In this A View From Afar podcast, political scientist Dr Paul Buchanan and Selwyn Manning deep dive into the big picture that hangs over the Russian invasion of Ukraine.

That big picture has many aspects to it, and as such any resolution to the atrocities being committed in Ukraine will likely be weighed against what is a challenge to the international law and rules-based order.

In a previous episode in this series, Dr Buchanan and Manning examined how the world was transitioning into a democracies versus authoritarian bipolarity.

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This episode continues in that theme, but digs down into how descendent powers, or nations, tend to create or become entrenched in wars, and how Russia, in 2022, fits this pattern.

And, there are comparisons to global Western powers too.

But this episode goes further. It examines how transitional international moments, conflict as a systems regulator, can move to counter Russia.

In 2022, the United Nations Security Council, due to the P5 nations having veto powers, appears no longer fit for purpose.

A UN-led multilateral response to Russia’s invasion of Ukraine is unlikely.

Frustrated by Russia
The UN General Assembly appears frustrated by Russia’s refusal to acknowledge the combined insistence of the UNGA that it cease its war against Ukraine.

Against this backdrop, NATO, at this juncture, cannot directly defend Ukrainians as Ukraine was not able to become a NATO member state before Russia invaded its territory.

Sometimes rules and law provide security and stability in the world. And sometimes, as seen in 2022, it permits conflict to burn on.

As discussed, the global rules-based order is fast changing in 2022. And as such, this underscores a need to re-set the international system.

But what can be done to stop people from being killed in this unprovoked war – a war that in many ways illustrates a wider war between democracies and authoritarians, as the world transitions toward a new bipolarity?

And, if a global order reset is needed, what would that reset look like?

These are huge challenges that require sensible analysis.

You can comment on this debate by clicking on one of these social media channels and interacting in the social media’s comment area. Here are the links:

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The dilemma facing whistleblowers, journalists and publishers who risk it all to help the world’s people to become more informed. WikiLeaks founder Julian Assange finds himself crushed between these two counterbalances — the asserted right of powerful nations to operate in secret, and the right of the press to reveal what goes on in the public’s name.

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This week, on October 27-28, Julian Assange appeared before a United Kingdom court defending himself against an appeal that, if successful, would see him extradited to the United States to face a raft of indictments that ultimately could see him spend the rest of his life in prison.

The US lawyers argued largely that human rights reasons that caused the UK courts to reject extradition to the US could be mitigated. That Julian Assange’s case could be heard in Australia and if found guilty serve out jail time in his home country rather than the US.

Assange’s defence lawyer Edward Fitzgerald QC argued: “In short there is a large and cogent body of extraordinary and unprecedented evidence… that the CIA has declared Mr Assange as a ‘hostile’ ‘enemy’ of the USA, one which poses ‘very real threats to our country’, and seeks to ‘revenge’ him with significant harm.” The lawyers said the United States assurances were “meaningless”.

• READ MORE: Julian Assange must be freed, now
• Other Julian Assange case reports

“It is perfectly reasonable to find it oppressive to extradite a mentally disordered person because his extradition is likely to result in his death.” Fitzgerald QC added that a court must have the power to “protect people from extradition to a foreign state where we have no control over what will be done to them”.

Lord Chief Justice Lord Burnett, sitting with Lord Justice Holroyde, said: “You’ve given us much to think about and we will take our time to make our decision.”

The judges then reserved their decision. It is expected Assange’s fate will be revealed within weeks.

In this Special Report, we examine why the US wants this man. And we detail the space between whistleblowers, journalists and publishers who risk it all to help the world’s people to become more informed. Julian Assange finds himself crushed between these two counterbalances: the asserted right of powerful nations to operate in secret, and the right of the press to reveal what goes on in the public’s name.

Should Julian Assange be extradited from the UK to face indictments in the United States? Or should he be set free and offered a safe haven in a country such as Russia or even New Zealand?

It was always going to come down to this: Is Julian Assange captured by the assumptions people have of him, or a blurred line between a public’s right and a state’s wrong.

‘Manhunt Timeline’
The United States effort to capture or kill Assange goes back to 2010. But his inclusion in what’s called the “Manhunt Timeline” soon lost its sting when, under US President Barack Obama, it was believed if charges against Assange were brought before the US courts for his publishing activity, then he would be found not guilty due to the US First Amendment “freedom of the press” constitutional protections.

But everything changed with a new president, and a massive leak to Wikileaks of CIA secret information on 7 March 2017.

That leak of what was called Vault 7 information “detailed hacking tools the US government employs to break into users’ computers, mobile phones and even smart TVs.”

CBS News reported at the time: “The documents describe clandestine methods for bypassing or defeating encryption, antivirus tools and other protective security features intended to keep the private information of citizens and corporations safe from prying eyes.” (CBS News)

The Vault 7 leak (and earlier leaks going back to 2010) also revealed information that the US security apparatus argued compromised the safety of its personnel around the world. This aspect is vital to the US Justice Department’s case against Julian Assange.

Among a complex web of indictments and superseding indictments, the US alleges Wikileaks and Assange conspired with whistleblowers (significant among them Chelsea Manning) in what it argues was a conspiracy against the US interest. It also argues that Wikileaks and Julian Assange failed to satisfactorily redact leaked documents before dissemination or publication of the same — including details that put US personnel and agents at risk.

Prominent New Zealand investigative journalist Nicky Hager had knowledge of Wikileaks’ processes, and, going back to 2010, spent time working with Wikileaks on redacting documents.

Hager testified at The Old Bailey in London in September 2020 before a hearing of the Assange case and, according to The Australian, said: “My main memory was people working hour after hour in total silence, very concentrated on their work and I was very impressed with efforts that they were taking (to redact names).” Hager added that he himself had redacted “a few hundred” Australian and New Zealand names.

On cross examination, The Australian reported: “Hager referred in his testimony to the global impact of the publication of the collateral murder video, which shows civilians being gunned down in Iraq from an Apache helicopter, which led to changes in US military policies. He claimed it had a ‘similar galvanising impact as the video of the death of George Floyd’.” (The Australian)

But it was the Vault 7 leak that triggered the then Central Intelligence Agency (CIA) director Mike Pompeo to act. After that leak, Pompeo set out to destroy Wikileaks and its publisher Julian Assange.

Pompeo vs Assange

Mike Pompeo was appointed as CIA director in January 2017. The Vault 7 leak occurred on his watch. It was personal, and in April 2017 he defined Wikileaks as a “non-state hostile intelligence service”.

That definition triggered a shift of approach. The US intelligence apparatus and its Justice Department counterpart then re-asserted that Wikileaks and its publisher and editor-in-chief Julian Assange were enemies of the United States.

Pompeo’s definition paved the way for a more targeted operation against Assange. But, for the time being, the US public modus operandi was to ensure extradition proceedings, through numerous hearings and appeals, were dragged out while stacking an increasing number of complex indictments on the charge-sheet.

The definitions ensured the UK’s corrections system regarded Assange as a high risk and dangerous prisoner hostile to the UK’s special-relationship partner, the USA.

The tactic is well used by governments and states around the world. But in this case it appears beyond cold and calculated. As the US applied a figurative legal-ligature around the neck of Julian Assange it knew his circumstances — that he was imprisoned, isolated, in solitary confinement, on a suicide watch, handled by prison guards under a repetitive high security risk protocol. It knew the psychological impact was compounding, causing legal observers, his lawyers, his supporters — even the judge overseeing the extradition proceedings — to fear that the wall before Assange of ongoing litigation, compounded with the potential for extradition and possible life imprisonment, would overwhelm him.

Let’s detail reality here. In real terms, being on suicide-watch as a high security risk prisoner, meant every time Assange left his cell for any reason (including when meeting his lawyers), on return he would be stripped, cavity searched (which includes being forced to squat while his rectum is digitally searched, and a mouth and throat search).

This was a similar security search protocol that was used against Ahmed Zaoui while he was held at New Zealand’s Paremoremo maximum security prison. At that time Zaoui was regarded as a security risk to New Zealand. He was of course later found to be a man of peace and given his liberty. Sometimes things are not what they initially seem.

In the UK, for Assange the monotonous grind of total solitude and indignity ticked on. In the US in March 2018, Mike Pompeo was set to be promoted. He received the then US President Donald Trump’s nomination to replace Rex Tillerson as US Secretary of State. The US Senate confirmed Pompeo’s nomination and he was sworn in on 26 April 2018.

Pompeo quickly became one of Trump’s most trusted and powerful White House insiders. As Secretary of State, Pompeo toured the globe’s foreign affairs circuit asserting the Trump Administration’s position on governments throughout the world. As such, Pompeo was regarded as one of the world’s most powerful men.

Looking back, Pompeo wasn’t the first high ranking US official to regard Assange as an enemy of the state. The Edward Snowden leaks of 2014 revealed that the US government had in 2010 added Assange to its “Manhunting Timeline” — which is an annual list of individuals with a “capture or kill” designation.

This designation came during the early stages of the Obama Administration years. However, US investigations into Wikileaks then suggested Assange had not acted in a way that excluded him from being defined as a journalist and therefore it was likely Assange, if tried under US law, would be provided protections under the First Amendment constitutional clauses.

But when Pompeo advanced toward prominence, Obama was gone. And under Donald Trump, the US appeared to ignore such constitutional rocks in the road. Trump had his own beef with the US Fourth Estate, and the conditions for respecting First Amendment privilege had deteriorated.

Did Trump stop the CIA kidnap or kill plan?

Perhaps we understand the Trump Administration’s mindset more now in the wake of the 6 January 2021 insurrection where supporters of Trump stormed the US House of Representatives seeking to overturn the election result and reinstate Trump as President. Throughout much of that destructive day, Trump reportedly remained at the White House while the mob erected a gallows and sought out Vice-President Mike Pence. The mob’s reason? Because Pence had begun the process of certifying electoral college writs, an essential step toward swearing in as President the newly elected Joe Biden.

It may reasonably be argued that Trump and some members of his Administration displayed a disregard for elements of the US Constitution. But, it must also be said, that Trump had at times displayed an empathy for Julian Assange’s situation.

This week The Hill reported on Trump’s view of Assange through an interview with the former president’s national security advisor, Keith Kellogg (who is also a retired US Army Lieutenant General.

Kellogg told The Hill: “He (Trump) looked at him (Assange) as someone who had been treated unfairly. And he kind of related him to himself … He said there’s an unfairness there and I want to address that.”

Kellogg added that Trump saw similarities between Assange and himself in that Trump would not back down in the face of media attacks: “I think he kind of saw that with Julian in the same way, like ‘ok, this guy’s not backing down’.” (The Hill)

Kellogg’s account seems incongruous to what we now know. On 26 September 2021, a Yahoo News media investigation delivered a bombshell. It revealed how the CIA had planned to kidnap or kill Assange.

But more on the detail of that below. First, let’s look at a confusing picture of how former President Trump’s words do not meet his Administration’s actions.

We know that “someone” in the Trump Administration put a halt to the CIA’s kill or capture plan. We just do not know whether Trump commanded its cessation, or whether Pompeo or Trump’s attorney-general/s operated outside the former president’s orbit. But we do know the US Justice Department pursued Assange through an intensifying relentless application of indictments of increasing severity and complexity. If it is an MO, then it is reasonable to suggest the legal wall of indictments and the CIA’s plan to kill or capture were potentially one of the same.

Which segues back to the details of the US case against Assange.

The US Justice Department vs Assange
In March 2019, The Washington Post reported that US Whistleblower Chelsea Manning had been subpoenaed to testify before a grand jury in the investigation of Julian Assange. The Post correctly suggested that the US Justice Department appeared interested in pursuing Wikileaks before a statute of limitations ran out.

