Security detention is arbitrary and illegal

Over a decade ago, the New Zealand government imprisoned Ahmed Zaoui, an Algerian refugee, for two years without charge or trial, on the basis of a spurious and secret "security assessment" which the SIS later withdrew. Today, the UN UN human rights committee ruled that an identical scheme of detention in Australia is arbitrary violates international law:

Australia’s indefinite detention of refugees on secret security grounds is arbitrary and illegal, the UN has ruled, in the latest of 51 cases – the most of any country – before the human rights committee.

The government should offer compensation to those it incarcerated without charge for up to six years, the UN’s human rights committee said in its latest rebuke, which could harm Australia’s ambitions to secure a seat on the powerful UN human rights council.

[...]

The latest adjudication by the UN human rights committee relates to five refugees – one Iranian, three Sri Lankan Tamils and one Afghan Hazara – who were illegally detained between 2009 and 2015 because the Australian Security Intelligence Organisation had made an “adverse security assessment” against each of them.

They were recognised as refugees by Australia – “for whom return to their countries of origin was unsafe” the committee said – but were refused visas on security grounds.

But they were not allowed to know why they had been deemed security risks, nor were they permitted to see any of the evidence against them, or contest it. As a result, they were held in detention indefinitely, without facing charge or trial, or without any [recourse?] to the courts.

ASIO has since withdrawn its secret "security assessments" of the men, as it has with almost everybody it has detained in this manner. However, an unknown number - estimated at between six and ten, but the government won't even say how many - remain illegally in indefinite arbitrary detention on the basis of secret "evidence" they are legally forbidden to contest. Just another example of how Australia is the sort of country we shouldn't be friends with.

As for Zaoui, the New Zealand government never compensated him, and the Ministers who approved his detention (some of whom are still in Parliament, though in opposition) never apologised for his treatment. Maybe they should do something about that sometime?

Australia holds 34 Ahmed Zaouis

When the New Zealand government imprisoned Ahmed Zaoui for two years without trial on the sole word of the SIS (who refused to give reasons), it was a national scandal. Eventually, after two years of imprisonment without trial he was granted bail. Three years after that the SIS withdrew their security risk certificate on the eve of its judicial review - effectively admitting they were wrong. The process was so shoddy, and the SIS so obviously jumping at shadows, that they have AFAIK never issued another risk certificate.

Not so in Australia. Over there they've just freed 10 people they were holding under a similar law, after the ASIO changed their minds about whether they were a threat. But they continue to hold 34 people without trial and without letting them see the "evidence" against them:

A group of 10 refugees assessed by ASIO as threats to national security have been freed to live in the Australian community after the agency quietly reversed its decision.

Some of the group had been held in immigration detention more than five years without having been charged with a crime under a system civil liberty advocates have slammed as "completely unsatisfactory".

Most of the men have been released since August from a detention centre in Melbourne's north, where the majority of the remaining 34 refugees given a negative assessment by ASIO are still being held.

The same principle which applied to Ahmed Zaoui applies here: freedom or a fair trial. The claims against these people must be heard in open court, so we can see whether they are supportable or whether they are a tissue of spy-fantasies. And if the spies are unwilling to do that, then they must be released.

More scaremongering from Key

John Key's latest scaremongering over his spy bill:

Prime minister John Key has attacked the Law Society over its opposition to controversial new spying laws.

The body that represents the nation's lawyers says there are fundamental flaws in the proposed Government Communications Security Bureau (GCSB) bill, but Key appeared to question the society's impartiality in a radio talkshow this morning.

He said "the person that ran the case . . . one of the people involved" was "Zaoui's lawyer", a reference to Auckland barrister Rodney Harrison QC, who was lead counsel for Algerian refugee politician Ahmed Zaoui in 2002.

[...]

Key then added: "There's lots of different agendas out there - I'm not going to second guess them."

