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Gordon Campbell on the Hit&Run inquiry

So there is to be a government inquiry into the 2010 raid on an Afghan village, as described in the Nicky Hager/Jon Stephenson book Hit & Run. Good news, and the inquiry has been welcomed by Hager. Yet with the best will in the world, such an inquiry is bound to be a difficult exercise, given that (a) there were military forces other than the NZDF involved (b) some of the crucial video footage of the raid is owned by the Pentagon, which will be wary of setting any precedent whereby the actions of the US military and related video evidence are subjected to evaluation by a formal inquiry set up by a foreign power and (c) the NZDF itself is very, very likely to invoke national security concerns to limit what evidence the inquiry, let alone the public, ever get to see.

So this inquiry is bound to be tough sledding. Similar inquiries overseas – like the UK Gibson inquiry into Britain’s complicity in rendition and torture of terrorism suspects – have struggled to find a balance between security and transparency in the handling of evidence. Unfortunately, Attorney–General David Parker chose to undercut confidence in the inquiry’s independence, by the partiality of his introductory comments at yesterday’s press conference :

In deciding whether to initiate an inquiry I have considered material including certain video footage of the operation. The footage I have reviewed does not seem to me to corroborate some key aspects of the book Hit & Run. The footage suggests that there was a group of armed individuals in the village. However, the material I have seen does not conclusively answer some of the questions raised by the authors. In light of that, and bearing in mind the need for the public to have confidence in the NZDF, I have decided in the public interest that an inquiry is warranted.”

OK...so Parker has evidently been shown the footage of the raid, and that has convinced him that – contrary to the book’s findings - there were armed individuals in the village, demonstrably up to no good. (Arms in themselves, surely, do not warrant an SAS-led raid, given the prevalence of weaponry in the country.)

Under questioning, Parker ventured that these armed individuals were present at the time of the raid and not merely at some time beforehand. But he refused to be drawn on whether he’d reached his conclusion based on behaviour (i.e. the firing of weapons in anything other than self defence, given that homes were being attacked by strangers under cover of darkness) or by visual depictions of villagers carrying guns. Like Bill English did under similar questioning last year, Parker also refused to be drawn on the length of the footage he’d seen, which is relevant to assessing whether it was edited footage and/or consisted of incomplete coverage of the event. Reportedly, Parker saw about half an hour.

A bevy of National politicians (English, and former Defence Ministers Gerry Brownlee and Mark Mitchell reportedly saw about an hour.) Did the footage depict SAS actions? Parker wasn’t going to be drawn.

Time and again, Parker refused to be drawn by gallery questions seeking to elucidate the basis for his conclusion that what he’d seen did not corroborate the book’s account. This was unfortunate. Essentially, Parker had prefaced his announcement of an independent inquiry with a public assertion that the book’s contents were not corroborated by visual evidence, which he then pointedly refused to discuss. The selectivity of the assertion was interesting – has there been nothing about the discrepancies in the public assertions made by NZDF over the past 12 months to arouse similar concerns in his mind? Even the NZDF has recently backed away from some of its previous bold assertions.

Why on earth then did the Attorney-General feel it appropriate to venture any personal opinion at all on the reliability of either side, at this delicate point?

If that was regrettable, it was compounded by the fact that the inquiry itself may not be allowed access to the same footage that Parker (and the National trio of politicians before him) had been invited to watch - presumably by courtesy of the NZDF, rather than down at the US Embassy. Here’s what yesterday’s question and answer series written and issued by Parker’s office has had to say on this key point :

Q. Will the inquiry have access to footage of the raid ?

A. The inquiry is expected to seek access to the footage of the raid but this does not belong to New Zealand. The extent to which it will have access will be determined in the course of the inquiry.

Q Will that footage be made public?

A. The inquiry can seek evidence from all sources but would have no power to compel production of documents or evidence from other states or their forces. Otherwise its focus will be on the NZDF and it has no jurisdiction to make determinations about the actions of other states’ forces or officials.

So to repeat : at the outset of an independent government inquiry, the Attorney-General not only felt free to make unverifiable assertions about Hit & Run – but no guarantee can be given that even this august inquiry will be able to see the footage in question and draw definitive conclusions from it, either way. It seems amazing that NZDF is able to screen this footage for lobbying purposes with politicians whenever it suits NZDF to do so, while claiming that national security concerns prevent it from sharing the same information with either the public, the media, or – potentially – even with the $2 million inquiry set up to clarify the matters in dispute. As I suggested to Parker yesterday, we seem to be getting off on the wrong foot here.

The terms of reference. The inquiry will be headed by retired Supreme Court judge Sir Terence Arnold and former PM Sir Geoffrey Palmer and its work is expected to take a year to conclude. The ten terms of reference include investigating and reporting on :

7.1 The conduct of NZDF forces in Operation Burnham, including compliance with the applicable rules of engagement and international humanitarian law

7.2 The assessment made by NZDF as to whether or not Afghan nationals in the area of Operation Burnham were taking direct part in hostilities or were otherwise legitimate targets..

7.4 NZDF’s planning and justification/basis for the Operations….

7.5 The extent of knowledge of civilian casualties during and after Operation Burnham, and the content of written NZDF briefings to Ministers on this topic

7.6 Public statements prepared and/or made by NZDF in retaliation to civilian casualties in connection with Operation Burnham

7.9 Separate from the Operation, whether the rules of engagement, or any version of them authorised the pre-determined and offensive use of lethal force against specified individuals (other than in the course of direct battle) and if so, whether this was or should have been a[[aren’t to (a) NZDF who approved the relevant version(s) and (b) responsible Ministers.

