Gordon Campbell: The Special Advocates' Dilemma
Gordon Campbell Zaoui Series: The Special Advocates' Dilemma
Like the Weasley twins in the Harry Potter saga, the special advocates appointed to the Zaoui review are the wild card element in the proceedings. Their role verges on the absurd. They are appointed by the Crown, but only in order to oppose the Crown case. They get to test the SIS secret evidence on Zaoui’s behalf, yet can’t talk to him. As Lord Bingham of the British Law Lords has said, this is nothing remotely like a normal lawyer/client relationship.
The special advocates are the token concession that the Zaoui review makes to the rules of natural justice. They are appointed to mount a defence to the SIS allegations to the best extent they can – yet this limited safeguard is only as robust as the particular advocate bothers, or is allowed, to be. Like the Weasley twins, Stuart Grieve QC and Chris Morris are able to bend the rules of the legal system only because they are among its best servants. And, in the immortal words of Ron Weasley : “ they’re raking in the Galleons ! “
In answer to Green MP Keith Locke’s parliamentary written question 11491 this year, Justice Minister Mark Burton has revealed that the SIS Inspector General Paul Neazor has spent $558,704 to date on the Zaoui review, and $425, 886 of that gone in fees to the two special advocates.
None of which is meant to cast aspersions on how whole-heartedly Grieve and Morris are tackling their job. Elsewhere though - in Canada, and in the UK – the people who do this job remain torn by the contradictions of their task. Two of the UK advocates – Ian Macdonald and Rick Scannell – have resigned in protest a couple of years ago. . The dilemma being…..are special advocates serving to make a bad system marginally better, in that the likes of Zaoui would be worse off if no-one at all was allowed to challenge the secret evidence – or are the advocates lending a figleaf of credibility to what is still an inherently unfair process, and thus allowing it to continue and even be extended ?
The fairness/unfairness of the special advocate process is not merely a debating point or a new career path for the legal profession. The innovation brought in as an ad hoc way of injecting balance into the Zaoui review has already been extended under recent passport and identity papers legislation. It is also scheduled to be introduced wholesale into immigration cases. In that sense, the special advocates are like a Trojan horse. They may look like a gift to the defence but their real function is to enable the prosecution to use secret evidence into proceedings, to the chronic detriment of the accused. To date, the legal profession in New Zealand has been asleep at the wheel over the risks that the special advocate innovation poses to the ancient right of the accused to see and challenge the evidence.
By now, I think we know the basics of the special advocate process. They are appointed by the Crown, and then get briefed and trained by the defence on all the possibly relevant evidence, based on the summaries provided. Yet once the special advocates have seen the secret evidence, they cannot communicate again with the accused. This is a significant handicap, since the accused may be the only person who can prove the secret evidence is either wrong, or misinterpreted. For this reason, the UK has sought to find mechanisms by which the special advocates can subsequently communicate on certain points, without jeopardising national security.
Given the constraints they must work under, special advocates do need to feel impelled to push the envelope as far as they can. They should be empowered for instance, to launch their own investigations, either to corroborate or to disprove the secret evidence. Even if that means that any people that they contact face to face – or on the Internet – have to be security cleared before they can possibly comment on the evidence. On this point, I said in a previous Scoop that the special advocates in the Zaoui review cannot cross examine or call witnesses.
This may no longer be true. Certainly, the 2005 UK Commons CAC investigation of the special advocates system said they couldn’t, and so did the February 2007 Charkaoui case in Canada. Yet in the Lords Hansard ( April 17, 2007) Lord Evans of Temple Guitung tabled some draft changes to the rules for special advocates in the UK, in the form of the Special Immigration Appeals Commission ( Procedure) (Amendment) Rules 2007. According to Lord Evans, these changed rules “make it clear…that special advocates may adduce evidence and cross - examine witnesses.”
These newly clarified rules could be even further transformed when the Law Lords judgement on a major case regarding control orders gets handed down, probably in October. The point being : New Zealand is barrelling through the key stages of the Zaoui review and is using the special advocate system that it imported from the UK to do so – just as the UK is rethinking how this system should operate, and trying to iron out some of its more blatant injustices.
Simultaneously, New Zealand is also talking of extending the use of special advocates into our immigration processes – via the Immigration Bill that is about to be dropped into Parliament, any day now. We seem hellbent on doing so without including the safeguards that the Brits are now belatedly seeking to graft onto the system.
It does seem crucial that Grieve and Morris should have the power to call witnesses and carry out cross-examinations. After all, they are soon due to finalise their negotiations with the SIS as to what can, and can’t be prised out of the secret files and made open to challenge by the Zaoui defence team – either because it wasn’t all that secret in the first place, or because the information has since entered the public domain, anyway.