So, if you care about the law and preventing gross abuses of power, you're on the side of the terrorists. If this is the way our Prime Minister and spies think, then I suggest they're a far bigger threat to our democracy than any "terrorists".

Ahmed Zaoui: welcome home

Four years after being granted refugee status, and almost five years after first arriving in the country, Ahmed Zaoui has finally been reunited with his family.

As an interesting note, Zaoui should be able to apply for citizenship in about a year. I wonder if the SIS will try and block it?

An interesting question

Now that the SIS has withdrawn the Security Risk Certificate against Ahmed Zaoui, he will be treated as a refugee. That means he will automatically be granted Permanent Residence, and be able to do all the things Permanent Residents can do.

One of the things Permanent Residents can do in this country is vote.

So, who will Zaoui vote for next election? Though I think we can bet safely that it won't be Winston Peters.

The keystone spies

The SIS is attempting to save face (and get in a final smear) over Ahmed Zaoui by claiming that he has since been "more candid in his disclosures" and

offered new information that he had not previously disclosed, even to the authorities that decided his refugee status.

Reading their final decision [PDF] there are also repeated mention of Zaoui now explaining "for the first time" about his associations with his former colleagues in the FIS who moved to the GIA. The implication here is that Zaoui had deliberately withheld this information, and that this is supsicious. But on Checkpoint tonight, Zaoui's lawyer Deborah Manning provided the real answer: the SIS had never asked. They ruined a man's life for five years on the basis of his past associations, and never bothered to ask him about them. The information was only revealed when Zaoui was asked questions about classified information that had previously been kept secret and which he had no idea was even relevant.

So, the SIS could basically have resolved all this easily, and found out that Zaoui had political differences with his former associates, if they'd only bothered to ask. Instead, they were so obsessed with secrecy that they felt they couldn't even do that, in case it gave anythign away. They truly are the keystone spies.

Zaoui "no longer a risk"

After almost five years and a change of director, the SIS has finally admitted that Ahmed Zaoui is not a threat and withdrawn their Security Risk Certificate. Zaoui is thus free to go about his businessUnfortunately, they're still trying to maintain that he was one when he arrived back in 2002 - an allegation conclusively disproven by the RSAA. I guess being a spy means never having to admit you're wrong.

It's fantastic news, but tempered by the fact that the new Immigration Bill currently working its way through Parliament massively widens the use of classified information and secret evidence, meaning we will almost certainly see this injustice repeated in future. If we want to stop that from happening, we need to amend the bill. But hopefully the SIS's admission will allow the politicians some room to do that.

Tried in secret

The second phae of the hearing into Ahmed Zaoui's security risk certificate starts today - but unlike the earlier sittings, these parts will be closed both to the public, and to Zaoui himself. Instead, the SIS will present their "evidence" directly to the Inspector-General in secret - evidence which is so secret that not even Zaoui is allowed to hear it. Zaoui will be represented by a "special advocate", who will do their best to point out flaws in the SIS's case, but they will be unable to consult Zaoui or to seek information from him which may well provide an innocent explanation for the SIS's claims. As a result, the special advocate will be unable to do a proper job, and the SIS's "evidence" will be effectively uncontested. Which is, I suspect, the point.

The exclusion of the media from the initial hearings was bad, but this is worse. It is a mockery of a judicial process, which violates the right to natural justice affirmed in the BORA. Such a process has been found to be "critically flawed" in the UK, to the extent that British lawyers now refuse to participate in it. It is simply shameful that it is being used here, in a country which supposedly respects human rights.

Campbell on Zaoui

Gordon Campbell has a pair of articles up on Scoop discussing the SIS's expected case against Ahmed Zaoui (part one, part two). The SIS have radically changed their case in the five years since the certificate was issued. When he first arrived in the country, they focused on the criminal association convictions in Europe (convictions regarded as unsafe by the RSAA, and certainly not justifying a return to torture and death) and claimed he was actively planning to commit acts of terrorism. Now, in light of the Supreme Court setting a higher bar for the certificate to be upheld, Campbell thinks they will instead try and paint Zaoui as an extremist who will inspire terrorism - despite all the evidence to the contrary.