Taken as a whole, these terms of reference do allow considerable room for the legal team representing the villagers to pursue the relevant lines of inquiry. Whether the public will ever be allowed access to the inquiry’s main business however, is another issue entirely.

Who are the inquirers ? Given the limited access the public and media are likely to have during the progress of the inquiry, trust is an essential ingredient. It will be up to the inquiry for instance, to assess just how strenuously - if at all–- NZDF exerted itself beforehand to enable it to distinguish in the dark those individuals it had targeted as terrorists, from the ordinary villagers among whom those same individuals may have lived and worked. Obviously, the inquiry heads – Sir Geoffrey Palmer and Sir Terence Arnold - have held significant positions in the past that equip them to investigate such matters.

On the downside, sceptics may also note that as Solicitor-General in the 2000s, Arnold prosecuted most of the cases involving the Algerian refugee Ahmed Zaoui, in which capacity Arnold defended the security services position long after the gaping holes in its evidentiary foundation had become evident. Of course, nothing personal was involved in him doing so. Arnold was doing the best he could with the brief he had been given, and he was eventually promoted to the bench by the then Attorney-General Michael Cullen, in the light of his services on the various Zaoui national security cases and other accomplishments. Cullen himself has recently completed a review of the security services. We are a small country, with a very small legal community.

I’m not suggesting that Arnold’s past efforts in defence of the work of the security services should disqualify him from the Burnham inquiry. However, it does seem deeply ironic that the legal team representing the Afghan villagers appears to be the very same one that represented Zaoui : Richard McLeod, Deborah Manning etc. And in the coming months, they will be making their case on the NZDF’s behaviour in Operation Burnham within an inquiry presided over by their main courtroom opponent during the Zaoui proceedings. As with Zaoui, national security concerns will once again be casting a giant shadow of secrecy over the work of this inquiry’s investigations. The last time that happened, those security concerns proved to be spurious – and they largely served to perpetuate error, when the disinfectant of daylight would have better served the interests of justice.

Better than Nothing

When all is said and done, even a flawed inquiry from the current government is still better than no inquiry at all from the previous government. One can see why those who have been calling for so long for such an inquiry are now saying they are overjoyed. Yet transparency will remain a battle at every turn. A hint of what is to come was given on Monday, when the Ombudsman reported back on the NZDF’s extensive withholding of OIA-requested information on Operation Burnham. Some of the Ombudsman’s conclusions :

….the NZDF was justified in withholding most of the requested information….‘Some of the withheld information was received from with other countries who didn’t wish to declassify or release it ; and for NZDF to do so would have gravely affected other nations’ willingness to share information with us in future. Much of the withheld information also contained sensitive details which, if released, could prejudice New Zealand’s defence and security.’

And so on, and on :

Planning, execution and review of Operation Burnham: decision to withhold post-activity reports, related information, and video footage upheld…..

Civilian and insurgent casualties: decision to withhold International Security Assistance Force (ISAF) assessment report upheld….

Rules of Engagement : the decision to with-hold upheld.

The with-holding of two legal opinions provided to government was also endorsed. If this pattern is allowed to be repeated within the Burnham inquiry, things could rather quickly degenerate into an expensive farce. As this column pointed out a fortnight ago, NZDF is likely to seek to drop a similar curtain of secrecy over many, many aspects of this inquiry – and as much for reasons of self-preservation as for the protection of genuine national interests.

Perhaps this tendency could be countered (somewhat) if the inquiry chose to appoint a special advocate to be briefed by counsel, and thereafter enabled to assess the material in dispute and advise the inquiry on whether the security classification claims with respect to items in contention should, in fact, be overturned.

In sum though, what seems to be called for is the old fashioned horse sense formerly displayed by the eminent US Supreme Court justice William Brennan, who once wrote that in his opinion, “When national security is invoked to justify curtailing the rights of the accused, the courts should treat such a rationale with healthy scepticism.”

Only a fair dollop of that same healthy scepticism will enable this inquiry to avoid the dead ends, and culmination in a whitewash. The inquiry cannot be allowed to devolve into a “best we can manage in the circumstances” sort of exercise, whose boundaries are allowed to be dictated by what NZDF says is necessary for it to maintain its business-as-usual relationships with its allies – especially when in the case of Operation Burnham, it is those very relationships that have contributed heavily to the alleged abuses that lie at the heart of the inquiry.

Feeling No Pain

The two white Los Angeleno guys who comprise the DJDS production team (the name is short for DJ Dodger Stadium) are best known for their work with Kanye West on Life of Pablo. On this great neo-gospel track “No Pain” they've had the wit to bring together what, on paper, looks like a bizarre trio. Namely, the 20 year old r&b singer Khalid, the 65 year old urban veteran Charlie Wilson (former lead singer of the classic 1970s disco outfit the Gap Band) and the jazzily soulful Canadian singer, Charlotte Day Wilson.

According to DJDS, the song evolved from a session with Charlie Wilson that hadn’t quite worked out, but the way he’d sung the phrase “Feeling no pain” had stuck in their minds, and they eventually produced the rest of the song around that phrase…and the contributions of rueful determination made by the three singers all end up fitting together seamlessly. Plus, there’s a surprise ending to the video that I never saw coming…

And here’s Charlotte Day Wilson on her own, doing a killer live version of her “ Falling Apart” track…

And here’s Khalid, singing his gigantic 2017 hit “Young, Dumb and Broke...” but hey, he’s still got love to give, regardless.


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