Washington Post reported: “Steve Vladeck, a professor at the University of Texas at Austin School of Law, said the Justice Department likely indicted Assange last year to stay within the 10-year statute of limitations on unlawful possession or publication of national defense information, and is now working to add charges.” (Washington Post)

Then, On April 11 2019, after high-level bilateral meetings between the US and Ecuador, the Ecuadorian Government revoked Assange’s asylum. The UK’s Metropolitan Police were invited into Ecuador’s London embassy and Assange was arrested. 

Once Assange was in custody (pending the outcome of a court ruling of what eventually became a 50 week sentence for breaching bail) the United States made its move. On 11 April 2019 (the same day Ecuador evicted him) US prosecutors unsealed an indictment against Assange referring back to information that Wikileaks had released in stages from 18 February 2010 onwards. (US Justice Department)

This video, known as the collateral murder video, was among the Wikileaks release. The video is of US military personnel killing what they initially thought were Iraqi insurgents. It also displays an apparent indifference by US personnel when, shortly after, it was revealed by ground troops that there were civilians killed, including women and children (and also what were later found to be journalists). The leaked video exposed the United States to potential allegations of war crimes.

The video, and the accompanying dossier of US classified documents, shocked the world and revealed what had been covered up by US secrecy. The information that was leaked by then US Military intelligence analyst Chelsea Manning, and published by Wikileaks and provided to a select group of the world’s most prominent media, was arguably a tipping point for public sentiment regarding the US invasion and occupation of Iraq. It was, in the <2010 decade, on a par with revelations of abuses of detainees by US personnel at Abu Ghraib prison.

In a release to the US press, the Justice Department’s office of international affairs stated: “According to court documents unsealed today, the charge relates to Assange’s alleged role in one of the largest compromises of classified information in the history of the United States.”

It connected to how Wikileaks had acquired documents from US whistleblower Chelsea Manning. The leak contained 750,000 documents defined as “classified, or unclassified but sensitive” military and diplomatic documents. The documents included video. The sum of the leaks detailed what were regarded generally as atrocities committed by American armed forces in Iraq and Afghanistan.

The leaked material was also published by The New York Times, Der Spiegel and The Guardian. In May 2010, Manning was identified then charged with espionage and sentenced to 35 years in a US military prison. Later, in January 2017, just three days before leaving office, US President Barack Obama commuted Manning’s sentence.

On 23 May 2019, the US Justice Department issued a statement confirming Assange had been further charged in an 18-count superseding indictment that alleged violation of the Espionage Act 1917. It specifically alleged (among other charges) that Assange conspired with Chelsea Manning in late 2009 and that: “… Assange and WikiLeaks actively solicited United States classified information, including by publishing a list of ‘Most Wanted Leaks’ that sought, among other things, classified documents. Manning responded to Assange’s solicitations by using access granted to her as an intelligence analyst to search for United States classified documents, and provided to Assange and WikiLeaks databases containing approximately 90,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 US Department of State cables.” (US Justice Department)

The superseding indictment added: “Many of these documents were classified at the Secret level.”

It’s also important to note, a superseding indictment, in this context carries heavy weight. It isn’t merely a charge lodged by an investigative wing of government, but issued by a US grand jury.

The May 2019 superseding indictments ignited a stern rebuttal from powerful media institutions.

The Washington Post and The New York Times, as well as press freedom organisations, criticised the government’s decision to charge Assange under the Espionage Act, characterising it as an attack on the First Amendment to the United States Constitution, which guarantees freedom of the press. On 4 January 2021, District Judge Vanessa Baraitser ruled against the US request to extradite him and stated that doing so would be “oppressive” given his mental health. On 6 January 2021, Assange was denied bail, pending an appeal by the United States. (Wikipedia.org)

In normal times an assault on the US First Amendment through a clever legal move would destroy a presidency. But these were not normal times.

Ultimately, the powerful US Fourth Estate fraternity failed to ward off the Trump Administration’s men. Trump himself was by this time already hurling attacks on the credibility and purpose of the United States media. And, he tapped in to a constituency that distrusted what it heard from journalists.

Then on 24 June 2020, the US Justice Department delivered more charges against Assange, this time with an additional superseding indictment that included allegations he conspired with “Anonymous” affiliated hackers: “In 2010, Assange gained unauthorised access to a government computer system of a NATO country. In 2012, Assange communicated directly with a leader of the hacking group LulzSec (who by then was cooperating with the FBI), and provided a list of targets for LulzSec to hack.” (US Justice Department)

As the Trump presidency ran out of steam, and arguably created its own attacks on the US national interest, Democratic Party candidate Joe Biden won the election and became the 46th President of the United States.

Why Assange was imprisoned in the UK

Julian Assange was tried before the UK courts and convicted for breaching the Bail Act. He was sentenced to 50 weeks in prison. He was expected to have been released after five to six months, but due to the US extradition proceedings and appeal he was held indefinitely.

The initial bail conditions (of which Assange was found to have breached) were set resulting from an alleged sexual violence allegation made in Sweden in 2010. Assange had denied the allegations, and feared the case was designed to relocate him to Sweden and then onto the US via a legal extradition manoeuvre — hence this is why he sought asylum at the Ecuadorian Embassy. Assange was never actually charged by Swedish authorities nor their UK counterparts, but rather the initial bail breach related to a move to extradite him to Sweden.

Also, as a side-note: in November 2019, Swedish prosecutors dropped their investigation into allegations of sexual violence crime. The BBC reported that Swedish authorities dropped the case as it had: “Weakened considerably due to the long period of time that has elapsed since the events in question.”

Meanwhile, Assange was imprisoned at London’s Belmarsh maximum-security prison where he was incarcerated indefinitely pending the outcome of US extradition proceedings.

There is an irony that in January 2021, the week Assange was denied bail pending the outcome of the US-lodged appeal, back in the US a mob loyal to Trump attempted a coup d’etat against the US constitution.

Out with Trump, in with Biden
On 20 January 2021, Joe Biden was sworn in as US President. Around the world a palpable mood of change was anticipated. It’s fair to say those involved or observing the Assange case were hopeful the United States under Joe Biden’s presidency would withdraw the initial charges and superseding indictments.

But, that was not to be.

Then on 26 September 2021, a Yahoo News media investigation delivered a bombshell. It revealed how the CIA had planned to kidnap or kill Assange.

The investigation’s timeline revealed a plan was developed in 2017 during Pompeo’s tenure at the CIA and considered numerous scenarios where Assange could be liquidated while he resided at the Ecuadorian Embassy. The investigation was backed by “more than 30 US official sources”. (Yahoo News)

The media investigation stated: “… the CIA was enraged by WikiLeaks’ publication in 2017 of thousands of documents detailing the agency’s hacking and covert surveillance techniques, known as the Vault 7 leak.” 

It added that Pompeo: “was determined to take revenge on Assange after the (Vault 7) leak.”

Apparently, the CIA believed Russian agents were planning to remove Assange from the Ecuadorian Embassy and “smuggle” him to Russia: “Among the possible scenarios to prevent a getaway were engaging in a gun battle with Russian agents on the streets of London and ramming the car that Assange would be smuggled in.”

It appears a wise-head in the Trump Administration ordered a halt to the CIA plan due to legal concerns. Officials cited in the investigation suggested there were: “Concerns that a kidnapping would derail US attempts to prosecute Assange.”

It would also be reasonable to suggest that a prosecution would be difficult should Assange be dead.

As the US extradition appeal loomed, Julian Assange’s US-based lawyer Barry Pollack reportedly said: “My hope and expectation is that the UK courts will consider this information (the CIA plot) and it will further bolster its decision not to extradite to the US.”

Assange’s partner Stella Morris, on the eve of the US extradition appeal proceedings also said reports of the CIA’s plan “was a game-changer” in his fight against extradition from Britain to the United States. (Reuters)

Greg Barnes, special council and Australian human rights lawyer and advocate spoke this week to a New Zealand panel (A4A via the internet): “Now we know that the CIA intended effectively to murder Assange. For an Australian citizen to be put in that position by Australia’s number one ally is intolerable. And I think in the minds of most Australians the view is that the Australian Government ought to intervene in this particular case and ensure the safety of one of its citizens.”

Barnes added that the Assange case is now a human rights case: “I can tell you that the rigours of the Anglo-American prison complex which we have here in Australia and in which Julian is facing at Belmarsh (prison in London) are such that very few people survive that system without having severe mental and physical pain and suffering for the rest of their lives.

“This should not be happening to an Australian citizen, whose only crime, and I put quotes around the word crime, has been to reveal the war crimes of the United States and its allies.” (A4A YouTube)

The respected journalist advocacy organisation Reporters Without Borders (Reporters Sans Frontières, or RSF), this week called for the US case against Assange to be closed and for Assange to be “immediately released”. (Reporters Without Borders)

RSF added: “During the two-day hearing, the US government will argue against the 4 January decision issued by District Judge Vanessa Baraitser, ruling against Assange’s extradition to the US on mental health grounds. The US will be permitted to argue on five specific grounds, following the High Court’s decision to widen the scope of the appeal during the 11 August preliminary hearing. An immediate decision is not expected at the conclusion of the 27-28 October hearing, but will likely follow in writing several weeks later.”

RSF concluded: “If Assange is extradited to the US, he could face up to 175 years in prison on the 18 counts outlined in the superseding indictment… (If convicted) Assange would be the first publisher pursued under the US Espionage Act, which lacks a public interest defence.”

RSF recently joined a coalition of 25 press freedom, civil liberties and international human rights organisations in calling again on the US Department of Justice to drop the charges against Assange.

Beyond Belmarsh Prison – human rights and asylum options

There remains a logical and considered question as to what will become of Julian Assange should his legal team successfully defend moves of extradition to the United States.

Whistleblower Edward Snowden has found relative safety living inside the Russian Federation. But beyond Russia there are few safe-haven options available to Julian Assange.

This week a group called A4A (Aotearoa for Assange) coordinated an online panel of human rights advocates and whistleblowers to consider whether New Zealand should become involved.

It was a serious move. The panel included the United States’ highly respected Pentagon Papers whistleblower Daniel Ellsberg. (Pentagon Papers, Wikipedia)

Daniel Ellsberg told the panel: “A trial under (the Espionage Act) cannot be a fair trial as there is ‘no appeal to motives, impact or purposes’.”

“A trial under the Espionage Act could not permit that person to tell the jury why they did what they did,” Daniel Ellsberg said. “It is shameful that President Biden has gone in the footsteps of President Trump. It is shameful for President Biden to have continued that appeal.

“To allow this to go ahead is to put a target on the back of every journalist in the world who might consider doing real investigative journalism of what we call the National Defence or National Security…”

It’s a valid point for those that work within the sphere of Fourth Estate public interest journalism. While in New Zealand, there are rudimentary whistleblower protections, they fail to protect or ensure anonymity. For journalists, if a judge orders a journalist to reveal her or his source(s), then the journalist must consider breaching the code of ethics required from the profession, or acting in contempt of court.

In the latter case, a judge can, in New Zealand, order the journalist to be held in custody for contempt, and it should be pointed out there is no time limit of incarceration. Defamation law is equally as draconian. In New Zealand (unlike the United States) a journalist accused of defamation shoulders the burden of proof — to prove a defamation was not committed.

The chill factor (a reference to pressures that cause journalists to abandon deep and meaningful reportage) is real.

Daniel Ellsberg knows what this means. And he fears, that if the US wins its appeal against Assange, it will erode the Fourth Estate from reporting on what goes on behind the scenes with governments: “… there will be more Vietnams, more Iraqs, more acts of aggression… A great deal rides (on this case) on the possibility of freedom.”