Shouldn’t Zaoui’s lawyers – or if not them, the special advocates – be able to challenge and call witnesses about that freshly released stack of evidence ? You’d think so, right ? No one knows if that will the case, because there has been a media blackout on the procedural rules for the Zaoui review. Immigration Minister David Cunliffe, when it suits him, has taken the absurd position of treating any discussion of the rules for the conduct of the Zaoui review as sub judice. For no good reason, the mechanisms for how justice is to be delivered are being kept as secret as the secret evidence itself
Here’s another example : according to Lord Evans, “the [new] rules also establish procedures for the Home Secretary to file exculpatory material – material that supports the appellant’s case or undermines the Home Secretary’s own. The new rules accord with current…practice, in which the obligation to file exculpatory material is ongoing.”
That’s not how we do it here. If we did, it would have rather major implications for the Zaoui review, and for Cunliffe’s plans to use secret evidence in immigration cases in future. What Lord Evans and others are saying is that there is an onus on the Crown and the security services to communicate to the appellant ALL of the information they have gathered – including all the favourable stuff, and all the stuff that actually undermines the security service case.
Needless to say, the SIS have not done anything remotely like this in the Zaoui case. Instead, they have created a stereotype from the material supplied to them – much of it emanating from the Algerian junta itself – and tailored what information they could scrape together to make it fit Zaoui, even to the point of petitioning foreign governments in Europe to chip in with any material that might bolster their case. There is no sign of the SIS – or the SIS Inspector-General - acknowledging the exculpatory onus that the system we have borrowed from the UK for the Zaoui review, openly recognises and promotes.
Where, for instance, is there any sign in the SIS summary of allegations of Zaoui’s participation in the 1994 Rome conference for peace in Algeria ? Nowhere. Is the SIS even aware that leading figures in the Clinton administration ( Robert Pelletreau, Mark Parris, Anthony Lake etc ) were citing the FIS leadership in 1993-94 as a positive force towards a solution to the Algerian crisis - and were describing the FIS exile group in Europe to which Zaoui belonged as moderates, not to be confused with the extremist groups engaged in terrorism?
Have the SIS cited Zaoui’s own lectures since arriving in New Zealand, in which he has been a voice for moderation, women’s rights and interfaith dialogue - in a way that would be unimaginable for a a jihadi fundamentalist? In all likelihood, it will be left to the special advocates to bring such anomalies up, within an adversarial setting – and by doing so, they will end up doing the SIS’s job for them. Special advocates routinely function in this way behind closed doors, and thus serve to paper over the cracks in an inherently unjust process.
The irony being, New Zealand has chosen to genuflect to secret intelligence information and deny asylum seekers the rights to due process – in a context where we have no compelling reason to rely on intelligence data at all. Thanks to our non-involvement in Iraq, New Zealand is not a target for Islamic terrorism. The more that the intelligence service is caught out in bungles – and the Haneef case in Australia is only the most recent example – the more the security services will demand their cloak of secrecy, if only to perpetuate the illusion of competence.
It isn’t justified now, and they need to earn it in future. Last October, the British special advocate Andrew Nicol QC - who by chance was acting on behalf of the two UK suspects concerned, found out that the intelligence being used as key evidence in one case, was actually contradicted by the secret evidence being used in the other case.
In March 2006, Nicholas Blake QC told the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights of his deep misgivings about the use of special advocates. Blake should know. He was the defence advocate in the Chahal case in 1996 heard before the European Court of Human Rights – which led to the formation of SIAC, the British panel that is the UK equivalent of the SIS Inspector-General, and also to the introduction of special advocates.
Special advocates have never been much of a protection. As Blake says about the ten years since their introduction : “No special advocate has succeeded in demonstrating that the assessment of risk was unreasonable...” Instead, he adds, deportation has been successfully fought off on human rights grounds, not by disproving the ‘need’ for issuing the security risk certificate in the first place.
That figures. Its virtually impossible to prove that the SIS shouldn’t have issued the certificate, and far easier to show that it shouldn’t be allowed to take effect. Like Topsy, secret evidence and secret processes keep on expanding. Blake noted the expanded use of special advocates in the UK with these sardonic words : ‘There is a risk that if one has a secret system, creative minds will find greater uses for it and more material than previously will be considered secret.”
In the UK for instance, the use of secret material ( and its special advocate figleaf) now crop up in areas beyond immigration and terrorism related contexts – in parole board and employment discrimination cases and in criminal proceedings where witness protection is arguably an issue. “The precedent value of the [special advocate] procedure,” Blake says, “in legitimising secret hearings is a cause for concern…the lesson from these events is that the executive has seized on a secret procedure that is incompatible with fair trial rights, and has extended it from its original use as a safeguard against purely executive discretion.”