Unfortunately, because the review is happening in secret and the participants are gagged, this is all guesswork. At the end of the day, we'll never be allowed to know the SIS's case - which means we can never be sure whether it is strong or merely paranoia.

Hiding behind secrecy

The Prime Minister is defending the secrecy of the review of Ahmed Zaoui's Security Risk Certificate, claiming in her press conferance today that it was necessary to protect classified information:

"It's not a court it's a review of a security risk certificate. Obviously it involves the use of classified information and that is properly done outside what would be the procedures of a court," said the PM.

There's just one problem: it's not true. The current "open" hearings do not involve any classified information at all. If they did, Zaoui and his lawyers would not be allowed to attend. Instead, the SIS and the government are hiding behind secrecy, and using it to prevent any independent assessment of the evidence or the fairness of the process. And in a society which supposedly respects human rights, that is simply unacceptable.

The Listener's loss is the internet's gain

A couple of years ago, when the Listener was a real current affairs magazine rather than a fluffy lifestyle rag, Gordon Campbell was one of their top correspondents. He broke the Ahmed Zaoui story, and got ex-Inspector General Laurie Greig's scalp into the bargain. Naturally, he was fired when the magazine began its descent. And so now he's writing about the Zaoui review on Scoop...

Secret, unfair, untrustworthy

The review of Ahmed Zaoui's Security Risk Certificate gets underway in Auckland today. Unfortunately, if anyone was hoping for a definitive answer on whether Zaoui is a security risk or not, they'll be disapointed, because the hearings are being held in secret. This means that the public will not be able to weigh the evidence against Zaoui and decide whether the review reaches the right conclusion. Neither will we be able to see whether it is being conducted fairly and impartially, or whether the SIS's case was ever anything more than a bad joke. But that's not the worst of it: part of the review is secret even from Zaoui himself: he is not permitted to know the classified evidence or even some of the allegations against him, and therefore can not possibly defend himself against them. This violates Zaoui's right to natural justice, and turns the whole process into a Kafkaesque parody of the judicial process. In fact, Kafka's description in The Trial is a near-perfect description of the process being used in Zaoui's case:

But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don't have access even to the court records, and especially not to the indictment, and that means we generally don't know - or at least not precisely - what the first documents need to be about, which means that if they do contain anything of relevance to the case it's only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it's only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that.

I was under the impression that a review process should deliver justice, not nightmare satire...

If a foreign country purported to "try" people like this, we would rightly object that such procedures violated human rights and could not possibly produce a fair outcome. The same applies in New Zealand. If the government wants us to regard this review as anything more than a kangaroo court, then it must open proceedings to public scrutiny, and ensure that Zaoui can properly defend himself against all of the "evidence" against him.

Ahmed Zaoui: unacceptable secrecy

Four and a half years after he arrived in New Zealand, two and a half years after he was released on bail, and almost a year after it was originally scheduled to begin, Algerian refugee Ahmed Zaoui is finally going to get a hearing on the Security Risk Certificate which resulted in his imprisonment. Unfortunately, despite not dealing with classified information (that will be dealt with under a kafkaesque set of procedures which will see Zaoui forbidden to know the evidence or even the allegations against him), that hearing will be held in secret, and the media barred.

This is simply unacceptable. We all know the saying: "justice must not only be done, it must be seen to be done". Public hearings are vital to maintaining public confidence in the integrity of the justice system. They allow both expert observers and the wider public to assess whether the presiding officer is giving the accused a fair hearing, and whether the "evidence" presented passes the laugh test. In other words, they're a way of keeping the system honest, and letting us see that the process is not a stich-up. The Inspector-General's hearings are not a criminal trial, but the same principles apply. If they are held in secret, we will have no reason to have confidence in the outcome, and every reason to view them as a modern day Star Chamber.

