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The Zaoui Case - Injustice On The Cheap

The Zaoui Case - Injustice On The Cheap

By Gordon Campbell

Unless you’re talking about money, New Zealand seems fairly relaxed about the potential abuse of state power. The Auditor-General, IRD and Treasury may be funded sufficiently to keep an eye on how money is being spent and recouped - but the agencies supposed to protect our rights as citizens have to get by on starvation rations and, in some cases, with a questionable level of independence.

Algerian MP and refugee, Ahmed Zaoui.

The Police Complaints Authority, the Ombudsman’s Office, the Privacy Commissioner etc… all have obvious problems. Some totter along from one financial year to the next - underfunded, under-resourced and overlooked.

Even by these standards, the Office of the SIS Inspector-General is a special case, the kind of watchdog agency you’d expect to find down at the $2 shop. It is a part-time job with a part-time secretary, operated from a spare desk at the Chief Electoral Office, and with no in house expertise in the fields it is supposed to monitor.

Since 9/11, the size of the security agencies in New Zealand has increased and plans are now well in train for greater use of classified information in our immigration processes. Yet the resources for the post that is supposed to protect us from this expansion of security powers has not kept pace.

Last year for instance, the Government set aside a reduced annual sum of $112,000 for the SIS Inspector-General –while in the same Budget it boosted the SIS budget from $23.28 million to $43.5 million. So while the SIS budget has virtually doubled - staff numbers at the spy agency have also nearly doubled in the last couple of years, to 170 - the money set aside for the agency, which is supposed to keep a monitoring eye on any abuses of power, remains a pittance. As currently constituted, the office seems set up to fail.

The minimum qualification you need to become the SIS Inspector-General is that you must be a retired judge. Once chosen, you are then - almost literally - on your own.

Under his guiding legislation, the current Inspector-General Paul Neazor is free to conduct his investigations in the manner that he best sees fit. It has been his choice to conduct the review of even the unclassified evidence against Ahmed Zaoui in secret, free from bothersome scrutiny – by the public, by Amnesty International or by the media.

He could have chosen to do it differently.

Justice Neazor’s role is said to be inquisitorial in nature. According to Prime Minister Helen Clark that means the Zaoui review is not a trial, and is – by implication - not required to meet the standards of natural justice we normally expect to find in a court of law.

In fact, the situation could be read in the exact opposite fashion. To my mind, the bizarre nature of the Zaoui review puts a lot more onus on the I-G to be fair and balanced and absolutely independent from the SIS, and not less. It certainly does not give him license to play fast and loose with the rules.

The courts have said as much, too.

In late 2003, Justice Williams described the I-G’s post as being unique in New Zealand law. and ‘plainly far from a normal judicial role.’

Even so, the High Court went on to suggest that because the use of secret information left Zaoui in such a highly vulnerable position with respect to his ability to mount a proper defence, the I-G’s approach had to be beyond reproach.

Here is how the 2004 Greig ruling by the High Court put it :

“Unlike almost any other judicial process, the party most affected by information used adversely to his position is disqualified from access to it unless the Inspector-General rules otherwise. The Inspector-General is appointed to perform the critical function of protecting Mr Zaoui’s rights….while upholding the necessary balance between public and private interests….[Zaoui’s lawyer ] Mr Harrison submitted that the process leaves Mr Zaoui with no choice but to place blind trust in the Inspector-General’s performance of his statutory function. We would describe the relationship as one of complete reliance in this context, reinforcing the importance of the Inspector- General’s independence in performing his statutory functions.

Returning to this theme later, the Court called on the I-G to operate ‘at arm’s length’ from the SIS Director. In fact, has he? That may be the wrong question. The real question is - can he? Which takes us back to the fact that the Government has neither funded him sufficiently nor equipped him with the in-house expertise that enables him to function truly independently from the SIS Director.

Yes, Neazor’s role is inquisitorial. That doesn’t mean the process can be carried out by one elderly man going round with his tape recorder.

In 2004, the High Court said this about the I-G:

“His functions are inquisitorial and, while conducted in private, are very much of a judicial nature.

Right. To drive that point home, Neazor’s decision will itself be subject to judicial review. That will be why – presumably – the review proceedings will need to be recorded, with a transcript later available to Zaoui of all the ‘ open’ evidence proceedings.

Logically, that would be the only way that Zaoui can exercise his right to take Neazor’s final decision back to judicial review.

The reason why I’m making a meal of the legal status of the review – with all its manifest flaws – is partly because Prime Minister Helen Clark seems comfortable with the Zaoui review’s deviation from the normal rules and protections of a criminal trial, when she has no reason to be.

Other countries have done better with managing the conflict between national security and individual rights than we have.

Would it be prohibitively expensive for New Zealand to do likewise?

The cost of the Zaoui review has become a New Zealand First hobby horse. The Zaoui case has cost, at last estimate, around $2.4 million. Most of that has been incurred by the Crown’s own legal actions - taken for instance, to prevent Zaoui being given a summary of the evidence against him, on opposing his right to be granted bail, and in resisting TVNZ’s efforts to be allowed to exercise its free speech rights to screen an interview with him.

