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Nicky Hager: How To Decide Who Is A Terrorist?

How To Decide Who Is A Terrorist?

The Solicitor-General will shortly make a decision whether to approve terrorism charges against the Maori, peace and environmental activists arrested last month. Nicky Hager describes how the decision will be made and the factors the Solicitor-General needs to take into account.

It was only a few weeks ago, on 13 September, that the Government's long-fought "terror" case against Ahmed Zaoui was finally abandoned. For nearly five years, Police and SIS intelligence staff claimed they had decisive proof that Zaoui was a dangerous terrorist. Senior Labour Ministers repeated the terrorist claims and refused to intervene to stop the proceedings. The Solicitor-General and Crown Law Office staff fronted for the government in court case after court case as the claims against Zaoui were discredited.

Yet only a month after the case against Zaoui was dropped, New Zealand's 'counter-terrorism' bureaucrats were breaking down doors and claiming a new security threat, the Urewera "terrorists". We will see in the coming days if anyone has learned from the Zaoui fiasco.

The man who could set the latest terrorism case going is Solicitor-General David Collins. On Monday 29 October the Police presented him with their case against twelve people arrested in the 15 October police raids. If he gives consent to charge these people under the Terrorism Suppression Act, New Zealand could be locked into another long and damaging terrorism case.

Before explaining how David Collins will go about his decision, it's important to note what the decision is really about. It is not about whether the accused people were running around with guns in the mountains or even (as unlikely as this seems) whether they were planning to murder people. If they were illegally using guns or conspiring to murder people, they should of course be charged for those offences.

Instead the central question is whether the Police should use terrorism charges. Why, when there are well understood criminal charges that were devised for these crimes, should the Police be permitted to use contentious, untested and politically-charged "terrorism" charges against these New Zealanders?

The Solicitor-General and Crown Law Office make decisions all the time about whether Police prosecutions can proceed. For instance, all serious criminal cases that would go to a jury must first be approved by them. It's the same for appeal cases. The Terrorism Suppression Act formally gives this decision to the Attorney-General (currently Michael Cullen). But as the Crown Law Office prosecution guidelines explain, Attorneys-General have delegated this power to the Solicitor-General because they have "taken the view that it is inappropriate for them, as Ministers in the Government of the day, to become involved in decision making about the prosecution of individuals."

The Solicitor-General's prosecution guidelines, which you can read at , explain the basis upon which David Collins should decide whether to allow the terrorism charges. There are two parts to the decision:
- whether the police have sufficient evidence of offences to prosecute;
- and whether the public interest requires the prosecution to proceed.
Both halves of the decision are more complicated than they might first appear.

The first part, about sufficient evidence, begins with a decision by the Solicitor-General whether he is "satisfied that there is admissible and reliable evidence that an offence has been committed" by the particular people being charged. If he is satisfied about this, he still has to decide "whether the evidence is sufficiently strong to establish a prima facie case". The existence of a prima facie case is defined as: "if that evidence is accepted as credible by a properly directed jury it could find guilt proved beyond reasonable doubt."

The Crown Law Office is accustomed to assessing evidence for prosecutions under the Arms Act and for crimes like murder. There is a large amount of experience to guide decisions. But not for terrorism charges. The Terrorism Suppression Act was passed in 2002 in the shadow of the September 11 attacks and it primarily had international terrorism in mind. The Act has sections about unmarked plastic explosives, transporting nuclear materials and how New Zealand adopts overseas designations of which groups are terrorist. The people writing the law were primarily importing United Nations resolutions into New Zealand law, not thinking about prosecuting New Zealand political activists using guns in the mountains.

More important, the Terrorism Suppression Act is worryingly vague and, since it has never before been used, there is no experience upon which to sensibly decide where it does and does not apply. The problem is that "terrorism" is not a neutral term. It does not even have a clear and agreed meaning. The Terrorism Suppression Act does contain a (contentious) definition of "terrorism", but it gives no clarity because so much of the connotation and meaning of terrorism are not addressed.

What, for instance, is the difference between a murder or planned murder that warrants murder charges and a murder or planned murder that warrants terrorism charges? Crimes can cause widespread public fear without being "terrorism" while others are branded "terrorism" without causing public fear. It is all highly subjective.

All the measures introduced in recent years for "fighting terrorism" are trickle-down effects of the US War on Terror, that propagandist slogan of US foreign policy. The very concept of "terrorism" is highly political, rife with double standards and unstated prejudice. Complicating this further, fighting terrorism has been seen in New Zealand as a political necessity for maintaining good relations with the United States since September 11, adding still more politics to the mix.

It is likely the world will look back on the terrorism cases in the first decade of this century the way we view the McCarthyist anti-communist cases of the 1950s - as a phenomenon made up of a small part of real threats and a large part of hysteria and political vested interests.

The result is that all around the world "terrorism" cases have been occurring that are hopelessly contaminated by politics, getting in the way of fair trials and clear thinking. It is as if allegations of terrorism require less substantial evidence than do lesser crimes. Most cases start huge and sensational, cause distress in the communities which with they are associated and then eventually come to nothing. Few convictions result but much harm is done in the process.