Has the point now been reached where special advocates do more harm than good? Not quite, perhaps. “Most who perform the role of special advocates,” Blake continues, ‘ consider that a tipping point has not yet been reached when it is better to withdraw from the system than seek to assist those whose interests they represent within it. This is a judgement that needs constant evaluation in the light of events, however.’
Indeed. Given the shonky nature of much that passes for security service evidence, the secrecy in which it insists on being cloaked IS a concern. Lord Butler, a couple of years ago underlined how unlike admissible evidence the bulk of intelligence information normally is. Intelligence traffic is routinely comprised of hearsay at second or third hand, and is largely conjectural speculation meant to support and satisfy the foreign policy interests of the governments that originate it.
When the Zaoui process began, it was very unclear as to what test of accuracy the SIS were being obliged to meet. In Canada, a lack of clarity on this point has sometimes produced some quite bizarre rulings. In the Mahjoub case for instance, the presiding judge in Canada ruled that all that needed to be proved was that there were ‘ reasonable grounds to believe certain things, as opposed to the existence of the facts themselves.’
In the landmark Suresh case, the Canadian judge reached a similar kind of conclusion : ‘ I am here to determine whether there exists sufficient evidence for me to conclude as to the reasonableness of the certificate signed by the Ministers. It is not for me to determine whether the Ministers were correct in their assessment of the evidence.” Meaning : its not whether the allegations are true, its whether they sounded credible at the time they were made.
On paper at least, Zaoui enjoys better protection. As mentioned in an earlier column, the Supreme Court confirmed that the SIS needs to prove that Zaoui must be thought on reasonable grounds to pose a serious threat to the security of New Zealand; the threat must be based on objectively reasonable grounds and the threatened harm must be substantial.
As I said, all those fine words - reasonable, serious, objective, and substantial - sound very fair and balanced. Unfortunately, the actual process of the Zaoui review also happens to be secretive, speculative, inferential and unbalanced. In reality, the presumptions of guilt and relative credibility and the mechanisms for verifying the competing claims are all skewed in favour of the SIS, and towards the certificate being confirmed. As in the UK cases, the real argument will be waged over whether Zaoui can be safely deported – and in all likelihood, that decision will be taken within a secret process as well.
SIS Inspector-General Paul Neazor may well take the high road outlined by the Supreme Court and ask – is this evidence accurate ?
Are the hypotheses about the risk Zaoui allegedly poses to New Zealand soundly based? Unfortunately, it is also possible that he take the lower road and apply in practice the limited test that his predecessor Laurie Greig outlined to me in this Listener interview in November, 2003 – and ask merely whether the allegations seemed credible at the time :
As the law stands,Greig has to weigh whether the classified SIS evidence against Zaoui is “credible and relevant”. Yet when the Immigration Amendment Bill was being framed in 1998, the original wording proposed that SIS evidence must meet the higher standard of being “accurate and reliable”. Why was “accurate and reliable” a hurdle too high for the SIS to meet? Is it too much to expect that they get it right?
“It might be, of course,” is Greig’s startling reply. “Because … the security services rely a great deal on hearsay. What is told to them. Do you refuse to listen to hearsay? There may be words told that [are] picked up on the telephone or whatever, that are not corroborated. Possibly, not possible to corroborate. But if you think you are into a link to Osama bin Laden, do you just ignore it until you’ve got it corroborated? Until you know it is right?”
We also want to ensure that people are not exposed to false or mistaken SIS accusations. So why is “credible and relevant” a better test? “Well, I don’t know,” Greig replies. “Accurate and reliable, credible and relevant. I don’t know.” The distinction matters, I suggest. After all, the US thought it had “credible and relevant” information that Iraq had weapons of mass destruction – but the information wasn’t accurate, or reliable. Does Greig see the danger? “Yes.” So how does he cope with the downside of SIS evidence having a lower standard of proof?
Greig looks nonplussed. “I don’t know. The downside of a lower hurdle? Yes. You see, I haven’t actually got to this, on this occasion yet. I’ve never been a person who thinks forward, as it were.”Judges, he feels, perhaps shouldn’t do so, until they’ve heard the story from both sides.
Perhaps by now, Neazor has got there. True – or just credible at the time? Neazor may require the SIS to prove their case is true ...or he may just sympathetically conclude that it was reasonable for them to believe the worst, given that their esteemed colleagues in foreign security agencies had told them so. Either way, we’ll never know.
Next : Human rights laws in New Zealand, post Zaoui
Disclosure : Gordon Campbell now works as a media officer for the Green Party. He has been writing about the Ahmed Zaoui case since 2003.