Zaoui has ended up being blamed for the Crown’s own folly.

Yes, the Zaoui defence team has received legal aid. It has been small reward compared to what the likes of Rodney Harrison QC and Deborah Manning could have been earning (or doing) if they were NOT seeing the Zaoui case all the way through to a conclusion. Try finding another QC in Auckland willing to take on years of such consuming work, while getting only legal aid rates in return. It wouldn’t be a very long queue, believe me.

Like everyone else in the media, I can’t monitor how well Neazor is fulfilling his role. Here are questions we could be asking – some of them which have already been lodged by Green Party MP Keith Locke as parliamentary written questions.

Here’s a sample :

1. Is the Inspector-General planning to make public his reasoning for the decision he finally reaches, or will that too be kept secret?

2. How many times in the last 12 months, if any, has the I-G met with the Director of the SIS or his representatives about the Zaoui case, without a Zaoui lawyer being present?

3. Does the Zaoui travel video described by the SIS in January 2004 as ‘looking suspiciously like a casing video’ still feature in the evidence for the I-G’s review - and if not, why not?

4. How many files of SIS evidence on Zaoui existed when the Immigration Minister confirmed the security risk certificate in March 2003 – and how many files of SIS evidence have now been forwarded for consideration by Neazor in the course of the review? [The relevance of this ? It is all very well for the courts to allow the SIS to add more and more information to update their original case, but the Crown’s mandate for the certificate was based on the evidence presented to the then Immigration Minister Lianne Dalziel back in early 2003 – and that’s nothing like the case now being made. The SIS have shifted the goal-posts. Has the current Immigration Minister David Cunliffe ever seen and approved the latest SIS version of its case - and if so, when? ]

5. How many of the files of SIS information forwarded for consideration by Neazor in the course of the review, do not mention Zaoui by name? [At last count, 30 out of the 55 SIS files of evidence do not mention Zaoui by name.]

6. Has Justice Neazor asked the SIS Director for advice about the credibility of any of the overseas witnesses to be called by the Zaoui defence team ? If so, who and when, – and how could this fail to be prejudiced advice?

8. Is the SIS legally required to tell the Zaoui team if its enquiries have turned up any evidence that is in Zaoui's favour, and provide them with that material? [This is important because Zaoui’s involvement in the so called “ Rome platform” peace conference in 1994 - that sought to create the basis for negotiated solution to the civil war in Algeria has been conspicuously missing from the SIS case.]

9. Does the Ministry of Foreign Affairs and Trade (MFAT) agree with the Algerian Interior Minister who said in January 2005 that the terrorist GIA group - to which the SIS has tried to allege Zaoui belongs – has now been virtually eradicated? [This is important in deciding whether Zaoui would pose a future risk if allowed to stay here.]

10 Has the SIS ever been told to find out whether any of the evidence against Zaoui was originally obtained by torture, or from paid informants? Has Justice Neazor asked the SIS to find out from the agencies overseas that supplied the information whether this is the case ?

In Canada, and the UK at least, these and related issues are being confronted. The authorities have recognised that they flow from the natural justice problems created by the use of classified evidence. It is ironic that in the shadow of the Iraq war – which exposed the shoddiness of Western intelligence gathering – that more and more power and secrecy is being attached to this kind of information, presumably to stop its shortcomings being further exposed.

Almost at random, one could select from the growing international case law and find countries that are seeking – more energetically and openly than in New Zealand – to strike a better balance between national security and individual rights.

Even Winston Peters has not urged New Zealand to resile from the United Nations Convention in 1951 - that allows Zaoui to come here and to claim asylum, and to use a false passport in order to do so.

In closing, let me cite one just such overseas case, that of Mohammed Harkat in Canada.

Here is how Justice Neazor’s Canadian equivalent, Justice Dawson, handled a situation where the Canadian security agency begged to keep information secret, because it had been supplied to them by a foreign security service. The same rationale is routinely being invoked here.

At para eight of his 2005 judgement, Justice Dawson says :

“ I received relevant information provided in confidence in March of 2003 by a foreign agency to the [Canadian security] service, and heard evidence…as to why disclosure of the information would be injurious to national security. I required CSIS to seek the consent of the foreign agency to the disclosure of the information to Mr Harkat, and adjourned for that purpose…. The Court reconvened and received advice that consent had been received from the foreign agency, for the release of the most salient information.”

Has Neazor done anything remotely along these lines? Has anyone told the SIS to go back and find out what the French and European services may be willing to release of their secret information, so that Zaoui can be enabled to challenge it?

I would bet that nothing like it has happened. Instead, the SIS has been able to get away with asserting that the release of any such information would damage our relations with foreign security agencies and prejudice us from getting any more information from them in future. Plainly, the Canadians have found out this isn’t the case.

It would be nice if we TRIED to ensure that an elected MP such as Zaoui got as much protection here under the law as Canada – no paragon in its handling of security cases - affords to its asylum seekers.

Wednesday : Security paranoia, and immigration

Past Chapters: FULL COVERAGE: Zaoui Case – The Gordon Campbell Series


Disclosure : Gordon Campbell now works as a media officer for the Green Party. He has been writing about the Ahmed Zaoui case since 2003.


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