Most of the "terror suspects" sent to the special detention centre at Guantanamo Bay, for example, have eventually been released without charges. Last year the New York Timesreported a study by Syracuse University showing that 91% of terrorism cases brought by the Federal Bureau of Investigation (FBI) that year had been turned down for prosecution. "Among the most frequent explanations cited by prosecutors, the study found, were a lack of evidence of criminal intent by the suspect and 'weak or insufficient' evidence."

In 2005 President Bush said that "federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted." The Washington Postinvestigated the subject and concluded that "39 people - not 200, as officials have implied - were convicted of crimes related to terrorism or national security. Most of the others were convicted of relatively minor crimes such as making false statements and violating immigration law - and had nothing to do with terrorism."


The Zaoui case was one of many around the world that governments have got badly wrong. The crown lawyers involved in the Zaoui case seemed blind to the huge problems with terrorist allegations, and the multiple flaws in the crown case, as they doggedly argued the security services' position. Can they do better this time?

The Police evidence in the current case will have gone first to the Crown Law Office's Criminal Law Team, who will advise the Solicitor-General on the evidence issues. Then there is still second stage of the Solicitor-General's decision: "whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed" (meaning, at present, a prosecution under the Terrorism Suppression Act).

The Prosecution Guidelines list numerous public interest factors that might influence the decision on whether to prosecute or not. First, section 3.3.4 states:

A decision whether or not to prosecute must clearly not be influenced by:

(a) the colour, race, ethnic or national origins, sex, marital status or religious, ethical or political beliefs of the accused;

(b) the prosecutor's personal views concerning the accused or the victim;

(c) the possible political advantage or disadvantage to the Government or any political organisation;

(d) the possible effect on the personal or professional reputation or prospects of those responsible for the prosecution decision.

Consider the first part on "religious, ethical or political beliefs". It sounds obvious and something we can reasonably trust the crown lawyers to respect. Except, in the case of terrorism, we cannot. With terrorism charges the decision whether or not to prosecute revolves to a great extent around the religious and political beliefs of those accused of the crimes (and, in practice, often by their race). The whole confused basis for having separate terrorism charges is that the Police are not supposed to treat everyone equally.

This is seen clearly in the United States. If a disgruntled former employee commits arson or sabotage of a business, it is normally criminal offence. If exactly the same acts are committed by a radical environmental group, it can result in special terrorism charges. There are, for instance, people in the US currently serving long prison sentences under new terrorism laws for setting fire to SUV cars, whereas people who murder others (e.g. angry people opening fire in schools or malls) are not called terrorists. A special new law called the Animal Enterprise Terrorism Act was enacted in the US in 2006 specifically to target animal rights activists.

In New Zealand we have no experience of domestic terrorism charges but the laws are similarly based on who you are and why you committed the crime. The main source of terrorism in New Zealand, as in terrorising and killing people, is domestic violence but that is not "terrorism". People can use or threaten violence and terrorise communities for the sake of money, or drug dealing, or gang conflict or any number of other purposes and be in no risk of terrorism laws either. But people accused of exactly the same crimes, if committed for a political or religious purpose, risk the parallel set of terrorism laws.

In other words the crime of terrorism is inherently discriminatory. For a given criminal act, the decision whether or not to prosecute is necessarily influenced by the "religious, ethical or political beliefs of the accused", combined with the beliefs and prejudices of those making the prosecution decision. The Terrorism Suppression Act defines a terrorist act as one "carried out for the purpose of advancing an ideological, political, or religious cause".

There are other important public interest issues that the Solicitor-General should consider as well. There is, for instance, the question of whether, if terrorism charges are used, "the consequences of any resulting conviction would be unduly harsh or oppressive" on the accused. But most important of all is the effect of the cases on society as a whole.

Democratic societies are built upon political agitation. Social progress often relies on the 'radicals'. The strength and health of a democratic society depends on how well that society looks after and protects the rights of its radicals and agitators. The people accused in the current terrorism case are not from some shadowy foreign group. They are well-known and in some cases leading political campaigners. If they have broken the law, they should of course be charged. But unless they were very clearly involved in preparation for mass murder - terrorism in the horrific and undisputed sense of the word - the use of heavy anti-terrorism laws against these people will send a chill through the community, alienating and creating fear for people legitimately involved in politics. The country would be harmed.

There is a sensible and less inflammatory course that David Collins can take. He should send the Police back to prepare charges under ordinary criminal law. If Police have a good case, let them prove it the hard way, by establishing that real and well understood crimes have been committed. This is far more likely to produce a just and credible outcome than seeking convictions on the back of sensational claims and extreme charges (aided by decision-makers who will feel pressure not to be "soft" on "terrorism").

Fortunately the war on terror is abating and clearer thinking is more possible today than it was when Ahmed Zaoui was arrested in December 2002. I suspect there are sensible people at Crown Law who will think twice about propelling the country back into another damaging and divisive war-on-terror case. Whatever happened in the Urewera, there are simpler and better ways for the Police to deal with it. We will shortly find out if sense has prevailed.


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