was, and the government had to pay out nearly a million dollars in compensation. No-one in Corrections ever faced any employment consequences for this (let alone criminal ones) - which might be why, twenty years later, its all happening again:

The Chief Ombudsman says the Department of Corrections must stop the way it’s running the Prisoners of Extreme Risk Unit (PERU) because the unit’s prisoners are being ill-treated.

Peter Boshier has released a report that outlines serious concerns about human rights abuses at the unit which is based at Auckland Prison.

“The conditions and treatment in the PERU are cruel, inhuman and degrading and in breach of the United Nations Convention against Torture,” Mr Boshier says.

The full report is here. It details "prolonged and potentially indefinite solitary confinement" (which international law recognises as torture), "oppressive living conditions", "disproportionate use of force", and "excessive and unjustified" searches and surveillance. All run by a semi-autonomous unit within Corrections with little oversight and poor reporting and record-keeping.

These are the exact problems found with the BMR, and they likely mean significant liability for the government. The Ombudsman has recommended that the entire regime be stopped immediately, but that's not enough - because this isn't just a matter of civil liability; it is a crime. Torture is a crime. Assault is a crime. Failing to keep proper records is a crime. Our prison guards are criminals. And it is time they were properly held to account.

A two-faced "apology"

Last month, the government formally apologised to victims of child torture and abuse-in-care. Part of the apology was meant to be for the state's long-standing policy of aggressively minimising its liabilities by dragging out cases, slandering its victims and ultimately denying redress. So you'd think that the state would actually have stopped that immoral policy, right? But of course not. In planning meetings leading up to the apology, it was continuing as usual:

Senior ministers raised concerns about the commitments the government made to survivors of abuse in care and the need to lower expectations, according to notes obtained by RNZ.

The comments came at a meeting on the eighth floor of the Beehive on 26 August, where ministers and government heads discussed what was needed for the formal apology for abuse in care on 12 November.

[...]

"AG [Attorney-General Judith Collins] reinforced concerns about setting precedents and being careful about what we commit to," Holsted wrote.

"Min Upston [Minister for Social Development Louise Upston] reiterated her concern about needing to lower expectations."

Because we wouldn't want to do the decent thing by properly compensating victims of state wrongdoing for the horrors inflicted on them and the damage done to their lives - that might "set a precedent". And we wouldn't want to suggest that we might, because that might led to "expectations" of both compensation, and future state behaviour.

Our Cabinet are monsters. They're doing exactly the same vicious, heartless shit which has denied victims justice and compounded the harm inflicted on them. In doing so, they've undercut the apology Luxon made, and made it clear that the state will never act in good faith over its crimes. Any meaningful apology would see these monsters gone.

Injustice for torture

Between 1950 and 1993 the New Zealand government tortured and abused up to 250,000 children in residential care facilities. Yesterday, following formal findings from a royal commission, it finally apologised for that abuse. The next step is redress and restitution - compensating the surviving victims for the appalling harm they have suffered. But it turns out that maybe not every victim is going to get compensated, with the government refusing to say if it plans to exclude gang members:

Asked on Wednesday whether gang members would be eligible for redress, the relevant minister, Erica Stanford, declined to say.

"I have not made any decisions and neither has Cabinet. All of these things have to go to Cabinet," Stanford said.

"I'm not going to tell you today what's in and what's out and how much, because we haven't made any of those decisions yet."

Pressed again, Stanford said the question of whether gang members would be eligible was "one of the things that we have to be looking at".

So, they're considering it (and the fact that she refuses to say and hides behind cabinet confidentiality tells us that). So the position of at least some parties in this government is that the government can torture and abuse people, ruin their lives, and that if it decides it doesn't like you, they can refuse to compensate you. That is unjust. it is indecent. And it makes a total mockery of yesterday's "apology".

As the royal commission found, "Gangs provided survivors with the care (that is, attachment and belonging) and protection that state and faith-based institutions should have given." If abuse victims turned to gangs as a response to abuse, that seems to be the government's fault; and maybe it neds to think about compensating those institutions for the care they gave, and that the government did not.