His comments connect remarkably with those of former New Zealand prime minister, and former administrator of the United Nations Development Programme (UNDP), Helen Clark.

In a previous online discussion, Clark was asked what she thought of Julian Assange’s case. In a considered reply she said: “You do wonder when the hatchet can be buried with Assange, and not buried in his head by the way.

“I do think that information that’s been disclosed by whistleblowers down the ages has been very important in broader publics getting to know what is really going on behind the scenes.

“And, should people pay this kind of price for that? I don’t think so. I felt that Chelsea Manning for example was really unduly repressed.

“The real issue is: the activities they were exposing and not the actions of their exposure,” Helen Clark said.

The US appeals case this week is not litigating the merits of its indictments. But rather it has attempted to mitigate the reasons Judge Vanessa Baraitser denied extradition in January 2021. The US legal team has suggested to the UK court that Assange’s human rights issues could be minimised should he face trial in his native Australia, that if found guilty that he could serve out his sentence there. It gave, however, no assurances that this would occur.

On the eve of the appeal, and appearing before the A4A online panel was Dr Deepa Govindarajan Driver.

Dr Driver is an academic with the University of Reading (UK) and a legal observer very familiar with the Assange case. The degree of human rights abuses against Assange disturb her.

Dr Driver detailed what she had observed: “Julian Assange was served the second superseding indictment on the first day of trial. When he took his papers with him, back to the prison, his privileged papers were taken from him. He was handcuffed, cavity searched, stripped naked on a daily basis. [This is] a highly intelligent human being who we already know is on the Autism Spectrum. To be put through the indignities and arbitrariness of the process which is consistently working in a way that doesn’t stand with normal process…

“For somebody who has gone through all of this for a number of years, it has its psychological impact. But it is not just psychological, the physical effects of torture are pretty severe including the internal damage that he has.”

She added: “We expect the high court will recognise the kind of serious gross breaches of Julian’s basic rights and the inability for him to have a fair trial in the UK or in the US and that this case will be dismissed immediately.”

On the merits of whistleblowers, Dr Driver said: “You can see through the Vault 7 leaks how much the state knows about what is going on in your daily lives… As an observer in court I see how he (Julian Assange) is being tortured on a day to day basis. His privileged conversations with his lawyers were spied on.”

Dr Driver said the Swedish allegations were never backed up with charges. In fact the allegations were dropped due to time and insufficient evidence.

The UN Special Rapporteur on Torture, Nils Melzer, concluded after his investigation of the Swedish allegations that Assange was never given the opportunity to put his side of the case.

Dr Driver said: “In any situation where there is violence against women, and I say this as a survivor myself, people are meant to be presumed innocent until proven guilty. And, this new trend which is accusation-equal-to-guilt is a bad trend because it undermines the cause of women, and it prevents women from getting justice — just as it happened in Sweden because indeed nobody will ever know what happened between Julian and those women other than the two parties there.”

A crime left undefended or a case of weaponising violence against women?
Dr Deepa Driver said: “If cases like this are not brought to court, then neither the women nor those accused like Julian get justice. And it is Lisa Longstaff at Women Against Rape who has said time and again, ‘this is the state weaponising women in order to achieve its own ends and hide its own war crimes’. And this is what Britain and America have done in weaponising the case in Sweden, because Sweden was always about extraditing Julian (Assange) to America.”

She suggested Assange’s situation was a human rights case where he was the victim. The view has validity.

The United Nations’ special rapporteur Nils Melzer issued a statement on 5 January 2021 welcoming the UK judge’s ruling that blocked his extradition to the United States (a ruling that this week was under appeal).

Melzer went on: “This ruling confirms my own assessment that, in the United States, Mr. Assange would be exposed to conditions of detention, which are widely recognised to amount to torture or other cruel, inhuman or degrading treatment or punishment.”

Melzer said the judgement set an “alarming precedent effectively denying investigative journalists the protection of press freedom and paving the way for their prosecution under charges of espionage”.

“I am gravely concerned that the judgement confirms the entire, very dangerous rationale underlying the US indictment, which effectively amounts to criminalizing national security journalism,” Melzer said.

In summary Melzer said: “The judgement fails to recognise that Mr Assange’s deplorable state of health is the direct consequence of a decade of deliberate and systematic violation of his most fundamental human rights by the governments of the United States, the United Kingdom, Sweden and Ecuador.”

He added: “The failure of the judgment to denounce and redress the persecution and torture of Mr Assange, leaves fully intact the intended intimidating effect on journalists and whistleblowers worldwide who may be tempted to publish secret evidence for war crimes, corruption and other government misconduct”. (UNCHR)

A call for New Zealand to provide asylum
This week, US whistleblower Daniel Ellsberg applauded New Zealand’s independent global identity. And, he called for New Zealand’s Prime Minister Jacinda Ardern to provide an asylum solution should Julian Assange be released.

Dr Ellsberg’s call was supported by Matt Robson, a former cabinet minister in Helen Clark’s Labour-Alliance government and whom currently practices immigration law in Auckland.

Matt Robson said: “We can support this brave publisher and journalist who has committed the same crime, in inverted commas, as Daniel Ellsberg — to tell the truth as a good honest journalist should do. Our letter to our (New Zealand) government is a plea to do the right thing. To say directly on the line that is available, to (US) President Biden, to free Julian Assange.”

Australian-based lawyer Greg Barnes said: “New Zealand plays a prominent and important role in the Asia-Pacific region and it is not beyond the realms of possibility that the New Zealand government could offer Julian Assange what Australia appears incapable of doing, and that is safety for himself and his family.”

So why New Zealand?

Daniel Ellsberg said: “There are many countries that would have been supportive of Assange, none of whom wanted to get into trouble with the United States of America. Of all the countries in the world I think you can pick out New Zealand that has dared to do that in the past. I remember the issue over whether they would allow American warships into New Zealand harbours.

“Julian Assange should not be on trial,” Daniel Ellsberg said. “And given he is indicted, he should not be extradited. It is extremely important, especially to journalists.

“To allow this to go ahead is to put a target, a bull’s eye, on the back of every journalist in the world who might consider doing real investigative journalism of what we call national security. It’s to assure every journalist that he or she as well as your sources can be put in prison, kidnapped if necessary to the US.

“That is going to chill (journalists) to a degree that there will be more Vietnams, more Iraqs, more acts of aggression such as we have just seen. The world cannot afford that. A great deal rides on the policy matters on the possibility of freedom,” so said Daniel Ellsberg — the US whistleblower who blew the lid off atrocities that were committed in Vietnam.

Conclusion
Of course there are always complications, such as executive government leaders involving themselves in judicial matters. But sometimes a leader does the right thing, simply because it is the right thing to do — as Helen Clark did early on in her prime ministership when she extended an olive branch to people fleeing tyranny onboard a ship called the Tampa, which was under-threat of sinking off the coast of Australia. Helen Clark brought the Tampa refugees home to a new place called Aotearoa New Zealand, and we have been better off as a nation because of it.

Investigative journalist Selwyn Manning is editor of Evening Report. a partner of Asia Pacific Report.

There is a mood circulating among some New Zealand circles that it would end badly for the Green Party in 2023 should it negotiate a part within a now-powerful Labour-led government.

The argument goes: that should the Greens negotiate roles within the new government, that their voice and policies would be watered down, rendered irrelevant by the large, expanded, Labour Party.

That Labour’s success in being able to govern alone would mean the Green Party’s place and purpose would be seen to be irrelevant.

• READ MORE: More reports and analysis on the NZ elections

It boils down to a resistance to govern for fear of being seen as mediocre.

But the counter-argument suggests: should the Green Party bow to the above narrative – to shy away from an opportunity to assert its core environmental and climate policies, to abandon the ability to inject itself into the new Executive Government’s priority policy settings – then it would relegate itself into legislative insignificance and potential political oblivion by 2023.

It would also pay-waste to the ministerial experience, gains and momentum that its members of Parliament established during the 2017-20 term.

It can be argued, the Greens have proven that the Red-Green tag-team works. Unlike Winston Peters’ New Zealand First, the Greens have experienced an increased share of electoral and party list support, despite one-spectacular own goal, and despite being in government as a smaller party within the 2017-20 Labour-led Government.

Redefining MMP history
That is redefining MMP history.

Let’s examine that phenomenon.

Traditional Green support (that withdrew in large numbers during the 2017 election campaign) returned in part in 2020 perhaps to assist their Green Party to survive. The effect: the Green Party avoided the sub-five percent dry horrors and indeed secured a generational-shift with Chloe Swarbrick’s impressive win in Auckland Central.

As such, the Greens have made history, defining a maturing of New Zealand voter behaviour where, as a third party, have increased voter support after presiding over significant ministerial portfolios in partnership with a large party-led government.

The Greens should avoid the cautious, strategic trap. Should the Greens shy away from negotiating, then they will likely commit themselves to a future of legislative irrelevance.

That scenario would see its natural partner party Labour – under Jacinda Ardern, an environmentally and climate change sensitive leader – hoover up good and sound Green Party policy and make it its own.

It appears, Labour does not want to do that.

Consensus building
Labour leader and Prime Minister Jacinda Ardern indicated on election night and over the weekend, her wish to embark on consensus building. Her call on Sunday to Greens co-leader James Shaw set out a pathway ahead toward negotiations.

While refusing to get ahead of herself on the elements of discussions between Labour and the Greens, she clearly indicated an intention to develop a consensus around policy, and use common ground as a basis of dialogue.

Those are strong negotiation points that the Green leadership, caucus and membership can leverage from.

Also, both Labour and the Greens share a need to cement in a consensus-driven red-green bloc, a movement of significance, that could reshape Aotearoa New Zealand society, policy-sets, and the political and economic environment for the next two Parliamentary terms.

This was a bloc of significance in determining the make-up of Government in 2017, it played a significant part in Labour’s connection to environmentalism in 2020, and will prove absolutely necessary once Labour’s main opponent, the National Party, re-invents itself to campaign as match fit and as a centre-right cabinet-in-waiting in future election cycles.

This, one get’s a sense, is what drives the Prime Minister’s pursuit of consensus building at a time of absolute power. That, in turn, offers the Green negotiators a powerful lever beyond what the numbers would suggest – ie; mutual interest.

It’s likely, Labour knows the 2020 election result is the zenith of its political successes.

Labour not a broad-tent party
Labour is not a broad-tent party. In Jacinda Ardern, it has exceptional leadership. In Grant Robertson, it has solid, assuring, strategic financial leadership. It has a deep and deepening pool of political talent in ministers that stretch well beyond the top-five.

It has a ministerial line up that now has significant ministerial experience. It has a pool of caucus members ready to express their commitment to Executive Government representations.

One gets the strong sense it is the party, with the politicians, with the policy sets… for this time. Interventionism, Keynesian economics shaped for the 2020 decade, and a government with the energy to get things done.

The most enduring criticism of the Ardern-led government is the pace of incrementalism. And that, is something that the challenges of these times can demand be addressed.

It is also an idiosyncrasy of which the Green Party can challenge with considerable honest broker-ship. One gets a sense that the elements of a unified red-green bloc could well sustain voter enthusiasm through this term and potentially 2023-2026.

Labour’s Prime Minister, Jacinda Ardern’s post-election media stand-ups demonstrate she knows this.

Jacinda Ardern’s wish to build consensus across the centre-centre-left, acknowledges the success of the Green Party’s election campaign. She also has indicated an interest to have discussions with the Maori Party should special votes shore up its election night win in Waiariki.