Zaoui on Algeria

Ahmed Zaoui responds to last night's bombings in Algeria. He certainly doesn't sound like an advocate for terrorism...

Security risk certificates overturned in Canada

For the last four years, Algerian refugee Ahmed Zaoui has been detained under a Security Risk Certificate issued by the SIS. Initially held in solitary confinement in Paremoremo prison on the basis of a police threat assessment deemed "not well considered nor well constructed" by the Police Complaints Authority, he is now on bail but still subject to substantial limitations on his liberty. Meanwhile the process for review of the SRC has stalled due to the SIS refusing to comply with court orders to supply its evidence to its own Inspector-General.

Meanwhile, in Canada, the Canadian Supreme Court has unanimously found their security risk certificate process - which is very similar to ours - to be "hopelessly flawed" and a violation of the Canadian Charter of Rights and Freedoms. Specifically they found that:

• the process used for determining the reasonableness of the security risk certificate - in which the person detained is denied access to the evidence against them, and hence any ability to effectively challenge the government's case - was unfair, one-sided, and infringed the principles of fundamental justice affirmed in section 7 of the Charter;
• the initial detention itself was not arbitrary; however the lack of review of detention for foreign nationals (they must wait until 120 days after the SRC has been upheld before being able to review their detention) violated the right not to be arbitrarily detained affirmed in section 9 and to habeas corpus affirmed in section 10(c);
• The potential for prolonged (and effectively indefinite) detention without review violated both the right to justice and the right not to be subjected to cruel and unusual treatment under section 12 of the Charter.

The money quote - and the latest in a long series of similar statements from other judicial bodies in the face of government excess in the wake of September 11 - is

security concerns cannot be used... to excuse procedures that do not conform to fundamental justice.

The Canadian Parliament now has a year to fix the law so that it conforms to the Charter. Their most likely way of doing so is by making legislative provisions for the use of "special advocates" - a system found to be "critically flawed" in the UK.

There are obvious parallels here with the Zaoui case, but probably not so many implications, as the substantive issues (detention and review) have already been settled by successful court challenges and the voluntary appointment of a special advocate by the Inspector-General. However, the decision is likely to have strong implications for the treatment of any future detainees. while there are differences, the relevant sections of the Canadian Charter are practically identical (the big difference is that they explicitly make any deprivation of liberty subject to "principles of fundamental justice" in section 7; we instead affirm an overarching right of natural justice in s27 BORA). So any future detention, or any attempt to strip judicial review from the law, will run smack bang into this precedent, which while not binding, is likely to be paid close attention by our own judiciary.

Unfortunately, there is one very important difference between New Zealand and Canada. Canada has (at least de facto) constitutional sovereignty, meaning that the courts can declare laws to be inconsistent with the human rights affirmed in the Charter and strike them down. Here, we still suffer under Parliamentary sovereignty, meaning that Parliament can ignore the courts and the affirmations inthe BORA mean nothing. It is long past time we fixed this, and ensured that our Bill of Rights is actually enforceable. Where fundamental freedoms are concerned, the goodwill of elected representatives is as untrustable and worthless as the goodwill of kings.

Bumbling provincial hicks

Back in December 2002, when Ahmed Zaoui arrived in New Zealand, the police thought they'd found someone "big" on the international terrorist scene. So, when Zaoui was being held at the Papakura police cells while they debated what exactly to do with him, they put an "undercover operative" in his cell. Who asked him where Osama bin Laden was. By playing charades:

Manning said Zaoui realised the man was an undercover agent. "He was only let out of his cell into the day room a few times and this guy was always there asking bizarre questions."

Zaoui told the Star-Times he thought the man's activities were strange. When asked where Bin Laden was, he had replied "in Afghanistan". The agent could speak only English - which Zaoui could barely understand - so communicated some questions with charades.