Jagose doesn't get it

The government held a formal apology ceremony this morning to victims of child torture and abuse-in-care. One of those "apologising" was Solicitor-General Una Jagose, who had played a key role in devising and implementing the government's legal strategy of aggressively minimising its liabilities, slandering its victims, and waiting for them to die. Was she actually sorry for this? Of course not! - her "apology" was a masterclass in minimisation, diversion, and misdirection - and it was greeted with a chorus of boos and heckling as a result. And when she was questioned about this afterwards [in liveblog, at 12:04PM], it was clear that she didn't get it:

Solicitor-General Una Jagose said she understood the reaction she received from survivors at this morning's event.

Jagose was met with boos and calls for her resignation, as she delivered the apology on behalf of Crown Law.

"I understand that wero, and I understand people see the lawyer that acts on government instruction and takes cases defending governments as the person in the way. So I understand why I might be seen as the barrier."

So, it's "befehl ist befehl". She was "only following orders". Except that she wasn't some passive tool here - she was devising and recommending the very legal strategy she is hiding behind. her pretending to be a victim flies in the face of both the Royal Commission's findings, and common decency. But I guess you don't get to be a top government lawyer by having any of that, do you?

Jagose is fundamentally tainted by this.If she doesn't have the decency to resign, then she needs to be sacked. And if the government refuses to do so, then they can bear the taint of publicly protecting her.

A moral void at the heart of our establishment

Back in July, the Royal Commission of Inquiry into Abuse in Care delivered its report, detailing a horrific litany of abuse for which the government was ultimately responsible. The report found that a long list of government ministers and officials had allowed, failed to stop, and effectively covered up that abuse. Today, Newsroom has started a major new series on how that happened, and how the state turned on its victims.

Reading it, what's stands out is how it all comes down to the framing. Right from the outset, officials saw this not as a crime which demanded justice, but as a fiscal and reputational risk to the New Zealand state - and advised Ministers accordingly. Which is an example of the banality of evil, how bureaucracy rots the conscience. But what's also striking is that for over two decades, no Minister seems to have pushed back against that framing. No-one - not Bill English, not Wyatt Creech, not Helen Clark, or Annette King - seems to have gone "hang on a minute; this isn't right". And while Ministers can not and should not direct police investigations, they can start inquiries (like the one which led to those findings), listen to victims, and arrange compensation schemes before everyone is dead. And none of them did that. None of them apparently even tried. And neither apparently did any of their Cabinet colleagues on the multiple occasions when details of the allegations and the government's proposed response (deny liability and wait for them to die) went to Cabinet.

What this inquiry has exposed is not just torture and abuse and institutional cover-ups, but a complete moral void at the heart of our establishment. If our political class aren't soulless husks bereft of any shred of conscience, they've done such an impressive job of faking it as to make no difference. And the obvious question that raises is: are these really the sort of people we want running our country?

Justice for Liam Holden

In 1972, British soldiers tortured a false confession out of Liam Holden, resulting in him being given Britain's last death sentence. While it was commuted to life imprisonment, Holden was wrongly imprisoned for 17 years. Now, the courts have finally recognised that it was torture:

In 1973 Liam Holden was convicted of murdering a British soldier in Northern Ireland and became the last person in the United Kingdom to be sentenced to hang.

On Friday – half a century after the sentence was commuted to life imprisonment, 11 years after the sentence was quashed and a year after Holden died – a high court in Belfast awarded £350,000 to his estate.

The court accepted that the army waterboarded and tortured Holden into confessing to shooting Frank Bell, an 18-year-old member of the parachute regiment. The posthumous award included damages for inhumane and degrading treatment, misfeasance in public office and malicious prosecution.

Which is good, if late. But its not enough. Torture is and always has been a crime in the UK. There won't be real justice until Holden's torturers and their co-conspirators are exposed and prosecuted.