Cooperation with Māori Party
Her comments appear to signal to Māori that the Ardern-led Labour Party wants to work with, and cooperate with, every Māori  MP that the Māori electorate voters send into Parliament.

So is the host of Green Party MPs really reluctant to join their successes with Labour’s landslide?

It appears not.

While significant debate is occurring within the party’s membership – again that should the Greens enter into a coalition, then that will end badly for them in 2023 – the Green leadership has indicated an eagerness to negotiate.

Co-leaders James Shaw and Marama Davidson have been clear, there is much work yet to do beyond what they achieved during the 2017-20 term (despite New Zealand First’s centre-right hand-break) and are keen to have their ministers and caucus talent play their rightful part.

Additionally, Chloe Swarbrick’s impressive performance winning Auckland Central demands recognition of significance. A strong signal of resolve and commitment to the generation Swarbrick represents, would be to promote her to the executive so as to initiate her to the demands of ministerial politics and governance. One get’s the sense Chloe will become a highly significant element of future governments, and now would be the perfect time for her to engage in that journey.

Meanwhile, after specials, with a slightly expanded caucus (potentially including the impressive activist Steve Abel), the Greens can definitely broker relevancy on party-based constituency issues, principles, while rolling their collective sleeves up to develop policy throughout the term.

Larger slice of research budget
Indeed with a larger slice of a Parliamentary Service research budget, the Green caucus can truly embrace opportunities for fact-based environmental activism, and work with like-minded ministers to get real gains for their voters, members, and Aotearoa New Zealand.

Such opportunity does not call for reticence. In other words, the opportunity is reality, the dangers are, at this time, abstract. With political planning, such perceived dangers can be rendered irrelevant and relegated to very last-century thinking.

After all, voters do vote for a party’s policies on the understanding that should they be able to inject those policies into government then real change will be achieved. To shy away from that democratic mandate would be an abuse of the support that the Green Party has been given.

Selwyn Manning is editor of Evening Report  and a frequent contributor to Asia Pacific Report.

It all boils down to this: The timeline of latest revelations suggests National Party MPs placed their “want to GET their opponents” – the Ardern government – ahead of concerns that covid-19 was potentially un-contained and again infecting New Zealanders.

Is this a step too far for the Todd Muller-led party?

We are debating the issue where two women, who had recently arrived from the United Kingdom and were in isolation, were released on compassionate grounds to travel freely between Auckland and Wellington to visit a dying parent – this while infected with the covid-19 virus.

READ MORE: NZ’s covid-19 botch-up” ‘Next few days will be crucial’

In the latest revelations to Parliament yesterday (the government revealed) National Party MP Chris Bishop had lobbied for the two women asking officials to  “expeditiously” consider releasing the women from quarantine so they could visit their dying parent.

While Bishop was just doing his job, it set in train a failure by New Zealand officials to follow government instructions to keep those who have recently crossed our borders isolated and quarantined.

That is, until international travellers have proven to be free of covid-19.

Earlier this week, National MP Michael Woodhouse delivered a bombshell in Parliament. He revealed that two women – who had recently arrived in New Zealand, who had travelled from the United Kingdom to New Zealand via Doha (in Qatar) and Australia – had been released early from quarantine prior to their Covid-19 status being determined.

As Radio New Zealand reported, Woodhouse said:

“They called on acquaintances who they were in close contact with and that was rewarded with even more close contact – a kiss and a cuddle.” The source also told him the women had borrowed the car, raising the question of whether there was further undisclosed contact.

Once in Wellington, they had visited their dying parent before tests showed they were carrying the deadly virus. It was not clear how many New Zealanders they had actually come into contact with – some reports suggested up to 320 people had potentially been infected with the covid-19 virus.

Woodhouse’s claims rocked the government. Reeling and on the back-foot, ministers, including the Prime Minister Jacinda Ardern, scrambled to gather information. Later that afternoon, it was confirmed that Woodhouse was correct.

Health officials were summoned. Breaches of the government’s strict controls were discovered.

The Prime Minister, clearly appalled and fed up with having earlier received official assurances that the controls were being followed, was later informed that that was not the case.

Her response? She ordered the military to replace public servants, that Air Commodore Digby Webb would oversee and manage the quarantine and isolation control requirements.

Social media zealots
Throughout Wednesday, National MPs, supporters, some commentators, and a tribe of social media zealots called for the resignation of the Health Minister, David Clark. The Prime Minister refused and stood by her minister stating he was a part of efforts to fix this issue, and not a part of the problem.

But, what Woodhouse did not reveal, was that one of his fellow National Party MPs, Chris Bishop, had lobbied to have the two women released early so they could drive from Auckland to Wellington.

Here’s the crucial timeline as Bishop has now confirmed:

To RadioNZ’s Checkpoint he said:

On Friday (June 12) a “mutual friend” sent him a Twitter message describing to him the plight of the two women who had arrived in NZ to see their dying parent but who were in secure quarantine while their parent’s condition was deteriorating.

“I said [to the mutual friend] they should send me an email.”

“I was contacted on Friday night by the two women via email, when I saw the email on Saturday afternoon I forwarded it to the email address provided to MPs for that purpose, and asked the officials to look at it ‘expeditiously’, I think was the language used.”

Afterwards, Bishop said he had emailed the women back to let them know he had passed on their request, and their correspondence ended after that with the pair thanking him.

Bishop added: “I did what MPs are … obliged to do and dozens of MPs from around the Parliament will have done over the last three months or so, I’ve dealt with probably hundreds of inquiries and forwarded them on to the appropriate address, everything from essential businesses to immigration matters through to this case.”

Now, that may have been the case. MPs are often compelled to act on the interests of constituents and citizens. And, it should be said, Chris Bishop is a hard-working and well-respected member of Parliament.

Snakes and mirrors
But this is where the snakes and mirrors creeps in.

Every Tuesday morning, when Parliament sits, National MPs hold a caucus meeting where, in private, they discuss, among other things, party issues and organise what information they will raise in Parliament later that day.

It is reasonable to realise, on the morning of Tuesday, June 16, while at caucus, National’s MPs would have discussed the bombshell. At caucus they would have decided who among them would deliver the blow, a strategy would have been decided upon on how the politics of it all would be handled.

And here, it is likely, where National decided to sit on the information until it set this political dynamite alight in the debating chamber later that afternoon.

As the vital hours passed, National placed political interests ahead of the public interest.

National’s MPs knew, as the good New Zealand public knows, that Covid-19 is the most deadly virus to have swept the world in our lifetimes. The pandemic is raging offshore as you read this.

It appears, National MPs, and its leadership, willingly withheld information it had acquired from its “reliable but confidential source” from health officials and the Government.

Hundreds at risk
As they stated later that day, hundreds could have caught covid-19 in the days the two women were among our communities. And as Radio New Zealand’s political editor Jane Patterson wrote: “The next few days will be crucial. Testing and contact tracing that will be frantically happening should give us a better idea of whether this is limited to just the two women, or if the failures at the border are going to have more wide-reaching consequences.”

Time, when it comes to covid-19, is crucial.

Morally, on being informed of the two women having tested as covid-19 positive, National should have immediately informed the Prime Minister’s office of the issue, called a press conference where it cited their informant, exposing the government’s officials for having placed New Zealanders at further risk, and claimed the political highground.

Instead, it sat quiet, while the hours ticked away, while New Zealanders who may have been in contact with the infected women went about their daily tasks, contacting others, placing more people at risk.

If covid-19 gets away on us again, New Zealand could return to lockdown. That would cause huge strain on an already strained economy and could see more New Zealanders die.

National’s decision is, in my opinion, beyond dirty politics. It exposes a party to being prepared to put New Zealander’s lives at risk just so it can deliver a political hit job.

‘Desperate attempt’
In defence of his own actions, on Thursday MP Chris Bishop said: “This was a desperate attempt by the government to distract away from their incompetent management at the border and I think it’s frankly pretty disgraceful that an MP doing their job is being dragged into this.”

Bishop, in my view, on the evidence available so far, has little to apologise for. He was doing his job.

But as for National’s leadership team, rather than the Minister of Health resigning, decency would insist they should front-up to explain why they put Kiwis lives at risk by holding on to that crucial information.

On the information at hand, it is they, rather than the Minister of Health David Clark, who should resign.

But we all know – despite this revelation – they will not.

Ref. Parliament TV, Oral Questions, Todd Muller to the Prime Minister, June 17, 2020.

Ref. Parliament TV, Oral Questions, Michael Woodhouse to the Minister of Health, June 17, 2020.

Ref. Parliament TV, Oral Questions, Michael Woodhouse to the Minister of Health, June 18, 2020.

Ref. Parliament.nz oral questions, June 17, 2020.

Selwyn Manning is editor and publisher of EveningReport.nz, a partner publication of Evening Report, and is a research associate of the Pacific Media Centre.

It is clear and proper that New Zealand’s Ministry of Foreign Affairs and Trade is closely monitoring a concerning situation of deteriorating violence in West Papua.

It is also apparent that groups who have long monitored the security situation in West Papua have contacted the New Zealand Prime Minister, Jacinda Ardern, urging her to speak up against the violence and human rights abuses in the Indonesian-controlled state. I believe the Prime Minister should. Here’s why.

When considering the history of West Papua – the increasing violence; the enduring wish of its peoples for self-determination; the arrests on treason charges of those who seek a pathway toward independence; the intensifying concerns of its immediate neighbours Papua New Guinea, Vanuatu, and the states that make up the Melanesian Spearhead Group – it would be a brave but significant step should New Zealand also add its considerable weight behind a call for a multilateral-led resolution to the West Papua conflict.

LISTEN: Selwyn Manning talks West Papua on RNZ’s The Panel

New Zealand’s reputation as an honest-broker on global human rights issues, and the Prime Minister’s significant reputation for being able to identify common-ground, and, map out a way forward for parties with disparate interests, would provide significant leverage and resolution to a conflict that is at risk of becoming a human catastrophe.

Also, New Zealand is right smack in the middle of the Asia Pacific region. Despite Australia’s historical interests in Melanesia, this is New Zealand’s patch as well. Human rights abuses, conflicts, disorder within our region will impact on New Zealand in the future as they have in the past.

Take the Solomon Islands conflict in the early 2000s. The Melanesian state was descending into civil war. In 2003, I was in Townsville, at an Australian airforce base when the leaders of Melanesian and Polynesian states (including New Zealand’s Helen Clark and Australia’s John Howard) signed a non-aggression pact and sent armed forces to the Solomon Islands to help reestablish peace and progress.

The operation became known as RAMSI (Regional Assistance Mission to the Solomon Islands).

Under RAMSI, once order was restored in the Solomon Islands, the countries of this region helped the once chaotic state to establish good governance and government operations, and helped to establish a thriving civil society.

The merits of RAMSI can be seen today in how the Solomon Islands now functions as a progressing state and valuable member of the Pacific Islands Forum.

Learning from East Timor
Regarding West Papua, New Zealand, and indeed the other nations of the region, ought not to permit a repeat of the violence that took hold of East Timor in 1999.

For years those advocating self-determination in East Timor were persecuted and killed by forces and militia loyal to Indonesia’s interests. In 1999 the crisis descended into massacre. In the end, it was estimated over 100,000 people were butchered in an unnecessary and preventable street-conflict.

At the time in 1999, New Zealand was hosting APEC (Asia Pacific Economic Co-Operation) leader’s summit. It was the end of the National Party’s run of government and Jenny Shipley was the Prime Minister. The government was determined to keep East Timor and its troubles off the APEC agenda. It refused to allow the massacre to be discussed at formal APEC meetings, that is, until the United States’ then president Bill Clinton and Japan’s then Prime Minister Keizō Obuchi demanded that a special meeting to discuss a multilateral response to the East Timor crisis be held.