It would be comical, except for the fact that Zaoui was subsequently subjected to solitary confinement for 10 months on the basis of the resulting threat assessment. I'm just wondering if the above was used as the basis for a claim that he "knew the location of Osama bin Laden". The Americans certainly would have.

(Oh, and in case anyone has forgotten, that threat assessment also used information sourced from an internet conspiracy website run by Lyndon LaRouche - so much for "police intelligence". OTOH, the SIS "evidence" wasn't much better).

Is it really too much to ask that our police behave like a professional force, rather than a bunch of bumbling professional hicks?

Ahmed Zaoui: the farce has gone on too long

Two years ago, Ahmed Zaoui was freed on bail into the custody of the Dominican Friars. Since then, he has been waiting for the Inspector-General of Security Intelligence, Paul Neazor, to begin the review of the Security Risk Certificate against him. The review was originally scheduled to begin in August, but was delayed after the SIS failed to provide a full summary of allegations or "evidence" against Zaoui - in clear violation of a High Court order. And now, according to a Parliamentary question from the Green Party, it has been delayed again until July or August 2007. Worse, Neazor's term expires for then, so there is the prospect of still more delays as a new Inspector-General - Zaoui's third - is brought up to speed on the case.

This is no longer acceptable. The SIS has had more than enough time to get their house in order - it has been over three years since they were ordered to produce their "evidence" - and they have repeatedly failed to do so. This refusal to abide by the orders of the court has undermined Zaoui's ability to defend himself - as Locke's press release notes, it is difficult enough to arrange for international witnesses to travel here, let alone do it repeatedly to cope with constant delays. If the prosecution had behaved in this manner in a criminal case, refusing to specify the charges or evidence against the defendant, then it would have been thrown out long ago. We should adopt the same solution in Zaoui's case - this farce has simply gone on too long.

But in addition to the obvious problems of justice, the SIS's refusal to abide by the orders of the court raises another problem: the SIS's refusal to accept civilian oversight and review. They clearly think they are above the law, and this must change. And if it will not, they must be purged until they accept that in this country, it is the democratically elected Parliament and the laws they make that constitute the ultimate authority - not the spies.

A bad habit

One of the most shocking things about the Ahmed Zaoui case - besides the pissing on legal principles dating back to the Magna Carta - was the incompetance and laziness it revealed in our intelligence services and police force. First we learned from the Refugee Status Appeals Authority that the SIS had apparently relied on Google to compile their "evidence" against Zaoui, assembling unsourced news extracts and internet material "with no attempt to excise opinion from fact". Then we learned that the police's threat assessment - used to justify Zaoui's solitary confinement - was compiled the same way, and relied upon an internet conspiracy website from conspiracy theorist Lyndon LaRouche.

Unfortunately, they seem to be making a habit of it. According to Keith Locke, much of the government's case against Rayed Mohammed Abdullah Ali, who was recently deported on "national security" grounds, appears to have been sourced from Google. The first hint was the government referring to a CBS news story which erroneously claimed that Ali had been released from prison in Saudi Arabia. But it's worse:

"...much of the New Zealand government's case against Rayed Ali seems to have been constructed on misleading 'googled' information. A Google search brings up the 9/11 Commission report, with a line accusing Mr Ali of giving 'extremist speeches' in a Phoenix mosque. This is included in New Zealand Immigration's dossier against Mr Ali and doesn't seem to have been checked - although the New Zealand media have, subsequently, discredited the accusation.

"The dossier also contained the easily googleable fact that September 11 bomber Hani Hanjour (briefly) flatted with Rayed Ali - but New Zealand Immigration seems to have made no attempt to discover Mr Ali's explanation or why the FBI, after interviewing him, was happy to let him stay in the United States.