Can our government really hold itself to account for torture?

Newsroom has an important story on the Royal Commission into State Abuse's formal finding of torture at Lake Alice, and what it means for the government. Firstly, in terms of legal liability, which the government response has always been focused an avoiding, and how the tactics used in that avoidance - hiding evidence and impeding investigations - seems to cross the line and make a bunch of government lawyers accessories after the fact, in turn exposing them to criminal charges. But as the article points out, there are huge conflicts of interest which may undermine any prosecution and prevent justice for these crimes:

Since the Crime of Torture Act was passed in 1989 there have been no prosecutions for torture in New Zealand, despite a number of examples of abuse of children by the state that clearly qualify. Part of the problem is that the legislation is aimed at government officials but prosecutions have to have the approval of the Attorney General, which creates an inherent conflict of interest. To prosecute a state employee raises the possibility of creating legal liability for the Crown. New Zealand also expressed reservations about article 14 of the Convention about providing compensation, and reserved the right to only provide compensation to victims of torture at the discretion of the Attorney General. This effectively gives the government control over how the crime of torture is handled by police, even though the legislation is aimed at Crown officials. This completely blurs the line of separation of powers.

The perpetrator – and the Crown is now officially a perpetrator of state-sponsored torture – gets to decide whether its own officials should be charged and punished. Other criminals do not get this unusual privilege. It also creates a legal and political riddle – how are the police to assess certain actions by Crown Law, like not providing evidence to the police? Who do they seek advice from on whether that was criminal – the Solicitor General? The Attorney General? They were in charge when some of these actions happened.

Another complicating factor, not mentioned in the article, is that public servants have long enjoyed immunity for "good-faith actions or omissions when carrying out or intending to carry out their responsibilities". So there's going to be an interesting (and potentially devastating) question there of whether covering up a crime can ever be considered to be in "good faith".

I want to see justice for these crimes, and I want to see those responsible - including those responsible for systematically covering them up - prosecuted. It needs to happen, not just to provide justice, but also to provide a warning to future public servants and guide their behaviour. Maybe we can resolve these conflicts by getting the police outside legal advice and outside prosecutors (but then: the police work for the government too, and they never forget that). But if we can't resolve those conflicts, then we should turn the case, and the suspects, over to an appropriate independent international tribunal. After all, torture is a crime in all civilised states, and many claim universal jurisdiction for it. If our government can't provide impartial justice, we should ask another country or international body to do it for us.

Secondly there's a huge issue lurking for the government on its routine and ongoing subjection of children to prolonged solitary confinement, which has been ruled to be torture by the European Court of Human Rights. If the Royal Commission recognises the obvious and makes a similar finding, then the government will be facing liability for tens of thousands of cases, as well as having to change policies throughout the metal health, youth justice and corrections systems. Pretty obviously, they're not going to want to do that. But I'd like to think that legislating to legalise a specific, recognised form of torture, knowing that it is torture, is a bit far, even for our Hilary Calvert Parliament.

More Australian war crimes

Last week, Australia's ABC broke a major story about Australian SAS troops committing war crimes in Timor-Leste, murdering wounded people and brutalising their corpses. This week, they've got more, about an Australian-run torture centre:

During the widely celebrated peace-making mission in East Timor, Australian soldiers held 14 men and boys in a secret interrogation facility.

The detainees, suspected of being pro-Indonesian militia, say they were stripped, assaulted, deprived of food, water and sleep and forcibly shown the mangled bodies of two dead militiamen.

Their ordeal led to Australian military investigators recommending charges of torture.

Of course, the Australian military refused to prosecute its own. And of course, it refuses to say why. Meanwhile, the rest of us are left wondering why Australia lets its soldiers violate Australian and international law, and whether the failure to prosecute in Timor allowed and encouraged Australian soldiers to commit further crimes in Afghanistan.

Whose law did they think they were subject to?