While thousands of people were being massacred on the streets of East Timor’s capital, Dili, the leaders of APEC’s nations forged a consensus that became a pathway to peace.

Pressure from world leaders
Obuchi’s message to his Indonesian counterpart Habibie was as follows: “East Timor remains in a very difficult situation. But Japan has a good relationship with Indonesia. And Japan will continue to encourage Indonesia to take measures to bring East Timor back to a state of peace.”

He went further with diplo-speak akin to: “We are your friend Habibie, you know we are your friend. Afterall we provide you with $2 billion US in humanitarian aid [60 percent of the annual total]. We do not want to take that away from you, to do so will cause hardship throughout Asia, and only bring retaliatory consequences to all. So allow the international peacekeepers in to help you bring about peace. To do so is not an embarrassment. It is recognising the gesture of a friend. And to do so will prevent Japan from having to withdraw its aid to the people of Indonesia.” (ref. Scoop, Selwyn Manning, 1999)

The gesture was significant and began a process that led to East Timor becoming the Democratic Republic of Timor-Leste – a self-determining independent state.

I argue here, that there is no need for Asia Pacific’s leaders to sit back and dispassionately observe a disturbing escalation of violence in West Papua.

Timor-Leste’s experience, as does RAMSI’s – the Regional Assistance Mission to the Solomon Islands – provide examples of how leaders of a region, who have the willpower, can and do bring warring parties back from the brink of atrocity.

Jacinda Ardern has, for good reasons, obvious diplomatic credentials. She is seen as an honest broker on the world stage. A new generation leader. She is reacquainting New Zealand to a foreign policy that we were once proud of as an independent Pacific Island state. The realignment is something to celebrate. With regard to West Papua, there is an opportunity to use it to do good. The people there are being persecuted and killed for their ethnicity and for their political views.

It need not be so.

For the purpose of this analysis, we examine the statements and claims of the Chief of New Zealand Defence Force (NZDF), Lieutenant-General Tim Keating, made before journalists during his press conference on Monday, 27 March 2017. We also understand, that the claims put by the general form the basis of a briefing by NZDF’s top ranking officer to the Prime Minister of New Zealand, Bill English.

It appears the official account , if true, underscores a probable breach of legal obligations – not necessarily placing culpability solely on the New Zealand Special Air Service (NZSAS) commandos on the ground, but rather on the officers who commanded their actions, ordered their movements, their tasks and priorities prior to, during, and after Operation Burnham.

READ MORE: No inquiry – ‘It is the next step in the seven-year cover-up’

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According to the New Zealand Defence Force’s official statement, Operation Burnham “aimed to detain Taliban insurgent leaders who were threatening the security and stability of Bamyan Province and to disrupt their operational network”. (ref. NZDF rebuttal)

We are to understand Operation Burnham’s objective was to identify, capture, or kill (should this be justified under NZDF rules of engagement), those insurgents who were named on a Joint Prioritized Effects List (JPEL) that NZDF intelligence suggested were responsible for the death of NZDF soldier Lieutenant Tim O’Donnell.

When delivering NZDF’s official account of Operation Burnham before media, Lieutenant General Tim Keating said:

“After the attack on the New Zealand Provincial Reconstruction Team (NZPRT), which killed Lieutenant Tim O’Donnell, the NZPRT operating in Bamyan Province did everything it could to reduce the target profile of our people operating up the Shakera Valley and into the north-east of Bamyan Province.

“We adjusted our routine, reduced movements to an absolute minimum, maximised night driving, and minimised time on site in threat areas.

“The one thing the PRT [NZPRT] couldn’t do was to have an effect on the individuals that attacked Lieutenant O’Donnell’s patrol. For the first time, the insurgents had a major success — and they were well positioned to do so again.”

For the purpose of a counter-strike, intelligence was sought and Lieutenant-General Keating said: “We knew in a matter of days from local and International Security Assistance Force (ISAF) intelligence who had attacked our patrol [where and when Lt. O’Donnell was killed].”

The intelligence specified the villages where the alleged insurgents were suspected of coming from and Leutenant-General Keating said: “This group had previously attacked Afghan Security Forces and elements of the German and Hungarian PRTs.”

The New Zealand government authorised permission for the Kabul-based NZSAS troops to be used in Operation Burnham.

“What followed was 14 days of reliable and corroborated intelligence collection that provided confirmation and justification for subsequent actions. Based on the intelligence, deliberate and detailed planning was conducted,” Lieutenant-General Keating said.

Revenge, Keating said, was never a motivation. Rather, according to him, the concern was for the security of New Zealand’s reconstruction and security efforts in Bamyan province.

As stated above, Operation Burnham’s primary objective was to identify, capture or kill Taliban insurgent leaders named in the intelligence data.

We know, from the New Zealand Defence Force’s own account, Operation Burnham failed to achieve that goal.

Analysis of the NZDF official account
The official account of events that occurred in the early hours of 22 August 2010, describe how Taliban insurgents, realising coalition forces were preparing to raid the area (marked as “Operation Burnham Area of Operation” in a map (slide 3) declasified and released to media on 27 March 2017), formed a tactical maneuver using civilians (women, children and elderly) as a human shield.

Despite the official account placing this group within a building, within a small hamlet, within the area of operation, within Tirgiran Valley, there is no clear definitive official account yet given of what happened to either the civilians or the insurgents.

This appears to be an obvious void in the official record, but one that has failed so far to be scrutinised.

To follow the logic of Lieutenant-General Tim Keating’s account (detailed below), is to discover our defence personnel, who were in charge of the ground and air operation during Operation Burnham, failed to identify what had become of those civilians (women, children, and the elderly), and also importantly the suspected insurgents who Lt. General Keating said during his briefing used the villagers as a human shield.

We know from the Chief of Defence Force’s notes as provided on 27 March 2017, that as Operation Burnham began, NZDF was in command of United States manned aircraft (including helicopters and possibly a AC-130). The aircraft were swarming above the Tirgiran Valley.

From the NZDF account, an NZDF joint terminal air controller was in charge of the air attack against those NZDF had defined as insurgents.

Lieutenant-General Keating stated the alleged insurgents were armed and a NZDF commander authorised the US manned aircraft to commence firing. Weapons-fire then began to rain down on the valley from above.

Meanwhile, NZSAS ground force soldiers prepared to secure their positions and to defend themselves against any potential enemy counter-attack.

Lieutenant-General Keating stated the insurgents responded: “The insurgents, the guerrilla force, the tactic is mixed in with the civilian population, if you like, the term used is a human shield. So they use civilians as a shield.”

He added: “What occurred, is a helicopter was engaging a group of insurgents outside the village, on the outskirts of the village. During that engagement, it was noted by the ground forces there – the SAS ground forces – that some of the rounds [from the US manned aircraft] were falling short, and went into a building where it was believed there were civilians as well as armed insurgents.”

To be clear, from this account, Lieutenant-General Keating stated a group of insurgents were being tracked, targeted, and fired upon by the US manned aircraft and under the command of a New Zealand Defence Force terminal air controller.

Meanwhile, according to the NZDF record, one of the airborne helicopter’s weapon’s sights were not calibrated correctly, and, according to Lieutenant-General Keating, 30mm projectiles went into a building where it was believed there were civilians as well as armed insurgents – remember these 30mm projectiles are capable of penetrating the side of a tank.

For accuracy, Lieutenant-General Keating restated his account: “It is noted, the building, there were armed insurgents in there, but it is believed that there may have been civilians in the building.”

He then added: “There’s no confirmation that any casualties occurred, but there may have been.”

He restated again: “There were civilians in that building.”

Now, this is where the Chief of Defence Force’s account fails to further explain what occurred after that point.

To summarise, the official position of the New Zealand Defence Force is:

• There were civilians in a building within the village that was fired upon by an armor piercing aircraft weapon
• That it was believed insurgents were also in that building
• That civilian casualties or deaths “may have been” or occurred inside the building.

At this juncture, we must consider whether the New Zealand Defence Force ground commanders had a responsibility to determine whether there were Taliban insurgents in the building? And if so, whether they were the individuals listed on the JPEL list, those deemed responsible for the death of Lieutenant Tim O’Donnell? And what of the ground commanders’ legal requirements, the duty of care with respect to civilians, were NZDF commanders on the ground or back in Kabul compelled by law to confirm the status of the civilians, whether they were injured or killed?

When asked by a journalist at the 27 March 2017 press conference: “If there may have been civilian casualties, why not have an inquiry to find out?”

Lieutenant-General Keating replied: “Even if there was, as far as the New Zealand Defence Force has heard, the coalition investigation has, um, said that uh, if there were casualties, the fault of those casualties was a mechanical failure of a piece of equipment.”

This reply does not appear to consider the legal requirements under:

• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 7: the obligation to provide medical assistance to all wounded, whether or not they have taken part in the armed conflict
• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 8: the obligation to search for and collect the wounded and to ensure their adequate care
• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13: the obligation to protect the civilian population against dangers arising from military operations
• Armed Forces Discipline Act 1971, section 102. This section provides that the commanding officer of a person alleged to have committed an offence under that Act must initiate proceedings in the form of a charge or refer the allegation to civil authorities, unless the commanding officer considers the allegation is not well-founded. While little legal guidance is provided, it cannot be accepted that preliminary inquiries to determine whether an allegation is well-founded can be considered adequate where they fail to obtain evidence from the injured parties, determine their identities or even verify that they exist
• Rome Statute of the International Criminal Court, Article 28
• The NZDF Manual of Armed Forces Law provides that there are three types of inquiry in the NZDF: a preliminary inquiry, a court of inquiry and a command investigation. (It appears however the ISAF investigation cited by the Chief of Defence Force was not any of the above forms of inquiry).

Specifically, if you analyse Lieutenant-General Keating’s account, the New Zealand Defence Force commanders failed to identify whether any insurgents were inside the building and whether there were dead or wounded civilians.

Why was this the case? It seems reasonable to suggest, this is an abandonment of logic. It does not make sense.

We know from official NZDF documents the soldiers arrived at the scene of Operation Burnham at 0030 hours on 22 August 2010 and left at 0345 hours, that’s the official record.

To clarify, the NZSAS commandos were in the area of operation for 3 hours 15 minutes. Lieutenant-General Keating stated, near the conclusion of the raid: “The ground force commander chose at that time that there was no longer a threat and they were leaving.”

How could that rationally be the case unless the suspected insurgents inside that building had been checked? Was it not suspected that there were insurgents in that building?

Surely the ground force commanders would be compelled to seek and identify the inhabitants of that building to see if they matched the names/descriptions on the JPEL list? After all, the manhunt for Taliban leadership was the purpose of the raid that night.

Also, logic would suggest, the people inside the building were in part civilians including women and probably children – by Lieutenant-General Keating’s account the group likely included wounded civilians and probably a dead child.

Also, it is reasonable to suggest, considering the events over those 3 hours 15 minutes, the survivors would have been crying, weeping, even howling, and the wounded would likely have been in agony.

It defies belief that the ground force commanders, and their counterparts back in Kabul, were not aware of this building, that the NZDF account states was housing suspected Taliban, and included a group of civilian victims that had been used as a human shield.

The entire area of operation specific to Operation Burnham is a skewed rectangle approximately 500 metres wide by 1 kilometre long, with an intensified operation plan focusing on two small hamlets, each approximately 50×200 metres in area [based on the scale measures of the NZDF map] – named Objective 1 and Objective 2 in the NZDF released material.