"The only non-googleable "fact" in the dossier was an accusation from a 'not yet discloseable source' of a 'direct association' between Rayed Ali and September 11 bomber Nawaf al-Hamzi. Of course, this could be another intelligence agency making a 'google' mistake, because Rayed Ali had been met on his arrival in Florida in 1997 by a old school friend with a similar name, Bandar al-Hamzi, no relation to Nawaf.

No matter what you think of Mr Ali, surely deporting someone should require better evidence than this...

Ahmed Zaoui Update: Hearing Delayed

The long-awaited hearings into Ahmed Zaoui's Security Risk Certificate, which were scheduled to start next month, have been delayed because the SIS has refused to provide information to its own "watchdog". They have also failed to provide a full summary of the allegations against Zaoui, making it impossible to mount any sort of defence. This is simply unacceptable. If this sort of foot-dragging happened in an ordinary court, then the SIS would face some harsh words from the judge, and the charges would be being thrown out for prosecutorial misconduct. But in the SIS's ad-hoc, kangaroo court, the "judge" works for them, and there are no "charges" - just an ever shifting series of allegations which will be endlessly raised, dropped, and raised again depending on the whim of the SIS. This makes a mockery of justice, and a mockery of Zaoui's right to natural justice under the BORA.

It has now been almost four years since Zaoui arrived in the country, and over a year since the Supreme Court made its final ruling on the background issues to his case - and the SIS still have not got their story straight. How much longer do they need? And how much longer is this embarrassment to our human rights record going to be allowed to drag on?

Justice sometimes takes time, but we are well past the stage of (re)establishing the basic ground rules here, and into the realm of simple foot dragging by the authorities. And where that happens, that other saying comes into effect: justice delayed is justice denied. The SIS clearly has no intention of allowing Zaoui to argue his case or rebut their "evidence", and in these circumstances, the government really only has one option: it should withdraw the Security Risk Certificate, and allow Zaoui to live here as a free man.

Money well spent

Since Ahmed Zaoui arrived in New Zealand, the reactionaries on the right have been complaining about the cost of his persecution, and in particular the cost of legal aid so Mr Zaoui can contest his detention and deportation. It's long been my belief that this has been worth every cent - not because I think Zaoui should have been imprisoned or should be deported (quite the contrary) - but because the precedents his case is establishing on human rights and the application of international law in New Zealand are of inestimable value and will serve us for a long time to come.

There's an example of this in last month's New Zealand Law Journal, in an article about the case of R v Mist [2005] NZSC 77 [PDF]. This is a "lesser penalty" case, about whether someone who committed serious sex offences while under the age of 21, but sentenced after his 21st birthday, could be sentenced to preventative detention (a sentence that was at the time available only to those over 21). It is well established in New Zealand and international law that, where a sentence has been varied between the commission of an offence and sentencing, that anyone convicted of that offence is entitled to the lesser penalty - but it wasn't clear at the time what happened if it was the convicted person who varied rather than the sentence. In answering this, Justice Keith drew upon the ruling in Attorney-General v Zaoui [2005] SC 38 [PDF] that not only is New Zealand law to be interpreted insofar as possible so as to be consistent with the rights and freedoms affirmed in the BORA, but that

Those rights in turn are to be interpreted... if the wording will permit, so as to be in accordance with international law, both customary and treaty based.

This being sanctioned both by the title of the BORA - that it is an act to "affirm New Zealand's commitment to the International Covenant on Civil and Political Rights" - and clear and consistent legislative intent. Article 15 of the ICCPR lays out a clear guideline for these sorts of cases, stating (among other things) that:

Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

Preventative detention wasn't applicable to the offender at the time of offending, since they weren't 21 yet, so Justice Keith concluded that an ordinary (but long) jail sentence would have to do. He was joined in this by Justice Elias, and two other justices reached the same conclusion by a different route, but the Zaoui precedent played a valuable role in upholding the fundamental rights of the accused. And I expect it to continue to do so, as long as cases with these sorts of human rights implications keep cropping up. In that sense, then, the money spent on Zaoui's legal aid has been money well spent.