During the war on terror, the US ran a program of extraordinary rendition, in which alleged terrorists were kidnapped, taken to foreign countries, and tortured for information. The British government colluded in this, both directly by assisting in kidnappings, and indirectly by providing questions for their torturing proxies to ask the victims. Now, their victims are suing. The British government's "defence" has been to claim that its spies weren't subject to British law when performing their official duties. The UK Court of Appeal's response? yeah, right:

UK intelligence services who allegedly asked the CIA to put questions to a detainee who was being tortured in “black sites” were subject to the law of England and Wales and not that of the countries in which he was being held, the court of appeal has ruled.

The three appeal judges were asked to decide whether Abu Zubaydah, who was subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, has the right to sue the UK government in England.

[...]

In [Justice] Males’s written judgment, he said: “These are strong connections connecting the tortious conduct with England and Wales. They reflect also the parties’ reasonable expectations. While it is true that the claimant himself had no connection with this country, he could reasonably have expected, if he had thought about it during the 20 years in which he has been detained, that the conduct of any country’s security services having to do with him would be governed by the law of the country concerned. As for the services, they would reasonably have expected that their conduct here would be subject to English law.”

Which is obvious the moment you think about it. For a government to claim it is not bound by its own laws is simply absurd. But apparently nothing is too absurd when the British establishment is attempting to justify and excuse torture.

The path is now open for Abu Zubaydah to sue. And hopefully he will force the British government to admit its crimes and extract compensation for them. But the spies who colluded in torture and the Ministers who authorised that collusion shouldn't just be facing a civil suit - they should be facing criminal prosecution. And if the British government refuses to prosecute its own, well, there's a court in The Hague for that.

The SIS has received intelligence from torturers

One of the many horrors of America's "war on terror" is the way it has degraded human rights around the world, even in countries like ours. Quite apart from the direct crimes committed by America and its allies (Iraq, Guantanamo, the extraordinary rendition program, mass surveillance), there's also been the sight of intelligence agencies from countries with strong domestic human rights protection colluding with regimes which use torture. Dirty foreign regimes do the torture, and western agencies get the intelligence while keeping their hands "clean" (until they end up being investigated by police)

The SIS received "intelligence" the Americans had tortured out of people in the early 2000s, but that's meant to be all in the past. The post-Dotcom reforms were meant to fundamentally change our intelligence agencies and put them on a sound legal footing. The Intelligence and Security Act 2017 gave spy agencies an explicit legal duty to act in accordance with New Zealand law and international human rights obligations. A system of "ministerial policy statements" is meant to provide clear, public guidance for agencies and let the public know what they are and aren't allowed to do. For example, there is an MPS on Cooperating with overseas public authorities, and it's pretty explicit in outlawing cooperation with torturers:

GCSB and NZSIS must not request or use intelligence where they know, or assess there is a real risk the intelligence was obtained through a serious human rights breach – such as torture, or cruel, inhuman or degrading treatment.

This is backed up by an SIS/GCSB Joint Policy Statement on Human rights risk management which sets out how they're meant to assess the risk that cooperation will result in human rights abuses, and who signs off on that assessment. The policy uses five risk categories, with differing level of severity and scrutiny. So for example category 5 is where there is "negligible likelihood of any human rights breach", and can be signed off by any manager. Category 1 is where there is a "substantial likelihood of torture or similar mistreatment (mitigated or unmitigated)", and must be signed off by the Minister. "Proposed actions" by an intelligence agency - for example, providing intelligence or assistance to a foreign agency, or entering a long-term relationship with them - require a human rights approval. Receiving intelligence requires a human rights review.

When I first saw this policy on FYI, I was curious, so I asked GCSB and SIS for some basic statistics about the numbers of approvals and reviews sought and approved in each category. GCSB's response was reassuring: a lot of low-level approvals, but they clearly weren't providing information to enable people to be tortured (OTOH, the lack of reviews shows they don't think there's any human rights issue with mass-surveillance or with where their information comes from). SIS's response - extended because of the crapness and disorganisation of their internal record-keeping - showed the same pattern in approvals. On reviews, it is a different story. Since JPS-006 was approved in 2017, the SIS has sought and received Ministerial approval for two category-1 human rights risk reviews. That means they have twice received intelligence where there was "substantial likelihood of torture or similar mistreatment", in contravention of both the Ministerial Policy Statement and Aotearoa's obligations under the United Nations Convention Against Torture.