To state it simply, the official silence surrounding the above-mentioned building, and the fate of the people inside, speaks volumes. It leaves one to consider at worst whether a crime was committed by New Zealand Defence Force commanders that night – whether by failing in their duty to care for the injured they were in breach of Articles 8, 9 and 13 of the Second Protocol to the Geneva Conventions.

Additional note:

• The Statute of the International Criminal Court defines war crimes as, inter alia, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. (Ref. IHL Definition of war crimes, page 1 (pdf) – ICC Statute, Article 8 (cited in Vol. II, Ch. 44, § 3))
• “The Statute defines as within the scope of the law, the “launching an attack without attempting to aim properly at a military target or in such a manner as to hit civilians without any thought or care as to the likely extent of death or injury amounts to an indiscriminate attack”.
• War crimes can consist of acts or omissions. Examples of the latter include failure to provide a fair trial and failure to provide food or necessary medical care to persons in the power of the adversary.’

At best, if NZDF’s official account is to be relied upon, we are to believe the NZSAS ground commanders failed to ensure the Taliban insurgents they sought were not holed up in a building that had sustained damage from coalition force aircraft. If this assumption is incorrect, at what point had the suspected insurgents left the building? And what had become of the civilians that had been allegedly used as a human shield? Again, the vacuum of information specific to this aspect of the official account needs to be explained, including an explanation as to why NZDF’s account remains vague after six years since Operation Burnham was conducted.

It appears reasonable to assert that this single issue, notwithstanding the irregularities of official NZDF stated “facts”, warrants further official and independent investigation.

As it is, at this juncture, we are left to consider a series of unanswered questions that to date the New Zealand Chief of Defence Force has failed to satisfy. Here are some of them.

Key unanswered questions:

• What were the specific definitions of an insurgent that were used by NZDF for the purposes of evaluation during Operation Burnham and for the purpose of post-operation official analysis? For example; was it deemed that anyone who was male and of a fighting age was defined to be an insurgent?
• Were NZDF soldiers fired upon by individuals (villagers or insurgents) located within the confines of the villages or surrounding area during Operation Burnham?
• Was the individual who was killed by a NZSAS soldier or NZDF personnel carrying a weapon at the time of this shooting? If so, had he fired or attempted to fire his weapon in an attempt to kill or wound NZDF personnel?
• How long in minutes were the coalition forces’ helicopters, and any other airborne craft, firing their weapons on the villages and surrounding region during Operation Burnham?
  How long in minutes were NZSAS soldiers involved in securing the operational area from real or potential insurgent attack?
• Did NZDF personnel at anytime seek to identify individuals (and their status, injured, killed, or otherwise) who were located inside or near the building that Lt. General Keating said had suffered damage from an alleged mis-aimed firing from an airborne coalition aircraft?
• Were those who were injured or killed within sight of NZDF personnel before, during, and/or after the alleged mis-aimed firing?
• How many individuals did the NZDF personnel suspect were inside the building?
• How many of these people did the NZDF personnel suspect were civilians?
• How many were suspected of being women?
• How many were suspected of being children?
• Lieutenant-General Keating suggested that one of the individuals that may have been killed during Operation Burnham was a six year-old child. What was the gender of this child?
• Was their any attempt to identify this six year-old victim?
• Was this child Fatima, the three year-old child identified in the Hit & Run [ISBN 978 0 947503 39 0] book? If not, then who was this child?
• What actions did NZDF personnel do to exercise their duty of care obligations to the injured and to civilians?
• What reports, cautions, evaluations were written and/or submitted regarding Operation Burnham to NZDF by the NZDF legal officer who was on the ground during Operation Burnham?

The twisting turning official account – is this smoke and mirrors?
As a consequence of the Hit & Run book [ISBN 978 0 947503 39 0] being published, New Zealand Defence Force’s top ranking soldier, Lieutenant-General Tim Keating admitted civilians “may have been” killed during the operation.

Up until 27 March 2017, for the past six years, New Zealand Defence Force has insisted that no civilians were killed during Operation Burnham on 22 August 2010.

But on Monday, under questioning from the media, at the March 27 press conference, Lietenant-General Keating stated that the NZDF’s new “official line” regarding civilian deaths was “there may have been”.

He then attempted to suggest that NZDF’s previously stated position – that claims of civilian deaths were “unfounded” – was basically the same thing.

“I’m not going to get cute here and say it’s a twist on words, it’s the same thing, ‘unfounded’, ‘there may have been’. The official line is that there may have been casualties,” Lieutenant-General Keating said.

A journalist then challenged him further suggesting: “They’re different things, one means they didn’t happen and one mean might’ve done.”

Lieutenant-General Keating then replied: “You’re right…the, the, the official line is that civilian casualties may have occurred, but not corroborated.”

When asked how many insurgents were killed, Lieutenant-General Keating replied: “A significant number of insurgents, identified insurgents, were killed during Operation Burnham.”

When asked again how many were killed, Lt. General Keating stated: “Nine.”

When asked if NZDF had the names of the insurgents that were killed, he replied: “No, we do not have names of insurgents.”

This trajectory, inching toward a truth, occurred under tight questioning by a journalist, over just a few minutes.

What further truths will become relevant to understanding what occurred that night in Khak Khuday Dad and Naik villages should a commission of inquiry be established?

The inconsistencies – a summary
In evaluation, it is reasonable to assert the official government inconsistencies observed along a six-year timeline offer the appearance of a military hierarchy that has being dragged, by degrees, (mainly by the work of Jon Stephenson, an investigative journalist specialising in war and conflict reportage) into an arena where the floodlight of public interest ought to shed light on secrets long since filed into a dark place.

However, considering the above, rather than responding openly to the challenge of meeting its responsibilities to the New Zealand Minister of Defence and public, the New Zealand Defence Force appears resistant to its obligations toward open and accurate disclosure of non-classified fact.

In conclusion, if this is true, this conduct exhibited by the officials of New Zealand Defence Force and its Chief Lieutenant-General Tim Keating is hardly a defining benchmark of “exemplary” standards.

Actually, the admissions of relevant information, that is forthcoming only when lanced from the New Zealand Defence Force under questioning, offers the impression of a smoke and mirrors operation – it may appear churlish to suggest, but perhaps the post-Operation Burnham aftermath ought to be referred to as Operation Desert Road (bleak, cold, inhospitable, proceed with caution).

The public deserves to know the whole truth, not spin or part-truths – both the public interest and the national interest depends on it.

By the New Zealand Defence Force’s own account, it appears reasonable to suggest that the commanders overseeing Operation Burnham had legal obligations to civilians; that they were potentially negligent when considered against their stated rules of engagement, rules of conduct, obligations to international human rights law and international humanitarian law – negligent of their obligations to laws covering war and armed conflict, notwithstanding their obligations as representatives of the people and government of New Zealand to observe the Bill of Rights Act.

It is also reasonable to suggest; there are significant established facts as mentioned above, as put by the New Zealand Defence Force, that require an official investigative response from the New Zealand government.

It is also reasonable to insist that the matter of an absence of consistent fact emitting from the New Zealand Defence Force upon which a reliable opinion can be draw, adds weight to the burden on the Government to establish an inquiry into this matter.

If the New Zealand Prime Minister Bill English elects not to act then it will likely become a matter of political leadership or lack thereof.

If Bill English does not care to act on his office’s public interest obligations, then, it is reasonable to suggest he consider the empirical facts underlying this matter and the impact the matter has on New Zealand’s national interest. Should he fail to do so, this matter potentially could be argued before the International Criminal Court.

*****

Background relevancies
Were NZDF officials and Hit & Run authors describing the same raid? Let’s compare.

“It seems to me,” Lieutenant-General Tim Keating stressed, “that one of the fundamentals, a start point if you like, of any investigation into a crime is to tie the alleged perpetrators of a crime to the scene. Then we would examine the motive and means, and other scene evidence.” – Lieutenant General Tim Keating, 27 March 2017.

On Monday, 27 March 2017 both the Prime Minister Bill English and the Chief of New Zealand Defence Force Lieutenant-General Tim Keating countered details revealed in the book Hit & Run and argued facts stated in the work could not be relied upon because the authors “incorrectly” alleged Operation Burnham took place in Khak Khuday Dad Village and Naik Village deep in the mountainous Baghlan province of Afghanistan – two locations the Defence Force chief insisted his soldiers had never been to.

Lieutenant-General Keating asserted that the New Zealand Defence Force had never been to the two villages (Khak Khuday Dad and Naik) and insisted Operation Burnham took place 2.2 kilometres to the south of where the authors Nicky Hager and Jon Stephenson had marked the location of the villages (specifically on a map published in the book Hit & Run).

Lieutenant-General Keating said: “As you will note from the book, the authors have been precise in locating these villages with geo reference points — so I have no doubt they are very accurate in the villages they are taking their allegations from.

“The villages lie in the Tirgiran Valley some 2 kilometres north from Tirgiran Village. In straight distance this is like comparing the distance from Te Papa to Wellington Hospital. However, if you overlay the elevated terrain, you will see we are talking about two very separated, distinct settlements,” Lieutenant-General Keating said.

Beyond the obvious, it was a staggering claim, especially for those aware the New Zealand Defence Force had insisted one week prior, that its official position remained the same as stated in a media release dated 20 April 2011 that: “On 22 August 2010 New Zealand Defence Force (NZDF) elements, operating as part of a Coalition Force in Bamyan province, Afghanistan, conducted an operation against an insurgent group.”

NZDF’s earlier position asserted New Zealand soldiers had not been in Baghlan province on or near 22 August 2010 the night of Operation Burnham. Now, the chief of New Zealand’s armed forces was admitting that they had.

At the press conference on Monday, 27 March 2017, the Chief of New Zealand Defence Force prepared to stake his claim that the book could not be relied on as a factual reference.

Before around 30 journalists, Lieutenant-General Tim Keating pointed to four relevant bullet-points underlying key claims of fact in the book:

• Helicopter landing sites
• Location of houses that were destroyed
• Locations of where civilians were allegedly killed
• Presumed location of an SAS sniper with evidence presented of SAS ammunition and water bottles which were found at the site.

A relationship was drawn between the sniper location and the alleged killing of the individual Islamuddin, the school teacher.

He acknowledged that the book contained a detailed list of those alleged to have been killed or wounded during a military operation in Khak Khuday Dad and Naik villages and a detailed list of the houses destroyed at the two locations.

Lieutenant-General Keating then drove his point home that: “The underlying premise of the book is that New Zealand’s SAS soldiers conducted an operation on Khak Khuday Dad Village and Naik Village…”

“It seems to me,” he stressed, “that one of the fundamentals, a start point if you like, of any investigation into a crime is to tie the alleged perpetrators of a crime to the scene. Then we would examine the motive and means, and other scene evidence.”

Lieutenant-General Keating pivoted. “Let me now talk about the ISAF Operation Burnham in Tirgiran Village.”

The premise of the Chief of Defence Force’s position was; the book Hit & Run described events that may or may not have occurred in Khak Khuday Dad and Naik villages, but that these alleged events had nothing to do with New Zealand Defence Force soldiers as they had never been to the two locations as marked in the book.

Likewise, the Prime Minister, Bill English, said the book got it wrong, that the New Zealand Defence Force had never been to either Khak Khuday Dad Village and Naik Village.

The Prime Minister added: “We believe in the integrity of the Defence Force more than a book that picks the wrong villages.”

For some, it appeared the raid that night as described by the authors could have been committed by another force. For others, it seemed the authors had got a major fact wrong so therefore the remaining claims in the book were moot.