The policy was approved in late September 2017, when Chris Finlayson was Minister. A month later Andrew Little became Minister, and has held the role ever since, so its almost certainly him who signed off on this. And I think he owes us some serious answers about exactly what he signed off on, and how he manages to look at himself in the mirror every morning having done so. This also seems to warrant an immediate investigation by the Inspector-General of Intelligence and Security, and by the Ombudsman (who is our main National Preventative Mechanism under OPCAT). Because this was not what we were promised in the post-Dotcom intelligence "reforms". Instead it seems to be the same old dirty spies, up to their same old dirty tricks, and letting people be abused in our name.

Justice for the "hooded men"?

In 1971 the British government explicitly approved a policy of torture in Northern Ireland. Fourteen people were tortured as a result, rounded up as part of a mass-internment campaign and subjected to the "five techniques". While the ECHR later ruled the "five techniques" were illegal and amounted to a practice of inhuman and degrading treatment, no-one has ever been held legally accountable or criminally responsible for their use. But that might be about to change, with the UK Supreme Court ruling that the Northern Irish police can't just look the other way on torture:

The UK supreme court has ruled that a Police Service of Northern Ireland (PSNI) decision in 2014 to discontinue an investigation into allegations of controversial interrogation techniques against the “hooded men” was unlawful.

[...]

Delivering his judgment on Wednesday, Lord Hodge referred to a 2014 RTÉ documentary about the hooded men case which referred to a British government memorandum, known as the “Rees Memo”, which “referred to the use of torture and to its approval by UK ministers”.

Following the broadcast, the PSNI considered whether there was sufficient evidence to warrant a new investigation, but concluded that there was not.

Lord Hodge said: “The court finds that the PSNI’s decision taken on October 17th, 2014 not to investigate further the allegation in the Rees Memo was based on a seriously flawed report, was therefore irrational, and falls to be quashed.”

The PSNI will now have to make an actual decision, and likely pursue an investigation, rather than just do their usual job of covering up British crimes. Unless of course Boris Johnson manages to pass his "amnesty" law to grant impunity to the torturers first. But that of course simply moves any case to international courts, while making Johnson and his government accomplices.

The same question again and again

The Independent Police Conduct authority has found police were unjustified in using an attack dog against a fleeing child:

Police were not justified in using a police dog to bite a young offender following a pursuit, according to an Independent Police Conduct Authority (IPCA) report.

The 14-year-old was bitten as he ran away from the car he was driving in rural south of Hamilton two years ago.

The IPCA report noted the young person spent two days in hospital after being bitten on his leg by the dog.

It said the injury was "severe" and he may need skin grafts in future.

Which sounds an awful lot like wounding with intent, a crime carrying a penalty of 14 years imprisonment. Alternatively, insofar as it was intended as a punishment for fleeing, its torture. The IPCA found that the use of force was disproportionate and unnecessary, and cannot be justified under either s39 or s40 of the Crimes Act. So why isn't this cop being prosecuted? And the simple answer is "because they wore a uniform". But every time they look the other way on crimes by one of their own, the police look more and more like a criminal organisation. When are we going to bring them under control?

Now prosecute them

When Corrections Minister Kelvin Davis was first confronted with Corrections' abuse and torture of Mihi Bassett, he tried to deny the court ruling and undermine the judiciary. Now, he's been forced to admit and personally apologise for it:

Corrections Minister Kelvin Davis has directed the Department of Corrections to conduct an urgent overhaul and review of women's prisons.

The minister has written to written to Corrections chief executive Jeremy Lightfoot demanding an urgent overhaul of the maximum security classification for women and development of management plans for women, and a review of all women's prisons.

Corrections confirmed its officials had met with three women to acknowledge and apologise for the way they were managed at Auckland Women's Prison, following preliminary findings of an investigation by the independent Corrections Inspectorate.

Davis, who also apologised to the women, said he wanted and expected better from Corrections.

If he wants better, here's an obvious solution: prosecute and sack those responsible for Bassett's treatment. Because some of what was done by corrections officers appears to be criminal: offences of ill-treatment or neglect of child or vulnerable adult, assault with a weapon, and arguably torture. The people responsible need to be held to account. And if they're not, its clear that the New Zealand government condones this sort of cruelty and abuse in its prisons.

A captive Minister

Yesterday a New Zealand Judge issued a formal finding that the Department of Corrections had treated prisoners in a cruel, degrading and inhumane manner, illegally detaining them, using excessive force, denying them basic necessities unless they performed degrading rituals of submission first. Some of the conduct appears to be criminal: offences of Ill-treatment or neglect of child or vulnerable adult, assault with a weapon, and arguably torture appear to have been committed. So what's the Minister's response? A full investigation? Sackings? Prosecutions? Of course not. Instead, he's chosen to deny the court ruling and undermine the judiciary:

Corrections Minister Kelvin Davis is not taking a judge's ruling that inmates at Auckland Women's Prison were treated in a "degrading" and "inhumane" way at face value, and wants more information.

Manukau District Court Judge David McNaughton made the stinging ruling when assessing whether inmate Mihi Bassett should have her sentence extended for arson at the prison in 2019.

[...]

[The Judge] said the women's evidence was "powerful and compelling" and he had no reason to doubt it.

But Kelvin Davis said these were still allegations and he had asked Corrections for their side of the story.

...which has already been presented in court, and found to be unreliable. But I guess Davis doesn't care about court rulings, or the rule of law in New Zealand. He has clearly been totally captured by his department, and is afraid to enforce even basic standards on them. Which is exactly how these abuses happen: cowardly Ministers unwilling to hold their lawless agencies to account.

Meanwhile, you also have to wonder where the Ombudsman was. They are officially responsible for monitoring New Zealand's prisons under the Optional Protocol to the Convention Against Torture. And if they were doing their job properly, basic issues like unlawful detention, the illegal use of pepper spray, and ritual humiliation of prisoners would be detected and ended. But the Ombudsman apparently has never conducted a monitoring visit to Auckland Women's Prison. If they had, then maybe this woman wouldn't have been abused and tortured.

Update: The Ombudsman has in fact conducted an inspection of Auckland Women's Prison - back in 2013/14. Which seems like quite a while ago.

NZ spies support torture

The Inspector-General of Intelligence and Security released their annual report today, and in amongst all the usual bureaucracy, there's some rather startling revelations. The first, and most horrifying, is that New Zealand's spy agencies are refusing to accept IGIS recommendations from its Operation Burnham inquiry to adopt a more stringent standard limiting intelligence cooperation where it may contribute to torture and other human rights abuses:

Our second recommendation, that the agencies’ human rights test for information sharing should be more protective, has not been accepted by them at this time. The agencies’ position is that any change to the policy threshold at which they mitigate risks in information sharing should only occur after the current review of the Foreign Cooperation MPS, led by DPMC. However, we think the more precautionary approach could be adopted now.

IGIS has suggested the same standard used by Canada and the UK (aimed at eliminating past practices of outsourcing torture while pretending it was not happening), but the spy agencies are for some reason resisting this. They need to tell us why, because the natural conclusion is that they want that practice to continue, and that they support torture.

Similarly, there's this bit:

The second issue, also being considered in the Foreign Cooperation MPS review, is what obligations, if any, should be imposed on the agencies when they receive information which they reasonably believe may have been obtained from human rights abuses overseas, especially if there is no realistic risk their receipt of the information could contribute to any new or ongoing abuse. New Zealand law does not directly govern this, and the answer is more a question of public policy and propriety.