By mid-Wednesday morning, the government and the public found out there was more to it, that the Chief of New Zealand Defence Force was also wrong with regard to his geography.

Unpicking the official line began in earnest late on Tuesday night (28 March 2017) when the lawyers representing the alleged victims of Operation Burnham contacted their clients back in Afghanistan. The purpose of the contact was to identify the exact location of Khak Khuday Dad Village and Naik Village; to confirm or otherwise disprove the existence of “Tirgiran Village” (the NZDF stated official location of Operation Burnham), and to identify and confirm what village or villages are located at the exact co-ordinates as provided by Lieutenant-General Tim Keating in his briefing to New Zealand media.

The lawyers’ clients, represented by a doctor from the region, stated categorically that “Tirgiran Village” (as stated by Lieutenant-General Keating) does not exist. That the region is known as Tirgiran Valley.

The lawyers evaluated from the new information, that to refer to the location of Operation Burnham as Tirgiran Village is like insisting an operation had occurred in Otago City (obviously Otago is a region and a city of that name does not exist, and as such would fail to offer an exact point of reference on a map).

Importantly, the lawyers confirmed, New Zealand Defence Force co-ordinates of where Operation Burnham took place were correct – but that the location was not as the NZDF had stated as “Tirgiran Village” (an incorrect reference to a village that does not exist) but rather marks the geo-locations of where Khak Khuday Dad Village and Naik Village are located.

Specifically, the villagers confirmed the red-rectangle as marked on the NZDF map provided by the Lt. General on Monday, March 27, and referred to as the area specific to Operation Burnham, frames the exact positions of where Khak Khuday Dad and Naik villages are located.

So simply, the book contained a map that placed Khak Khuday Dad and Naik 2.2 kilometres north of their specific real locations. And, the NZDF got it wrong by stating that those two villages were located where the book suggested, and that the village at the centre of Operation Burnham was a different village called Tirgiran Village (again, a place-name that does not exist).

So it turns out, according to those that live in the Tirgiran Valley, the Chief of Defence Force’s statement is incorrect or false; that when NZDF stated as a categorical fact that the New Zealand SAS commandos had never been to Khak Khuday Dad Village nor Naik Village, that that information was false.

At this point politically, it is inescapable that the Prime Minister’s stated position ought to have taken a hit.

Remember back to the Prime Minister’s statement to media on Monday, March 27, 2017 where he pitched his rationale: “We believe in the integrity of the Defence Force more than a book that picks the wrong villages.”

Surely, the same measure that was applied to the authors of Hit & Run now ought to be applied in equal measure to the New Zealand Defence Force chief and his officials. After all, they also got their geography wrong.

Since then, there has been stated unease about the whole issue by Internal Affairs Minister Peter Dunne (the minister who would have to sign off and authorise the costs of an inquiry should the Prime Minister order an inquiry be established). By Thursday, 30 March 201,7 Dunne, through media, called for an inquiry into the whole affair. (ref. Stuff.co.nz )

Also on Thursday, the Minister of Defence at the time of the raid, Dr Wayne Mapp, wrote of his unease about Operation Burnham in a piece published on the Pundit website. (ref. Pundit )

Dr Mapp argued that the government’s position, and that of the New Zealand Defence Force, cannot be the end of it.

“Part of protecting their [the SAS’] reputation is also finding out what happened, particularly if there is an allegation that civilian casualties may have been accidentally caused. In that way we both honour the soldiers, and also demonstrate to the Afghans that we hold ourselves to the highest ideals of respect of life, even in circumstances of military conflict,” wrote Dr Mapp.

Common statements of fact
The descriptions of Operation Burnham, in both the book, and, as stated by the New Zealand Defence Force, do mirror each account with precision on numerous vital points, including:

• The time of night Operation Burnham took place
• That New Zealand Defence Force was commanding and leading the operation (both on the ground and in the air)
• That the helicopters were manned by United States military personnel under New Zealand’s command
• That the purpose of the operation was to kill or capture those named as having been part of a Taliban insurgent raid that killed Lieutenant Tim O’Donnell
• That buildings were destroyed during the operation
• That people were killed at the villages.

However, anyone who has reasonably assessed the issue can see there is much more information to be revealed.

Conclusion
In concluding this analysis, it is an imperative that due to the highest levels of public and national interest concerning the alleged conduct, the seriousness of allegations, and the variables relating to the official account, that the matter be subjected to an independent commission of inquiry.

Selwyn Manning is editor of EveningReport.nz. This analysis was first published on Kiwipolitico.com and on Evening Report and is republished on the sister website Asia Pacific Report with the permission of the author.

• No basis for probe into Hager book allegations, says English
• No inquiry – ‘It is the next step in the seven-year cover-up’
  

The New Zealand government is considering the recommendations of a former deputy prime minister and lawyer as it embarks on designing a new wave of controversial spy-law reform. And again, it looks certain to drive a wedge into contemporary New Zealand.

On one side are those who support and trust the government to get the balance right between security intelligence and civil liberties, and on the other… those who don’t. Previous polls on such matters suggest the split is about 50/50.

The report was delivered to the government on February 29 and had been kept under wraps until yesterday (Wednesday, March 9). It is titled: Intelligence and Security in a Free Society and was written by former Deputy Prime Minister and Finance Minister in the Clark Labour Government, Sir Michael Cullen, and, Dame Patsy Reddy, a lawyer with corporate experience.

Sir Michael and Dame Patsy write: “The need to maintain both security and the rights and liberties of New Zealanders has been at the forefront of our minds. Given the intrusive nature of the agencies’ activities, New Zealanders are understandably concerned about whether those activities are justifiable. This concern is not helped by the fact that the agencies’ activities have been kept largely in the shadows.”

Fair comment

But I would add to that the fact the Government Communications Security Bureau (GCSB) was found only four years ago to have been operating illegally under the current Prime Minister’s governance. That is, until he changed the law in 2013 to accommodate the spy agency’s illegal operations.

And after much public outrage on the matter, the Prime Minister also read into the new legislation a retrospective element, making past illegalities legal. In some suburbs of Auckland, slick manoeuvres such as this are called a “hustle”.

However, in this report, there is some progressive thinking in evidence. For example Sir Michael and Dame Pasty recommend New Zealand’s spy laws be redrafted and brought under one single intelligence and security act, so as to make it clear what the spy agencies “can and cannot do”.

In a comprehensive report such as this, there is much detail, and within it much that when brought out for discussion will attract considerable and enduring controversy.

Let’s look at the recommendations regarding proposed authorisation procedures.

Targeted survaillance
This set of recommendations frame how authorisation is applied for, and given, when spy agencies seek to surveil New Zealand citizens and permanent residents. The recommendations include changes to:

* how targeted surveillance is authorised against New Zealanders and permanent residents be designated as Tier 1 authorisation and require sign off from the Attorney-General and a judicial commissioner. This changes from the Prime Minister (or minister responsible for the intelligence agency) and commissioner.

* how covert spying and intelligence gathering activities be designated as Tier 2 authorisation and would require the sign off of just the Attorney-General

* how open source intelligence gathering is authorised, defining it based on how it is collected (which includes the surveillance of organisations, people, and individuals while in a public place) – such activities would be designated as Tier 3 authorisation and would only require a broad policy statement to be issued by the Attorney-General.

If the spy operations intend to target a foreign dignitary, or embark on an operation likely to have implications for New Zealand’s foreign policy or international relations, then the Attorney-General “should be required” to refer authorisation applications to the Minister of Foreign Affairs for comment.

Is this an erosion of the status quo, of the current requirement that security intelligence operations involving the surveillance of New Zealand citizens and permanent residents require a warrant signed off by the commissioner and Prime Minister or minister responsible?

Or is it improving on the current regime by tagging the responsibility to the Attorney-General, a minister in the Executive Government’s cabinet whose justifications can be more readily challenged, even reprimanded, than can a prime minister?

‘Two hops’
The report fails however to address the fact that when our security intelligence agencies target an individual placing him or her under surveillance, breach a network, a computer, smartphone or communications device, they initiate an operative methodology referred to as up to “two hops” – which means hundreds or even thousands of others fall into the scope of surveillance simply because they may have been in direct communication with the individual under surveillance or (in the case of two hops) been in communication with an individual who may have been in communication with the individual upon whom an authorisation surveillance warrant has been granted and actioned.

It is believed that this is how Keith Locke’s SIS file included references to surveillance while he was a member of Parliament representing the Green Party. Helen Clark, who was the prime minister at the time, suggested no warrant had been authorised permitting the SIS to place Locke under surveillance. However, it is believed, that a person of Sri Lankan Tamil origin, whom Locke was in communication with, was the subject of an authorised and warranted surveillance operation. If correct, then Locke’s privacy and rightful right to political liberty was breached without authorisation.

The report fails to address this nor make a recommendation on how such a practice should be addressed.

Scope of the spy agencies
There is considerable attention given to how the security agencies should come under the State Services Act and be under one umbrella; that accessible information databases be defined and information and intelligence sharing and cooperation among public agencies (including the Police and Inland Revenue) be permitted.

It suggests a legislative catch-up be initiated to detail in law how the Security Intelligence Service (SIS) and the Government Communications Security Bureau (GCSB) work with the Police on operations, share skill-sets, and prevent duplication of the same within other agencies.

The National Assessments Bureau (NAB) is also given some attention, suggesting it be brought into the fold as a significant specialist analysis body that works with executive government and politicians to understand and accurately assess the intelligence product. The NAB has been doing this in part since it was brought in from the cold, its title changed from the under-utilised External Assessments Bureau and brought within the respectable influence of the Department of Prime Minister and Cabinet.

The report did not observe nor comment on how professional, efficient, or otherwise the spy agencies are. However, moves to locate elements of the intelligence community within the scope of the Department of Prime Minister and Cabinet suggest deep-seated concerns by those of the Public Service’s highest office. And the fact that senior members of the DPMC have in recent years been seconded to the SIS and GCSB also suggest a tipping point was breached once realisation was publicly noted of ill-defined and illegal surveillance activity.

The report also fails to address the question of in whose interests (foreign or otherwise) the GCSB and SIS serve. The Edward Snowden revelations, and the FBI’s involvement in the raids on Kim Dot Com and his associates (of which the GCSB was found to have been illegally involved) underscore why the public rightfully has concerns that external foreign powers use the GCSB as an instrument that serves their own national security interests.

Human rights
The report does mention how human rights should be a consideration for investigations conducted by the Inspector General of Intelligence and Security, which could offer a counter-balance to the previously heavy-weighted national security intelligence considerations applied to trade implications.

This recommendation may provide a reference, or at least a point of discussion, should the SIS embark on another disastrous, costly, wobbly, and legally flawed security risk certificate exercise – as was initiated when former Algerian politician and academic Ahmed Zaoui was imprisoned unjustly after seeking asylum and refugee status in New Zealand. In that case, the SIS cited likely negative trade implications with Algeria as justification for imprisonment without a trial while the Government considered Zaoui’s fate and possible deportation. Of course in the end, after years of legal battles and millions of dollars spent, the SIS retracted its security risk determination and deemed Zaoui not to be a risk to New Zealand’s national security at all.

Oversight
With the forever intensification of state security intelligence powers, there has been much discussion about the need for more robust oversight. It is interesting, if not disappointing, that Sir Michael and Dame Patsy only recommend a slight tweaking of the status quo.

For example, it is recommended the Inspector General of Intelligence and Security’s investigative powers be expanded in scope to include investigations into ‘sensitive’ operations. And, the Parliamentary Intelligence and Security Committee be increased to a minimum of five and a maximum of seven politicians. There is nothing in the report’s recommendations that addresses Sir Michael and Dame Patsy’s observation that politicians on the intelligence committee are at times unable to fathom the detail or underlying consequences of information communicated during intelligence briefings – presumably due to the use of jargon, intel-speak, and vague references in the communications.