"No realistic risk [of] new or ongoing abuse" sounds a lot like "torture is OK if you murder the victim afterwards". And that is simply not a position we should accept. Our spy agencies should refuse to accept any information sourced from human rights abuses overseas, whether abuse is ongoing or not. This is the best way to give effect to the Convention Against Torture's obligation that information obtained by torture is not used as evidence (except as evidence that torture was committed). Otherwise we're simply inviting laundering, and by doing so, encouraging torture.

Together, these two sections paint a very troubling picture of the lack of ethics in our spy agencies. Opposition to torture is pretty fundamental to any decent ethical system (not to mention our government's policy), but it is clear that our spies do not share it, and want to quibble. "Can we, can we" is irritating when it comes from children. When it comes from grown adults about torture, it suggests they are amoral psychopaths, who are unfit for any role in an ethical public service.

There's other stuff in there. Two warrants to spy on New Zealanders were found to be "irregular" (that is, illegal), in both cases because the spy agencies basicly made no case for the spying. Which suggests they are still being far to slack in considering whether their activities are necessary and proportionate, and instead just invading people's privacy willy-nilly. On top of that, it appears neither agency is complying with the requirement in the Foreign Cooperation MPS that they refer all new foreign cooperation arrangements to Parliament's Intelligence and Security Committee, which suggests a continued resistance to Parliamentary oversight. Which invites the question of why Parliament is continuing to fund them, when they are refusing to comply with their most basic ethical, legal, and democratic obligations.

Prosecute ICE

We knew that US Immigration and Customs Enforcement was a moral void: they run concentration camps, and forcibly separate children from their parents. And now they're outright torturing people:

US immigration officers allegedly tortured Cameroonian asylum seekers to force them to sign their own deportation orders, in what lawyers and activists describe as a brutal scramble to fly African migrants out of the country in the run-up to the elections.

Many of the Cameroonian migrants in a Mississippi detention centre refused to sign, fearing death at the hands of Cameroonian government forces responsible for widespread civilian killings, and because they had asylum hearings pending.

According to multiple accounts, detainees were threatened, choked, beaten, pepper-sprayed and threatened with more violence to make them sign. Several were put in handcuffs by Immigration and Customs Enforcement (Ice) officers, and their fingerprints were taken forcibly in place of a signature on documents called stipulated orders of removal, by which the asylum seekers waive their rights to further immigration hearings and accept deportation.

Torture for bureaucratic convenience is a new level of evil even for the US, and it shows how racist and corrupt this organisation has become. As for how to fix it, prosecuting everyone involved, from the political leaders and high-level managers who encourage these abuses down to the guards who actually do the dirty work would be a good start.

In which two NZ judges seem to OK torture

Today's outrage from the Independent Police Conduct Authority: police unjustifiably using a taser and pepper spray on a passenger from a fleeing vehicle:

The incident took place just before midnight on 16 September 2017, when police pursued a fleeing driver through Auckland, according to an IPCA report.

The pursuit ended in the SkyCity carpark when the male driver ran from the scene while the female passenger stayed in the car.

An officer approached the car and aimed his Taser at the woman before pepper spraying her, the IPCA said.

A second officer then dragged her by the leg across the carpark floor where she was restrained by two officers.

One of the officers then used his Taser to intimidate the woman while she lay restrained on the ground. He held it near her head and asked for the identity of the driver.

That last bit is especially disturbing, and legally constitutes an act of torture under New Zealand and international law ("severe pain or suffering, whether physical or mental... intentionally inflicted [for the purpose of] obtaining from that person or some other person information or a confession"; threatening physical torture is itself mental torture), which is a serious crime. Sadly the officer - not named in the article, but identified in the appeal judgement as Sean Matthew Doak - wasn't charged with that. But they were charged with "presenting a restricted weapon", tried, and convicted by a jury. They appealed, on the basis that "the direct and indirect consequences of the conviction, particularly the likelihood he will lose his job, are out of all proportion to the gravity of the offending" [emphasis added]. And the appeal judgement on that is fucking appalling, and reveal that parts of our judiciary are totally OK with police officers threatening torture:

CCTV footage produced at the trial revealed that Constable Doak approached X with a taser in hishand. He leaned down close to her head. It seems likely that he was attempting to obtain information from her regarding the identity and whereabouts of the driver. The Judge was satisfied this information was needed, given the risk the driver might convert another car and escape, thereby placing the public at further risk.

[Emphasis added]

Which is a pretty interesting interpretation of Article 2.2 of the Convention Against Torture ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture"), not to mention section 9 of the Bill of Rights Act. What we have here is basicly a judicial approval of a threat to torture, for a fucking traffic case.

It gets worse, because the appeal Judge backs it up, saying "Constable Doak rightly needed to ask who the driver was and where he had gone. That he did so in robust terms cannot be criticised in the circumstances." I wonder how they'd describe the police beating a "confession" out of someone in a cell? Because that is effectively what they've just okayed.

Back to the sentence. The trial judge was of course full of sympathy for the accused, saying that while losing their job was a predictable consequence of conviction, they "expressed the hope that through the exercise of sensible judgement on the part of the District Commander, Constable Doak would remain in the employment of the Police." They convicted him and discharged him without penalty. The appeal judge overturned that and replaced it with a discharge without conviction, on the basis that penalties for the police shouldn't be harsher than those for the public (public trust apparently counting for nothing), and that the employment decision was still one for police. So, a police officer threatens to torture someone, the judiciary is totally OK with that, and ensures they face no penalty whatsoever. Heckuva job they're doing there upholding the BORA and international law.

Meanwhile, I'm left with a pressing question: is Sean Matthew Doak still a police officer?

The NZDF procured torture

Last week the Hit and Run inquiry reported back, and the report is currently sitting on Andrew Little's desk. Meanwhile, one of the subjects of the inquiry - Taliab commander Qari Miraj - has spoken out about what happened to him at the hands of the SAS. he gives an account his his detention and beating at the hands of SAS soldiers, which is backed by SAS witnesses. There's more there about how he was tortured by the Afghan National Directorate of Security (NDS) and how he was beaten and electrocuted by them. And then there's this bit:

Miraj has told Stuff, New Zealand and Afghan NDS personnel were “working jointly” during the period he was tortured. He said on one occasion four New Zealand personnel – two of them with weapons – came to his cell with NDS officers and took him to another room to question him. Two of the New Zealanders were carrying intelligence reports about him.

He believed New Zealanders and the NDS were sharing reports.

Miraj said no New Zealand personnel were present when he was being tortured. However, he said it was “a hundred per cent” clear from questions he was asked under interrogation by the NDS that questions had been given to them by New Zealanders.

Asked if he believed that New Zealand personnel were using NDS interrogators to extract information from him that could be used in the hunt for other insurgents involved in the attack on the PRT convoy, Miraj said: “Exactly, exactly.”

This has creepy echoes of MI6's collusion in torture - essentially, hand someone to a foreign intelligence agency in the full knowledge they would be tortured, provide questions, stay out of the room themselves, but get the answers and in some cases even interview the victim when they had been "softened up" (for a graphic example see the case of Abu Zubaydah). And in the end, NZDF - who were aware of the torture - were given Miraj’s "confession".

Its unclear how much of this was put before the inquiry. For obvious reasons, they didn't interview Miraj, and so relied on NZDF accounts of what they did to him and what they knew (some of which are damning enough). But if it turns out that NZDF misled the inquiry about this, then heads should roll. but that's the least of it. Because pretty obviously, providing the questions for a torture session (and being given the answers) is conspiracy or procuring acts of torture, which a crime under New Zealand and international law. Those involved should be prosecuted. And if the New Zealand government refuses, Then they should join the NZDF and SIS in the dock in The Hague.