One would have expected, at the very least, this report would have recommended a robust oversight committee be established with a mix of sworn in and appointed experts including political, judicial, constitutional, and formerly operational members.

In Summary
There is much detail in the report, and overall Sir Michael and Dame Patsy have provided a robust analysis of today’s security intelligence environment, its demands, complexities, and referenced realities of security threats (whether they be cyber-security, human, infrastructure, or reputational in nature).

The Cullen-Reddy report does not make recommendations nor observations as to whether New Zealand has the balance right between the state’s search and surveillance powers and those of the citizenry’s right to expressions of freedom and liberty without undue corruption of those ideals.

And as far as public discussion, discourse and debate is concerned, it would have been helpful had the report included an observation of where New Zealand currently sits on the search and surveil Vs civil liberties axis when compared to the other Five Eyes intelligence partner states – I would suggest the Telecommunications (Interception Capability and Security) Act 2013 and other states’ counterpart legislation could be used as a benchmark.

The full Cullen/Reddy report 

Dr Paul Buchanan’s comprehensive analysis

Respected New Zealand Herald journalist Phil Taylor’s reportage last week has again raised concerns about poor transparency of the New Zealand government.

I also spoke on the issues raised in Phil Taylor’s report, on Radio New Zealand’s The Panel with Jim Mora.

Phil Taylor’s latest report (in what is shaping up to be a series) is titled ‘Witness said no to video link‘. It is about the New Zealand Defence Force and its attempt to avoid paying damages to a journalist, Jon Stephenson, who claimed it defamed him after his Metro magazine expose titled Eyes Wide Shut was published.

The Herald began digging into this issue after the National-led government was forced by the court to pay Jon Stephenson an undisclosed sum. The settlement came with conditions where both parties were not to discuss the proportioned values of that settlement.

It is important to point out, those conditions do not prevent the government from facing up to its public interest responsibilities, to enquire and speak out on what went on up in Afghanistan and why it attempted to shut this issue down through shoot-the-messenger tactics.

Phil Taylor’s reportage shows the stonewalling continues and details how:

When Defence Minister Gerry Brownlee was asked by Phil Taylor:

Would there be an inquiry into whether or not the commander committed perjury, and whether the Defence Force was gamed?

Gerry Brownlee answered “no”.

Frankly, such a response fails to serve the public interest, and leaves one wondering: what has the government got to hide.

This is serious stuff.

The public deserves to know:

This sordid affair underscores how, under recent governments, how difficult it is to advance or compel our elected representatives to initiate a thorough formal inquiry on any matter that may be contrary to their political interests.

Considering how this government’s politicians appear determined to keep the facts hidden, in my view, it is now reasonable to question their motives.

This opinion article by Selwyn Manning was published as Evening Report’s editorial on 4 March 2016 and is republished by Asia Pacific Report with permission.

Defence debacle: Afghan witness still in New Zealand

By Selwyn Manning in Auckland

New Zealand Trade Minister Todd McClay yesterday released the National Interest Analysis (NIA), a document tasked to examine the pros and cons of the Trans-Pacific Partnership (TPP).

McClay said on releasing the document that it “comprehensively analyses what TPP means for New Zealand, across the entire agreement”. He added: “It finds that entering TPP would be in New Zealand’s national interest, adding an estimated $2.7 billion to GDP by 2030.”

However, TPPA critics suggest the National Interest Analysis document is far from an independent analysis and is designed to spin the National-led Government’s (and the Ministry of Foreign Affairs and Trade’s) view.

University of Auckland law professor Jane Kelsey said the formal National Interest Analysis (NIA) on the Trans-Pacific Partnership Agreement (TPPA) released by Trade Minister Todd McClay was simply an expanded version of the so-called “fact sheets” prepared by the Ministry of Foreign Affairs and Trade (MFAT), which sought to justify the deal that officials and the National government have negotiated.

“The NIA is a totally predictable cheerleading exercise that talks up the supposed gains and largely ignores the huge downsides of the TPPA,” Professor Kelsey said.

She added an Australian Senate Inquiry into the treaty making process last year dismissed similar exercises produced by MFAT’s counterparts in Australia as totally inadequate, and called for a genuine independent, in-depth study before as well as after the conclusion of negotiations, including the TPPA.

“The flimsy NIA contrasts to the careful and detailed analysis in five peer reviewed expert papers on the implications of the TPPA that have been produced so far as part of a series supported by funding from the New Zealand Law Foundation,” Professor Kelsey said.  

These expert papers examined the impacts on New Zealand’s regulatory sovereignty, the investment chapter, climate change and the environment, the economics of the TPPA, and the Treaty of Waitangi and are available at tpplegal.wordpress.com. More papers are to come on financial regulation, public services, and IT and innovation.

“If the government wants its assessment of the national interest of the TPPA to be taken seriously it needs to engage with these independent expert papers and attempt to rebut the analyses by which the authors conclude that the deal is not of net benefit to New Zealand, now or in the future,” Professor Kelsey said.

McClay insisted New Zealand has published an “unprecedented amount of information” on TPP.

In a statement yesterday, he said, released information included 10 fact sheets released following the conclusion of negotiations on 5 October. The TPP text was first made public on 5 November, together with additional information on the estimated economic benefit and details of potential costs.

“The government will also be running roadshows for the public to learn more about TPP, and to help businesses prepare for the economic opportunities will bring,” says McClay.

Professor Kelsey, international TPPA expert Lori Wallach of the USA’s Public Citizen and other key public figures talked about the TPPA, the latest research, politics, analysis and actions at a public meeting in the Auckland Town Hall last night.

More information: ItsOurFuture.org.nz

Rousing, inspirational public challenge to the ‘no way’ TPPA deal

“HOT AIR – Climate Change Politics In NZ” – the award-winning feature length documentary which reveals how big business stopped NZ Government action on climate change – is being launched for on-demand free viewing today.

The film’s on-demand release is being promoted via an advertising campaign on the leading NZ political news website Scoop.co.nz.

After a sellout Wellington premiere at the International Film Festival, and nomination as finalist in NZ Film Awards Best Documentary and Best Editing, HOT AIR won the 2013 Bruce Jesson Senior Journalism Award.

Describing its strong use of dramatic news archive and interviews as ‘riveting and compelling’ judges and critics praised its detailed coverage of conflict and intrigue between Government and powerful business players.

HOT AIR chronicles the expensive campaigns mounted by business leaders to delay and obstruct the efforts of National and Labour governments to slow down global warming.

Fearful that carbon tax and similar proposals would cut their profits, the men in charge of some of New Zealand’s biggest businesses hired local and foreign propagandists and climate-change deniers to discredit scientific reports and reverse growing popular and political support for action to reduce global warming.

Their corrosive undermining of the work of three Cabinet Ministers (National’s Simon Upton & Labour’s Pete Hodgson and David Parker) and scientific advisers has proved effective.

Since 2008 the Key government has taken no new action to curb climate change.

HOT AIR tells the full and alarming story of this contest between elected governments and wealthy business and it is now available for free on-demand viewing via Youtube.

Disappointed by the apparent official failure to engage the public on climate change issues, producer and co-director Alister Barry hopes free Youtube access to HOT AIR will help New Zealanders understand how lobbying by business interests have inhibited positive action by successive New Zealand Governments to address climate change,

Barry also hopes his decision to release the film for free viewing will promote discussion about practical steps to deal with the most urgent issue of our times.

“The December 2015 UN conference on climate change in Paris is very important; our Government said it would set a target for reduced greenhouse gas emissions in preparation for the conference, but that has not yet happened.

“Once again, our country is being very slow to act and it seems most likely that our national target will be decided behind closed doors after consultation with the big industrial emitters. Who is in charge here ?”

“Yesterday the Government launched a consultation round on the target that New Zealand ought to take to the Paris Climate Change meeting. Public Meetings begin next Wednesday and run for a week – submissions can be made till June 3rd.

“I hope that by releasing this documentary now for free public access via Youtube (it has been screened twice by Maori TV) it will provide useful context for the discussion around what NZ’s target ought to be for reducing its emissions.”

The free on-demand on-line launch of HOT AIR is something of an experiment. With DVDs predicted soon to go the way of VHS, and more and more use of mobile devices to view films and video, putting a feature documentary online is logical.

Barry’s last production, The Hollow Men, has had over 170,000 You Tube visits over two years – but Barry stresses this doesn’t mean everyone watched the documentary right through. He hopes free viewing will simplify and maximise access to HOT AIR and above all he wants young people to watch the film because,“It’s about their future more than mine”.

His recent approach to TVNZ asking if they would be interested in screening the film has had no response.

“Thankfully, Maori Television has once again stepped in as our default public broadcaster and screened HOT AIR twice. When I was young, a documentary like this would have been made and aired by our state owned broadcaster as a matter of course. Perhaps this on-line experiment will help prove to NZ On Air that there are other ways for them to support local documentary makers”.

Watch the film at at www.hotairfilm.co.nz

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Documentary: Morality of Argument – sustaining a state of being nuclear free

Duration: 1:39 Director/Producer: Selwyn Manning

Produced in association: with Dr David Robie and the Pacific Media Centre.

Copyright 2010: Selwyn Manning and Multimedia Investments Ltd.

In his documentary Morality of Argument, journalist Selwyn Manning analyses what remains of New Zealand’s nuclear free policy that was so central to the Labour Party of the 1980s, and indeed whether the policy’s ethos and application is as relevant today and into the millennium as it was on its ascendancy into law as the New Zealand Nuclear Free Zone Disarmament and Arms Control Act 1987.

The documentary conveys its discoveries by structuring argument emanating from four key interviewees who choose to stand apart from political party influence and seek value in subscribing to an independent position when analysing the nuclear free issue.

Interviewees include:

Bunny McDiarmid, Commander Robert Green, Dr Kate Dewes, Dr Paul Buchanan.

Footage includes previously unreleased recordings of an interview between Selwyn Manning and former New Zealand prime minister David Lange on the nuclear free policy and the Pacific.

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AUCKLAND (Pacific Media Watch): Most audiences are used to seeing Wairere Tame Iti as the Māori activist, who most notably shot the Australian flag at a 2005 Waitangi Tribunal hearing, and recently when he was arrested as part of the 2007 anti-terrorism raids in Te Urewera.

But a new documentary entitled The Price of Peace goes beyond the surface into the world of Tame Iti, and takes a different approach to telling the story of the Tūhoe raids.

Award-winning director and co-producer Kim Webby says she wanted to show all sides of Tame Iti.

“I knew him differently. I knew him as a grandfather and as a father, as a marae committee chairman, you know, a leader in his community.”

The flag-shooting incident in 2005 … but this intimate documentary provides a wider context for race-relations in New Zealand. Image: ConbrioMedia

The film also addresses the themes of how the media portrayed Tame Iti himself, his court case and the painful impact on the wider Ngāi Tūhoe community.

One of three co-producers on the film, AUT University television lecturer Christina Milligan, says the commercialisation of our media industry is a major issue.

“Our mainstream media is getting whiter and whiter by the day and it’s almost like because we have Māori Television, we can now put all the Māori stories, indigenous stories over in that box and its taken care of and the government’s ticked that one off.”

On a wider scope, the film points towards the importance of reconciliation and the state of race relations in the country.

The film screens once more at the New Zealand International Film Festival in Auckland, then tours around the country before airing on Māori Television on October 13.

 Creative Commons Licence: This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 New Zealand Licence.